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Article of Interest

Summaries of Evidence
By: Bonnie Sudderth, Judge of the 352nd District Court

The Hitchhiker’s Guide, a fictitious travel guide in Douglas Adams' humorous five-part “trilogy,” Hitchhiker’s Guide to the Galaxy, is touted as the most comprehensive source of information on intergalactic space travel destinations. In the Guide, planet Earth is summed up in two words: “Mostly harmless.”

Summaries are a very efficient means of communication. They can also be an effective evidentiary tool at trial, especially when a jury, or judge for that matter, would be otherwise overwhelmed with voluminous data necessary to determine a fact issue in dispute. In recognition of that, the Texas Supreme Court long ago wisely decided that in certain circumstances summaries should be allowed to substitute for voluminous documents at trial. Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889 (Tex. 1969). The Supreme Court established a three-part test for admission of summaries, which provids that summaries are admissible as long as the underlying records on which the summary is based are: (1) admissible, (2) voluminous, and (3) provided to the opposing counsel for inspection. Black Lake Pipe Line v. Union Const. Co., 538 S.W.2d 80 (Tex. 1976), overruled on other grounds, Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

The purpose of this common law rule was convenience and ease in handling of exhibits, a practical solution to the problem presented to the trier of fact who faces massive amounts of documents in evidence. Dixon v. State, 940 S.W.2d 192, 194-95 (Tex. App.---San Antonio 1996, no pet.).

Rule 1006 Summaries:

More than a decade later, the Texas Rules of Evidence codified the common law rule on summaries and expanded it to include recordings and photographs. The three-prong test was also incorporated into the language of the rule. TEX. R. EVID. 1006 now provides:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place…

Under Rule 1006, a summary that meets the original three-prong test has one additional hurdle to admission. Pursuant to the express language of the rule, a proponent must show that the summary is necessary because the voluminous underlying materials “cannot conveniently be examined in court.” Trial courts are given broad discretion to decide what is convenient and what is not. Black Lake Pipe Line, 538 S.W.2d at 93. Provided the summary meets the requirements of Rule 1006 and does not convey a false impression of the evidence, it should be admitted into evidence.

The value of a Rule 1006 summary is the use the jury may make of it. When a summary is admitted into evidence, it is sent to the jury room as an exhibit, the same as would the underlying records on which it is based. The jury may rely on the summary as evidence and base a verdict on it. This is the essential difference between a Rule 1006 summary and the next type of summary, the pedagogical summary.

Demonstrative (Pedagogical) Summaries:

A demonstrative summary, or as the federal courts often call it, a “pedagogical summary,” is the most common summary used at trial. Like a Rule 1006 summary, a demonstrative summary also summarizes evidence for the jury to consider. It may look a lot like a Rule 1006 summary, but it serves a different purpose. While a Rule 1006 summary is used for convenience, a demonstrative summary is generally used as a tool of persuasion.

For example, a demonstrative summary chart might be used simply to connect evidence that might otherwise seem disjointed or unrelated, as opposed to summarizing voluminous data, which is the purpose of the Rule 1006 summary. While the demonstrative summary may also have the added benefit of being convenient to the jury in considering the evidence, it is used primarily to highlight or organize certain evidence to aid in persuasion.

Trial courts generally permit the use of demonstrative aids, including summaries, during trial, especially during closing argument, because they are useful to the jury in considering the evidence. However useful they may be, though, demonstrative summaries have no place in the jury room during deliberations. This is the primary difference between the Rule 1006 summary and the demonstrative summary – a Rule 1006 summary is evidence in and of itself, while a demonstrative summary is not.

Business Record Summaries:

There is yet a third type of summary which is frequently offered into evidence at trial. Like a Rule 1006 summary, it may be received as actual evidence and considered by the jury during deliberations as evidence, yet it doesn’t have to satisfy the Rule 1006 requirements for admissibility. These are summaries of voluminous business records which are normally maintained in summary format. If a summary is the format in which business records are normally kept, then it can be admitted under the rules of evidence providing for the admission of business records, such as Rule 902(10), instead of Rule 1006.

To determine whether the summary may be admissible as an exception to hearsay, rather than a Rule 1006 summary, one should look to its purpose. Rule 1006 summaries (and demonstrative summaries) are prepared for the purpose of litigation. In contrast, the business summary is prepared for use by the company who keeps the record. If they are business record summaries, then their admission is governed by the business record exception to the hearsay rule. None of the requirements of Rule 1006 will be a predicate to admissibility. McAllen State Bank v. Linbeck Const. Corp., 695 S.W.2d 10 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.) (holding that computer summaries were business records, not subject to the summary of voluminous records requirement that they be provided to the opposing counsel for inspection).

Conclusion:

As a practice pointer, don't limit the use of summaries to jury trials. Even in a bench trial, a well-organized demonstrative summary can be a surprisingly effective persuasive technique. Perhaps even more helpful, however, is the Rule 1006 summary, which can save a judge countless hours of sorting through records, data or other information necessary to make a decision in a case.