§ 29.04 "Fairness" Standard

• Jurisdiction: United States

§ 29.04 "Fairness" Standard

The rule applies when another passage, document, or recording is needed to "(1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding."⁹ The party invoking the rule must specify which parts of the document are needed to place the writing in context.¹⁰ The rule does not come into play when "a few inconsistencies between out-of-court and in-court statements are revealed through cross-examination; rather, it operates to ensure fairness where a misunderstanding or distortion created by the other party can only be averted by the introduction of the full text of the out-of-court statement."¹¹ Moreover, the rule does not "require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages."¹²

Although Rule 106 recognizes the right of a party to invoke the rule of completeness, decisions concerning the application of the rule fall within the discretion of the trial court.¹³

Accused's statements. When the statement introduced is that of a criminal defendant, other considerations support the rule of completeness. The Fifth Amendment precludes the prosecution from calling the accused as a witness.¹⁴ Thus, the prosecution typically introduces the accused's incriminatory statements through the police. Selective admission of the accused's statements is not uncommon; why should the prosecution offer evidence helpful to the accused? Some courts question this practice,¹⁵ while others believe the rule of completeness should not be extended beyond its limited purpose: "We acknowledge the danger inherent in the selective admission of post-arrest statements. Neither the Constitution nor Rule 106, however, requires the admission of the entire statement once any portion is admitted in a criminal prosecution."¹⁶ Nevertheless, the defense counsel may be able to introduce the parts she wants during cross-examination.

--------

Notes:

^[9] United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984). Accord United States v. Branch, 91 F.3d 699, 727 (5th Cir. 1996) ("Although different circuits have elaborated Rule 106's 'fairness standard in different ways, common to all is the requirement that the omitted portion be relevant and 'necessary to qualify, explain, or place into context the portion already introduced.'") (citations omitted); United States v. Li, 55 F.3d 325, 329-30 (7th Cir. 1995) ("A trial...