Rule 106: Know The Rest Of The Story – In Real Time

Everyone has seen words taken out of context, and thus given new and unintended meaning. Consider the movie review that reads “nothing about this film is excellent.” What ends up in the advertisement? “Daily Journal says ’excellent.’”

What happens in advertising or political chicanery has no place in the courtroom, and Rule 106 is intended to ‘fix’ that – and to do so in real time, right when the misrepresentation occurs. Pursuant to the Rule, if a party introduces a portion of a “writing or recorded statement” the opposing party may demand that the proponent immediately read or play the other excerpts that put the selected words into proper context. Indeed, where apt, the Rule requires admission of different writings or recordings if they are needed to establish the context and prevent misleading of the factfinder.

What a powerful tool. It permits the “gotcha” moment where opposing counsel is made to look like a cheater; and it permits misimpressions to be corrected before they become lasting impressions – there is no need to wait for redirect examination.

This should be simple. Consider the instance where an accused signed a confession that went as follows:

Q: Go on in your own words and tell us who was responsible for the stabbing death of Jill Jones?

A: I was.

Q: When you say that you were responsible, what do you mean?

A: I stabbed her.

Q: What led up to this?

A: She came at me with a lead pipe, swung it at my head and barely missed, and then charged at me. My back was to the sink and I grabbed a knife and held it in front of me. She ran right into it.

If the prosecutor called the detective and asked her to read the first two questions and answers, the jury would hear only that the accused “stabbed her” with no surrounding circumstances, circumstances that here create a defense. Rule 106 would seem to require that, upon objection, the detective would be made to read in the remainder. Under the “rest of the story” approach, the fact-finder would have a complete picture.

Perhaps shockingly, not all courts agree. While some focus on Rule 106 as a fairness tool, others diverge and treat it as subordinate to the ban on hearsay. Under the latter approach, the italicized portions in the imaginary police interview are statements of the party opponent, and thus may be introduced only by the prosecution.

What is the legal rationale for this approach? As one court explained, “the rule of completeness cannot trump the hearsay rules.” United States v. Benchick, 725 F. App’x 361, 366-67 (6th Cir. 2018)(citing and quoting earlier precedent).

Benchick ignores history. The common law approach was simple:

if one party to litigation puts in evidence part of a document, or a correspondence or a conversation, which is detrimental to the opposing party, the latter may introduce the balance of the document, correspondence or conversation in order to explain or rebut the adverse inferences which might arise from the incomplete character of the evidence introduced by his adversary. * * * But this rule is subject to the qualification that only the other parts of the document which are relevant and throw light upon the parts already admitted become competent upon its introduction.

United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982). Yet even Costner returns to the concern over substantive admissibility, contending that “Rule 106 is intended to eliminate the misleading impression created by taking a statement out of context. The rule covers an order of proof problem; it is not designed to make something admissible that should be excluded.” Id. (citing to an earlier decision excluding portions of a statement that were inadmissible hearsay).

The Costner court may be guilty of sloppiness. In the case it cites, Burreson, the Government read in portions of statements made by the defendants and was made to read in additional segments the defense wanted. “The record shows that the trial court carefully considered the entire transcript, and added material to the excerpt offered by the government to put it in proper context. The court concluded that the portion appellants wished to submit was irrelevant and was inadmissible hearsay.” United States v. Burreson, 643 F.2d 1344, 1349, 1981 U.S. App. LEXIS 20352, *10-11, Fed. Sec. L. Rep. (CCH) P97,982. As well, these cases predate the United States Supreme Court’s explication of Rule 106.

What is the view of the Court? Found in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170-72, 109 S. Ct. 439, 450-51 (1988)  It is the “fairness” view, not the ”subordinate to hearsay” view:

The commonlawrule of completeness,” which underlies Federal Rule of Evidence 106, was designed to prevent exactly the type of prejudice of which Rainey complains. In its aspect relevant to this litigation, the rule of completeness was stated succinctly by Wigmore: “[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.” 7 J. Wigmore, Evidence in Trials at Common Law § 2113, p. 653 (J. Chadbourn rev. 1978).

To the court, the rationale is

obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402

Id. And this is the view of scholars and researchers. See, e.g., INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW CLASS OF 2012 COMMENCEMENT ADDRESS: The Admission of Hearsay Through Rule 106: And Now You Know the Rest of the Story, 46 Ind. L. Rev. 499, 527 (“As written, Rule 106 extends to the admission of otherwise inadmissible evidence.”). And in military justice, the dilemma has an alternate solution, as Military Rule of Evidence 304 permits the defense to demand that the entirety of a confession be introduced, and not merely the portions selected by the prosecutor. United States v. Rodriguez, 56 M.J. 336, 339-43 (C.A.A.F. 2002).

There are still cases that post-date Beech Aircraft but take narrower approaches. See, e.g., Gabow v. Commonwealth, 34 S.W.3d 63, 68 n.2 (Ky. 2000)(“This does not mean that by introducing a portion of a defendant’s confession in which the defendant admits the commission of the criminal offense, the Commonwealth opens the door for the defendant to use the remainder of that out-of court statement for the purpose of asserting a defense without subjecting it to cross-examination.”). But even Gabow’s broad language can be reconciled with the language of Beech Aircraft, since the “defense” asserted later in the statement was that of renunciation, and that separate assertion in no way is needed to correct anything in the admission of the initial criminal conduct.

Of course, completeness is not equivalent to allowing all remaining portions in – it is only those necessary to ensure that what has been allowed does not mislead. approving the exclusion of some remaining parts of a statement where. See, e.g., United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) (District Court “properly rejected Vallejos’s argument that the redacted portions should be admitted to show the jury the “flavor of the interview,” to “humanize” Vallejos, to prove his “character,” and to convey to the jury the voluntariness of the statement.”).

What is the bottom line? In federal trials, the Court’s analysis in Beech Aircraft should be deemed to trump any lower court decision which elevates the hearsay concerns over those of preventing misleading information. And whether in federal or state trials, if the hearsay objection is raised and seems to be carrying the day, the response should be a challenge under three different evidentiary principles:

  • Where the words are those of the criminal case accused, it may be argued that such an approach improperly pressures the defendant to waive the privilege against self-incrimination, as choosing to testify is the only mechanism to correct misleading information.
  • The incomplete statement should be excluded under Rule 403 as “misleading.”
  • Finally, the necessary remainder must come in under the overarching principle of Rule 102 (or the application of that Rule to 106 analysis) – that “[t]hese rules should be construed…to the end of ascertaining truth and securing a just determination.”

[Thanks to Professor Dan Tilly, Director of Advocacy Programs at Campbell University School of Law, for spotting the Fifth Amendment dilemma created when the hearsay approach to Rule 106 is adhered to.]