A Picture’s Worth a Thousand Words: Supreme Court Adopts New Federal Rule of Evidence 107 Governing Illustrative Aids

A package of revisions and additions to federal rules have recently worked their way through a multi-year process of proposal, study, public comment, Supreme Court review, and transmittal to Congress. The most significant of these new rules is Federal Rule of Evidence 107, Illustrative Aids, which came into effect December 1.

For background, under the Rules Enabling Act, 28 U.S.C. § 2071 et seq., the Committee of Rules of Practice and Procedure of the Judicial Conference initiates federal rule changes, which the Supreme Court reviews, finalizes, and transmits to Congress by May 1 of the year to become effective. Absent Congressional action, those proposed rules take effect no earlier than December 1 of that year. The Supreme Court, as a matter of course, specifies December 1 as the effective date.

New Federal Rule of Evidence 107 provides as follows:

(a) Permitted Uses. The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the aid’s 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.

(b) Use in Jury Deliberations. An illustrative aid is not evidence and must not be provided to the jury during deliberations unless:

(1) all parties consent; or

(2) the court, for good cause, orders otherwise.

(d) Summaries of Voluminous Materials Admitted as Evidence. A summary, chart, or calculation admitted as evidence to prove the content of voluminous admissible evidence is governed by Rule 1006.

The Committee Note provides clarity on the Rule: The term “illustrative aid” is used instead of the term “demonstrative evidence,” as that latter term has been subject to differing interpretations in the courts. “Demonstrative evidence” is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact. In contrast, an illustrative aid is any presentation offered not as evidence but rather to assist the trier of fact in understanding evidence or argument. Examples of illustrative aids include drawings, photos, diagrams, video depictions, charts, graphs, and computer simulations.

The distinction between an “illustrative aid” and “demonstrative evidence” is critical. While illustrative aids are “not usually subject to discovery” according to the Committee, demonstrative evidence (as evidence) would be. Second, while demonstrative evidence (as evidence) will be present in the jury room, that’s not necessarily true for illustrative aids.

In sum, Rule 107 clarifies that:

An illustrative aid is not admissible evidence, and instead merely aims to help the factfinder understand evidence or argument.
A party may use an illustrative aid at trial only where its utility is not substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, or wasting time
Demonstrative evidence is substantive evidence offered to prove a disputed fact, and is admissible as evidence.

Takeaway

New Federal Rule of Evidence 107 makes a clear distinction between presentations or other information used to educate the trier of fact to understand the evidence or arguments versus demonstrative evidence, which is, itself, evidence for the trier of fact and, therefore, subject to other provisions of the Federal Rules of Evidence, such as authentication, hearsay, and relevance. The new rule helps judges and lawyers understand and regulate what is and is not evidence.