Written by: Scot Goins, Assistant Dean of Academic Achievement and Bar Success and Associate Professor of Legal Practice
Those studying for bar exams in February 2024 and beyond should be aware that a new rule will become effective in December 2024 in the Federal Rules of Evidence (‘FRE’).
FRE 107, titled ‘Illustrative Aids,’ will solve an issue that frequently arises in distinguishing demonstrative evidence (that is admitted into evidence and used substantively to support or refute disputed issues at trial) from so-called illustrative aids (that is not admitted into evidence and used substantively, but instead is used solely to help the trier of fact in understanding demonstrative evidence).
Originally, instead of proposing the new FRE 107, it was suggested that FRE 611 (Mode and Order of Examining Witnesses and Presenting Evidence) be amended. However, the Advisory Committee, recognizing that FRE Article VI is primarily concerned with witnesses, and that illustrative evidence is normally used outside the context of witness testimony, decided to create a new rule in Article I (General Provisions).
The new rule provides standards for the admission of illustrative aids, creates the possibility of using such evidence in jury deliberations based on all parties’ consent or by the court for good cause, and when practicable, requires such illustrative evidence to be entered into the record. Further, the new FRE 107 clarifies that voluminous materials will continue to be governed by FRE 1006.
The aim of FRE 107 is to allow illustrative aids unless the utility of such is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, causing undue delay, or wasting time. This mirrors the language of FRE 403 with intent and weighs heavily in favor of admitting illustrative aids.
FRE 107 should clarify what has previously been an ambiguous area of law and elucidate the standard for allowing illustrative aids.
The text of the new rule appears below:
Rule 107. Illustrative Aids
(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.
(c) Record. When practicable, an illustrative aid used at
trial must be entered into the record.
(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.