COMMENT
The instruction is derived from former Ninth Circuit 3.9. Cf. Ninth Circuit 2.12.This instruction is applicable to pedagogical devices and illustrations. Use of this material is governed by Rule 611(a) of the Federal Rules of Evidence, and not by Rule 1006 (which applies to summaries of admissible evidence where that evidence is too voluminous to be examined conveniently in court). See United States v. DeBoer, 966 F.2d 1066, 1069 (6th Cir. 1992) (summaries of already admitted evidence are permissible “so long as an appropriate limiting instruction informs the jury that ‘the chart is not itself evidence but is only an aid in evaluating the evidence’”). If a chart or summary is used only to illustrate or explain evidence already admitted, then it is not itself evidence, and it may not be sent to the jury room.
It is suggested that this instruction be given both at the time the summary is used and at the end of the case. See, e.g., United States v. Ray, 370 F.3d 1039, 1047 n.8 (10th Cir. 2004) (suggesting that the court repeat the limiting instruction “in writing at the trial’s conclusion”), vacated on other grounds, 543 U.S. 1109 (2005).
