Murray v. Just in Case Business Lighthouse, LLC

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 June 20, 2016
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9 2016 CO 47
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1 No. 13SC722, Murray v. Just In Case Bus. Lighthouse, LLC—Contingent Fees for
2 Witnesses—Summary Witness Testimony—Summary Exhibits.
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4 The Colorado Supreme Court holds that the violation of an ethical rule does not
5 displace the rules of evidence and that trial courts retain the discretion under CRE 403
6 to exclude the testimony of improperly compensated witnesses. Next, the supreme
7 court holds that trial courts may allow summary witness testimony if they determine
8 that the evidence is sufficiently complex and voluminous that a summary witness
9 would assist the trier of fact. It further holds that in those circumstances, summary
0 witnesses may satisfy CRE 602’s personal-knowledge requirement by examining the
1 underlying documentary evidence on which they based their summary testimony.
2 Finally, the supreme court holds that that under CRE 1006, trial courts abuse their
3 discretion when they admit summary charts that characterize evidence in an
4 argumentative fashion rather than simply organize it in a manner helpful to the trier of
5 fact.
6 Therefore, the supreme court reverses the court of appeals’ holding remanding
7 the case to the trial court, but affirms the court of appeals on all other issues.
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4 The Supreme Court of the State of Colorado
5 2 East 14th Avenue • Denver, Colorado 80203
6 2016 CO 47
7 Supreme Court Case No. 13SC722
8 Certiorari to the Colorado Court of Appeals
9 Court of Appeals Case No. 12CA1261
0 Petitioner/Cross-Respondent:
1 Patrick Murray,
2 v.
3 Respondent/Cross-Petitioner:
4 Just In Case Business Lighthouse, LLC, a Colorado limited liability company.
5 Judgment Affirmed in Part and Reversed in Part
6 en banc
7 June 20, 2016
8 Attorneys for Petitioner/Cross-Respondent:
9 Burleson LLP
0 Michael M. McGloin
1 Denver, CO
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3 Attorneys for Respondent/Cross-Petitioner:
4 Cristiano Law, LLC
5 Francis V. Cristiano
6 Denver, CO
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8 Attorneys for Amicus Curiae Colorado Bar Association:
9 Burg Simpson Eldredge Hersh & Jardine, P.C.
0 Diane Vaksdal Smith
1 Englewood, CO
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3 Holland & Hart, LLP
4 Marcy G. Glenn
5 Denver, CO
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4 JUSTICE BOATRIGHT delivered the Opinion of the Court.
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¶1 In this case, we consider the interplay between the rules of evidence and the
rules of professional conduct, as well as the breadth of the trial court’s discretion in
controlling the admission of summary exhibits and testimony.1 This lawsuit originated
from a business dispute between Respondent/Cross-Petitioner Just In Case Business
Lighthouse, LLC (“JIC”), and Petitioner/Cross-Respondent Patrick Murray. To prepare
for the litigation, JIC hired Preston Sumner, a businessman with knowledge of business
sales and valuation, as an advisor. Sumner agreed to help with the case in exchange for
a ten percent interest in the case’s outcome. In that role, he created summary exhibits
and was identified as a witness for trial. Murray objected to Sumner’s involvement in
the case on several grounds: (1) Sumner’s testimony should be excluded because his ten
percent interest in the case constituted an improper payment in violation of Colorado
Rule of Professional Conduct (“RPC”) 3.4(b); (2) Sumner lacked the requisite personal
knowledge of the case’s underlying events as required by Colorado Rule of Evidence
(“CRE”) 602; and (3) the summary charts were inadmissible under CRE 1006. The trial
court ruled that Sumner could testify as a summary witness, but not as an expert or fact
1 We granted certiorari to review the following issues:
1. [REFRAMED] Whether the court of appeals erred by holding that
compensating a fact witness contingent upon the outcome of the case
does not require a per se rule excluding that witness’s testimony.
2. [REFRAMED] Whether the court of appeals erred by holding that the
trial court did not abuse its discretion in allowing a non-expert
summary witness to testify about voluminous trial evidence.
3. [REFRAMED] Whether the court of appeals erred by affirming the trial
court’s admission into evidence of summary exhibits because they were
demonstrative devices that contained arguments of counsel.
3
witness, and it otherwise overruled Murray’s objections. Sumner testified and laid the
foundation for two summary exhibits, which the trial court admitted into evidence. The
jury returned a verdict in favor of JIC, awarding it damages. Murray renewed his
arguments on appeal. The court of appeals rejected them in part but remanded the case
to the trial court to determine whether Sumner’s testimony should have been excluded
as a sanction for JIC’s violation of RPC 3.4(b). Just in Case Bus. Lighthouse, LLC v.
Murray, 2013 COA 112M, ¶¶ 21, 26, 34, 43, __ P.3d __.2 We granted certiorari, and now
affirm in part and reverse in part.
¶2 First, we decline to adopt a per se rule excluding the testimony of improperly
compensated witnesses. We hold that the violation of an ethical rule does not displace
the rules of evidence and that trial courts retain the discretion under CRE 403 to exclude
the testimony of improperly compensated witnesses. In applying that rule, we
conclude that the trial court did not abuse its discretion in declining to exclude
Sumner’s testimony in this case because its probative value was not substantially
outweighed by the danger of unfair prejudice. Therefore, we conclude that a remand to
the trial court is unnecessary.
¶3 Second, we hold that trial courts may allow summary witness testimony if they
determine that the evidence is sufficiently complex and voluminous that a summary
witness would assist the trier of fact. We further hold that in those circumstances,
summary witnesses may satisfy CRE 602’s personal-knowledge requirement by
2All citations to Murray in this opinion refer to the paragraph numbers in the Pacific
Reporter’s version of the opinion.
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examining the underlying documentary evidence on which they based their summary
testimony. Applying this rule to the facts of this case, we conclude that the trial court
did not abuse its discretion in permitting Sumner to testify as a non-expert summary
witness because the evidence was complex and voluminous and Sumner’s testimony
helped the jury to understand it, and because Sumner summarized only previously
admitted evidence that he had personally examined.
¶4 Third, we hold that that under CRE 1006, trial courts abuse their discretion when
they admit summary charts that characterize evidence in an argumentative fashion
rather than simply organize it in a manner helpful to the trier of fact. Applying this
holding, we conclude that the trial court properly admitted one of Sumner’s summary
charts, Exhibit 1, because it organized relevant facts chronologically, but abused its
discretion in admitting the other, Exhibit 1.1, because it included argument.
Nevertheless, we hold that this error was harmless because it did not substantially
influence the outcome of the case or impair the fairness of the trial.
¶5 Therefore, we reverse the court of appeals’ judgment to the extent that it
remanded the case to the trial court to determine whether Sumner’s testimony should
have been excluded, but affirm on the remaining issues.
I. Facts and Procedural History
¶6 JIC is wholly owned and operated by Joseph Mahoney. JIC entered into an
agreement with Pearl Development Company (“Pearl”), whereby Pearl agreed to pay
JIC a specified commission if it successfully “promote[d], solicit[ed], and otherwise
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secure[d] the potential sale . . . of Pearl.”3 Initially, JIC communicated with Epic Energy
Resources, Inc. (“Epic”), as a potential buyer, but the parties did not reach a deal at that
time. Subsequently and without JIC’s knowledge, Pearl’s agents—including its
president, Murray—reinitiated talks to sell Pearl to Epic. Eventually, Pearl’s agents
signed a letter of intent outlining their plans to sell Pearl to Epic. Before the sale was
completed, Murray contacted Mahoney and convinced him to sign a termination
agreement ending their previous business arrangement. Five months later, Epic
completed its purchase of Pearl. Due to the termination agreement, JIC did not receive
the commission it would have received as the exclusive agent authorized to facilitate
Pearl’s sale.
¶7 Upon learning of the sale, JIC sued Pearl’s owners and officers, including
Murray, alleging that they fraudulently misrepresented their intentions and failed to
disclose that Epic was planning to purchase Pearl, and then used this misrepresentation
to induce Mahoney to sign the termination agreement and deprive him of his expected
commission.4 To help prepare for trial, JIC hired businessman Preston Sumner as an
advisor. As payment, Mahoney granted Sumner a ten-percent interest in the case
contingent upon its outcome. Sumner did a variety of work related to the lawsuit,
3JIC and Pearl executed two successive agreements, each with a set term, for this same
purpose. The parties entered into the second agreement after the term of the first
agreement expired.
4 JIC ultimately settled with Pearl’s two other co-owners.
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including analyzing documents and business records and creating summary charts and
exhibits based on these underlying documents.
¶8 JIC disclosed Sumner as a witness and indicated its intention to use Sumner as an
expert in business valuation pursuant to C.R.C.P. 26(a)(2). Subsequently, Mahoney
revealed during his deposition that he was going to pay Sumner a contingency fee
based on the amount Mahoney recovered in the lawsuit. In response, Murray filed a
motion in limine to preclude Sumner from testifying as either an expert witness or a fact
witness. In it, he argued that RPC 3.4(b) prohibited compensating witnesses on a
contingency fee basis and, therefore, those witnesses should be prohibited from
testifying at trial. The trial court granted the motion in part and denied it in part. In
granting the motion in part, the trial court found that RPC 3.4(b) only prohibited
Sumner from testifying as an expert witness. In denying the motion in part, the court
found that RPC 3.4(b) did not prohibit Sumner from testifying as a non-expert witness
and, therefore, allowed him to testify as a lay witness. The trial court found that the
case was complex and the evidence was voluminous, and that Sumner was primarily
helping JIC to organize and prepare its case. The court ordered Sumner to limit his
testimony to “presenting evidence that would assist the trier of fact in understanding
the transaction” and ordered him not to offer expert opinion testimony.
¶9 At trial, Murray argued that Sumner should be prohibited from testifying under
CRE 602 because he lacked personal knowledge of the events that led to the case. The
trial court rejected this argument, stating that summary witnesses are acceptable in
complex trials. However, the trial court ordered that Sumner’s exhibits and testimony
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be based only on evidence that had already been admitted. Thus, Sumner limited his
testimony to summarizing previously admitted evidence.
¶10 Murray also objected under CRE 1006 to the admission of two summary exhibits
that Sumner created and used while testifying at trial: (1) an eight-page chart
summarizing certain documentary evidence with some words in bold-face type
(Exhibit 1); and (2) a one-page, color-coded timeline, also containing some bolded
words and the headings “Things Mahoney Knew” and “Things Mahoney Did NOT
Know” (Exhibit 1.1). Murray argued that the exhibits were inadmissible because the
underlying documents were already admitted and were not too voluminous to
conveniently examine in court, as CRE 1006 requires. He also argued that the exhibits
should not be admitted under CRE 1006 because they were argumentative and
prejudicial. The trial court overruled the objection, finding that the case was sufficiently
complicated and the underlying documents sufficiently voluminous—over 200 exhibits
had been admitted—to satisfy CRE 1006’s requirements. Ultimately, the jury awarded
$1,691,000 to JIC, which the trial court reduced to $563,610.30 based on the comparative
fault of two of Pearl’s co-owners.
¶11 Murray appealed, and the court of appeals reversed in part and affirmed in part.
Murray, ¶ 74. First, the court of appeals vacated the trial court’s judgment that
Sumner’s payment did not violate RPC 3.4(b); it held that the contingency fee payment
did violate RPC 3.4(b) and ordered a limited remand to determine whether excluding
Sumner’s testimony was an appropriate sanction for the improper fee agreement. Id. at
¶¶ 23, 26. In doing so, the court of appeals declined to adopt a per se rule excluding
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Sumner’s testimony based on his impermissible fee agreement. Id. at ¶¶ 9, 21. Judge
Richman dissented from this portion of the opinion, arguing that contingent fee
arrangements necessarily undermine the fairness and integrity of the trial and that the
court should have vacated the judgment in its entirety and remanded for a new trial.
Id. at ¶ 89 (Richman, J., concurring in part and dissenting in part).
¶12 Second, the court of appeals noted that most federal and state appellate courts
that have considered summary testimony have held it admissible when “a summary
witness has . . . knowledge [of the case] based on an independent review of other
evidence.” Id. at ¶ 32 (majority opinion). Thus, the court held that Sumner’s testimony
did not violate CRE 602 because it was based on previously admitted evidence that
Sumner had personally examined and it was helpful to the jury. Id. at ¶ 34.
¶13 Third, the court of appeals held that the summary exhibits were admissible
despite minor embellishments. Id. at ¶ 42. It held that the trial court did not abuse its
discretion when it admitted the summary charts because the evidence was voluminous.
Id. at ¶¶ 40–42. It also held that the charts were not “unduly prejudicial” because
(1) the underlying documents were admitted as evidence, and (2) summaries or charts
need not present both parties’ versions of the facts. Id. We granted certiorari.
¶14 We now consider the interplay between the rules of evidence and the rules of
professional conduct, and the breadth of the trial court’s discretion in controlling the
admission of summary exhibits and testimony. First, we examine the relationship
between the ethical rules and the evidence rules at trial to determine whether paying
witnesses contingent fees in violation of RPC 3.4(b) requires per se exclusion of the
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witnesses’ testimony. Concluding that it does not, we then consider whether Sumner’s
fee agreement required the trial court to exclude his testimony in this case. Second, we
consider whether non-expert summary witnesses may testify under CRE 602, and
whether the trial court abused its discretion in permitting Sumner to testify as a
summary witness here. Third, we consider under which circumstances summary charts
are admissible as evidence under CRE 1006, and whether the trial court abused its
discretion in admitting Sumner’s summary charts in this case.
II. Improper Contingent Fee Witnesses
¶15 Murray first argues that JIC’s contingent fee agreement with Sumner violated
RPC 3.4(b), and he urges us to adopt a per se rule excluding the testimony of a witness
whose compensation hinges on the outcome of a case. The court of appeals agreed with
Murray that the fee agreement violated RPC 3.4(b), but did not adopt a per se rule
excluding any witness who was paid in violation of the ethical rule. We agree with the
court of appeals that the contingent fee agreement does violate RPC 3.4(b),5 and we
affirm its judgment and also decline to adopt a per se rule excluding the testimony of
improperly compensated witnesses. We hold that the violation of an ethical rule does
not displace the rules of evidence and that trial courts retain the discretion under CRE
403 to exclude the testimony of improperly compensated witnesses. In applying that
5 Like the court of appeals, we express no opinion here on any potential attorney
regulation matters that may arise from this case. See Mercantile Adjustment Bureau,
L.L.C. v. Flood, 2012 CO 38, ¶ 15, 278 P.3d 348, 354 (“[E]thical violations arising during
litigation are better addressed by the ‘comprehensive disciplinary machinery’ of the
bar.” (quoting Bd. of Educ. of N.Y. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979))).
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rule, we conclude that the trial court did not abuse its discretion in declining to exclude
Sumner’s testimony in this case because its probative value was not substantially
outweighed by the danger of unfair prejudice. Therefore, unlike the court of appeals,
we conclude that a remand to the trial court is unnecessary.
A. Standard of Review
¶16 Trial courts have considerable discretion to decide evidentiary issues, so we
review such decisions for an abuse of discretion. People v. Segovia, 196 P.3d 1126, 1129
(Colo. 2008). “[A] trial court necessarily abuses its discretion if it bases its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id.
Appellate courts can review ethical violations if they become intertwined with the
litigation. See Liebnow ex rel. Liebnow v. Boston Enters. Inc., 2013 CO 8, ¶ 11, 296 P.3d
108, 113. When that happens, we review a trial court’s ruling on an ethical violation for
an abuse of discretion. See id. at ¶ 14, 296 P.3d at 114 (applying abuse of discretion
review to attorney disqualification for violation of RPC 1.7).
B. Prohibited Contingent Fee Agreements
¶17 RPC 3.4(b) prohibits improperly compensating witnesses for their testimony.
Specifically, the rule states, “A lawyer shall not . . . offer an inducement to a witness that
is prohibited by law . . . .” Colo. RPC 3.4(b). Comment 3 elaborates on this rule: “[I]t is
not improper to pay an expert or non-expert’s expenses or to compensate an expert
witness on terms permitted by law. It is improper to pay any witness a contingent fee
for testifying.” Colo. RPC 3.4, cmt. 3. RPC 3.4(b) prohibits lawyers from paying
witnesses on a contingent fee basis because those witnesses “may thereby be
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improperly motivated to enhance [their] compensation and thus lose objectivity.”
Buckley Powder Co. v. State, 70 P.3d 547, 559 (Colo. App. 2002).
¶18 Even though RPC 3.4(b) unambiguously prohibits paying witnesses contingent
fees, it is silent as to the admissibility of an improperly compensated witness’s
testimony. We begin by emphasizing that “[i]t is both illegal and against public policy
to pay or tender something of value to a witness in return for his testimony.” People v.
Belfor, 591 P.2d 585, 587 (Colo. 1979) (quoting Model Code of Prof’l Responsibility
DR7-102 (1979)). But the prohibition on paying witnesses a contingency fee for their
testimony does not necessarily mean that those witnesses may never testify at trial. The
Colorado Rules of Evidence are separate from the Colorado Rules of Professional
Conduct, and each has its distinct purpose: the evidentiary rules govern issues of
admissibility at trial, whereas the ethical rules govern attorney behavior. We must
consider how these two sets of rules interact during trial.
¶19 We begin by noting CRE 402’s general directive that “[a]ll relevant evidence is
admissible,” unless the United States Constitution, the Colorado Constitution, a state
statute, the evidence rules, or the Supreme Court prohibits that evidence. Relevant
evidence may be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” CRE 403. In weighing those dangers and considerations, the proffered
evidence “should be given its maximal probative weight and its minimal prejudicial
effect.” People v. Dist. Ct. of El Paso Cty., 869 P.2d 1281, 1285 (Colo. 1994). Thus, the
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evidentiary rules strongly favor the admission of relevant, material evidence. Palizzi v.
City of Brighton, 228 P.3d 957, 962 (Colo. 2010).
¶20 To give effect to this principle and to the evidence rules’ overarching goals, RPC
3.4(b)’s ethical prohibition on contingent fee agreements for witnesses should not be
interpreted to require a rule of automatic exclusion. Rather, we must examine the
purpose behind the ethical rule to determine whether and how it should be applied
during trial. RPC 3.4(b) ultimately aims to protect the integrity of trials by preventing
lawyers from improperly inducing witnesses to offer biased testimony. See Liebnow,
¶ 13, 296 P.3d at 113. When a lawyer procures the testimony of an improperly
compensated witness at trial, it implicates the witness’s potential bias. See Jamaica
Time Petroleum, Inc. v. Fed. Ins. Co., 366 F.2d 156, 158 (10th Cir. 1966). But bias is an
issue of the credibility and weight to be afforded the witness’s testimony rather than the
witness’s competency. E.g., id.
¶21 And, importantly, a witness’s credibility is for the fact-finder to decide, subject to
the trial court’s discretion. See id. (“The question of the credibility of [the witness] was
for the jury.”); Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 467 n.3 (Colo. 1990)
(“Questions relating to the credibility of a witness and the weight to be accorded the
testimony of a witness are matters to be resolved solely by the jury.”). Specifically,
whether to allow a witness to testify—even one who has been improperly compensated
in violation of the ethical rules—is a question within trial courts’ sound discretion
deriving from their “inherent power to ensure the integrity of the process and fairness
to the parties.” In re Estate of Myers, 130 P.3d 1023, 1025 (Colo. 2006). Pursuant to that
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discretion, trial courts may determine whether and when violations of the ethical rules
implicate the fairness of the proceedings and warrant disqualification of a witness. See
Liebnow, ¶ 11, 296 P.3d at 113.
¶22 Thus, a witness’s potential bias does not automatically render that witness’s
testimony irrelevant or unhelpful. To the extent that other courts have prohibited
contingent fee witnesses from testifying, see, e.g., Golden Door Jewelry Creations, Inc.
v. Lloyds Underwriters Non-Marine Ass’n, 865 F. Supp. 1516, 1526 (S.D. Fla. 1994),
those cases do not conflict with our decision. In Golden Door, the district court
concluded that a lawyer’s improper payments to fact witnesses required exclusion of
the evidence that had been tainted by those payments. Id. at 1518, 1525. In doing so,
the court explicitly limited its holding to the particular facts of the case: “Under these
circumstances and based on the evidence presented in this case, this Court can come to
no other conclusion than that [the] repeated payments of substantial sums of money to
[the witnesses] had an effect on the testimony they gave in this action.” Id. at 1526.
¶23 We read Golden Door and other similar cases as examples of trial courts
exercising their discretion based on the facts of the case rather than acting in conformity
with or adopting a per se rule.6 Thus, “[i]n our view, the admissibility of . . . any
6 Other jurisdictions have similarly refrained from adopting per se rules barring
contingent-fee testimony. See, e.g., Crowe v. Bolduc, 334 F.3d 124, 132 (1st Cir. 2003)
(holding that witnesses’ financial incentives were “classic evidence of bias”); Tagatz v.
Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988) (“[The ethical] rule against
employing expert witnesses on a contingent-fee basis . . . does not [mean] that evidence
obtained in violation of the rule is inadmissible. The trier of fact should be able to
discount for so obvious a conflict of interest.” (citation omitted)); United States v.
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testimony[] depends ultimately on whether or not it is reliable. If the testimony is
reliable and would be helpful to the trier of fact, the witness’s testimony should be
admitted.” People v. Romero, 745 P.2d 1003, 1016 (Colo. 1987). Of course, if the jury
finds that the witness is not credible, then it is free to disregard the testimony. But if the
trial court finds the evidence so unreliable that its admission would violate CRE 403,
then the court retains the discretion to suppress the evidence.
¶24 This approach acknowledges that per se rules risk excluding relevant, unbiased
testimony while simultaneously failing to eliminate the possibility of bias entirely.
Every compensated witness has the potential to be biased. CRE 403’s balancing test
accounts for the more nuanced tools that trial courts can use to address the risk that
testimony procured in violation of an ethical rule will improperly influence juries. For
example, thorough cross-examination and limiting instructions may sufficiently protect
the integrity of judicial proceedings by mitigating the impact of witness testimony and
exposing potential bias to the jury. We have repeatedly emphasized the importance of
these tools. Recently, in Kelly v. Haralampopoulos ex rel. Haralampopoulos, 2014 CO
46, ¶ 48, 327 P.3d 255, 268, we held that “the trial court could have reasonably
concluded that cross-examination and argument would address potential prejudice.”
Similarly, in People v. King, 498 P.2d 1142, 1144–45 (Colo. 1972), we held that parties
must be free to cross-examine a witness with an interest in the case to determine
Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (holding that “it is up to the jury to
evaluate the credibility of the compensated witness”); Fund of Funds, Ltd. v. Arthur
Andersen & Co., 545 F. Supp. 1314, 1370 (S.D.N.Y. 1982) (holding that payments of large
sums to witnesses should be brought before the jury as matters of credibility).
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“whether it is of a nature to awaken in him a lively and possible interest in the outcome
of the trial” (quoting Tollifson v. People, 112 P. 794, 797 (Colo. 1911)). With these tools,
trial courts can promote truth-seeking while maintaining the fairness of the trial.
Alternatively, if the trial court determines that these safeguards are insufficient to
maintain the fairness of the trial, it can preclude a witness from testifying.
¶25 Accordingly, we conclude that when RPC 3.4(b) and the evidence rules overlap,
the proper approach is for trial courts to balance the probative value of the evidence
against the danger of unfair prejudice. In so doing, trial courts should not exclude
testimony from improperly compensated witnesses unless they determine that the
testimony’s danger of unfair prejudice substantially outweighs its probative value. See
CRE 403; Berger v. Coon, 606 P.2d 68, 70 (Colo. 1980) (“The policy underlying the
Colorado Rules of Evidence . . . is . . . to favor admissibility of [adverse witness]
testimony so as to ascertain the truth within the bounds of fairness.”); see also CRE 601
(“Every person is competent to be a witness except as otherwise provided in these rules,
or in any statute of the State of Colorado.”); Romero, 745 P.2d at 1015 (noting that per se
rules on admissibility are “inconsistent with the general trend of witness competency
that every person is competent to be a witness” (quoting State v. Iwakiri, 682 P.2d 571,
577 (Idaho 1984))). We reject a per se rule excluding improperly compensated witness
testimony because excluding entire categories of witnesses from testifying neither
promotes the discovery of truth nor assures the fairness of the judicial proceedings, and
it precludes the trial court from exercising its discretion.
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¶26 In sum, a per se rule excluding certain witnesses is contrary to our well-settled
trend favoring admissibility of evidence. Ethical rules, which prohibit lawyers’
unethical behavior, generally should defer to the truth-facilitating function of
evidentiary rules, which give trial courts discretion to determine what evidence may be
presented at trial and the manner in which parties may present it. Trial courts may
exclude the testimony of witnesses compensated in violation of RPC 3.4(b), but they
need not always do so. Therefore, we decline to adopt a per se rule mandating
exclusion as a sanction for violating RPC 3.4(b). Instead, the trial court is best situated
to decide on a case-by-case basis whether the testimony of a witness compensated
under a contingent fee agreement so prejudices the fairness of the litigation that it
requires exclusion of the improperly compensated witness’s testimony.
C. Application
¶27 Applying this rule to the facts of this case, we determine that the trial court did
not abuse its discretion because the danger of unfair prejudice did not substantially
outweigh the probative value of Sumner’s testimony. First, the majority of the evidence
which Sumner summarized had been previously admitted by stipulation, supporting
the accuracy of his testimony. Second, the trial court found that the testimony helped
the jury to make sense of voluminous evidence comprised of complex business records.
Third, the jury was aware of the fee agreement. Murray specifically brought it to the
jury’s attention when he cross-examined Sumner on the issue, thus leaving the jury to
assess Sumner’s credibility for itself. Finally, because Sumner testified as a lay witness,
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the trial court prohibited him from giving expert opinions about his analysis of the
documentary evidence.
¶28 Therefore, we determine that the trial court did not abuse its discretion in
permitting Sumner to testify. It is not necessary to remand this case to the trial court
because that court, in its broad discretion, reasonably found that Sumner’s fee
agreement and testimony did not undermine the fundamental fairness of the trial.
Consequently, we reverse the judgment of the court of appeals to the extent that it
remanded the case to the trial court.
¶29 We now turn to the question of whether the trial court erred in permitting
Sumner to testify as a summary witness under CRE 602.
III. Non-Expert Summary Witnesses
¶30 Murray contends that CRE 602 prohibits non-expert summary witness testimony,
meaning that Sumner’s testimony was improper.7 To address this question, we first
consider whether and under what circumstances summary witnesses may testify under
CRE 602. Second, we consider whether the trial court abused its discretion in
permitting Sumner to testify as a summary witness in this case.
¶31 We hold that trial courts may allow summary witness testimony if, in their
discretion, they determine that the evidence is sufficiently complex and voluminous
7 Murray also challenged Sumner’s testimony under CRE 701. We agree with the court
of appeals that Murray failed to preserve this issue for appeal because he did not object
to Sumner’s testimony on this basis at trial. See Am. Family Mut. Ins. Co. v. Allen, 102
P.3d 333, 340 n.10 (Colo. 2004). Therefore, we will not consider his CRE 701 argument
here.
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that a summary witness would assist the trier of fact. We further hold that in those
circumstances, summary witnesses may satisfy CRE 602’s personal-knowledge
requirement by examining the underlying documentary evidence on which they based
their summary testimony. Applying this rule to the facts of this case, we conclude that
the trial court did not abuse its discretion in permitting Sumner to testify as a
non-expert summary witness because the evidence was complex and voluminous and
Sumner’s testimony helped the jury to understand it, and because Sumner summarized
only previously admitted evidence that he had personally examined.
A. Standard of Review
¶32 We review a trial court’s decision on evidentiary issues for an abuse of
discretion, and a trial court does not abuse its discretion unless its ruling is manifestly
arbitrary, unreasonable, or unfair. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002).
B. CRE 602
¶33 CRE 602 provides that “[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal knowledge of the
matter.” “The threshold for satisfying the personal-knowledge requirement is not very
high and may be inferable from sources other than the witness . . . and from the total
circumstances surrounding the matter that is the subject of the witness’s testimony.”
Burlington N. R.R., 802 P.2d at 469. Nonetheless, we have not specifically addressed the
parameters of non-expert summary witness testimony, including the question of
whether such witnesses can satisfy CRE 602’s personal-knowledge requirement by
19
reviewing documentary evidence.8 As this is a matter of first impression for us, and as
Fed. R. Evid. 602 is substantially identical to CRE 602, federal precedent is helpful to
resolve this issue.9 See Stewart, 55 P.3d at 123.
¶34 As federal courts have noted, the “dangers posed by summarization of evidence”
require certain procedural protections to preserve the fairness of the trial and mitigate
the danger that juries will give summary witness testimony undue weight. United
States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983). First, allowing witnesses to
summarize evidence presents the danger that juries will treat the summary as
“additional evidence or as corroborative of the truth of the underlying testimony.” Id.
However, trial courts can protect against these dangers by giving limiting instructions
to the jury, giving opposing parties wide latitude to object to all or part of the summary
testimony through voir dire of the witness, and giving opposing parties the opportunity
to cross-examine the summary witness. See id.
¶35 Second, permitting summary evidence may allow a party to introduce otherwise
inadmissible evidence. Id. at 1349. But trial courts can protect against this abuse by
requiring that the evidence on which the summary testimony is based be admissible or
8 Non-expert summary witness testimony also implicates CRE 403, which provides that
trial courts may exclude evidence if “its probative value is substantially outweighed
by . . . considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” See United States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983)
(“[T]he non-expert summary evidence was cumulative, and hence subject to challenge
under Rule 403.”). We do not address the issue of cumulative evidence here because
Murray never objected on this ground.
9Therefore, we rely on cases interpreting both rules, and refer to them collectively as
Rule 602.
20
admitted at trial. Id. (citing United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.
1979)).
¶36 Finally, summary evidence may “provide an extra summation for the
[proponent] that comes from the witness stand rather than the counsel’s lecturn.” Id.
As the D.C. Circuit noted in Lemire, “The distinction between valid summary testimony
and argument is not a bright line.” Id.; see also United States v. Armstrong, 619 F.3d
380, 385 (5th Cir. 2005) (“While [summary] witnesses may be appropriate for
summarizing voluminous records, . . . rebuttal testimony by an advocate summarizing
and organizing the case for the jury constitutes a very different phenomenon, not
justified by the Federal Rules of Evidence . . . .”). Hence, trial courts should not permit
summary testimony to “draw controversial inferences or pronounced judgment.”
Lemire, 720 F.2d at 1350. This requirement helps prevent parties from improperly
inserting arguments or conclusions into the evidentiary phase of trial when they are
better suited to closing argument.
¶37 Recognizing the safeguards attending these concerns, federal courts generally
allow non-expert summary witness testimony. See id. at 1347 (“There is an established
tradition that permits a summary of evidence to be put before the jury . . . .”). In so
doing, many federal courts have held that summary witnesses are only appropriate
where the evidence is factually complex. See United States v. Scales, 594 F.2d 558, 563
(6th Cir. 1979). Indeed, “just as an expert can assist a jury by imparting special
knowledge that helps the jury to understand technical evidence, a non-expert summary
witness can help the jury organize and evaluate evidence which is factually complex
21
and fragmentally revealed . . . throughout the trial.” Lemire, 720 F.2d at 1348. Thus,
summary witnesses provide valuable services by repackaging relevant evidence that
the trier of fact would not adequately understand without assistance. For this reason,
trial courts retain the discretion to permit summary witness testimony when it would
be helpful to the trier of fact.
¶38 Federal courts have held that summary witnesses’ examination of the underlying
documents is enough to satisfy the personal-knowledge requirement under Rule 602.
See, e.g., In re Furr’s Supermarkets, Inc., 373 B.R. 691, 703 (B.A.P. 10th Cir. 2007); Bryant
v. Farmers Ins. Exchange, 432 F.3d 1114, 1123 (10th Cir. 2005); Lemire, 720 F.2d at 1347.
Thus, federal courts may permit summary witnesses to testify when there is at least
some evidence from which the jury “could reasonably find that the witness has
personal knowledge of the event to which the witness is about to testify.” Burlington
N. R.R., 802 P.2d at 469 (citing M.B.A.F.B. Fed. Credit Union v. Cumis Ins. Soc. Inc., 681
F.2d 930, 932–33 (4th Cir. 1982)). Applying this principle, the Tenth Circuit has stated
that after establishing personal knowledge, two factors inform a court’s analysis of
whether to admit summary testimony and any accompanying summary charts: “(1) the
testimony’s or chart’s potential to ‘aid the jury in ascertaining the truth,’ and (2) ‘the
possible prejudice that may result to the [opposing party] in allowing such evidence.’”
United States v. Brooks, 736 F.3d 921, 931 (10th Cir. 2013) (quoting United States v. Ray,
370 F.3d 1039, 1046, 1047 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005)
(alterations and internal citations omitted)).
22
¶39 The D.C. Circuit applied this same approach in Lemire, 720 F.2d at 1349. In
Lemire, an FBI agent testified for the government, relying on documents and testimony
that had already been admitted to summarize complex evidence about cash flows and
offshore companies. Id. at 1346. The district court issued limiting instructions that the
summary witness’s testimony was “explanatory and was not itself substantive
evidence.” Id. at 1346–47. On appeal, the D.C. Circuit held that the testimony was
admissible because it helped the jury to organize and evaluate complex evidence and
was based on previously admitted evidence. Id. at 1346, 1348 (citing Scales, 594 F.2d at
563). Noting that Rule 602’s purpose is to ensure reliability in testimony, the D.C.
Circuit held that “neither Rule 602’s literal language nor its overriding purpose was
violated” when the district court admitted the summary testimony. Id. at 1347; see also
Furr’s, 373 B.R. at 702–04 (holding summary testimony and charts prepared by a
debtor’s financial accounting manager admissible despite the manager’s lack of
personal knowledge because “it does not take an expert to create graphs and
summarize data,” and the testimony was based on examination of previously admitted
business records).
¶40 We find this approach persuasive. Ultimately, trial courts are uniquely situated
to determine whether summary witness testimony is useful for the finder of fact,
whether it is more prejudicial than probative, and whether it is being offered for an
improper purpose. Trial court judges act as gatekeepers to ensure the reliability of
evidence, including summary testimony. In this role, they determine whether the
evidence is sufficiently complex that the jury would need help understanding it, and
23
they require that summary witnesses satisfy Rule 602’s personal knowledge
requirement by examining the underlying admitted evidence. Thus, because trial
courts have broad discretion to make evidentiary rulings, they may admit non-expert
summary witness testimony when it would clarify complex and voluminous evidence.
In those circumstances, they may allow summary witnesses to satisfy Rule 602’s
personal-knowledge requirement by examining the underlying evidence. Having
reached this conclusion, we now consider whether the trial court abused its discretion
by permitting Sumner to testify as a summary witness under CRE 602 in this case.
C. Application
¶41 The trial court here did not abuse its discretion in permitting Sumner to testify as
a summary witness. The trial court was well within its discretion when it made the
threshold finding that the evidence in this case—over 200 exhibits tracking a
complicated series of business transactions—was complex and voluminous. The court
justifiably concluded that Sumner’s testimony would benefit the jury because it could
“help the jury organize and evaluate evidence which [was] factually complex.” Lemire,
720 F.2d at 1348. The court explicitly found that “this is a complicated enough case that
you’re going to need some method to demonstrate to the jury how it all comes
together[;] otherwise the jury is never going to understand this.” Thus, the trial court
was justified in finding that summary testimony was appropriate in this case.
¶42 Moreover, the court ensured the reliability of Sumner’s testimony by requiring
that he only summarize documents and evidence that were already admitted at trial.
Even if the summary testimony presented the risk of bias, the court granted Murray
24
wide latitude during cross-examination to question Sumner on his knowledge of and
role in the case. Additionally, the trial court ordered JIC to take it “little by little” to lay
the appropriate foundation for Sumner’s testimony and prohibit him from offering
expert testimony. In so doing, the trial court properly constrained Sumner’s testimony
to reviewing the documentary evidence, and he did not offer any conclusions or
opinions within the purview of an expert. See Stewart, 55 P.3d at 124. Therefore, his
testimony did not have the air of authority that might accompany an expert’s
testimony. For these reasons, the trial court’s decision to allow Sumner to testify as a
summary witness was not manifestly arbitrary or unreasonable.
¶43 In sum, the trial court did not abuse its discretion in permitting Sumner to testify
as a summary witness because his testimony assisted the jury in organizing the facts of
the case, and because he had established personal knowledge of the evidence that he
summarized by examining the underlying, previously admitted evidence.
¶44 Although we conclude that the trial court did not abuse its discretion in
admitting Sumner’s summary testimony, the better practice is to issue a limiting
instruction in conjunction with the testimony.10 However, during trial, Murray neither
requested nor tendered a limiting instruction under Rule 602.11 See Am. Family Mut.
10Since no limiting instruction was tendered in this case, we express no opinion as to
the exact language of an appropriate limiting instruction. See Tippett v. Johnson, 742
P.2d 314, 315 (Colo. 1987) (“This court is not empowered to give advisory opinions
based on hypothetical fact situations.”).
11 Even absent such a request, the trial court specifically considered giving a limiting
instruction and rejected it as unnecessary.
25
Ins. Co. v. Allen, 102 P.3d 333, 340 n.10 (Colo. 2004) (“Arguments not raised before the
trial court may not be raised for the first time on appeal.”). Therefore, we see no need to
disturb the trial court’s decision, since the lack of a limiting instruction did not unfairly
prejudice Murray. There was ample evidence in the record from which the jury could
have concluded that Murray was liable. Moreover, the most important function of a
limiting instruction for summary witness testimony is to prevent the erosion of parties’
rights to a fair and impartial jury, which may occur when the proponent is permitted to
summarize its case in chief shortly before closing argument and jury deliberation. See
Lemire, 720 F.2d at 1347. This case, in which most of the summarized evidence was
admitted by stipulation and therefore deemed accurate by both parties, does not
present such dangers.
¶45 Having determined that the trial court did not abuse its discretion in permitting
Sumner to testify as a summary witness, we now consider Murray’s argument that the
trial court abused its discretion in admitting Sumner’s summary charts under CRE 1006.
IV. Summary Exhibits
¶46 In his final argument, Murray claims that the trial court erred in admitting
Sumner’s two summary exhibits into evidence under CRE 1006. Sumner created two
summaries of the evidence in the case, including a chart containing bolded words,
Exhibit 1, and a timeline containing headings and coloration, Exhibit 1.1. Murray
contended at trial that these summaries were demonstrative devices that contained
arguments of counsel, and therefore should not be admitted into evidence under CRE
1006. After finding that the evidence in this case was voluminous and complex, the trial
26
court admitted the summaries on the condition that the underlying documents upon
which they were based had also been admitted into evidence.
¶47 We hold that under CRE 1006, trial courts abuse their discretion when they admit
summary charts that characterize evidence in an argumentative fashion rather than
simply organize it in a manner helpful to the trier of fact. Applying this holding, we
conclude that the trial court properly admitted one of Sumner’s summary charts,
Exhibit 1, because it organized relevant facts chronologically, but that it abused its
discretion in admitting the other, Exhibit 1.1, because it included argument.
Nevertheless, we hold that this error was harmless because it did not substantially
influence the outcome of the case or impair the fairness of the trial.
A. Standard of Review
¶48 Trial courts have broad discretion to make evidentiary rulings. See People v.
Eppens, 979 P.2d 14, 22 (Colo. 1999). Specifically, “[t]he admission of summary charts is
a matter within the discretion of the [trial] court, whose decisions in such matters will
be upheld absent an abuse of discretion.” United States v. Bray, 139 F.3d 1104, 1109 (6th
Cir. 1998) (quoting United States v. Williams, 952 F.2d 1504, 1519 (6th Cir. 1991)). “A
trial court abuses its discretion only when its ruling is manifestly arbitrary,
unreasonable, or unfair.” Stewart, 55 P.3d at 122.
27
B. CRE 1006
¶49 CRE 1006 governs documentary summaries in the form of charts or outlines.12
CRE 1006 provides that “[t]he contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be presented in the
form of a chart, summary, or calculation.” The rule also requires that other parties must
have access to examine the original documents at a convenient time and place and
provides that the court may order that the originals be produced at trial. CRE 1006.
¶50 Evidentiary summaries are generally admissible at trial under CRE 1006, as long
as they meet certain conditions.13 First, the evidence must be sufficiently voluminous
such that in-court examination would be inconvenient. See, e.g., Scales, 594 F.2d at 562.
Second, summaries under Rule 1006 must “summarize[] the information contained in
the underlying documents accurately, correctly, and in a nonmisleading manner.”
Bray, 139 F.3d at 1110; see also United States v. Irvin, 682 F.3d 1254, 1262–63 (10th Cir.
2012); cf. United States v. Massey, 89 F.3d 1433, 1441 n.9 (11th Cir. 1996) (noting that a
12 Typically, courts admit summary evidence under either CRE 1006 or CRE 611(a).
Here, Murray argued that CRE 611(a) allowed JIC to use the summaries as pedagogical
devices, but that CRE 1006 barred JIC from admitting those charts into evidence. The
record here suggests that the trial court relied on both CRE 611(a) and CRE 1006, as well
as cases interpreting those rules, to admit the summary charts. However, the court of
appeals did not address CRE 611(a) in its opinion. Because we hold that Exhibit 1 was
admissible under CRE 1006 and Exhibit 1.1 was not admissible, we need not, and
therefore do not, address CRE 611(a).
13As with CRE 602, cases interpreting Fed. R. Evid. 1006 are useful here because the
federal rule is substantially the same as CRE 1006. See Stewart, 55 P.3d at 123.
Therefore, we rely on federal cases to interpret the Colorado rule and refer to both rules
simply as Rule 1006.
28
minor inaccuracy in a summary chart did not transform the trial court’s decision to
allow a party to use the chart into an abuse of discretion because Rule 1006 does not
require the fact-finder to accept the information contained in the summaries as true).
Third, the underlying documents must be at least admissible, if not admitted. See, e.g.,
Irvin, 682 F.3d at 1261. This requirement protects against “the subtle introduction of
otherwise inadmissible evidence.” Lemire, 720 F.2d at 1349.
¶51 Finally, when a summary is admitted in lieu of the underlying documents, the
summary must not be “embellished by or annotated with the conclusions of or
inferences drawn by the proponent.” Bray, 139 F.3d at 1110. This requirement
prohibits highlighting, labeling, or otherwise altering the summary if it would render
the summary argumentative. Id. However, when the underlying evidence has been
admitted, Rule 1006 does not require that either party “include within its charts or
summaries its opponent’s versions of the facts.” United States v. Swanquist, 161 F.3d
1064, 1073 (7th Cir. 1998).
¶52 Thus, the most important considerations in determining whether summary
charts are admissible are whether the summaries are sufficiently accurate and
nonprejudicial and whether they would be helpful to the jury.
C. Application
¶53 Applying this reasoning to the instant case, we conclude that the trial court
properly admitted one of the summary charts, Exhibit 1, but that it abused its discretion
in admitting the other, Exhibit 1.1. As a threshold matter, the record supports the trial
court’s conclusion that the testimony and exhibits constituted voluminous evidence.
29
The number of exhibits and the length of the trial are not always determinative of
whether summary exhibits are warranted. Rather, it is the case’s complexity and the
jury’s need of an aid to understand the evidence that warrant introducing summary
exhibits. The trial court is in the best position to make this determination. As noted
above, the trial court found that this case was factually complex and that the evidence
was voluminous. It also specifically found that the trial was scheduled to last two
weeks and the parties planned to introduce over 200 exhibits into evidence. Thus, its
finding that the summaries were helpful to the jury to understand “two weeks[’] worth
of testimony and a very voluminous number of exhibits” was reasonable.
¶54 We therefore address the issue of whether the summaries used in this case
constituted admissible evidence under Rule 1006 or were, as Murray argued,
demonstrative devices better suited to closing argument. The trial court correctly found
that Exhibit 1—a neutral, chronological compilation of facts containing dates and events
that had been pulled from admitted evidence—summarized the evidence without
including arguments or conclusions. We will not replace a trial court’s well-reasoned
judgment with our own. Although Exhibit 1 contained some bolding, this did not
render it misleading, inaccurate, or prejudicial. In creating Exhibit 1, Sumner did no
more than organize the evidence in a manner helpful to the jury, and he introduced the
exhibit for Rule 1006’s permissible purpose of aiding the jury in understanding
30
voluminous evidence. Thus, the trial court acted squarely within its discretion in
admitting Exhibit 1.14
¶55 Exhibit 1.1, on the other hand, cannot be characterized as neutral because it used
the titles “Things Mahoney Knew” and “Things Mahoney Did NOT Know.” These
titles characterized the evidence in an argumentative fashion, rendering Exhibit 1.1 a
demonstrative device that should not have been admitted as evidence.15 The chart’s
headings attempted to persuade the jury to assign more weight to certain evidence and
reach particular conclusions. Sumner offered Exhibit 1.1 not merely to aid the jury in
understanding the events leading up to the case, but to persuade the jury of an ultimate
issue—that Mahoney was unaware that Epic was planning to purchase Pearl when he
agreed to terminate JIC’s and Pearl’s agreement. For this reason, the trial court abused
its discretion in admitting Exhibit 1.1 as evidence under CRE 1006.
¶56 We conclude, however, that the trial court’s error in admitting Exhibit 1.1 as
evidence was harmless. “A ruling admitting or excluding evidence is not reversible
unless the ruling affects a substantial right of the party against whom the ruling is
14 Murray also contends that the trial court should have sua sponte issued a limiting
instruction with Exhibit 1. As with non-expert summary testimony, the better practice
would be to issue a limiting instruction with the summary chart. But it is within a trial
court’s broad discretion under Rule 1006 to determine whether a summary chart’s
potential prejudice merits a limiting instruction. In this case, we need not reach the
issue of whether the failure to give a limiting instruction warrants reversal because
Murray neither requested nor tendered one.
15 The chart may very well have been appropriate as a demonstrative exhibit for use in
closing argument. However, here, it was admitted as evidence and the jury was
allowed to take it into the jury room during deliberations with no limiting instruction.
31
made.” Stewart, 55 P.3d at 124 (citing CRE 103(a); C.A.R. 35(e)). “[A]n error affects a
substantial right only if it can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of the trial itself.”
Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24, 365 P.3d 972, 978 (quoting Bly v.
Story, 241 P.3d 529, 535 (Colo. 2010)) (emphasis omitted).
¶57 The record reveals that the underlying evidence corroborated the facts contained
in Exhibit 1.1. The documents underlying the summary charts were all admitted in this
case, and for every fact in the chart, Sumner listed the exhibit number of the underlying
document from which he pulled the information. In addition, Mahoney testified at trial
about what he knew and did not know throughout the termination negotiations, and
Murray cross-examined him on these issues. Although the summary chart presented
the facts in a light that favored JIC, JIC was not required to incorporate Murray’s
version of the facts. See Swanquist, 161 F.3d at 1073. Murray had ample opportunity to
reveal any bias reflected in the summary charts during cross-examination, and he did so
in this case, questioning Sumner about his fee agreement and his relationship with
Mahoney. See id.; Massey, 89 F.3d at 1441. The fact that the jury took the summary
chart to the jury room during deliberations does not render the trial court’s error
reversible. Indeed, the jury would likely have been able to see the chart at some point
during the trial—although it could not have taken it to the jury room—because JIC
could have used it as a demonstrative exhibit during closing argument.
¶58 We also reject Murray’s argument that “[t]he importance of the charts . . . cannot
be overstated” because JIC’s counsel said in closing that they were “the most important
32
document[s] that you’ve got.” The fact that JIC’s counsel referenced the summary
charts in closing argument does not lead us to infer that the jury gave them undue
weight as compared with the remaining evidence in this case. In fact, JIC’s counsel did
not limit his closing argument to only those facts contained in the summary charts; he
also referenced countless factual details that he drew from a wide range of evidentiary
documents. Moreover, Murray’s counsel also offered a closing argument, during which
he called attention to his own version of the facts and the evidence that most favored
Murray’s case. We will not presume that the jury gave improper weight to two
summary charts in a trial that lasted two weeks with eight witnesses and over 200
documents in evidence. Therefore, the trial court’s error in admitting the charts did not
affect Murray’s right to an impartial jury, nor did it substantially influence the jury’s
verdict.
¶59 In sum, the trial court properly admitted Exhibit 1, but it abused its discretion in
admitting Exhibit 1.1 because it characterized the evidence in an argumentative fashion.
Nevertheless, this error was harmless because the summary charts were not unfairly
prejudicial and the evidence supported the information they contained.
V. Conclusion
¶60 In conclusion, we decline to adopt a per se rule excluding the testimony of
improperly compensated witnesses. We hold that the violation of an ethical rule does
not displace the rules of evidence and that trial courts retain the discretion under CRE
403 to exclude the testimony of improperly compensated witnesses. In applying that
rule, we conclude that the trial court did not abuse its discretion in declining to exclude
33
Sumner’s testimony in this case because its probative value was not substantially
outweighed by the danger of unfair prejudice.
¶61 We next hold that trial courts may allow summary witness testimony if they
determine that the evidence is sufficiently complex and voluminous that a summary
witness would assist the trier of fact. We further hold that in those circumstances,
summary witnesses may satisfy CRE 602’s personal-knowledge requirement by
examining the underlying documentary evidence on which they based their testimony.
Applying this rule to the facts of this case, we conclude that the trial court did not abuse
its discretion in permitting Sumner to testify as a non-expert summary witness because
the evidence was complex and voluminous and Sumner’s testimony helped the jury to
understand it, and because Sumner summarized only previously admitted evidence
that he had personally examined.
¶62 Finally, we hold that under CRE 1006, trial courts abuse their discretion when
they admit summary charts that characterize evidence in an argumentative fashion
rather than simply organize it in a manner helpful to the trier of fact. Applying this
holding, we conclude that the trial court properly admitted one of Sumner’s summary
charts, Exhibit 1, because it organized relevant facts chronologically, but abused its
discretion in admitting the other, Exhibit 1.1, because it included argument.
Nevertheless, we hold that this error was harmless because it did not substantially
influence the outcome of the case or impair the fairness of the trial. Therefore, we
conclude that a remand to the trial court is unnecessary.
34
¶63 Hence, we reverse the court of appeals’ judgment to the extent that it remanded
the case to the trial court to determine whether Sumner’s testimony should have been
excluded, but affirm on the remaining issues.
35