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Abstract
They say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform principles guiding courts and litigants in navigating their presentation at trial. Instead, trial lawyers and judges rely on a murky set of latent norms that can be learned only through literal trial—and unavoidable error. When difficult questions arise that require litigants to make concrete arguments about the use of such aids and trial judges to issue definitive rulings and to craft comprehensible jury instructions, those vague norms often prove inadequate to the task.
The increasing reliance on illustrative aids in the courtroom has only amplified the risks inherent in vague and inconsistent standards. As PowerPoint presentations, interactive charts, graphs, and computer animations and recreations have become pervasive, the need for clear and predictable standards governing their use has grown An elegant and promising solution to the problems created by the nebulous and inconsistent common law standards governing the use of illustrative aids is a new Federal Rule of Evidence. The Federal Rules were tailor-made to provide an antidote to the complexity and inconsistency of the common law. And a new evidence rule is an optimal vehicle for creating a shared vernacular that distinguishes trial aids from evidence and that sets a uniform standard guiding the deployment of illustrative aids in every federal court. To help bring much-needed coherence to trial practice surrounding illustrative aids, the federal Evidence Advisory Committee has proposed Federal Rule of Evidence 107, the first brand-new provision since 2008. Rule 107 is on track to take effect on December 1, 2024, under the rulemaking procedures established by the Rules Enabling Act. This Article unveils new Federal Rule of Evidence 107, offering insights into the significant modifications made to proposals originally published for notice and comment and revealing the critical features of the final provision that promise to bring clarity and uniformity to the regulation of illustrative aids, while preserving the creativity and flexibility prized by trial counsel.
Recommended Citation
Daniel J. Capra and Liesa L. Richter,
Painting a Clearer Picture: Introducing New Federal Rule of Evidence 107 Regulating Illustrative Aids,
77 Vanderbilt Law Review
1469
(2024)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol77/iss5/2