Will Courts Routinely Require Advance Disclosure of Illustrative Aids?
I’m working on a CLE on illustrative aids, which are now covered by Federal Rule of Evidence 107, which states the following:
(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 outweigh 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.
An example of an illustrative aid would be a witness going to a crime scene, determining that the defendant could not have shot the victim from where he was standing because of a pillar in his way, and then creating an animation to illustrate what he determined from his crime scene visit. So, because an illustrative aid such as an animation under these circumstances is not technically evidence, what does that mean about discovery?
According to the Advisory Committee’s Note to the new rule,
Many courts require advance disclosure of illustrative aids, as a means of safeguarding and regulating their use. Ordinary discovery procedures concentrate on the evidence that will be presented at trial, so illustrative aids are not usually subject to discovery. Their sudden appearance may not give sufficient opportunity for analysis by other parties, particularly if they are complex. That said, there is a wide variety of illustrative aids, and a wide variety of circumstances under which they might be used. In addition, in some cases, advance disclosure may improperly preview witness examination or attorney argument. The amendment therefore leaves it to trial judges to decide whether, when, and how to require advance notice of an illustrative aid.
All of this is very interesting and feels like uncharted territory up to the whims of the individual judge. As the Advisory Committee’s Note indicates, illustrative aids are not covered by traditional rules of discovery because they are not technically evidence. But a court can require advance disclosure “as a means of safeguarding and regulating their use.”
So, are judges likely to require such advance notice? I don’t know. So far, I’ve found one court doing so under this new Rule: In United States v. Stanley, 2025 WL 1233925 (D. Conn. 2025), the court held that “[i]f the Government, or any party, wishes to use an illustrative aid, not admitted into evidence, under Rule 107, they should request to do so at the pre-trial conference.”
-CM