Commercial Litigation and Arbitration

Summary Charts at Trial — Summaries as Evidence vs. Summaries of Evidence — Do the Latter Go to the Jury?

United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012):


Anekwu argues that the district court erred in admitting the chart summarizing the foreign bank records, because summary charts cannot be admitted as evidence if the underlying records are admitted. We review a district court's admission of summary evidence for an abuse of discretion. United States v. Marchini, 797 F.2d 759, 766 (9th Cir. 1986).


"[T]he proponent of a summary must demonstrate the admissibility of the underlying writings or records summarized, as a condition precedent to introduction of the summary into evidence under [Federal Rule of Evidence] 1006." United States v. Johnson, 594 F.2d 1253, 1257 (9th Cir. 1979). Because we cannot conclude that the district court plainly erred in admitting the certificates authenticating the bank records, the district court did not abuse its discretion in determining that the bank records were properly authenticated and admissible.

"Charts and summaries as evidence are governed by Federal Rule of Evidence 1006 . . . ." United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991). "In contrast, charts or summaries of testimony or documents already admitted into evidence are merely pedagogical devices, and are not evidence themselves." Id. However, we have not "articulat[ed] a bright-line rule against admission of summary charts as evidence." United States v. Boulware, 470 F.3d 931, 936 (9th Cir. 2006), vacated and remanded on other grounds, Boulware v. United States, 552 U.S. 421, 128 S. Ct. 1168, 170 L. Ed. 2d 34 (2008). Although "we do not approve of receiving summary exhibits of material already in evidence," we have not "reverse[d] for that reason." Id. We have also "elsewhere recognized a district court's discretion under [Federal Rule of Evidence] 611(a) to admit summary exhibits for the purpose of assisting the jury in evaluating voluminous evidence." Id.

In Boulware, we saw no "need either to embrace or condemn the procedure followed in this case because, even if it were error to allow the summary exhibit into evidence, the error is harmless given admissibility of the underlying data, lack of objection to accuracy of the summary, and the limiting instruction." Id. Here as well, we need not embrace or condemn the procedure followed by the district court. The bank records were admissible. Anekwu had the opportunity to cross-examine Tammy Chapman (the FBI analyst who prepared the charts), Anekwu never objected to the accuracy of the charts, and the district court gave a limiting instruction.2 Based on those circumstances, we cannot conclude that the district court abused its discretion in admitting both the summary chart and underlying records into evidence.

2   Further, under Federal Rule of Evidence 403, the district court did not plainly err, because admitting the charts was helpful to the jury and the underlying records were admissible. Thus, this case is not one of the rare cases where the district court should be reversed. See United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011).

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