PUBLIC HEARING ON 

PROPOSED AMENDMENTS TO THE 

FEDERAL RULES OF EVIDENCE 

JUDICIAL CONFERENCE 

ADVISORY COMMITTEE ON EVIDENCE RULES 

Videoconference Hearing 

January 27, 2023
Advisory Committee on Evidence Rules Public Hearing

Proposed Amendments to Federal Rules of Evidence 611, 613, 801, 804, and 1006 

January 27, 2023 – 9:00 A.M. (ET) – Via Videoconference 

Witness List

1. Ryan W. Babcock, The Babcock Law Firm, P.C.

2. W. Mark Lanier, Lanier Law Firm

3. William A. Rossbach, Rossbach Law Firm

4. Brian Sanford, Sanford Firm

5. Tad Thomas, Thomas Law Offices

6. Tiega-Noel Varlack, Varlack Legal Services

Tab # Name 

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TAB 1 

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January 20, 2023

Advisory Committee on Evidence Rules

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, DC 20544

RulesCommittee_Secretary@ao.uscourts.gov

Re: Summary Outline of Testimony as to Proposed Amendment 

to Rule 611 

Dear Members of the Advisory Committee on Evidence Rules:

I refer the Members of the Committee to my previously filed 

comments, reproduced for your convenience herein:

Comment on Proposed Amendment to Federal Rule of Evidence 611 

I am a trial lawyer representing plaintiffs in personal injury cases with 

my own law firm in Brunswick, Georgia. Previously, I represented large 

corporate defendants in products liability and other tort cases, and I also 

worked as a law clerk to a federal judge for several years.

I oppose the proposed amendment to Rule 611. Illustrative aids, or 

demonstratives, help the jury understand the evidence in the case and 

should be encouraged. The proposed amendment makes the use of such aids 

more difficult to present and use. Sometimes in trial work, as a matter of 

discretion, judges will prevent or restrict certain PowerPoint slides or other 

illustrative aids from being used during opening statement. That

discretionary approach is misguided in my view. The proposed rule takes 

that approach and puts it on steroids, to the detriment of the trial 

process. The reason I submit that the discretionary approach described 

above, with using PowerPoint in opening, is misguided, is because a lawyer 

could otherwise, and traditionally, going back at least 60+ years, use a 

blackboard, or more commonly today, a dry erase board or large writing pad 

on a pedestal to write or draw. And if I as the trial lawyer have a PowerPoint 

slide that more neatly shows what I could write or draw, it will be quicker to 

706 G Street, Suite 101 | Brunswick, Georgia 31520 | PHONE (912) 574-7575 | FAX (912) 662-5407 | ryan@babcocklegal.com | www.babcocklegal.com

Hearing on Proposed Amendments to Evidence Rules | January 27, 2022 Page 4 of 32
use, and the jury will better understand, a prepared PowerPoint slide. The 

proposed rule would act as a prior restraint on the contemporaneous use of 

a blackboard, dry erase board or the like during trial, a step backward for 

jury understanding and trial practice, and rule change that would undo 

generations of prior acceptable trial conduct. We know that teachers write 

important concepts on the blackboard. Trial lawyers sometimes emulate 

that practice during trial because they understand that it will help the jurors 

remember important facts or parts of the trial. The proposed amendment at 

best discourages, and at worst sometimes bars, that kind of activity, which 

will not help the jury understand the evidence or achieve its truth-finding 

function, in my view. For that reason, it is a bad policy proposal that should 

be rejected.

Likewise, subsection (d)(2) is unhelpful in my view to the trial function 

and jury deliberations. Certain categories of demonstrative evidence should 

routinely be admissible and be considered by the jury during deliberations, 

including photographs and medical illustrations, for example. Whether 

these pieces of evidence are actually offered into evidence should be within 

the discretion of counsel and the parties, and will frequently depend on the 

importance of the evidence. Other categories would not be admissible 

evidence — such as if I were to write some key phrases from an expert’s 

testimony on a whiteboard or a piece of butcher paper during the 

testimony. I might return to that paper as a demonstrative during closing 

to remind the jury of what I view as important testimony in the case, but I 

don’t believe the paper ought to be admitted as evidence or go back with the 

jury. 

I respectfully submit that the rules as they presently exist are 

appropriate and sufficient to address any concerns with the use and 

consideration of illustrative aids.

Best regards,

Ryan W. Babcock

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TAB 2 

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WRITTEN SUBMISSION OF MARK LANIER 

IN ADVANCE OF TESTIMONY BEFORE RULES ADVISORY 

COMMITTEE 

January 20, 2023 

Advisory Committee on Evidence Rules 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

Rules Committee Secretary@ao.uscourts.gov 

Re: Proposed Rulemaking on Federal Rule of Evidence 611 Summary 

Outline of Testimony at January 27, 2023 Hearing 

Dear Members of the Advisory Committee on Evidence Rules: 

My name is Mark Lanier. I am the founder of the Lanier Law Firm in 

Houston, Texas, and I submit these comments in opposition to the proposed 

addition of Rule 611(d)(1)(B) to the Federal Rules of Evidence. 

I have been practicing law since 1985, trying more cases than I can count, 

mostly civil cases, representing both plaintiffs and defendants. In virtually 

every one of those trials I have used illustrative aids to help the jury understand 

the evidence they are hearing—from blackboard drawings in the 1980s to 

PowerPoint slides and Elmo® and IPEVO® sketches in the 21st century. I agree 

with the proposed rule’s premise that misleading or unfairly prejudicial 

illustrative aids should not be used. But I take issue with the requirement that 

parties be given advanced notice of the use of illustrative aids for four reasons. 

First, required advanced notice of illustrative aids will interfere with the 

truth-seeking functions of cross-examination by allowing litigation opponents 

to woodshed their witnesses on coming illustrative aids and to sculpt and script 

the witnesses’ testimony to explain or avoid the illustrative aid. Effective crossexamination is a bulwark of the trial system. It should be encouraged, not 

discouraged. Second, the advanced notice requirement will obstruct the 

efficient progress of the trial and interfere with the attorney’s efforts to persuade 

the jury. Third, the advanced notice requirement carries with it an incorrect 

implied presumption that the danger in using a spontaneously-created 

illustrative aid is so great that its use will be incurable. And finally, the 

proposed amendment is simply not necessary to protect against the use of 

misleading aids and unduly interferes with the district court’s discretion to 

manage trials. 

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2 

First, the advance notice requirement obstructs cross-examination. Rule 611(d)’s 

mandatory disclosure requirement applies to all demonstrative aids even when they are prepared 

during the trial. When I cross-examine a witness, I often hear that witness give answers that need 

to be spontaneously clarified or refuted with an illustrative aid. And so, I prepare one on the spot, 

either to clarify or refute the witness’s answer, and further to help the jury understand the 

importance of a point or a discrepancy in the witness’s testimony. I am attaching to this submission 

several examples of illustrative aids I have prepared during the testimony of a witness, and I will 

explain how these examples worked when I testify. 

The importance of preserving spontaneity during trial, particularly as part of the truthseeking process during cross-examination, is recognized in the Maine rule of evidence from which 

the proposed rule was initially derived. Maine’s Rule 616 does not require advanced disclosure of 

all illustrative aids. It instead merely governs the use of “any aid prepared before trial.” ME. R.

EVID. 616(c). Thus, Maine’s rule does not require disclosure for aids developed during the course 

of an examination. See former ME. R. EVID. 616(c) (“Illustrative aids prepared before use shall be 

disclosed to opposing counsel before use so as to permit reasonable opportunity for objection under 

Subsection (b)”). As stated in the Advisers’ note to former ME. R. EVID. 616 (Feb. 1976), “[t]he 

[disclosure] rule applies to aids prepared before trial or during trial before actual use in the 

courtroom. Of course, this would not prevent counsel from using the blackboard or otherwise 

creating illustrative aids right in the courtroom.” (emphasis added). 

Maine’s rule, like the proposed rule, previously included a disclosure requirement, but it 

was removed in 2014. Doing so eliminates the need for notice—and the ensuing disagreements 

on the adequacy of the notice—when notice is unnecessary because the display is simple. Even 

for illustrative aids prepared before trial, the key should be whether a party has a reasonable 

opportunity to object. For example, I might decide that I want to present a PowerPoint slide 

displaying three documents side-by-side so that I can compare or contrast what they say. If the 

documents are in evidence, notice should not be necessary (it will tip off my strategy) and a 

reasonable opportunity to object will rightly occur spontaneously in the courtroom or during a 

short break at the bench. 

The proposed rule has similarly deleterious effects when applied to illustrative aids 

prepared before the trial or during trial but before the examination of a witness. Advanced 

disclosure of illustrative aids will require attorneys to give their opponents previews of their direct 

and cross-examinations. And with cross-examination, the Rule 611 notice will allow litigants and 

their lawyers who receive the notice to fashion their witnesses’ testimony to avoid the 

discrepancies the illustrative aid was designed to highlight. Trials should not be scripted events. 

And lawyers do not aid the jury to find facts that accord with the truth by presenting them with 

scripted questions, scripted answers, and rehearsed responses to anticipated cross-examination. 

While lawyers may plan their direct examinations with witnesses, they should not be encouraged 

to sculpt their witnesses’ testimony based on advanced knowledge of their opponents’ use of 

illustrative aids. 

Let me give an example that our firm has seen used by defense counsel in cross-examining 

an expert on general causation. The lawyer had a PowerPoint that included quotations from a 

number of authoritative articles that disagreed with the expert’s causation opinion. Some of the 

articles had been used already in the trial, some had not but all would be identified as authoritative 

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3 

by the defendant’s expert. Next to each one was a column marked ‘agree” or “disagree.” Showing 

the expert disagreed with roughly six to eight articles was effective not only in cross-examination 

but also in final argument. In short, requiring lawyers to give opposing counsel advanced copies 

of illustrative aids will not aid in the search for truth, but will instead result in choreographed trial 

presentations that actually provide less information and understanding to the jury hearing the 

testimony. Furthermore, an early decision on the advanced notice requirement can work to prevent 

the court from having the context it may need from other evidence and testimony to make the best 

decision based upon the witnesses’ testimony, evasiveness, and demeanor. 

Second, the advance notice requirement will generate more disputes and slow down trials. 

Many trial lawyers use illustrative aids without objection, drawing on a white-board, highlighting 

a section of a document, or otherwise diagramming the witnesses’ testimony during the 

examination. If the disclosure rule is enacted, then lawyers will not be able to use illustrative aids 

spontaneously. Instead, counsel will have to stop, approach the bench, and explain to the court and 

opposing counsel what he wants to do with the illustrative aid. The court may then allow some 

time for the opponent to think up objections and then hear and rule on the objections. And these 

objections may not just relate to the illustrative aid itself, but also to whether sufficient notice has 

been given for the opponent to develop objections. The requirement therefore has the potential to 

hopelessly bog down trial proceedings during the examination of witnesses. This kind of 

substantial interruption will discourage and deter lawyers from using an advocacy tool that is 

effective for informing and persuading the jury. 

Third, the advanced notice requirement implies that illustrative aids are inherently 

unreliable and therefore mandate advanced judicial scrutiny. In fact, illustrative aids are 

recognized as a highly effective method of communicating evidence to the jury as they cater to the 

strong human preference of receiving information visually.1

 This is especially the case today as 

our jury boxes are filled with men and women who heavily rely on digital information and are 

therefore subject to increased susceptibility to distraction.2

 Lawyers who seek to use illustrative 

aids are therefore seeking to use the best available methods to help jurors understand the evidence 

at issue. Our rules of evidence should encourage the use of effective visual evidence rather than 

discouraging its use with a mandatory trial interruption penalty. 

Finally, the Committee should refuse to adopt the proposed disclosure requirement because 

it is completely unnecessary to protect against the use of misleading illustrative aids. District courts 

already have that authority.3

 And as with any other piece of evidence or witness testimony, lawyers 

                                                            

1

 William S. Bailey, The Impact of the Digital Revolution on Modern Trials, National Institute of Trial 

Advocacy 2023 

2

 Id., (citing Eyal Ophir, Clifford Nass, Anthony D. Wagner AD. Cognitive Control in Media Multitaskers, PNAS, 

Sept. 15, 2009. Available at https://www.pnas.org/doi/10.1073/pnas.0903620106. (last visited January 17, 2023)). 

3

 Brown v. Old Castle Precast E., Inc., No. 02–4016, 76 Fed. Appx. 404, 410 (3rd Cir. 2003) (“The 

District Court did not abuse its discretion when it held that the blown-up chart of the different forms of 

damages would have placed undue weight and overemphasis on the Plaintiffs’ claim of damages, a key 

disputed issue.”); United States v. Vreeken, 803 F.2d 1085, 190-91 (10th Cir. 1986) (holding the district 

court was well within its discretion in denying Defendants the use of a blackboard); United States v. 

White, 766 F.2d 22, 25 (1st Cir. 1985) (“The use of trial aids is committed to the trial court’s discretion, 

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4 

who believe the aids are misleading or unfairly prejudicial can object to the illustrative aid when 

it is used without significantly interrupting the trial. That rule polices lawyers already since trial 

lawyers want to avoid having their examinations interrupted with objections that are sustained lest 

jurors interpret the successful objection as an implicit criticism of counsel by the court. Further, 

Rule 611(d)’s test for admissibility is very similar to the balancing test required under Rule 403. 

Both rules require the court to balance the usefulness or relevance of the evidence or aid against 

the risk of unfair prejudice, confusion, or deception. These decisions require context and should 

be based on the specific testimony at issue and the state of the evidence at the time the aid is sought 

to be used.4 

Relatedly, if Rule 611 is amended, I believe that Rule 403’s requirement that its relevance 

(here its utility) should be substantially outweighed by its dangers should be included in the new 

rule’s balancing.5

 The “substantially outweighed” standard has a long history that would be useful 

to courts conducting any balancing. And using the word “substantially” properly ensures the 

balance should be in favor of the adversarial process in play. Balancing the factors in favor of 

using the aids is entirely proper as the aids have a pedagogical purpose and courts should encourage 

lawyers to assist jurors understand the evidence. The presumption should be in favor of visual aids, 

Rule 611(a) gives the court broad discretion to control the mode and order of examining 

witnesses. That discretion provides the court with flexibility to manage the trial fairly and 

efficiently. The proposed Rule 611(d)(1)(B) undermines that flexibility and discretion and 

presumes judges can decide these issues correctly only if they stop the trial every time an 

illustrative aid is used. The Committee should decline to interfere with the flexibility of district 

courts to manage their trials and reject the notice requirements proposed in Rule 611(d)(1)(B). 

I would also like to briefly observe that the rule does not define illustrative aids, which will 

require case development and generate unnecessary objections and waste of time. First, words 

alone written on an Elmo®, PowerPoint, or sketch pad should not be considered illustrative aids 

regulated by this rule. Sometimes I simply write the witness’s words on an Elmo® so I can use 

them during final argument and the jury will know that I’m not relying on my memory but the 

actual words. Merely writing on the Elmo® also makes testimony more interesting and memorable 

for many jurors. If I had to approach the trial judge every time I wanted to write something on an 

Elmo or sketch pad that is on an easel, the trial would be slowed. The proposed comments also 

cover “a handwritten chart.” A simple drawing of an intersection prepared during an eyewitness’s 

testimony in an automobile collision case should not be governed by these rules. Much of these 

                                                            

and should only be allowed where they serve to assist the jury in understanding and judging the factual 

controversy.”); Shipp v. Gen. Motors Corp., 750 F.2d 418, 427 (5th Cir. 1985) (“The district court was 

within its discretion in determining that it would be prejudicial and misleading to allow GM to 

demonstrate its causation theory using a different vehicle and a different accident.”). 

4

 Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008) (recognizing that relevance and 

prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a 

particular case, and thus are generally not amenable to broad per se rules).

5

 The proposed rule has the word “substantially” in brackets, thus inviting comment on whether the word 

should be included in a final version of the proposed rule. 

Hearing on Proposed Amendments to Evidence Rules | January 27, 2022 Page 10 of 32
5 

problems can be cured by recognizing, as Maine does, that the rule should only apply to aids 

prepared in advance of trial. 

Sincerely, 

W. Mark Lanier 

Encl 

WML/st 

Cc: Dara Hegar 

Sadie Turner 

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Hearing on Proposed Amendments to Evidence Rules | January 27, 2022 
TAB 3 

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TAB 4

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January 20, 2023

Advisory Committee on Evidence Rules

Administrative Office of the United States Court

One Columbus Circle, NE

RulesCommittee_Secretary@ao.uscourts.gov

Re: Summary Outline of Testimony as to Proposed Amendment to Rule 611

Dear Members,

I am a trial lawyer specializing in representing individuals damaged by violations of 

employment and civil rights laws.

I oppose the proposed amendment to 611. The concern is that what isn’t broke doesn’t

need to be fixed. A rule on illustrative aids would add unnecessary grounds for objections 

and unnecessary concern for judges, ultimately causing delay and injustice. 

Illustrative aids appear to be a form of demonstrative aids that have been used from the 

beginning of common law trials. Technology changes, content doesn’t.

If the Committee proceeds with the recommendation of a rule, please remove or reduce 

the notice requirements and place the presumption with use and not with disuse. If notice 

is required, it should be limited specific forms, such as simulations and models. The similar 

Maine rule appears to presume use unless prohibited and would be a better approach.

I do appreciate your service and thank you for your consideration of my comments.

Sincerely,

Brian Sanford

Brian Sanford

bsanford@sanfordfirm.com

Direct: 469-361-9111

1910 Pacific Ave.

Suite 15400

Dallas, Texas 75201

United States

214-717-6653

214-919-0113 Fax

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TAB 5 

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American Association for Justice ∙ www.justice.org ∙ 777 6th Street, NW ∙ Suite 200 ∙ Washington, DC 20001 ∙ 202-965-3500

________________________________________________________________________

Statement of Tad Thomas

President, American Association for Justice

Before the Advisory Committee on Evidence Rules

January 20, 2023

 Thank you for providing an opportunity for public comment on illustrative aids. My name is Tad 

Thomas, and I’m the President of the American Association for Justice, the largest member plaintiff trial 

bar whose core mission is to protect the Seventh Amendment right to trial by jury. I am also a trial lawyer 

and have tried civil jury trials on subjects ranging from routine motor vehicle collisions to complex 

medical negligence and nursing home neglect and abuse. In each trial, illustrative aids were used by both 

sides to educate the jury. 

To say that our members are not excited about the proposed rule would be an understatement. They 

believe that judges are perfectly capable of determining the parties’ use of illustrative aids in their 

courtrooms because a one size rule does not fit all trials. 

I. Flexibility is Key

Some trials are complex, long in duration, and include large numbers of experts while others are short and 

may involve a dispute over only one aspect of the case. An illustrative aid developed well in advance of 

trial differs completely from one developed on the spot to be used to help the jury understand complicated 

information or during cross-examination. What works in one trial may not work in the other. While AAJ 

is not opposed to the rule, we are recommending several changes to the rule to ensure that flexibility is 

provided to both parties and judges. 

II. Three Important Changes Must Be Made to the Proposed Rule

First, the draft proposal is based on Maine Rule of Evidence 616. We have spoken with our Maine 

practitioners and believe that proposed Rule 611(d) is different from the Maine Rule in a crucial respect. 

The Maine Rule assumes that the illustrative aid can be used at trial. The assumption is a permissive 

standard of use. The proposed federal rule says that “the court may allow a party to present an illustrative 

aid” which shifts the assumption from the party seeking to use the aid to one of court approval for use, 

which places a higher burden on the party seeking to use the aid and makes more work for the court. 

The Maine Rule still regulates illustrative aids. Under Maine Rule 616(b), a court can limit or prohibit 

“the use of an aid to avoid unfair prejudice, surprise, confusion, or waste of time.” This language would 

be preferrable to the balancing test approach provided in 611(d)(1) of the proposed rule. A rule that the 

illustrative aid is presumed usable at trial, unless the court needs to prohibit or limit its use, is an easier 

rule for courts to implement than the proposed draft which requires the court first to determine that the aid 

can be used at trial by using a balancing test, and then requires notice and an opportunity to object. 

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American Association for Justice ∙ www.justice.org ∙ 777 6th Street, NW ∙ Suite 200 ∙ Washington, DC 20001 ∙ 202-965-3500

Second, AAJ agrees with the direction that the Advisory Committee on Evidence Rules seems headed and 

strongly supports the removal of the notice provision from the rule. For illustrative aids created in advance 

of trial, the court’s scheduling order can provide that counsel exchange them on a date certain prior to trial 

as part of a routine exhibit exchange. AAJ notes that Maine had a notice requirement in its rule that was 

originally adopted in 1993, but that it was removed when the rule was updated in 2015. Many illustrative 

aids are expensive to produce, and plaintiff-side practitioners will prepare them as close to trial as possible. 

It is especially important for plaintiff-side attorneys to avoid unnecessary trial-related expenses, which 

would diminish a client’s recovery. 

Third, AAJ recommends providing some definition or examples of illustrative aids in the rule itself instead 

of waiting until the third paragraph of the Committee Note. Yes, counsel should be reading the notes, but 

does that always happen? AAJ thinks that erring on the side of early clarity is the way to go. AAJ further 

recommends that broad categories be used to describe the illustrative aids. 

The FRE 1006 is also in formal comment period, and AAJ does support that proposed rule change. The 

proposed FRE 1006 does provide examples of voluminous summaries in the first sentence of the rule 

itself: “The court may admit as evidence a summary, chart, or calculation to prove the content of 

voluminous writings, recordings, or photographs...” AAJ suggests that a short list of illustrative aids in 

Rule 611(d) would be helpful. 

Combining these three changes together would result in a draft that looks like this: 

(d) Illustrative Aids.

(1) Use in Trials. An illustrative aid is not evidence, but the court 

a. may allow a party to use an illustrative aid, including [such as] drawings, 

photos, diagrams, charts, graphs, videos, and models, to help the finder of 

fact understand admitted evidence if a reasonable opportunity is provided 

to object to its use and;

b. may limit or prohibit the use of an illustrative aid as necessary to avoid 

unfair prejudice, surprise, confusion, or wasting time. 

III. Changes to the Committee Note

AAJ will file a more extensive public comment, but notes that it generally recommends 

removing the word “disputed” before the word “fact” in each instance that it appears. There 

are many instances where a fact needs to be established or proved, but it may not be actually 

“disputed.” For example, during a damages trial, there may not actually be a dispute about 

facts, but rather the plaintiff’s need to establish future medical costs.

Thank you for your work on the rules, and I would be happy to answer any questions.

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TAB 6 

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Gatehouse Plaza

1290 B Street, Suite 208 |Hayward, CA 94541

Ph: 510.397.2008 | Fax: 510.397.2997

varlacklegal.com

January 20, 2023

Via email to: RulesCommittee_Secretary@ao.uscourts.gov

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C. 20544

Re: Hearing on Proposed Amendments to Evidence Rules 

Dear Rules Committee Members,

Thank you for the opportunity to testify about the Proposed Amendments to Evidence Rules, 

specifically the creation of Rule 611(d) Illustrative Aids. As a member of the California Bar, as 

well as the, Central, Eastern and Northern District of California, United States District Courts 

and the Ninth Circuit Court of Appeals, I come across evidentiary rules every day in my 

practice. I have been a trial attorney since 2006, and was a student attorney of the D.C. Bar in 

2005. Since then, I have tried a number of both civil and criminal cases to verdict. In each of 

them, illustrative aids were used to assist the jury in understanding what happened. 

Appreciating the careful consideration and preparation that went into crafting the proposed 

language of Rule 611(d), I respectfully offer the following suggestions of how to further refine 

the proposal. As it stands, the proposed rule vests too much power in the trial court to take 

away counsel’s ability to present information to assist the jury. Specifically, the portion of the 

rule that states that “[t]he court may allow a party to present an illustrative aid to help the 

finder of fact understand admitted evidence . . . ,” contains two problematic phrases: may and 

admitted.

First, in my experience use of illustrative aids or demonstratives is allowed subject to the 

court’s gate keeping function, found at Rules 403 and 611(a). But if the committee succeeds 

in adding the word “may” into the proposed rule, the past practice of allowing aids or 

demonstratives would be changed from a right to a possibility. This would hinder counsel’s 

ability to plan in advance for effective presentations to the jury because it adds a layer of 

uncertainty to an already adversarial process. Further, changing what has been a “right” to 

present to a “maybe” would vest too much power in the court to take the creativity and 

originality away from the attorney presentation. Secondly, the term admitted evidence

presupposes that the illustrative aid cannot be used in an opening statement absent an early 

stipulation to the evidence that is the subject of the aid being admitted. 

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It is common practice to use aids or demonstratives in opening and there is no real need to 

change that practice by only allowing aids to be used after the evidence is admitted. 

Regarding subsection (A) of the proposed rule, which states:

“(A) its utility in assisting comprehension is not [substantially] outweighed by the danger of 

unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time; and” 

I do not think that this language is necessary because the court already has the right to exclude 

the aid pursuant to Rules 403 or 611(a). Adding the language cited above would add an 

unnecessary layer of complexity where there does not need to be. 

Since illustrative aids are not evidence, but are introduced only to help the jury understand a 

witness’s testimony or a party’s argument, there is no utility in complicating how the aids are

presented. Because the judge can use the same rules that have been allowed in the past to make 

sure that the trial runs smoothly and that no side is prejudiced unfairly. Thus, I do not think 

that subsection (A) is necessary.

While it is true that illustrative aids are not a part of discovery, most judges require attorneys 

to exchange them before opening statements or if they are presented during the trial before 

they are shown to the jury. As such, I do not think the proposed rule needs to add a notice 

requirement because the information is routinely exchanged anyways. 

Lastly, I do agree that an illustrative aid should be entered into the record, especially if it is 

reviewed by the jury during deliberations. 

Thank you for the opprtunity to tesify. 

 Sincerely,

Tiega-Noel Varlack, Esq.

Varlack Legal Services

tiega@varlacklegal.com

cc: File

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