Imagine this situation: Federal law enforcement agents are investigating a gang-related homicide in Maryland. They interview a suspect; we’ll call him Adams. One agent asks the questions; another takes notes. The interview is not audio or video recorded. This is standard procedure at certain federal law enforcement agencies. The interview focuses on the weapon used to kill the victim, which has been recovered. Adams is asked if he knows anything about the weapon, and the agent’s interview notes reflect the following:
[Suspect shown handgun]
Q: Do you know anything about this handgun?
A: Yeah, I bought that off a guy a year ago and kept it under my bed for protection. But two months ago, I was hard up for cash, so I sold it to a dude when I was in LA for 500 bucks.
Adams is charged with racketeering resulting in the death of the victim, among other charges. Prior to trial in federal court, the judge denies a motion to suppress Adams’s statement to the agents, finding no violation of the Fifth Amendment. At trial, the prosecution calls the agent who interviewed Adams to testify and asks, “During the interview, did Mr. Adams make any statements about the ownership of Government Exhibit 17 [the handgun used to kill the victim]?” The agent testifies: “Yes. Mr. Adams was asked whether he knew anything about this handgun, and he said, ‘Yeah, I bought that off a guy a year ago and kept it under my bed for protection.’”
Defense counsel immediately objects and asks to approach the bench. The judge calls counsel up for a sidebar. Defense counsel says:
Your Honor, the agent has given an incomplete and prejudicially misleading response to the Government’s question. The interview notes of my client’s interrogation were produced prior to trial and reflect that immediately after he told the agents what the witness just testified to, he added, “But two months ago I was hard up for cash so I sold it to a dude when I was in LA for 500 bucks.” The agent has purposely left that part of the statement out, and it leaves the jury with the incorrect impression that at the time of the murder my client still owned the weapon used to kill the victim. This is highly prejudicial and misleading. I am asking for you to rule that under Federal Rule of Evidence 106, the agent must tell the jury what my client said next—that he sold the gun two months before the shooting—to allow them to have a complete understanding of what my client said at the time he was interviewed.
In response, the prosecutor says:
Your Honor, Rule 106 applies only to writings or recorded statements, not to oral statements. We are not offering the interview notes into evidence because they would be hearsay. The agent is only testifying to his recollection of the defendant’s oral statement. What the agent testified he was told by the defendant is not hearsay; it is an admission under Federal Rule of Evidence 801(d)(2)(A). The government does not intend to ask the agent anything else about what the defendant said during the interview, and the defense counsel is asking that the agent be required to testify to the defendant’s self-serving exculpatory statement that he did not own the gun at the time of the murder. That is inadmissible hearsay. The defense is perfectly free to call the defendant to testify that he told the agent that he sold the gun two months before the killing, but the government is not required to elicit that exculpatory statement during its case.
Defense counsel quickly responds:
But, Your Honor, the government knows fully well that if the defendant is called to testify after it has completed its case, the jury will already have formed the erroneous impression that my client still owned the gun at the time of the killing. The government’s case is expected to take two weeks, and by then the damage will have been irreparable. And, as Your Honor knows, if my client testifies, the government intends to impeach him with a prior state manslaughter conviction under Federal Rule of Evidence 609(a)(1). What the government wants to do is just plain unfair!
How should the judge rule? The government is correct—Rule 106 plainly states that “[i]f 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.” Fed. R. Evid. 106 (emphasis added). And the advisory committee notes to Rule 106 supports the government’s position, stating that, “[f]or practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations.” Further, the government is correct that the inculpatory portions of Adams’s statement are admissible non-hearsay under Rule 801(d)(2)(A), but introducing Adams’s exculpatory statement that he sold the gun two months before the murder for the truth of that statement is hearsay, and no exception under Rules 803, 804, or 807 would seem to apply.
But defense counsel also is right. Allowing the government artfully to couch its examination of the agent to elicit only the inculpatory portions of the defendant’s statement without concurrently requiring the completing exculpatory explanation that he had sold the gun months before the shooting is misleading, and unfairly so. And requiring the defendant to wait until after the government’s case to dispel the erroneous impression the jury was left with, that he still owned the gun at the time of the killing (with the certain knowledge that he will face devastating impeachment with the prior manslaughter conviction), is a pretty high price to pay for a fair presentation of what was said during the interview.
So what does the case law offer the judge to help decide how to rule? Not to put too sharp a point on it, but the case law is a confused mess. Ordinarily, the adversary system does not compel one party to introduce evidence during its case that is helpful to an adverse party. The fact that one party gets to go first, requiring the other to wait its turn, is justified by the fact that the first to be heard is the one with the burden of proof and by the belief that the jury will be able to put it all together at the end of the case, with the help of closing argument, where the lawyers can sum up the evidence in the light most favorable to their case. See United States v. Bailey, No. PWG-16-0246, 2016 U.S. Dist. LEXIS 22340, at *2 (D. Md. May 24, 2017) (discussing the relationship between Rule 106 and the common law).
Prior to the codification of the Federal Rules of Evidence, the common law dealt with the situation presented in the hypothetical above “by a limited restriction on party control” of the case, known as “the completeness doctrine.” Id. (citing 21A Kenneth W. Graham Jr., Federal Practice and Procedure § 5072 (2d ed. 2017)). Under this doctrine, when a party introduced only a portion of a writing, conversation, or spoken utterance, the adverse party was permitted to introduce any other portion that had been omitted that was necessary to make the initially introduced evidence understood in context—even if it otherwise would not have been independently admissible. Id. Less clear was whether the party seeking to complete the record could require the introduction of the evidence at the time the adversary introduced the incomplete version—some courts allowed this (including the U.S. Supreme Court); others did not. See id. (citing Crawford v. United States, 212 U.S. 183, 201 (1909)).
When the Federal Rules of Evidence were enacted in 1975, Rule 106 codified the common-law completeness doctrine—but only partially. See Bailey, 2016 U.S. Dist. LEXIS 22340, at *3; Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171–72 (1988) (“The Federal Rules of Evidence have partially codified the doctrine of completeness in Rule 106.”). The text of Rule 106 itself suggests that it codified the completeness doctrine only to the extent that it applied to writings and recorded statements, and this is corroborated by the advisory committee note, which, as already mentioned, states that “the rule is limited to writings and recorded statements and does not apply to conversations.” Logically, if Rule 106 only partially codified the common-law completeness doctrine and, at that, only as it related to writings and recorded statements, then the common-law rule—which allowed introduction of otherwise inadmissible evidence if required for completeness purposes—should still apply to incomplete versions of spoken, unrecorded, or unwritten statements, right? Of course, it does, some courts have held. See United States v. Sutton, 801 F.2d 1346, 1368–69 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously. A contrary construction raises the specter of distorted and misleading trials and creates difficulties for both litigants and the trial court.”). No way, say others. See United States v. Mitchell, 502 F.3d 931, 965 n.9 (9th Cir. 2007) (“Rule 106 applies only to written and recorded statements, not unrecorded oral confessions, and Rule 106 does not render admissible otherwise inadmissible hearsay.”). And that’s why the case law is a hot mess.
Perhaps one explanation for the reluctance of some courts to allow the introduction of oral statements under the completeness doctrine is a concern that it will open the door for lawyers (often defense attorneys in criminal cases, as most of the cases to consider this issue have been criminal cases) to make dubious claims that the prosecution has offered only an incomplete version of a defendant’s oral statement, thereby requiring the introduction of otherwise inadmissible exculpatory evidence. See Bailey, 2016 U.S. Dist. LEXIS 22340, at *6. After all, it is not unusual for a cagey defendant to sprinkle exculpatory comments among the inculpatory ones when making a confession. See Williamson v. United States, 512 U.S. 594, 599–600 (1994) (“One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.”). But it must be kept in mind that the rule of completeness—whether the version codified by Rule 106 or the common-law doctrine—applies only where the portion of the statement initially introduced is unfairly misleading. It hardly seems right to justify an unfair result out of a concern that the evidence needed to set things straight is technically inadmissible under the rules of evidence. After all, Rule 105 allows a court to instruct that evidence is admissible for one purpose but not another. So why not simply instruct the jury that the exculpatory portions of the defendant’s unrecorded or unwritten confession are not admissible for their truth but are admissible only to allow the jury to have a complete version of what the defendant said in response to government questioning? To be sure, this may mean that certain exculpatory statements may come in without the defendant having to take the stand to testify, but if that is the price to pay for a fair presentation of the evidence, it seems justified.
And it is unrealistic to assume that trial judges are so easily fooled that they will obligingly allow defense attorneys to flood the government’s case with the defendant’s exculpatory hearsay without taking time to carefully consider whether fairness demands that the completing information be introduced at the same time as the inculpatory statements. Indeed, the Seventh Circuit has developed a helpful four-part test to determine when the completeness doctrine should be applied:
Our case law interpreting Rule 106 requires that the evidence the proponent seeks to admit must be relevant to the issues in the case. Even then, a trial judge need admit only that evidence which qualifies or explains the evidence offered by the opponent. The test is conjunctive. Once relevance has been established, the trial court then must address the second half of the test, and should do so by asking (1) does it explain the admitted evidence, (2) does it place the admitted evidence in context, (3) will admitting it avoid misleading the trier of fact, and (4) will admitting it insure a fair and impartial understanding of all the evidence.
United States v. Velasco, 953 F.2d 1467, 1474–75 (7th Cir. 1992) (internal citations omitted).
Thoughtful application of these factors should ensure that otherwise inadmissible evidence is introduced under the doctrine of completeness only when, to quote Rule 106, “in fairness [it] ought to be considered at the same time.”
The uncertain state of the law regarding the applicability of Rule 106 to unwritten or unrecorded statements of defendants in criminal cases presents real challenges for prosecution and defense attorneys, and for trial courts. Because the case law is so divided, only a change to Rule 106 itself is likely to produce a uniform result throughout the country. Continuing with the status quo, with some courts allowing inadmissible evidence where needed to ensure a fair presentation of the evidence while others do not, is hard to justify. A rule change would not be difficult to draft, and the accompanying advisory note could make it quite clear that the application of the rule to statements that are unwritten or unrecorded, and not otherwise admissible, is limited to those circumstances where fairness compels it. And careful application of the four-factor test adopted by the Seventh Circuit will ensure that trial courts restrict the use of Rule 106 to its intended purpose. In the absence of an amended rule, judges in jurisdictions where the restrictive application of Rule 106 governs should give careful thought to applying Rule 403 to situations where the government seeks to introduce only an unfairly misleading version of the defendant’s unrecorded or unwritten confession. If the incomplete version the government intends to introduce is unfairly misleading, it should be excluded.