Hardly a Fait Accompli: Federal Rule 106
August 14, 2019
By Professor Veronica Finkelstein
The overriding goal of the Federal Rules of Evidence is to ensure fairness. As noted in Rule 102, the rules are to be “construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”
One rule intended to promote fairness is Rule 106, the federal version of the “rule of completeness.” Rule 106 is based upon the common law rule of completeness. The common law rule of completeness provides that when a party introduces an incomplete statement at trial, the adverse party may introduce other parts of that statement (or related statements) to ensure the jury views the incomplete statement in its full context. In other words, if part of a statement is offered at trial—that may justify the introduction of other evidence to complete the jury’s understanding. The common law rule of completeness allowed the admission of a wide array of statements. As long as admission was necessary for a fair outcome, the common law rule of completeness could be applied.
The common law rule of completeness is partially codified in Rule 106, which states:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
Pursuant to Rule 106, if an incomplete writing or recorded statement is offered by one party, the opposing party may interrupt the trial at that time to demand that the jury be provided the statement’s context contemporaneously.
Rule 106 recognizes the misleading impression caused when matters are taken out of context and similarly acknowledges that it may be difficult or impossible to rectify this impression after the passage of time. Rule 106 does not supplant other methods of rectifying a misleading perception, such as cross-examination or subsequent admission of evidence. Rule 106 simply provides one of several tools to seek the admission of evidence at trial. For strategic reasons, however, it may be preferable to utilize Rule 106 rather than other methods. Rule 106 allows for the immediate introduction of additional evidence to provide context.
Although Rule 106 seems straightforward, it has led to numerous circuit splits in application. In its plain language, the Rule does not expressly address whether it permits the admissibility of otherwise inadmissible evidence. Such otherwise inadmissible evidence includes hearsay. Some courts have allowed hearsay to be admitted under Rule 106. Rule 106’s limited language seems at odds with its broad intent, leading some courts to fashion creative solutions.
This particular tension has caused a three-way circuit split. The Sixth Circuit views the Rule as nothing more than a timing rule. According to the Sixth Circuit, Rule 106 only allows otherwise admissible evidence to be admitted during an opposing party’s case. In other words, Rule 106 does not allow in otherwise inadmissible evidence.
The First and the Third Circuit, in contrast, interpret the Rule to favor completeness, even at the expense of allowing otherwise inadmissible evidence in at trial. In these circuits, Rule 106 acts as an exception to the rule against hearsay. Hearsay that would not otherwise be admissible can be admitted under Rule 106 where necessary to provide context.
Still other circuits defer to the presiding judge, noting the paucity of limiting language in the Rule itself. These circuits view Rule 106 as a rule that provides deference to the trial court, allowing a presiding judge the freedom to decide issues of fairness in context without the rigid application of other rules.
This is not the only circuit split. As written, Rule 106 has a significant limitation; it applies only to written or recorded statements. The Rule does not apply to conversations or oral statements. In practice, some judges have utilized other rules, include Rule 611(a) to admit oral statements.
Still other courts have found ways to admit oral statements under Rule 106 itself. Courts in the First Circuit and Seventh Circuit allow the admission of oral testimony by eschewing the plain language of Rule 106 in favor of enforcing its intent. Meanwhile, courts in the Sixth Circuit, such as in United States v. Shaver, 89 F. App’x 529 (6th Cir. 2004), prohibit such evidence, enforcing the plain language of Rule 106.
Perhaps the most interesting circuit split under Rule 106 arises from the question of whether its form or substance ought to prevail. Setting aside an oral statement that is never reduced to writing, how should Rule 106 apply to an oral statement that is also recorded? What should courts do when testimony at trial, recounting an oral statement, is tantamount to a written or recorded statement? Shouldn’t the federal rule of completeness be interpreted to accomplish its goal of ensuring fairness where a litigant sidesteps Rule 106 by having a witness act as a conduit for an incomplete written or recorded statement?
Imagine the following hypothetical scenario based upon a recent Clint Eastwood film: down on his luck, 90-year-old horticulturist and Korean War veteran Earl Stone is offered a job driving back and forth over the Mexican border by someone he meets at a party. Julio Serricchio loads a duffle bag into the back of Stone’s truck and a lucrative relationship begins.
Unbeknownst to them, their actions are being surveilled by Colin Bates, a DEA Agent. When he surreptitiously bumps into Serricchio in a diner, Agent Bates conducts an impromptu interview. Serricchio admits that the duffle bags contain cash that is being exchanged for cocaine in Mexico. As Serricchio explains, “I put a bag of cash in Stone’s car, Stone takes the bag of cash to Mexico, Stone then returns with a bag full of cocaine, and I retrieve the bag from Stone’s car and pay Stone for being ‘The Mule.’”
Curious why someone like Stone would be involved in such a scheme, Agent Bates probes further. Serricchio says “Stone told me that he didn’t know what was in the bags, he just badly needed a job.”
No tape recording is made during the interview. Agent Bates later compiles a written report in a form FD-302, the standard form used by FBI agents to report or summarize interviews. Both Serricchio’s statement about his own knowledge and the hearsay statement he relayed from Stone are memorialized in the FD-302.
Stone is charged with intentionally smuggling drugs across the border, but before Serricchio can be indicted, he dies.
Agent Bates is the prosecution’s key witness at trial, which occurs two years after the conversation in the diner. At counsel table, Agent Bates is seen reviewing the FD-302. He takes the stand and testifies about Serricchio’s statements (which have the tendency to make Stone appear guilty) but not Stone’s statement (which suggests he is not guilty). Agent Bates’s testimony is a near verbatim match to the language of the FD-302. Where there is no reason to believe that Agent Bates has an independent memory of the conversation and where there is evidence to suggest he is merely parroting a written document on the witness stand, shouldn’t Rule 106 apply? Should Stone’s exculpatory statements be excluded simply because they are hearsay?
Without squarely deciding the question, the Eleventh Circuit has suggested Rule 106 should apply in such a circumstance. In Rainey v. Beech Aircraft, the circuit court held that the plaintiff should have been permitted to introduce the entirety of a letter when the plaintiff had been read portions of this letter on cross examination. In essence, asking the plaintiff whether he had written excerpts of the letter was tantamount to admitting these portions of the letter, therefore triggering application of Rule 106. Affirming on appeal without explicitly adopting the “tantamount” standard, the United States Supreme Court noted the misleading impression this line of questioning gave the jury.
In contrast, in United States v. Pendas-Martinez, the same court declined to apply Rule 106 where defense counsel had used a report on cross-examination but had not read from that report. While citing approvingly the tantamount standard articulated in Rainey, the Pendas-Martinez court distinguished merely utilizing the contents of a writing to craft questions from verbatim reading portions of that writing in at trial.
No court has yet applied the Rainey reasoning to the situation suggested in “The Mule” hypothetical, where a witness’s testimony itself is tantamount to introducing a writing or recording. Yet this factual scenario is hardly uncommon. Due to the protracted time between an underlying event and trial, it is common for a witness to prepare for trial by studying a recording of events.
Moreover, the Federal Rules of Evidence expressly permit that a witness be shown a writing to refresh recollection. Where a witness’s testimony at trial is a near verbatim match for a recording, that similarity suggests that the witness is parroting the document itself rather than testifying from a true memory. When this occurs, shouldn’t other statements that provide context be just as admissible when a portion of the document itself is offered into evidence?
The advisory committee responsible for the Federal Rules of Evidence seems to think so. The committee has proposed a rule amendment to clarify the language of Rule 106. The amendment would state:
If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of another part—or any other statement—that in fairness ought to be considered at the same time.
A) A statement admissible under this rule should not be excluded under the rule against hearsay.
B) In a criminal case, if evidence admissible under this rule, and offered by the defendant, is excluded under any other rule, the entire statement must be excluded.
As amended, Rule 106 would apply not only to testimony that is tantamount of a writing but to oral statements as well. It would not matter whether that statement was hearsay if the statement was necessary for context. The amendment would resolve many circuit splits discussed.
Only time will tell whether Congress will adopt this amendment and make a comprehensive federal rule of completeness a fait accompli. Given the realities of trial, if Rule 106 is to truly accomplish its goals, it must be given a more widespread application.