§ 29.05 Inadmissible Evidence

• Jurisdiction: North Carolina

§ 29.05 Inadmissible Evidence

Does Rule 106 authorize the admission of otherwise inadmissible evidence (e.g., hearsay)? Although Rule 106 does not expressly include a requirement that the evidence be otherwise admissible,¹⁷ a number of federal courts have imposed this requirement.¹⁸The problem with this limitation is that an inadmissible part of a document, say hearsay, may be needed to put the document "in context." To avoid misleading the jury, other courts have ruled in favor of admissibility.¹⁹

This problem can sometimes be remedied by limiting the purpose for which the remainder of the document is admitted, i.e., offering the document not for its truth but only for the purpose of placing the document in context (a nonhearsay purpose).²⁰Also, the doctrine of "fighting fire with fire" (curative admissibility) may also justify admission.²¹ The Supreme Court has indicated that relevancy is automatically satisfied in this context. In commenting on Rule 106, the Court in Beech Aircraft Corp v. Rainey²²wrote: "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."²³

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Notes:

^[17] See ABA Section of Litigation, Emerging Problems Under the Federal Rules of Evidence 26 (3d ed. 1998) ("Some cases and commentators question whether Rule 106 also has independent evidentiary authority for admitting otherwise inadmissible evidence. The Rule does not address this issue, and unlike other Federal Rules of Evidence, does not contain the 'except as otherwise provided' language which acts to reinforce the mandates of other evidentiary provisions.").

^[18] See United States v. Adams, 722 F.3d 786, 826 (6th Cir. 2013) (affirming the Circuit's previous cases that held Rule 106 covers an order of proof problem; it is not designed to make something admissible that should be excluded); United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) ("Rule 106 was not intended to override every privilege and other exclusionary rule of evidence in the legal armamentarium, so there must be cases where if an excerpt is misleading the only cure is to exclude it rather than to put in other excerpts.").

^[19] See United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986) ("Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise...