Federal Rule of Evidence 611 - Illustrative Aids

Comments MUST be submitted by Thursday, February 16, 2023.

The Standing Committee on Rules of Practice and Procedure has published a proposed amendment to create FRE 611(d) to regulate the use of illustrative aids at trial and distinguish such aids from demonstrative evidence. Illustrative aids are not evidence but are used to help the factfinder understand the evidence while demonstrative evidence is used to prove a fact(s).

AAJ encourages members to review the proposed amendment and submit a short comment on firm letterhead about the effect of the proposed amendment on their practice. Members submitting comments on FRE 611(d) may wish to combine their comment with the proposed FRE 1006, on the admissibility and proper use of voluminous records.

Public Comment Period & Hearing

The public comment period began in August 2022 and runs until February 16, 2023 at 11:59 pm EST. Comments must be submitted electronically here  and should be addressed to:
Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, DC 20544

Virtual Hearings

There are two virtual public hearings scheduled for the five proposed amendments released for public comment on January 20 and January 27, 2023. If you wish to present testimony regarding the proposed amendments, you must notify the office of Rules Committee Staff at least 30 days before the scheduled hearing (no later than December 22, 2021) by emailing RulesCommittee_Secretary@ao.uscourts.gov. AAJ recommends sending your request as early as possible.

The other evidence amendments released for public comments are:

• FRE 1006 on the admissibility and proper use of summaries of voluminous records.
• FRE 613(b) on impeachment with extrinsic evidence, returns the rule to the “prior presentation” requirement of the common law so that a witness is given a prior opportunity to explain or deny a prior inconsistent statement.
• FRE 801(d)(2) would resolve a circuit split and require that a hearsay statement be admissible against successors-in-interest.
• FRE 804(b)(3) would resolve another circuit split about the meaning of the “corroborating circumstance” requirement. The amendment would require the court to determine the presence or absence of corroborating evidence in determining whether corroborating circumstances exist.

AAJ-Identified Issues for Comments

• Whether the proposed amendment adequately distinguishes between illustrative aids and demonstrative evidence? There is no definition of illustrative aid in the text of the rule. Examples of illustrative aids are provided in the Committee Note. Is this adequate or is additional clarification needed?
• Whether notice to use an illustrative aid is necessary and whether the good cause exception for failing to provide notice makes sense.
• Because illustrative aids are not evidence, comments on the proposed policy of not allowing the aids into the jury room unless the court orders otherwise, and whether this works for your practice.
• General comments on distinguishing illustrative aids used to help clarify demonstrative evidence (which is subject to the proposed amendment) from a PowerPoint or other aid used by counsel to advocate during opening statements or closing arguments (and not subject to the proposed amendment). Does the “good cause” flexibility added to the notice requirement sufficiently address the above circumstance?

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

* * * * *

(d) Illustrative Aids.

(1) Permitted Uses. The court may allow a party to present an illustrative aid to help the finder of fact understand admitted evidence if:

(A) its utility in assisting comprehension is not [substantially] outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time; and

(B) all parties are given notice and a reasonable opportunity to object to its use, unless the court, for good cause, orders otherwise.

(2) Use in Jury Deliberations. An illustrative aid must not be provided to the jury during deliberations unless:

(A) all parties consent; or

(B) the court, for good cause, orders otherwise.

(3) Record. When practicable, an illustrative aid that is used at trial must be entered into the record.

Committee Note

The amendment establishes a new subdivision within Rule 611 to provide standards for the use of illustrative aids. The new rule is derived from Maine Rule of Evidence 616. The term “illustrative aid” is used instead of the term “demonstrative evidence,” as that latter term is vague and has been subject to differing interpretation in the courts. “Demonstrative evidence” is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact.

Writings, objects, charts, or other presentations that are used during the trial to provide information to the factfinder thus fall into two separate categories. The first category is evidence that is offered to prove a disputed fact; admissibility of such evidence is dependent upon satisfying the strictures of Rule 403, the hearsay rule, and other evidentiary screens. Usually the jury is permitted to take this substantive evidence to the jury room, to study it, and to use it to help determine the disputed facts.

The second category—the category covered by this rule—is information that is offered for the narrow purpose of helping the factfinder to understand what is being communicated to them by the witness or party presenting evidence. Examples include blackboard drawings, photos, diagrams, powerpoint presentations, video depictions, charts, graphs, and computer simulations. These kinds of presentations, referred to in this rule as “illustrative aids,” have also been described as “pedagogical devices” and sometimes (and less helpfully) “demonstrative presentations”—that latter term being unhelpful because the purpose for presenting the information is not to “demonstrate” how an event occurred but rather to help the finder of fact understand evidence that is being or has been presented.

A similar distinction must be drawn between a summary of voluminous, admissible information offered to prove a fact, and a summary of evidence that is offered solely to assist the trier of fact in understanding the evidence. The former is subject to the strictures of Rule 1006. The latter is an illustrative aid, which the courts have previously regulated pursuant to the broad standards of Rule 611(a), and which is now to be regulated by the more particularized requirements of this Rule 611(d).

While an illustrative aid is by definition not offered to prove a fact in dispute, this does not mean that it is free from regulation by the court. Experience has shown that illustrative aids can be subject to abuse. It is possible that the illustrative aid may be prepared to distort the evidence presented, to oversimplify, or to stoke unfair prejudice. This rule requires the court to assess the value of the illustrative aid in assisting the trier of fact to understand the evidence. Cf. Fed. R. Evid. 703; see Adv. Comm. Note to the 2000 amendment to Rule 703. Against that beneficial effect, the court must weigh most of the dangers that courts take into account in balancing evidence offered to prove a fact under Rule 403—one particular problem being that the illustrative aid might appear to be substantive demonstrative evidence of a disputed event. If those dangers [substantially] outweigh the value of the aid in assisting the trier of fact, the trial court should exercise its discretion to prohibit—or modify—the use of the illustrative aid. And if the court does allow the aid to be presented at a jury trial, the adverse party may ask to have the jury instructed about the limited purpose for which the illustrative aid may be used. Cf. Rule 105.

One of the primary means of safeguarding and regulating the use of illustrative aids is to require advance disclosure. Ordinary discovery procedures concentrate on the evidence that will be presented at trial, so illustrative aids are not usually subject to discovery. Their sudden appearance may not give sufficient opportunity for analysis by other parties, particularly if they are complex. The amendment therefore provides that illustrative aids prepared for use in court must be disclosed in advance in order to allow a reasonable opportunity for objection—unless the court, for good cause, orders otherwise. The rule applies to aids prepared either before trial or during trial before actual use in the courtroom. But the timing of notice will be dependent on the nature of the illustrative aid. Notice as to an illustrative aid that has been prepared well in advance of trial will differ from the notice required with respect to a handwritten chart prepared in response to a development at trial. The trial court has discretion to determine when and how notice is provided.

Because an illustrative aid is not offered to prove a fact in dispute, and is used only in accompaniment with testimony or presentation by the proponent, the amendment provides that illustrative aids are not to go to the jury room unless all parties consent or the court, for good cause, orders otherwise. The Committee determined that allowing the jury to use the aid in deliberations, free of the constraint of accompaniment with witness testimony or party presentation, runs the risk that the jury may misinterpret the import, usefulness, and purpose of the illustrative aid. But the Committee concluded that trial courts should have some discretion to allow the jury to consider an illustrative aid during deliberations; that discretion is most likely to be exercised in complex cases, or in cases where the jury has requested to see the illustrative aid. If the court does exercise its discretion to allow the jury to review the illustrative aid during deliberations, the court must upon request instruct the jury that the illustrative aid is not evidence and cannot be considered as proof of any fact.

While an illustrative aid is not evidence, if it is used at trial it must be marked as an exhibit and made part of the record, unless that is impracticable under the circumstances.