AI Enters the Courtroom With New Rule Governing Illustrative Aids

Using illustrations, images, and visual data is key to making evidence and arguments understandable, memorable, and accessible for jurors. And litigants can turn to artificial intelligence to create illustrative aids that help jurors understand the evidence and arguments under the new Rule 107, which now governs the use of illustrative aids.

This article discusses changes under the new Rule 107, such as the limit on aids going to the jury room, and recommendations to help navigate the new rule in the context of AI-created illustrative aids.

New Governance

New Federal Rule of Evidence Rule 107 governs the use of presentations offered not as evidence but to assist the trier of fact in understanding evidence or argument through visuals, graphics, drawings, video depictions, and computer simulations. Before this new rule, the federal rules didn’t specifically address illustrative aids. They were instead subject to courts’ authority under Rule 611(a) to control the presentation of evidence.

Think of an illustrative aid as a simple but effective non-evidentiary visual tool, one that helps to distill or summarize arguments or evidence that has already been admitted—the best aids effectively synthesize complex information in a memorable way.

Substantive evidence, on the other hand, goes beyond serving a supportive, explanatory role and is offered to prove a fact in dispute. New Rule 107 applies only to illustrative aids; it doesn’t apply to substantive evidence.

The Balancing Test

Under Rule 107(a), illustrative aids used at trial solely to help the trier of fact understand evidence or argument are now subject to a balancing test akin to Rule 403, meaning courts must assess whether an aid’s usefulness as a pedagogical device is “substantially outweighed by the danger” of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.

Illustrative aids that distort the facts, oversimplify the evidence, are unfairly prejudicial, or could be improperly construed as substantive evidence of an issue in dispute can’t be used. When courts find such concerns, litigants can request (or be ordered) to modify the aid.

To date, Science Applications International Corp. v. United States is one of the few decisions applying the balancing test in analyzing the use of illustrative aids. A handful of other decisions reference new Rule 107, with most either allowing or limiting their use with little to no analysis.

In one recent decision, the audio narration components of videos couldn’t be offered under Rule 107 because the audio consisted of “seemingly AI-generated voices” that weren’t identified and were subject to hearsay, authenticity, and other objections.

However, the videos’ visual components that “depict[ed] underlying parts of…software programs” could be offered as illustrative aids under Rule 107 (or as substantive evidence under Rule 1006), subject to further objections at trial.

Aids Aren’t Evidence

Rule 107(b) provides that, because illustrative aids aren’t evidence, they ordinarily shouldn’t be provided to the jury during deliberations. The default rule can be changed if “all parties consent” or the court orders otherwise for good cause.

In Roland Corp. v. inMusic Brands, Inc., the lower court erred in providing the jury with an “infringement claim chart for use during deliberations”—a Rule 107 illustrative aid that hadn’t been admitted into evidence—but it was a harmless error because the aid “did not substantively and materially differ from admitted testimonial and documentary evidence.”

AI-Created Aids

While the federal rules are silent on the use of AI, litigants can turn to AI to generate Rule 107 illustrative aids that help jurors understand evidence and arguments. Using AI to create illustrative aids may result in saving time and money.

Rule 107, which ensures that only accurate aids make it into the courtroom, requires that an aid be a fair and accurate representation of a fact or issue in dispute. Thus, just like attorney-created aids, an AI-created aid must not misrepresent or confuse the facts in a way that is unfairly prejudicial or misleading. As long as an AI-generated illustrative aid is a fair and accurate representation, it is immaterial that it was created by AI.

Other practical considerations are as follows:

• Using AI to generate an illustrative aid may present a slightly higher risk of digital manipulation. To guard against this risk, litigants should review and validate the AI-created aid to ensure that it fairly and accurately represents the facts.
• Parties should consider disclosing that AI was used to generate the aid, including whether to indicate that an AI-created aid is an “illustration” or “rendering.”
• Litigants should check standing orders on the use of AI, as some judges may have specific rules or requirements applicable for AI use, and consider keeping track of the AI tool(s) and prompt(s) used to create aids, given courts’ shifting regulation of litigants’ AI use.
• Get court guidance (or negotiate with the other parties) on whether or when illustrative aids must be disclosed or exchanged.
• Review adversaries’ illustrative aids for accuracy and consider whether a disclaimer is needed if it is AI-generated to avoid juror confusion. Also consider whether to request a limiting instruction from the court on the limited purpose for which the jury can use the aid.
• Request that the court mark the aid and enter it as part of the record under Rule 107(c).

Potential amendments to the federal rules so far have focused on AI-generated evidence—not illustrative aids under Rule 107. Concerns about authenticity and admissibility issues for AI-generated evidence offered to prove a disputed fact don’t extend to AI-generated illustrative aids because they aren’t offered as evidence.

Rule 107 should allow for AI-created trial graphics and other illustrative aids to be used in courtroom presentations. But attorneys should be familiar with the limitations of the content and use of such graphics and aids, particularly as courts continue to grapple with the intersection of new Rule 107 and AI-generated graphics.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Diana Sterk is a partner at Arnold & Porter whose practice includes major product liability MDLs, class actions, and complex commercial litigations.

Sarah Prather is a senior associate at Arnold & Porter, representing clients in complex commercial, product liability, and toxic tort litigations.

Write for Us: Author Guidelines