§ 29.05 INADMISSIBLE EVIDENCE

• Jurisdiction: United States

§ 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.¹⁸ The problem with this limitation is that an inadmissible part of a document, say hearsay, may be needed to put the document "in context."

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).¹⁹ Also, the doctrine of "fighting fire with fire" (curative admissibility) may also justify admission.²⁰ 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. Rainey²¹ wrote: "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."²²

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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. Lewis, 641 F.3d 773, 785 (7th Cir. 2011) ("[D]istrict judge was well within her discretion in finding that Billingsley's proposed cross-examination of Bayless was an attempt to bring impermissible hearsay before the jury."); United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987) (Rule 106 does not "empower[ ] a court to admit unrelated hearsay in the interest of fairness and completeness when that hearsay does not come within a defined hearsay exception."); 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...