Completing the Rule of Completeness: Amending Rule 106 of the Federal Rules of Evidence

• Jurisdiction: United States,Federal
• Citation: Vol. 51
• Publication year: 2022

51 Creighton L. Rev. 281. COMPLETING THE RULE OF COMPLETENESS: AMENDING RULE 106 OF THE FEDERAL RULES OF EVIDENCE

COMPLETING THE RULE OF COMPLETENESS: AMENDING RULE 106 OF THE FEDERAL RULES OF EVIDENCE

HAROLD F. BAKER(fn*)

TABLE OF CONTENTS

I. INTRODUCTION................................... 282

II. RULE 106-THE RULE OF COMPLETENESS: A BRIEF HISTORY................................... 286

III. THE RULES OF EVIDENCE: FAIRNESS, EXCLUSION, AND RELIABILITY.................. 289

A. THE PURPOSES OF THE FEDERAL RULES OF EVIDENCE....................................... 290

B. JUDICIAL DISCRETION IN THE ADMISSION OR EXCLUSION OF EVIDENCE......................... 292

C. EXCLUSIONARY EVIDENCE: THE RULE AGAINST HEARSAY........................................ 294

IV. A THREE-WAY SPLIT: DISCORDANT IN APPLICATION ACROSS THE CIRCUITS........... 296

A. A RULE OF TIMING: A QUESTION ONLY OF THE ORDER OF PROOF................................ 297

B. A RULE OF COMPLETENESS: THE NEED FOR COMPLETION TRUMPS INADMISSIBILTY............. 298

C. A RULE OF DISCRETION: THE NEED FOR JUDICIAL DISCRETION IN COMPLETION............. 300

V. THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION: COMPULSION TO TESTIFY FOR COMPLETENESS................... 302

A. SELF-INCRIMINATION GENERALLY................. 302

B. COMPULSION TO TESTIFY: THE POTENTIAL ROLE OF COMPELLED TESTIMONY NEEDED TO CORRECT INCOMPLETE OR MISLEADING STATEMENTS......... 304

VI. COMPLETING THE RULE OF COMPLETENESS... 305

A. PROPOSED AMENDMENT TO RULE 106 AND ITS ASSOCIATED ADVISORY COMMITTEE NOTES......... 306

B. RULE LANGUAGE: THE NEED FOR BOTH SPECIFICITY AND FLEXIBILITY IN THE AMENDED RULE'S LANGUAGE ............................... 309

C. THE PURPOSES SERVED BY AMENDMENTS TO RULE 106 AND THE ADVISORY COMMITTEE NOTES: PRECLUDING BOTH POLICY AND CONSTITUTIONAL CONCERNS...................... 312

D. INTERIM INTERPRETATION: AWAITING THE AMENDMENT..................................... 316

VII. CONCLUSION ..................................... 317

ABSTRACT

The rule of completeness, embodied in Rule 106 of the Federal Rules of Evidence, has received relatively little attention in the courts and scholarship, regardless of the fact that there is currently a three-way circuit split in its application. Today, several circuits view the Rule 106 as a mere rule of timing-allowing otherwise admissible evidence to be admitted at a more advantageous time when necessary for completion. Others interpret Rule 106 to have a trumping function, finding that it makes any evidence admissible, for the purpose of completion, regardless of whether such evidence would be admissible on its own. Still other circuits have opted to let judicial discretion rule on how Rule 106 should function in any given proceeding. While such a circuit split clearly signifies an issue worthy of correction and unification, a more significant issue lurks beneath the split: Fifth Amendment violations for criminal defendants who would choose not to take the stand. In circuits which have adopted a narrow construction of Rule 106, meaning that the Rule of Completeness cannot trump exclusionary rules, inculpatory statements made by a defendant can be used against him or her, while exculpatory statements, even those objectively necessary for completion or to correct a misunderstanding, can only be introduced with the defendant on the stand. Thus, the only way for a criminal defendant to introduce exculpatory completion evidence in many circuits is for him or her to waive his or her constitutional rights and take the stand. This Article proposes amending the Federal Rules of Evidence to unify the circuits and to protect the constitutional rights of criminal defendants.

I. INTRODUCTION

In a criminal trial for a bank robbery, it is easy to imagine an officer testifying: "The defendant told me he was the fourth member of the 'crew,' and that he was the getaway driver." That testimony may well be accurate, and courts regularly accept it.(fn1) However, it can be unclear what may be admissible when the entire testimony could just as accurately have been: "The defendant told me he was the fourth member of the 'crew,' and that he was the getaway driver. But, the defendant also told me that he slept through the entire robbery." The statements contained in that testimony include both an admissible inculpatory statement and an exculpatory statement, the latter being generally inadmissible as hearsay.(fn2) Whether the exculpatory portion of the defendant's statement can be introduced by defense counsel to correct the misleading portion elicited by the government is typically governed by the Rule of Completeness(fn3) as embodied in Rule 106 of the Federal Rules of Evidence.(fn4)

As stated in the Federal Rules of Evidence, the Rule of Completeness provides, "[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."(fn5) The rule was codified to allow for correction of misleading impressions created by out of context statements, and to provide for more advantageous timing in the introduction of necessary contextual evidence.(fn6) Though its language seems clear, courts have consistently wrestled with whether evidence admissible under Rule 106 (as necessary to complete or correct a misleading statement) should be excluded if, absent such admissibility under Rule 106, the rules would make that evidence inadmissible-such as statements generally excluded under the Rule Against Hearsay.(fn7) Further, courts have found relatively little guidance in the advisory committee's notes in applying the Rule 106 doctrine. This struggle may be best exemplified through the court's admission of oral statements under a completeness rationale,(fn8) buttressed by the broad discretion granted to the court under Rule 611(a).(fn9) Although the courts ultimately used Rule 611(a) to admit oral statements, such admission was plainly discouraged, as the advisory committee noted that "[f]or practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations."(fn10)

Even though courts have found methods to allow for admission of oral statements in addition to those written or recorded, exactly what evidence contained in those statements is admissible is currently up in the air. Today there are three different interpretations across the circuit courts,(fn11) and the United States Supreme Court has yet to provide any substantive guidance.(fn12) Beyond the question of what is currently admissible-and where-is the question of what should be admissible. More limited interpretations not only have the potential to adversely affect the fairness of a trial, but may even compel a criminal defendant to take the stand in order to offer completion evidence necessary to correct a misleading statement, even where the same defendant would not need to do so in other circuits.(fn13) And so the question remains: is Rule 106 a rule of completeness, or is it simply a rule of timing?(fn14)

This Article proposes amending Rule 106 to allow it to serve its purpose as the Rule of Completeness, to avoid constitutional concerns, to promote fairness, and to finally provide unity across the circuits. Further, this Article proposes that circuits not currently allowing Rule 106 to override other exclusionary rules revisit their interpretations, and allow for expansive admission of necessary completion evidence. Section II examines a brief history of the common-law Rule of Completeness, along with the approach codified in the Federal Rules of Evidence.(fn15) Section III provides a background discussion of the various rules of evidence discussed or referenced herein, with an emphasis on the purposes of those rules. Section III further discusses the history of the most prominent exclusionary rule of evidence, the Rule Against Hearsay.(fn16) Section IV provides an analysis of the varied interpretations currently employed by the circuit courts since Beech Aircraft Corp. v. Rainey,(fn17) the last United States Supreme Court case addressing Rule 106.(fn18) Section V examines the Fifth Amendment right against self-incrimination, the history and purpose of that right, and what constitutes compulsion.(fn19) Further, the Fifth Amendment will be discussed with regard to the potential erosion of the right against self-incrimination in circuits that narrowly interpret Rule 106. Section VI proposes an amendment to Rule 106, providing for uniform application and clarity in the rule. Section VI will also discuss how such an interpretation both conforms with the stated purposes of the Federal Rules of Evidence, and protects a criminal defendant's constitutional right against self-incrimination. Finally, Section VI will propose that in the interim, prior to the adoption of an amendment to Rule 106, circuits adopt a broader interpretation of Rule 106, more in line with a true rule of completeness.(fn20) Section VII concludes with a final discussion of why a rule amendment is needed, and what purposes would be served by an amendment.(fn21)

II. RULE 106-THE RULE OF COMPLETENESS: A BRIEF HISTORY

Rule 106 of the Federal Rules of Evidence is the codification of the common-law Rule of Completeness.(fn22) Thus, to grasp the current, codified iteration of the Rule of Completeness, one must understand...