Hearsay Exception #4 – Statements Made for the Purpose of Medical Diagnosis or Treatment

June 11, 2014

The fourth hearsay exception found in Texas Rules of Evidence 803 pertains statements made for the purpose of receiving a medical diagnosis or treatment. In order to fall within this exception, the statement must describe:

  • the declarant’s medical history,
  • past or present symptoms, pain, sensations, or
  • the inception or general character of the cause or external source of such symptoms, pain or sensations,

and,

  • as the name of the exception suggests, the statement must be reasonably pertinent to diagnosis or treatment.

As with all hearsay exceptions, the rationale behind this particular exception is deeply embedded in the presumption of trustworthiness that such statements carry. In most cases, the desire for an accurate medical diagnosis and effective treatment, coupled with the understanding that such diagnosis or treatment will depend in part upon what the patient says, is thought to override any motive to lie. A fact reliable enough to serve as the basis for a diagnosis should also be reliable enough to escape hearsay proscription.

When considering the admissibility of such statements, a two-part test is applied:

  1. Whether the declarant’s motive is consistent with the purpose of the rule, and
  2. Whether it was reasonable for the statement to be relied upon for the purpose of diagnosis or treatment.

There are two nuances in the rule that are also worthy of note – statements made during ongoing treatment and statements made to non-medical personnel.

Ongoing Treatment:

The second prong of the test becomes the critical factor in analyzing statements made during ongoing or long-term treatment. Once diagnosis has been made and treatment has begun, the rationale behind this exception may disappear. Because the reports and comments made by a patient during an extended course of treatment may be rooted in different motivations, e.g., denial, deception or secondary gain, or may be influenced by the treatment process itself, these statements may not carry with them the presumption of veracity which forms the basis for this exception. In order for the hearsay exception to apply in this context, the proponent must demonstrate two things:

  1. The truth-telling was a vital component of the particular course of therapy or treatment involved; and
  2. That it is readily apparent that the declarant was aware that this was the case.

Otherwise, in the circumstance of ongoing treatment, the justification for admitting the out-of-court statement over a valid hearsay objection has been held to be simply too tenuous.

Statements Made to Non-Medical Personnel:

One aspect of the rule which is not self-evident is the broad scope of witnesses to which this hearsay exception may be applied. The language of the rule itself does not require that the statement be made to a medical provider, but rather for the purpose of medical diagnosis or treatment. Therefore, under the plain language of the rule, the witness need not be a physician or have any medical training whatsoever. Over the years, the exception has been applied to statements made to psychologists, therapists, licensed professional counselors, social workers, hospital attendants and ambulance drivers. But, under certain circumstances, the exception may extend to friends and family members – or even strangers – if other requisites are present.

The essential qualification expressed in the rule is the declarant’s belief that the statement made will ultimately be utilized in diagnosis or treatment of a condition from which the declarant suffers. The selfish motive for truthfulness under circumstances where deception would likely result in misdiagnosis or error in treatment is sufficient to render such a statement likely trustworthy. That the witness may be a medical professional, or somehow associated with the medical profession, is no more than a circumstance tending to demonstrate that the declarant’s purpose was in fact to obtain medical help for himself. A declarant’s statement made to a non-medical professional under circumstances that show he expects or hopes it will be relayed to a medical professional as pertinent to diagnosis or treatment would be admissible under the rule, even though the witness who actually heard the statement is not a medical professional himself.

- Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

 

 


Hearsay Exception #3 – Then-Existing Mental, Emotional or Physical Condition

February 2, 2014

The third hearsay exception – TRE’s 803(3) then existing mental, emotional or physical condition – is also similar to the first hearsay exception, the present sense impression.  As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made.  Included within this exception are statements about thoughts, emotions, sensations and physical condition.

Texas courts have held that the type of statement contemplated by this rule would include a statement which, on its face, expresses or exemplifies the declarant’s state of mind, e.g., fear, hate, love, pain. What isn’t included in the exception are statements of memory or belief.*  As with the excited utterance, this exception includes an element of contemporaneity. Once the subject matter sensation has passed, a declarant’s statement about it no longer falls within this exception.

Likewise, while a statement regarding the existence of a mental, emotional or physical condition falls within this exception, its cause does not. One federal court has explained this distinction this way:

A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.” The first statement indicates an actual state of mind or condition, while the second statement expresses belief about why the declarant is frightened. The phrase “because the defendant threatened me” is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.

That being said, don’t let the inquiry stop there.  In the above example a creative lawyer still might manage to get both statements into evidence by looking to other hearsay exceptions.  Depending upon the circumstances under which the statement “the defendant threatened me” was made, the latter statement, while not falling within the state of mind exception, might constitute an excited utterance discussed in the last post.

Most understand the notion of objecting to evidence on the grounds of “double hearsay” (hearsay-within-hearsay); don’t forget the possibility of offering evidence under a “double hearsay exception” as well.

– Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

*(unless the statement is related to the execution, revocation, identification or terms of a declarant’s will)


Hearsay Exception #1 – The Present Sense Impression

June 30, 2013

The first exception to the hearsay rule, Rule 803(1) of the Texas Rules of Evidence, is the present sense impression – a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter.  A simple rule requiring little explanation or discussion, this exception is based upon the premise that the contemporaneity of an event and the declaration that follows ensures reliability of the statement.  The reliability rationale which underlies the present sense impression exception is that:

  1. the statement is safe from any defective memory errors because of its contemporaneous nature;
  2. there is little or no time for a calculated misstatement; and
  3. the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.

One court has characterized the rule as “predicated on the notion that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes:”

It is instinctive, rather than deliberate.  If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.  Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious thinking-it-through statements enter the picture, the present sense impression exception no longer allows their admission.  Thinking about it destroys the unreflective nature required of a present sense impression (Fisher v. State, 252 S.W.3d 375, Tex. Crim. App. 2008).

Understanding the rationale for the rule will help the practitioner understand whether a particular statement falls under this exception. While the declarant need not be in an excited or agitated state, as with the exited utterance exception (which will be discussed in the next post), the declarant’s statement should evince a stream-of-consciousness or unguarded quality that would not be present in a declarant’s later statement regarding the very same observation or event.

The present sense impression is to hearsay statements what the play-by-play announcer is to broadcast sports.  When Frank Gifford said, “Thiesmann’s in a lot of trouble,” no one had yet seen the replay which later became NFL’s Most Shocking Moment in History.  Yet Gifford’s present sense impression was dead-on accurate, reliable and worthy of repeating, even in a court of law.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas.


Let’s Talk Hearsay

November 3, 2012

HEARSAY, GENERALLY

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.[1] The Texas Rules of Evidence define the term “matter asserted” to include any matter explicitly asserted, as well as any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.[2] (Under the Federal Rules of Evidence the term “matter asserted” is not defined, thus limiting the applicability of the hearsay rule in federal courts to those matters actually asserted, not to those merely implied.)

TRE 802 boldly declares hearsay to be inadmissible unless otherwise permitted by rule or statute.[3] Never has there been a better example of the “exception swallowing the rule” than in the notion that hearsay is inadmissible. Not counting hearsay that is admissible pursuant to statutory authority, four separate hurdles in the Rules of Evidence themselves must be cleared before hearsay evidence will actually be inadmissible.  In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”;[4] and (4) meet resistance in the form of a timely, specific objection.  The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.[5]

When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception.[6]  The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.

STATEMENTS THAT ARE NOT HEARSAY

Wise practitioners follow the King’s advice to the White Rabbit and “begin at the beginning”[7] when considering the admissibility of evidence within the context of hearsay. Rather than skip directly to the exceptions, it is usually best to begin with the more fundamental question – is this evidence really hearsay?

The answer isn’t always as obvious as it seems. For example, an attorney need not fret over whether a lunatic’s outburst “Repent now – the end is near!” meets the excited utterance exception to the hearsay rule if the statement isn’t offered to prove that, in fact, the world is coming to an end. Not offered for the truth of the matter asserted, the apocalyptic warning simply isn’t hearsay to begin with. On the other hand, just because a witness is available and providing testimony in court doesn’t mean that his own prior out-of-court statement isn’t hearsay.  If offered to prove its truth, a prior statement may very well be barred by hearsay notwithstanding the fact that the witness is available in court and subject to thorough cross-examination regarding it.

HEARSAY BASICS

TRE 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.

The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement.  “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.”  However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.

In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:

  1. Explicit Verbal Assertion.  Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water.  HEARSAY
  2. Implicit Verbal Assertion.  Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
  3. Explicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe.  HEARSAY
  4. Implicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
  5. Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
  6. Non-Verbal Expression.  Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY

As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal.  Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion.  (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)

THE HEARSAY STATEMENTS THAT AREN’T

Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay.  To remember which statements fall within this loophole, one must think like a child.  When is hearsay not hearsay?  Either when someone uses magic words, or when your mother says so, that’s why.

Magic Words:  When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay.  In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.

Because The Rule Says So, That’s Why:  Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)

Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule.  But, technically, that is not correct.  These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] Tex. R. Evid. 801(d).

[2] Tex. R. Evid. 801(c).

[3] Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.

[4] See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).

[5] Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.

[6] Tex. R. Evid. 805.

[7] Lewis Carroll, Alice’s Adventures in Wonderland.


Using Judicial Notice to Determine Foreign Law

May 3, 2012

For a native Texan like me, folks don’t have to live outside the 50 states to be considered foreigners.  After all, just because we share a national government doesn’t mean that Texans have anything more in common with New Yorkers than we do with New Zealanders.  The Texas Rules of Evidence recognize this, at least with regard to the laws of other places, and establish judicial notice as the vehicle to determine the substance of applicable law anytime you step across the Texas border.

While they are both considered “foreign,” there are only two essential differences between the process of taking judicial notice of the laws of Georgia the country and Georgia the state.  According to Rule 203 of the Texas Rules of Evidence, applying foreign country law may require (1) translations from foreign text into English text, and (2) reliance on informal evidence, such as affidavits and treatises, to “prove” what the foreign law is.  Otherwise, both require some sort of notice to the other side and an opportunity to be heard, and in both situations, it is a decision for the judge, not the jury, and reviewable as an issue of law. 

Foreign State Law:  To request that judicial notice be taken of the laws of another state, TRE 202 basically requires a party to do two things:  (1) furnish the court sufficient information to make a determination of what the law is, and (2) notify the other side that judicial notice is being requested so that they may invoke their right to be heard on the propriety of taking judicial notice.  Normally, it is sufficient to provide copies of relevant statutes and case law in order to satisfy the first step.  Adequate notice to the other side is a matter to be determined by the court, and the rule contemplates that no notice may sometimes suffice, provided that if no advance notice is given, the opposing party be given an opportunity to be heard on the matter after notice has been taken.

Foreign Country Law:  Requesting judicial notice of foreign law is also a relatively simple procedure.  At least 30 days prior to trial, notice of a party’s desire for the court to take judicial notice of a foreign law must be given, along with copies of all materials and sources it intends to use as proof of the foreign law.  If translated materials and sources are used, the original foreign-language text must also be provided.  Proof of foreign law may be informal, including materials which are in otherwise inadmissible form, such as affidavits and treatises.  A judge may also refer to sources which are not provided by either side, provided, however, that both sides are given notice of the use of outside sources and an opportunity to be heard on the matter.

There is one important reason why attorneys should know how to invoke the court’s authority to take judicial notice of non-Texas law:  If it isn’t done correctly, the appellate courts will presume that the law of the other jurisdiction is the same as Texas law.  UTICA v. Mutual Ins. Co. v. Bennett, 492 S.W.2d 659 (Tex. Civ. App. — Houston [1st Dist.] 1973) (failure to make proper request); Pittsburg Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App. — Corpus Christi 1999) (failure to provide adequate proof of the other law).    And the easiest way to seek judicial notice of non-Texas law is through a summary judgment proceeding.  By doing so, the issue may be decided efficiently and summarily while ensuring that the notice requirements are satisfied.  (Practice tip:  For foreign law, to allay concerns that a summary judgment hearing is considered a “trial” for purposes of TRE 203, provide 30 days’ notice of the hearing instead of 21, and add 15 more days if using a translation of foreign documents, in order to comply with TRE 1009).

When opposing a summary judgment of this type, take care not to assume that the traditional summary judgment standards will apply, and avoid the temptation to try to raise a fact issue to defeat the motion.  Judicial notice of non-Texas law has been recognized as a “hybrid” rule, in that it requires the presentation of evidence, yet is a legal determination.  When there is disagreement over the content of the law, based on evidence presented from various sources, it will not be treated as a fact issue which will preclude summary judgment.  Instead, the proper inquiry is whether the trial court, in reviewing the conflicting evidence about the foreign law, reached a proper legal conclusion as to its content.  CPS International, Inc. v  Dresser Industries, Inc., 911 S.W.2d 18 (Tex. App. — El Paso, 1995). 

Whether from India or Indiana, our evidentiary and procedural rules create a fairly straight-forward mechanism to determine what the law is anytime we need to apply the law of another jurisdiction, such as when parties to a contract agree that the law of another state will govern a particular dispute.  Of course, this begs the question of why anyone would ever do this.  After all, if the law’s good enough for Texas, shouldn’t it be good enough for the rest of the world?

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


The Dead Man’s Rule

April 11, 2012

It is said that dead men tell no tales.  But in Texas, sometimes they do.  It all depends on whether the Dead Man’s Rule applies.

Although reference to the Dead Man’s Statute is still fairly common in legal practice, the former Article 3716 Dead Man’s Statute, which was enacted in the 1870’s was actually repealed by the Texas Legislature in the early 1980’s.  The current law is found in Texas Rules of Evidence 601(b), and is now called the Dead Man’s Rule:

“Dead Man Rule” in Civil Actions: In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement…

Although the Dead Man’s Rule is similar to the former Dead Man’s Statute, it is less restrictive.  Thus, much of the case law decided prior to 1983 dealing with the admissibility of statements made by decedents is inapplicable because the language of the statute interpreted by those cases was considerably broader in scope.  The statute applied to all testimony, not just testimony at trial, and it applied to all transactions with a decedent, not just transactions based on oral statements made by a decedent.  

The purpose of the doctrine remains the same, however, and that is to prevent a party in litigation from offering testimony attributed to a deceased person when that person is no longer available to refute it.  Once death has sealed the decedent’s lips, the rule works to seal the lips of any other party who might benefit from fabricating conversations or statements.  Without such a rule, it is feared that a fraud could be more easily perpetrated either on behalf of or against a decedent’s estate.

While the former Dead Man’s Statute barred evidence of a decedent’s oral statements as to any transactions involving the decedent, the Dead Man’s Rule applies only to civil actions[1] when one party to the lawsuit is the executor, administrator, heir or legal representative of the decedent’s estate[2].  Unless the oral statement can be corroborated by a disinterested witness, it is excluded from evidence under the rule.  The Rule applies only in cases involving parties in their representative capacity, and does not apply when a party is suing in his own individual capacity.  For that reason, while the Dead Man’s Rule would apply to survival actions, it would have no applicability in a wrongful death action.[3]

Corroboration.  If any disinterested witness offers testimony as to prior statements made by a decedent, then such testimony will corroborate the testimony of the executor, administrator, heir or legal representative as to those same statements.  In that event, the executor, administrator, heir or legal representative is no longer barred from providing testimony about the statements.  Generally speaking, for purposes of this Rule, a disinterested witness is any person who is not an executor, administrator, heir or legal representative.  This may include relatives and close friends, as long as they do not have a financial interest in the decedent’s estate or the outcome of the lawsuit.  The corroboration may also come in the form of a document.

It is not necessary that the corroborating witness provide direct testimony about the decedent’s oral statement, so the corroborating witness need not actually have heard the words spoken.  All that is required is that the corroborating witness provide testimony that tends to prove the truthfulness of the testimony that would otherwise be barred.  For example, proof that a decedent subsequently acted in conformity with the decedent’s alleged oral statement would suffice as corroboration and render an executor’s testimony as to the statement admissible.

Waiver.  The applicability of the Dead Man’s Rule can be waived by calling the adverse party to the stand and eliciting testimony about statements which would otherwise be barred under the rule.  Unlike the Dead Man’s Statute, however, there is no waiver in the eliciting of these statements during discovery.  As with virtually all evidence that may be offered at trial, waiver can also occur by failing to object when testimony is offered in violation of the Dead Man’s Rule.

Jury Instruction.  In cases where a witness’s testimony has been excluded under the Dead Man’s Rule, the trial court is required to instruct the jury as to the application of the rule.  The last sentence of Rule 601(b) provides that a trial court shall “instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.”  The purpose of this instruction is to prevent one party from improperly suggesting to the jury that because there is no evidence at trial about decedent’s statements, the decedent must not have made any.

So, the bottom line is that dead men do tell tales inTexas.  Was there ever really any doubt?

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] The Dead Man’s statute never applies in criminal cases.

[2] The rule also applies to guardians of estates.  In this circumstance, prior oral statements by a person later declared incompetent are treated the same as prior oral statements made by a decedent.

[3] But where the two causes of action are intertwined, the Rule would be applicable unless the claims are severable. 


Summaries of Evidence

February 26, 2012

Perhaps the best summary ever written appears in the Hitchhiker’s Guide, a fictitious travel guide touted in Douglas Adams’ humorous five-part “trilogy,” Hitchhiker’s Guide to the Galaxy, 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 and established a three-part test for admission of summaries. Applying this test, a summary of records would be admissible as long as the underlying records on which the summary was based were:  (1) admissible, (2) voluminous, and (3) provided to the opposing counsel for inspection.  

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. 

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.  TRE 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 which 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’s not. 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 in 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, 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 they 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 TRE 803(6), the business record exception to the hearsay rule.  None of the requirements of Rule 1006 will be a predicate to admissibility.              

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.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


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