Summary Charts and Demonstratives in the Jury Room

While demonstratives are usually excluded from the jury room during deliberations, a trial court can allow their use at its discretion. In United States v. Natale, 719 F.3d 719 (7th Cir. 2013), the Court of Appeals affirmed the district court's denial of a motion for a new trial by a defendant whose motion was based on the fact that the jury was allowed to use demonstratives during their deliberations. It concluded that the court did not abuse its discretion because:

1. Both sides were given the opportunity to give the jury demonstratives.

2. The demonstratives accurately represented evidence.

3. The demonstratives did not transport counsel to the jury room since labels were removed and the jury would have to identify their content by recalling testimony.

Taking the labels off a demonstrative exhibit can help separate it from an expert's testimony about the demonstrative.

Summary charts are real evidence which a jury can review during deliberations. Federal Rule of Evidence 1006 allows summary charts or calculations to be used to show the content of voluminous records, so long as the originals can be examined by other parties. This type of summary chart is based on admissible evidence. A pedagogical device summary is used to assist the jury in reviewing testimony or admitted exhibits, and a court may not permit it to be used during deliberations.

Remote Notarizations in New York State Must Be In-State

This past March, the Governor of the State of New York issued Executive Order No. 202.7, which authorized notarial acts to be performed remotely during the COVID-19 emergency under certain conditions.

A memo posted by the Secretary of State explains the parameters of the order to notaries public. Note the following:

1. A photo ID has to be shown to the notary public during a video conference - it cannot be presented separately. The notary must have a live video link to the person who requests their services.

2. The notarized document has to be signed and sent to the notary on the same date.

3. The person who requests the services of the notary public must confirm that they are in the State of New York, and if he or she is in a different county than the notary, the notary has to indicate which county that is on the document.

This may mean that reporters may not be able to take the oath of deponents who are questioned on a Zoom conference call if they are in another state.

Administering Deposition Oaths Remotely

When conducting remote depositions, one issue to consider is whether or not the laws of the jurisdiction the case was filed in permit the reporter to take an oath remotely, and if the reporter can administer that oath to someone who is out-of-state. This is an issue which is easy to overlook, since usually the reporter assigned to a deposition will reside in the same state in which the deposition takes place.

The Supreme Court of the State of Florida has issued an administrative order under which, "[n]otaries and other persons qualified to administer an oath in the State of Florida may swear a witness remotely by audio-video." In Re: Comprehensive Covid-19 Emergency Measures For The Florida State Courts ,Fla. Admin. Order No. AOSC20-23 (April 6, 2020), at 3. If the oath is administered to a witness located outside of Florida, the witness must consent . Id. at 4.

The Governor of California issued an executive order suspending Cal. Civ. Proc. Code § 2025.310 which had prevented reporters from deposing a party witness remotely. Cal. Exec. Order No. N-38-20 (Mar. 27, 2020). The civil procedure code was amended and now states that, "[a]t the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition." Cal. Civ. Proc. Code § 2025.310(a) (amended 2020).