The 8th Circuit’s Shifting Standard on Pedagogic Devices at Trial

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 1006 is a rule of convenience. Imagine a case where the prosecution has the defendant’s phone records for a six month period and wants to highlight the calls that he made to his three alleged accomplices during that period in time. Under Rule 1006, the prosecution could prepare a chart that just shows the calls made to these three individuals.

As the recent opinion of the Eighth Circuit in United States v. Needham, 852 F.3d 830 (8th Cir. 2017), make clear, some courts also allow for the introduction of “pedagogic devices.” The opinion, though, doesn’t note an important point about these devices.

In Needham, James Needham was charged with possession of child pornography and distribution of child pornography. Specifically, the prosecution alleged that Needham used the screen name rezchub61 to upload 11 images of child pornography to the boy2kid group. At trial, the prosecution introduced “a chart containing the information that Special Agent O’Donnell gathered during his investigation of the 11 images that rezchub61 uploaded to the boy2kid group.”

On appeal, Needham claimed that this chart was error, prompting the Eighth Circuit to note the following:

Rule 1006 of the Federal Rules of Evidence permits a proponent to “use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.”…Summary charts are admissible if “(1) the charts fairly summarize voluminous trial evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary.”…Additionally, parties may use a “‘pedagogic device,’ such as a summary of witness testimony and/or trial exhibits, to organize testimony and other evidence for the jury.”…”The use of pedagogic devices is within the sound discretion of the trial court, and our review is limited to ‘whether the pedagogic device in question was so unfair and misleading as to require a reversal.'” (emphasis added)

Applying this standard, the Eighth Circuit pretty easily found that the prosecution’s chart was admissible. Seems pretty open and shut, right?

But the case cited by the Eighth Circuit for this conclusion was United States v. Hawkins, 796 F.3d 843 (8th Cir. 2015), which noted, inter alia, that “[a]lthough ‘we do not encourage the use of’ pedagogic devices to summarize evidence already in the record, Crockett, 49 F.3d at 1362, we have recognized that such devices may assist the jury in understanding the evidence, particularly in cases involving ‘complex testimony or transactions.'”

The Crockett case cited in Hawkins was United States v. Crockett, 49 F.3d 1357 (8th Cir. 1995), the first Eighth Circuit case addressing pedagogic devices, with the court holding as follows:

Though we conclude that the use of transparencies in closing argument in this case was not reversible error, we do not encourage the use of such devices in the future. We emphasize that the district courts have virtually unfettered discretion to regulate the use of such non-evidentiary devices, either generally or to achieve procedural fairness and regularity in a particular case. Moreover, in a criminal case, the prosecution runs a tangible risk of creating reversible error when it seeks to augment the impact of its oral argument with pedagogic devices. For example, in this case, the jury deliberated four days, and the case turned on witness credibility-the very issue addressed by the prosecutor’s argumentative transparencies. Because the very purpose of a visual aid of this type is to heighten the persuasive impact of oral argument, we will necessarily be more inclined to reverse in a close case if the testimony has been unfairly summarized or the summary comes wrapped in improper argument. But that did not happen in this case.

Thus, without making any conclusions about whether the chart should have been admissible in Needham, we can see the (d)evolution of the pedagogic device standard from Crockett to Needham. In Crockett, it seems pretty clear that the court was begrudgingly affirming the use of a pedagogic device while cautioning that most uses of such devices would no be allowed. But, by the time we get to Needham, the court is pretty easily allowing for the admission of such a device, with a toothless review of its admission.

-CM