711.6Summaries [Rule 1006]
- Voluminous writings, recordings, or photographs may be presented in the form of a summary exhibit, such as a chart, graph, or compilation.
- The underlying original evidence must be made available for copying or examination at a reasonable time and place, or the judge may order that it be produced in court.
- To establish a proper foundation for the summary exhibit, the proponent must demonstrate that: (i) the originals are voluminous; (ii) a qualified witness has examined the originals; (iii) the summary is an accurate reflection of the relevant contents; and (iv) the originals would be admissible in evidence.
- The trial court exercises its discretion in determining whether the originals are so voluminous that a summary is warranted.
The Basic Rule
Rule 1006 – Summaries
The contents of voluminous writings, recordings, or photographs 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. The court may order that they be produced in court.
Rule 1006 allows voluminous writings, recordings, or photographs to be presented in court through a summary presentation such as a chart, table, index, or compilation. See, e.g., Broadbent v. Allison, 176 N.C. App. 359 (2006) (allowing introduction of a summary video that condensed several months’ worth of video into a six-minute compilation that showed only the relevant events); State ex rel. Ingram v. North Carolina Farm Insurance Bureau Ins. Agency, Inc., 303 N.C. 287 (1981) (summary of the examination of defendant's financial records conducted by the state auditor was properly admitted where the underlying evidence was voluminous); see also United States v. Harris, 39 F.3d 1262 (4th Cir. 1994) (applying the comparable federal rule, and finding no error in “admission into evidence of a summary, prepared by [a] government investigator . . . from telephone and pager records already in evidence, which showed the extent of calls between the defendants and individuals who purchased drugs from the Harris drug distribution network”); United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) (applying the comparable federal rule, and holding that the trial court did not err by admitting eleven composite videos that summarized over 200 hours of broadcasts); Southern Dist. Convocation of United Holy Church of America, Inc. v. McNeill, 168 N.C. App. 729 (2005) (unpublished) (summary of church rules listed in its operating manual was properly allowed under Rule 1006 for reference purposes where, based on “testimony given and comments made by the trial court, it appears that Mt. Sinai's operating manual was voluminous” and “an actual copy of the manual was available for review by the court”).
If the court allows the use of a summary, the underlying original evidence must be “made available for examination or copying” at a reasonable time and place, or the court may order that the originals be “produced” in court. G.S. 8C-1006.
Foundation and Admissibility Requirements
Originals are Voluminous
The first requirement for admitting a summary under Rule 1006 is “a showing that the documents are so voluminous that it would be impracticable to produce and examine them in court.” Ingram, 303 N.C. 287 (1981) (internal quotation omitted). See G.S. 8C-1006 (summaries permitted when contents of originals are voluminous and “cannot conveniently be examined in court”).
Examined by Qualified Witness
Next, the proponent of the evidence must establish that “a qualified witness” has examined the originals upon which the summary is based. Ingram, 303 N.C. 287 (1981) (auditor who reviewed defendant’s books and “examined checks, premium notices and invoices among other papers” was a qualified witness, and it was error not to allow him to testify regarding his findings).
Summary is Fair and Accurate
The court also must be satisfied that the proffered exhibit is a fair and accurate summary of the underlying writings, recordings, or photographs. See, e.g., Coman v. Thomas Manufacturing Co., 105 N.C. App. 88 (1992) (a summary or chart is admissible under Rule 1006 only if it is “an accurate summarization of the underlying material”); see also United States v. Porter, 821 F.2d 968 (4th Cir. 1987), cert denied, 485 U.S. 934 (1988) (“Nor did the court abuse its discretion in admitting the charts which summarized the telephone calls. Summary charts may be admitted if they are based upon and fairly represent competent evidence already before the jury.”); accord, United States v. Dorta, 783 F.2d 1179 (4th Cir. 1986), cert denied, 477 U.S. 905 (1986) (similar ruling).
Originals Would Be Admissible
Although it is not expressly stated in Rule 1006, cases interpreting the comparable federal rule have held that the proponent also must establish that the underlying original evidence would be admissible, if offered (e.g., as business records or admissions of a party opponent). See United States v. Strissel, 920 F.2d 1162 (4th Cir. 1990) (summaries are admissible under Rule 1006, provided that “the underlying evidence be admissible and available to the opponent so that a proper cross-examination may be had”); Marley v. Graper, 135 N.C. App. 423 (1999) (noting the federal case law on this issue and observing that one of the requirements for admitting a summary is a showing that “the materials themselves are admissible”); see also United States v. Ging-Hwang Tsoa, 92 Fed. R. Serv. 1262 (E.D. Va. 2013) (unpublished) (“Materials summarized by Rule 1006 must themselves be admissible because a contrary rule would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay. Accordingly, just as the proponent of hearsay evidence bears the burden of establishing the applicability of a hearsay exception, so too must the proponent of a Rule 1006 summary based on hearsay evidence establish that the materials summarized are admissible.”) (internal quotation and citation omitted).
It is left in the sound discretion of the trial court to determine whether the original writings, recordings, or photographs are so voluminous that a summary is warranted, and whether the proffered summary by a qualfied witness is fair and accurate. Compare United States v. Blackwell, 436 Fed. Appx. 192 (4th Cir. 2011) (unpublished) (trial court did not err by admitting a circular summary chart with arrows showing incoming calls to the defendant, even though the chart only showed “a fraction” of the 100,000 call records, where the full records were available to all parties and cross-examination provided an adequate opportunity to address how much weight the jury should give to the summary) with State v. Santamaria, 209 N.C. App. 207 (2011) (unpublished) (trial court did not abuse its discretion by refusing to admit a summary chart of phone calls made to an informant, where underlying records were already admitted in evidence and the records of 150 calls were not so voluminous that a summary was warranted under Rule 1006).
Originals Do Not Have to Be Admitted
As noted above, if the judge allows a summary to be admitted under Rule 1006, the originals must be admissible, and they must be made available for examination and copying or produced in court. See G.S. 8C-1006.
However, there is no requirement under Rule 1006 that the originals actually be admitted. See Marley v. Graper, 135 N.C. App. 423 (1999) (“In the absence of North Carolina cases addressing this rule in the context now before us, we turn for guidance to United States cases addressing the Federal Rules of Evidence. Federal Rule 1006, which is identical to the state rule, allows a summary of voluminous materials to be admitted into evidence even though the materials themselves are admissible but not necessarily admitted.”); see also United States v. Janati, 374 F.3d 263 (4th Cir. 2004) (the purpose behind Rule 1006 “is to reduce the volume of written documents that are introduced into evidence by allowing in evidence accurate derivatives from the voluminous documents;” therefore, the underlying records or documents do not have to be admitted); United States v. Strissel, 920 F.2d 1162 (4th Cir. 1990) (“a reading of the plain language of Federal Rule of Evidence 1006 makes it clear that there is no requirement that all of the voluminous evidence supporting a chart or graph be introduced into evidence as a precondition to the introduction of that chart or graph”).
Admit the originals anyway
Even though the proponent is not required to introduce the original writings, recordings, or photographs into evidence along with the summary, prosecutors should try to do so anyway, if possible. For example, voluminous financial records could be scanned and saved onto a portable hard drive that does not take up an excessive amount of space in court. Even if the underlying data from the original evidence is not published to the jury, having it admitted at trial and made a part of the record will help protect the conviction on appeal by demonstrating that there was a proper basis for the summary.
Even if the originals are not admitted, the summary itself should be deemed substantive evidence of the underlying facts or occurrences, since the purpose of Rule 1006 is to provide a way to put the relevant information before the jury when it is impractical to produce or examine the voluminous originals. See United States v. Janati, 374 F.3d 263 (4th Cir. 2004) (“Because the underlying documents need not be introduced into evidence, the chart itself is admitted as evidence in order to give the jury evidence of the underlying documents. […] In this respect, Rule 1006 summary charts are distinguishable from other charts and summaries that may be presented under Federal Rule of Evidence 611(a) to facilitate the presentation and comprehension of evidence already in the record.”).