Writings, recordings, and photographs - Summaries

Learning Outcomes

This article explains how summaries of writings, recordings, and photographs operate as evidence under the best evidence rule, including:

• When a party may use a summary in place of original writings, recordings, or photographs at trial, and how this fits within the best evidence framework.
• The specific foundational requirements for admitting a Rule 1006 summary, such as voluminous source documents, accuracy, and availability of originals or duplicates for inspection.
• How to evaluate whether the underlying records are themselves admissible, and why a summary cannot cure hearsay or other evidentiary defects in the source materials.
• The distinction between summaries admitted as substantive evidence and demonstrative or pedagogical aids that simply help the jury understand testimony.
• How courts assess whether documents are sufficiently “voluminous,” and the judge’s discretion to require production of originals in court.
• Common MBE exam traps involving charts, calculations, and compilations that either fail the inspection requirement or are mischaracterized as Rule 1006 summaries.
• Practical strategies for analyzing fact patterns that involve business records, bank statements, invoices, or email compilations offered through summary evidence.

MBE Syllabus

For the MBE, you are required to understand the rules governing the use of summaries as evidence in place of original writings, recordings, or photographs, with a focus on the following syllabus points:

• The best evidence rule and its application to summaries.
• When summaries of voluminous documents are admissible.
• The foundational requirements for admitting summaries.
• The distinction between summaries as evidence and summaries as demonstrative aids.
• The need for originals or duplicates to be available for inspection.
• The limits on using summaries to prove content, including the requirement that the source documents be admissible.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for a summary of voluminous records to be admissible as evidence?
   1. The summary must be prepared by a party to the case.
   2. The originals or duplicates must be made available for inspection by the other party.
   3. The summary must be presented to the jury before trial.
   4. The summary must include only handwritten documents.
2. Under the best evidence rule, a summary of original writings is admissible when:
   1. The originals are lost and cannot be found.
   2. The originals are so voluminous that they cannot be conveniently examined in court.
   3. The summary is more persuasive than the originals.
   4. The originals are in a foreign language.
3. A party offers a summary of business records into evidence. The opposing party objects, claiming the originals were never made available for review. Should the summary be admitted?
   1. Yes, if the summary is accurate.
   2. Yes, if the summary was prepared by an expert.
   3. No, because the originals or duplicates must be available for inspection.
   4. No, unless the summary is certified.
4. At trial, a party shows the jury a chart that simplifies a witness’s testimony about five invoices. The invoices themselves are in evidence, and the chart is used only during the witness’s testimony. Under the Federal Rules of Evidence, this chart is best characterized as:
   1. Summary evidence admitted under the voluminous writings exception.
   2. A demonstrative aid used to help the jury understand the testimony.
   3. Inadmissible because it violates the best evidence rule.
   4. A hearsay statement requiring its own exception.

Introduction

Summaries of writings, recordings, or photographs are sometimes used as evidence when the originals are too numerous or lengthy to be conveniently examined in court. The Federal Rules of Evidence allow such summaries under specific conditions, but only if strict requirements are met. This topic commonly appears on the MBE in questions about the best evidence rule and about how charts or calculations are used at trial.

Key Term: Best Evidence Rule
The evidentiary rule that generally requires production of an original writing, recording, or photograph to prove its content, unless a rule or statute allows the use of secondary evidence instead.

Key Term: Summary Evidence
A concise chart, calculation, list, or similar compilation offered as substantive proof of the contents of source writings, recordings, or photographs, in place of the originals, when the rules permit such substitution.

Key Term: Voluminous Writings Exception
The rule that allows a party to prove the contents of very numerous writings, recordings, or photographs by using a properly supported summary when the originals cannot be conveniently examined in court and are made available for inspection.

On the MBE, questions frequently test whether a proponent has laid the proper evidentiary basis: Is the material truly “voluminous”? Were the originals made available? Are the source documents admissible? And is the summary itself being used as evidence, or is it merely helping the jury follow testimony?

Summaries and the Best Evidence Rule

The best evidence rule generally requires that the original writing, recording, or photograph be produced to prove its content. It is triggered when a party is seeking to prove what a writing, recording, or photograph says, rather than merely that the document exists or was signed. Under the rule, duplicates are usually acceptable in place of originals, unless a genuine question is raised about the original’s authenticity or it would be unfair to admit the duplicate.

However, an exception allows summaries to be used as evidence when the originals are voluminous and cannot be conveniently examined in court. Instead of calling the jury’s attention to hundreds or thousands of separate documents, the proponent may present a chart or calculation that condenses the information. This is implemented in Federal Rule of Evidence 1006.

Key Term: Summaries to Prove Content
Summaries, charts, or calculations admitted under the voluminous writings exception as substantive evidence to prove the contents of source documents that are too numerous for practical in‑court examination.

This exception does not repeal the best evidence rule; it is one of the ways the rule is satisfied. When the conditions of the voluminous writings exception are met, the summary becomes the “best evidence” the jury will actually see, provided the originals are available for inspection and the court is satisfied with the summary’s accuracy.

Requirements for Admissibility of Summaries

Federal Rule 1006 (summaries to prove content) allows a party to use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. To admit a summary as evidence, several foundational steps must be satisfied:

• The originals or duplicates must be made available for examination or copying by the other parties at a reasonable time and place.
• The source documents must themselves be admissible evidence (for example, each document must either not be hearsay or fit within a hearsay exception).
• The summary must accurately reflect the contents of the originals.
• The summary must be presented through a witness who is available for cross-examination about its preparation and accuracy.
• The materials must truly be “voluminous” in the context of the case, such that examining each item individually in court would be impractical.

Key Term: Source Records
The original writings, recordings, or photographs from which a summary is prepared; the summary’s admissibility depends on these records being admissible and available for inspection.

In practice, the court may also require the proponent to bring the originals or duplicates to court if there is any dispute about accuracy. The rule gives the judge discretion to order in‑court production even though the summary itself is the main piece of evidence the jury sees.

Source Documents Must Be Admissible

A critical limitation is that Rule 1006 does not create a new hearsay exception. The admissibility of the summary rises or falls with the admissibility of the source documents.

Key Term: Business Records Exception
A hearsay exception that allows admission of records of a regularly conducted activity when they are made at or near the time by someone with knowledge, kept in the ordinary course of business, created as a regular practice, properly authenticated, and not shown to be untrustworthy.

For example, a summary of fifteen years of daily business logs is admissible only if each log would be admissible, typically as a business record under Rule 803(6). If those logs do not satisfy the business records exception (or some other basis for admissibility), the summary is inadmissible as well. The summary cannot be used as a shortcut to smuggle in inadmissible hearsay.

Evidentiary Basis and the Summary Witness

Although the rule does not specify who must prepare the summary, a proper evidentiary basis must be laid through witness testimony. The witness does not necessarily need to have personal knowledge of every relevant event but must:

• Be familiar with the source records and how they were kept.
• Explain the method used to compile or calculate the summary.
• Testify that the summary fairly and accurately reflects the source materials.

The opposing party may cross-examine this witness about errors, omissions, or choices made in constructing the summary. Any serious inaccuracy may lead the court to exclude the summary or reduce its weight.

Key Term: Proponent
The party offering a piece of evidence, including a summary, and bearing the burden of establishing its admissibility.

Use of Summaries as Evidence vs. Demonstrative Aids

Summaries admitted under the voluminous writings exception are themselves evidence and may be considered by the jury as proof of the contents of the originals. They typically go to the jury room during deliberations and can support findings such as the total amount owed, the number of transactions, or patterns in the data.

In contrast, summaries or charts used only to help explain or illustrate testimony, but not admitted as evidence, are considered demonstrative aids and do not substitute for the originals.

Key Term: Demonstrative Aid
A chart, diagram, or other visual used solely to help the jury understand testimony or other evidence, not admitted as substantive evidence and not governed by Rule 1006.

Key Term: Pedagogical Summary
A demonstrative summary or chart created mainly to help explain or “teach” complex evidence to the jury, used under the court’s control of mode and order of proof, rather than as substantive proof of content.

Courts often allow demonstrative aids under their general authority to control the presentation of evidence. Unlike Rule 1006 summaries, these pedagogical summaries:

• Do not need to be based on voluminous documents.
• Do not require that the source materials be made available for inspection (although they usually are part of the record).
• Are not themselves evidence and typically do not go to the jury room.

On the MBE, a common trap is to assume any chart is a Rule 1006 summary. Look for language that the chart is being “offered as evidence” to prove the contents of numerous documents. If it is merely being used while a witness testifies and is not offered as an exhibit, it is a demonstrative aid.

Limitations and Inspection Requirement

Summaries cannot be used to admit otherwise inadmissible evidence. The party offering the summary must show that the source materials are admissible and that the other parties have had a fair opportunity to examine or copy them. If the originals are not made available for inspection, the summary is not admissible under Rule 1006.

Key Term: Originals and Duplicates
“Originals” are the writings, recordings, or photographs themselves, or any counterpart intended to have the same effect; “duplicates” are counterparts produced by the same impression or electronic process that accurately reproduces the original.

The inspection requirement serves several functions:

• It allows the opposing party to verify that the summary is accurate and complete.
• It gives the opponent a fair opportunity to prepare cross-examination.
• It permits the opponent to prepare their own competing summary if they believe the proponent’s version is misleading.

The court may also order the proponent to produce the originals in court if issues arise about completeness or selective omission.

Worked Example 1.1

A plaintiff sues a corporation for breach of contract. The plaintiff claims damages based on 2,000 invoices issued over five years. At trial, the plaintiff offers a summary chart showing total amounts billed and paid, instead of introducing all 2,000 invoices. The defendant objects, arguing the summary is inadmissible.

Answer:
The summary may be admitted if the plaintiff demonstrates that the original invoices are so voluminous as to be impractical to examine in court, that the originals or duplicates were made available to the defendant for inspection, and that the summary accurately reflects the source data. The plaintiff must also show that the invoices themselves are admissible (for example, as business records).

Worked Example 1.2

A party offers a summary of business emails to prove the total number of sales made in a year. The opposing party objects, stating they were never given access to the emails.

Answer:
The summary is inadmissible. The best evidence rule, as implemented through the voluminous writings exception, requires that the originals or duplicates be made available for inspection before a summary can be admitted as evidence. Without that opportunity, the opponent cannot test the accuracy or completeness of the summary.

Worked Example 1.3

A prosecutor introduces a chart summarizing 20 bank statements to show a pattern of deposits. The bank statements are admitted as business records. The chart is offered into evidence and is to go to the jury room. The defense objects that 20 documents are not “voluminous” enough to justify a summary.

Answer:
The objection is unlikely to succeed. Whether documents are “voluminous” is a practical, case-specific question left to the trial judge’s discretion. Even 20 documents may be sufficiently numerous and complex to justify a summary if examining each one individually would be inconvenient or confusing for the jury. Because the source bank statements are admissible business records and were made available for inspection, the summary is properly admissible under Rule 1006.

Worked Example 1.4

In a civil fraud trial, a party displays a colorful chart showing only three invoices and highlighting alleged misstatements. All three invoices are in evidence. The chart is used briefly during closing argument, and the party does not offer it as an exhibit.

Answer:
The chart is a demonstrative aid or pedagogical summary, not a Rule 1006 summary. It is not being offered as substantive evidence but only to help the jury understand the already admitted invoices and argument. The requirements of the voluminous writings exception—such as proof of voluminous documents and an inspection opportunity—do not apply to this use.

Exam Warning

Summaries are not admissible unless the originals or duplicates have been made available for inspection by the other parties. Failure to do so is a common reason for exclusion on the MBE. Another frequent pitfall is overlooking that the source documents must themselves be admissible; the summary cannot rescue hearsay that lacks an exception.

Revision Tip

Always check that the source documents are themselves admissible and that the summary is a fair and accurate representation. The summary cannot be used to admit evidence that would otherwise be excluded. Distinguish carefully between a Rule 1006 summary (substantive evidence) and a demonstrative aid (illustrative only).

Key Point Checklist

This article has covered the following key knowledge points:

• The best evidence rule generally requires the original writing, recording, or photograph to prove content, subject to specific exceptions.
• Summaries of voluminous writings, recordings, or photographs are admissible if the originals cannot be conveniently examined in court.
• A Rule 1006 summary is admitted as substantive evidence and may go to the jury; a demonstrative aid is not evidence and is used only to illustrate other proof.
• The originals or duplicates must be made available for inspection by other parties before a summary is admitted.
• The source documents must be admissible evidence; Rule 1006 does not create a hearsay exception.
• A proper evidentiary basis requires a witness who can explain the summary’s preparation and vouch for its accuracy.
• Courts have discretion to determine whether documents are sufficiently “voluminous” and may order the originals produced in court if disputes arise.
• Summaries cannot be used to admit otherwise inadmissible evidence or to circumvent the requirements of the Rules of Evidence.

Key Terms and Concepts

• Best Evidence Rule
• Summary Evidence
• Voluminous Writings Exception
• Summaries to Prove Content
• Source Records
• Business Records Exception
• Proponent
• Demonstrative Aid
• Pedagogical Summary
• Originals and Duplicates