David Johnson v. United States

Federal Rule of Evidence 1006 prohibits parties from submitting into evidence “summary” exhibits that are argumentative or pedagogical. The Sixth Circuit, however, allows parties to submit argumentative, interpretive “summaries” that do not comply with Rule 1006 under Rule 611(a) instead, which allows a court to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence.” The Sixth Circuit’s approach allows parties to use Rule 611(a) to end-run the limitations imposed by Rule 1006, permitting interpretive, pedagogical presentations—containing expert annotations, argumentative labels, and visual depictions designed to translate data into a theory of guilt—to be admitted into evidence and taken to the jury room. The circuits are split on whether this is permitted. Several circuits—the First, Second, Fourth, and Tenth—agree with the Sixth Circuit. The Fifth, Seventh, Eighth, and Ninth Circuits, on the other hand, do not allow these types of materials to be admitted into evidence and reviewed by the jury during deliberations. The question presented is: Whether an expert’s interpretive, pedagogical exhibit may be admitted into evidence under Rule 611(a) and reviewed by the jury during deliberations even when it does not comply with Federal Rule of Evidence 1006 and would otherwise be excluded as a demonstrative or illustrative aid that may not be provided to the jury.