A U.S. Judicial Conference Advisory Committee recently proposed a rule change that would require attorneys to notify opposing counsel before using illustrative aids at trial. The rule is receiving pushback from attorneys, who testified to the committee that it would be hard to follow and would undermine trial strategies.
The Proposed Rule Change
The proposed rule change adds a subdivision to Federal Rule of Evidence 611. Proposed Rule 611(d) states:
(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.
Why Require Disclosure of Illustrative Aids?
The proposed rule is based on Maine Rule of Evidence 616. It applies to illustrative aids that are not themselves evidence but are offered to help the judge or jury understand what a witness or item of evidence communicates. These aids play a teaching role, clarifying and focusing the factfinder’s attention on certain aspects of the evidence.
Comments on the proposed rule provide several examples, including blackboard drawings, photographs, diagrams, charts, graphs, PowerPoint presentations, and video or computer simulations.
In the comments, the committee also notes that merely because an illustrative aid is not offered into evidence “does not mean that it is free from regulation by the court.” The committee notes that illustrative aids can be abused to unduly sway factfinders in several ways. For instance, illustrative aids may overly simplify facts, distort the evidence presented, or appeal to the factfinder’s emotions in a prejudicial manner. The commenters note that a balancing analysis similar to the one adopted by FRE 403 is necessary to ensure that the role of illustrative aids remains more helpful than prejudicial.
The amendment seeks to require disclosure of illustrative aids before trial so that these aids can be examined in a way similar to evidence. Disclosure is intended to allow opposing counsel to digest the contents of an illustrative aid and make appropriate objections in advance of trial.
Attorney Concerns with an Illustrative Aid Disclosure Requirement
Attorneys testifying before the U.S. Judicial Conference’s Advisory Committee raised several concerns about the proposed FRE 611(d). These concerns included the vagueness of the proposed rule’s wording and its potential to undermine trial strategy.
While the comments included with the proposed rule provide a few examples of illustrative aids, attorneys noted that the rule itself doesn’t define illustrative aids. This lack of definition may easily lead to inconsistent application of the rule, as each court and trial judge attempts to determine what counts as an “illustrative aid.”
In addition, some attorneys raised concerns that required disclosure of illustrative aids before trial would undercut their trial strategies. Ryan Babcock, a personal injury attorney in Georgia, explained in testimony that he often edits his illustrative aids during the course of a trial to reflect what has actually taken place in the courtroom. For example, Babcock says, he has edited presentations to use during closing arguments or written key phrases from experts’ testimony on a flip chart, so he can refer to them while addressing later witnesses or the jury.
Babcock noted that the spontaneous and occasionally unpredictable nature of trials requires flexibility in the creation and editing of illustrative aids. Requiring these aids to be disclosed prior to trial could result in aids that confuse factfinders rather than help them.
Illustrative Aids and Expert Witnesses
Many attorneys use illustrative aids when working with expert witnesses. These aids can be particularly helpful when an expert is asked to opine on highly complex or specialized questions.
The Federal Rules of Evidence already require attorneys to disclose expert witnesses’ identities and reports to opposing counsel prior to trial. The risk that an illustrative aid based on an expert’s report will be too complex for opposing counsel to grasp in the moment is thus decreased, as opposing counsel presumably has the information required to understand the illustrative aid. However, the proposed rule may undercut attorneys’ ability to respond to experts’ testimony in real time by editing illustrative aids.
Should FRE 611(d) become standard, illustrative aids will likely take on a more limited role in federal trials. Attorneys may prepare and disclose aids, only to forego using them when the events of trial render an aid confusing or obsolete. The rule stands to have a profound impact on some attorneys’ strategies at trial, particularly when presenting expert witnesses.