Summaries. The government in United States v. Dukes, 2007 U.S. App. LEXIS 15961 (4th Cir. July 3, 2007), offered a financial summary chart into evidence that it did not present to the defendant until two weeks into the trial. It had presented an earlier iteration, but that version was much less detailed. The defendant, who was on trial for sponsoring a phony investment scheme, objected that he had been given inadequate notice of the exhibit. The Fourth Circuit pointed out that Rule 1006 ‛requires only that the summarized documents, and not the summaries themselves, be made available to the opposing party at a ‘reasonable time and place,’“ and that this prerequisite that was satisfied. The Dukes Court emphasized, however, that (1) "no federal rule is needed ... to empower a district judge to prevent a party from springing summaries of thousands of documents on the opposing party so late in the day that the party can't check their accuracy against the summarized documents before trial" (in fact, Rule 611 vests this discretion in the trial judge), and (2) ‛Rule 1006's purpose is thwarted if the summaries themselves are not provided to the opposing party at a reasonable time ‘because, without notice of the summaries' contents, adverse parties cannot know what to look for in the source material to determine if the summaries are accurate’“ (citations omitted). The trial judge was found sufficiently protective of the defendant on this score, granting defense counsel additional time to prepare for cross. In civil cases, exclusion could also be sought for violation of the pretrial order's date for exchanging exhibits. The violation may be clear, but this sort of issue gets a bit touchy feely in trial.

Use of Consent Decree to Impeach. Federal Rule of Evidence 408 was amended effective December 1, 2006, to tighten even further the prohibition against admissibility of settlement negotiations, but with a large loophole for prosecutors in subdivision (a)(2):

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses.

—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.

This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Although it was governed by the prior version of the rule, the Dukes decision illustrates the difference between civil and criminal practice under Rule 408 because the government was permitted to impeach using the consent decree in a way that the rule plainly forbids in civil actions. The defendant in Dukes was charged with mail fraud and other crimes arising out of a fraudulent investment scheme. A consent order entered by the Maryland Securities Commission (after the fact) to settle state charges against Dukes provided that none of the three investment vehicles (companies) ‛has any prospect of going public.“ At trial, over the defendant’s objection, the prosecution questioned a victim (investor) as follows:

Government: "Did Mr. Dukes ever tell you ... that none of the three ... companies has any prospect for going public?"

Witness: "No, he did not."

Government: "And if he had told you that, would that have affected your decision to invest...?"

Witness: "Yes, it would have."

There are a lot of issues raised by this line of questioning (not the least of which has to do with the tense of the verb "has"). A key decision by the trial judge was to allow the consent decree in its entirety to go to the jury to impeach the defendant’s position that he acted in good faith at all times. While the appellate court was troubled on Rule 403 grounds that the entire document went to the jury, by a vote of 2 to 1, the Fourth Circuit refused to overturn the jury’s verdict given the defendant’s failure to object sufficiently (in the majority’s view) under either Rule 403 or 408. Note that subdivision (a)(2) of the current version of the Rule explicitly sanctions use of the relevant portion of the consent decree in a criminal — but not a civil — proceeding for impeachment, albeit still subject to Rule 403.

Guilt-Assuming Hypotheticals. Another problem with this line of testimony is that it arguably ran afoul of the rule prohibiting a questioner from asking a witness to assume a hypothetical fact situation corresponding to the crime for this the defendant is being tried. The majority ruled, however, that the first question was not hypothetical — it was merely asking the witness for historical information — and the second question, while hypothetical, did not assume the defendant’s guilt.