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FOOTNOTES
- Comment to section 15, Civil Trial Practice Standards, American Bar Association, Feb. 1998.
- This memorandum focuses only on summary charts used for demonstrative purposes. Summary charts might also be introduced in lieu of voluminous documents, as governed by Rule 1006 of the Federal Rules of Evidence (many states have adopted similar rules by statute or practice), which permits the chart to become the evidence that the jury will consider rather than the underlying documents. Admission under this rule rests with the sound discretion of the trial court, but will generally be admitted so long as (i) the underlying materials are sufficiently voluminous; (ii) the proponent of the chart can show that the underlying materials were made reasonably available to the opposing parties; (iii) the underlying materials are themselves admissible; (iv) the summary accurately reflects the materials it purports to summarize; and (v) the chart is accurately authenticated before it is admitted. The burden of establishing such a foundation for admission rests on the party offering the summary in evidence, rather than on the opponent to show that a foundation is lacking.
- The ability of the jury to use graphics received into evidence during deliberations nevertheless rests within the discretion of the court. In Livergood v. S.J. Groves & Sons Co., 361 F2d 269 (1966, CA3 Pa), there was no abuse of discretion found in refusing to allow a diagram that had been admitted into evidence to go to the jury. In NY criminal cases, the court will use its discretion after according the parties an opportunity to be heard (CPL §310.20(1)); In NY civil cases it is unnecessary to obtain the consent of the parties (See Levy v. Corn, 191 AD 56, 180 NYS 794 (1st Dept. 1920)).
- Examples of substantive evidence might include a diagram used by a criminal in planning a crime or the drawing of plans for a building in an architect's suit for the value of his services. See 3 Am. Jur. Trials 307. See also Footnote 2 for a discussion of graphics introduced into evidence under FRE 1006.
- See U.S. v. Harms, 442 F.3d 367 (5th Cir. 2006), cert. denied, 127 S. Ct. 2875 (U.S. 2007). Courts differ as to whether the failure of a judge to give limiting instructions is grounds for reversal. See Landrum v. State, 79 Fla 189 (1920); Bisnovich v. British America Assur. Co., 100 Conn 240 (1924).
- Fed. R. Evid. 611 (a)(1) Advisory Committee's Note.
- See Federal Rules of Evidence 401-403 and corresponding state Rules of Evidence. See also Weiss v. Johnson, 206 F2d 350 (1956, CA2 NY), cert. den. 346 US 924; Klombers v. Lefkowitz, 131 AD2d 815, 517 NYS2d 179 (2nd Dept 1987), appeal denied 524 NYS2d 676, 70 NY2d 614, 514 NE2d 622 (1988).
- See Cohen v. Kindlon, 366 F2d 762 (1966, CA2 NY), holding that a sketch of the position of cars at the time of an accident was properly used to illustrate the testimony of a witness who was familiar with the area and could testify as to its accuracy, despite the fact that the artist was not identified. See also Driscoll v. New York City Transit Auth., 53 AD2d 391, 385 NYS2d 540 (1st Dept 1976), finding that a person who has prepared a diagram based solely upon hearsay accounts of the scene or occurrence is not qualified to authorize it.
- See Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170 (2006), cert. denied, 127 S. Ct. 275 (U.S. 2006).
- See Stickle v. Vreeland, 99 NJL 468, 123 A 753 (1924), holding that the fact that the location of a monument on a surveyor’s plat is in dispute is not an objection to the admission of the plat itself, as it is supported by the surveyor’s testimony that it is correct.
- See In re Complaint of Nautilus Motor Tanker Co. (1994, DC NJ) 862 F.Supp. 1251, 1995 AMC 1608, summary judgment granted (DC NJ), 990 F Supp 697.
- 201 Pa 226, 50 A 772 (1902).
- 371 Pa Super 353, 538 A2D 53, app. den. 519 Pa 665, 548 A2d 255 (1988).
- 514 Pa. 539, 526 A2d 334 (1987).
- See People v. Cassidy, 133 NY 612, 30 NE 1003 (1892).
- 261 Ad2d 906, 689 NYS2d 840 (4th Dept. 1999). See also White v. Wilmington City Ry. Co., 22 Del. 105, 6 Penne. 105, 63 A. 931 (Super. Ct. 1906), where an objection was sustained to the admission of a plat made up of different views drawn to different scales of the same subject.
- See United States v. D’Antonio, (1963, CA3 NJ), 324 F2d 667, cert. den. 376 US 990, finding that a drawing was admissible even though it was not drawn to scale, when there was no assertion at any time that it was indeed drawn to scale.
- See 1-5 Federal Evidence Practice Guide §5.06.
- See Watkins v. United States, 287 F2d 932 (1961, CA1 NH).
- See Commonwealth v. Hopkins, 1 Mass. App. Ct. 858, 303 N.E. 2d 739 (1973); Swenson v. La Shell, 118 Colo 333, 195 P2d 385(1948); Gillette v. Schroeder, 133 Conn 682, 54 A2d 498 (1947).
- 43 NJ 19, 202 A2d 425 (1964).
- See Footnote 2 for summary charts that are admissible as substantive evidence in lieu of the underlying evidence pursuant to Federal Rule of Evidence 1006.
- See Weiss v. Johnson, 206 F.2d 350 (2nd cir. 1953).
- See U.S. v. Baccollo, 725 F.2d 170 (2nd cir. 1983)
- See U.S. v. Citron, 783 F.2d 307 (2nd cir.1986)
- See 3-34 Federal Litigation Guide §34.10.
- See McMichael v. Eastern Hydraulic Press Brick Co., 80 NJL 398, 78 A. 144 (NJ Ct Err. & App. 1910), finding the admission of a surveyor’s plat discretionary and not reviewable upon error.
- See Ruppert v. West Side Belt R. Co., 25 Pa Super 613 (1904); Stafford v. New York Cent. R. Co., 80 Pa Super 408 (1923).
- See Mercatante v. Hyster Co., 159 AD2d 492, 552 NYS2d 364 (2nd dept.1990); People v. Morgan, 24 AD3d 950, 806 NYS2d 742 (3rd Dept 2005).
- See State v. Estrella, 257 Iowa 462, 133 NW2d 97 (1965).
- See Hagan v. Carr, 198 Pa 606, 48 A 688 (1901), ruling that a drawing that has been offered and excluded nevertheless does not lose its standing as a medium of communication and a recorded expression of the witness’ testimony.
- 157 F.3d 949 (2nd Cir. 1998).
- See Long v. Payne, 198 AD 667, 190 NYS 803 (4th Dept 1921).
written by Ron Kurzman
Litigation Consultant / Partner |
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Click for a full biography
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|  Ron Kurzman, Esq., is a Member of Magna Legal Services, LLC. He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels.
Mr. Kurzman has worked on cases ranging from toxic tort and product liability to intellectual property and contract disputes. He has successfully worked with some of the top law firms in the nation such as; Sheppard, Mullin, Richter & Hampton LLP, Pryor Cashman Sherman & Flynn LLP, DLA Piper Rudnick Gray Cary, Troutman Sanders LLP, Patterson Belknap Webb & Tyler LLP and Kelley Drye & Warren LLP.
Mr. Kurzman has been associated with many highly publicized trials, most recently: US v. Richard Scrushy, Final Analysis v. General Dynamics and various national asbestos and brand name drug cases.
Mr. Kurzman has a Jurist Doctorate from Nova Southeastern University School of Law and received a Bachelor of Arts in Political Science from Florida State University. He is a member of the New York Bar Association, New York Trial Lawyers Association and the American Bar Association. Mr. Kurzman continues to be committed to volunteer work through his association with the New York Lawyers for the Public Interest. |
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