TOWARD A MORE PERFECT TRIAL: AMENDING FEDERAL RULES OF EVIDENCE 106 AND 803 TO COMPLETE THE RULE OF COMPLETENESS.

• Date: 22 September 2021
• Author: Heiny, Louisa M.A.

INTRODUCTION 841 I. HISTORY OF THE COMMON LAW RULE OF COMPLETENESS AND ITS EVOLUTION INTO FRE 106 845 A. The Common Law Rule of Completeness 845 B. An Examination of Federal Rule of Evidence 106 848 C. Has FRE 106 Repealed and Replaced the Common Law Rule of Completeness? 852 D. The Supreme Court Indicates in Dicta that FRE 106 "Partially" Codified the Common Law Rule of Completeness 853 II. THE INTERPRETATION OF FRE 106 SPLITS THE FEDERAL CIRCUITS AND THE STATES 856 A. Various Approaches to Admitting Oral Statements under FRE 106 via Rule 611(a) 858 1. Federal Circuit Courts that Allow Oral Statements to be Used as Completion Evidence 859 2. State Courts that Allow Oral Statements 3. Federal Circuit Courts and State Courts that 861 Reject the Use of Oral Statements Under FRE 106 .863 B. The Application of FRE 106 to Evidence that Would Be Otherwise Inadmissible 864 1. Federal Circuit Courts and State Courts that Hold FRE 106 is About Timing and Nothing Else 865 2. Federal Circuit Courts and State Courts that Hold FRE 106 Admits the Inadmissible 867 3. Federal Circuits with Conflicting Opinions and 870 a. The Oscillating Position of the Fourth Circuit. .870 b. The Innovative Approach of the Seventh Circuit 877 4. Scholarly Work Arguing that FRE 106 Admits the Inadmissible 873 III. A CASE STUDY IN CONFUSION: HOW UTAH COURTS HAVE STRUGGLED WITH RULE 106 AND THE DOCTRINE OF COMPLETENESS 874 IV. RECOMMENDATIONS FOR AMENDING FRE 106 AND ADDING A NEW FRE 803 EXCEPTION TO THE RULE AGAINST HEARSAY 879 CONCLUSION 883 APPENDIX 884 INTRODUCTION

"[T]he greatest possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was." (1)

--John Henry Wigmore,

Wigmore on Evidence

A man has been murdered. Police arrive at the scene to find a suspect holding a gun. The suspect tells the police, "I did it, but it was in self-defense."

In the ensuing trial, the prosecution will likely call the police officer who heard the qualified confession to the stand and ask the officer to repeat the defendant's confession. Although hearsay as an out-of-court statement offered to prove the truth of the matter asserted in the statement, the confession is admissible when offered by the prosecution against the defendant as a Statement of an Opposing Party under Federal Rule of Evidence 801(d)(2). (2) Aided by meticulous witness coaching and careful questioning, the prosecution may ask about, and the police officer may testify to, the entire statement or only the phrase, "I did it." By omitting the second clause, "but it was in self-defense," the prosecutor has undoubtedly left the jury with a misleading--and incomplete view of the facts. (3)

The defendant, of course, wishes the jury to hear the entire statement as the second phrase, "but it was self-defense," substantially changes both the legal and factual meaning of the first portion of the statement. On crossexamination, the defendant may wish to ask the officer, "after I said, T did it,' didn't I also tell you that I did it in self-defense?" However, any answer is barred by the Rule Against Hearsay. (4) The defendant is asking the officer to recount a statement made out of court and wishes to offer it for the truth of the matter asserted in the statement: that he actually acted in self-defense. (5)

Although an exception to the Rule Against Hearsay applies when a defendant's statement is offered by the prosecution, that exception does not apply when the defendant offers his own hearsay statement. (6) Further, no other exceptions to the Rule Against Hearsay generally apply to this situation. (7) To ensure the jury hears the statement in its entirety, the defendant's only choice is to take the stand and tell the story from his perspective. However, this option is in direct conflict with his Fifth Amendment right to decline to testify, and many criminal defendants find that taking the stand does more harm than good. (8)

Common law courts used the Rule of Completeness (the "Rule") to correct or prevent damage from incomplete statements. (9) Under the common law Rule, "[i]n evidencing the tenor of an utterance material or relevant, made in words, whether written or oral, in original or in copy, the whole of the utterance on a single topic or transaction must be taken together." (10 )Common law courts intended for the Rule to apply to all statements, including those made orally, (11) and to admit evidence that would otherwise be inadmissible for the purpose of correcting the manipulative use of incomplete statements at trial. (12) As a result, the Rule acted as a counterbalance to a tactic that trial lawyers have employed for centuries: "carefully trimming a quotation [so] they could tell the truth but use it like a lie." (13)

States adopted this broad common law principle into their own rules of evidence early in the nation's history. Subsequently, the drafters of the Federal Rules of Evidence codified the Rule into Federal Rule of Evidence 106 (FRE 106). (14) Under FRE 106, "[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." (15) This codification was modeled on the Rule of Completeness and attempted to capture both its idea and function.

Yet, while the common law Rule of Completeness and FRE 106 are similar, they vary in three significant ways. First, FRE 106 omits any reference to oral statements, making it unclear whether it applies only to written and recorded statements or applies to oral statements as well. Second, FRE 106 adds a timing component that was not present in the common law rule, allowing the opposing party to stop the proceedings and demand the immediate introduction of the remainder of the statement. Finally, FRE 106 fails to address whether a statement must be independently admissible before a party may invoke FRE 106.

Because FRE 106 fails to address the admissibility of oral statements or otherwise inadmissible hearsay, a significant split has developed among both state and federal courts. (16) Some jurisdictions interpret FRE 106 narrowly. These jurisdictions refuse to apply FRE 106 to oral statements. Further, they only apply FRE 106 to written and recorded statements that are independently admissible. (17) If the missing portion of the statement is inadmissible hearsay when offered by the party invoking FRE 106, it remains inadmissible. (18) Other jurisdictions treat FRE 106 as an expansive expression of the common law rule. These courts apply FRE 106 to both oral and written statements. They also treat FRE 106 as a rule of admissibility. (19) In the midst of this chaos, the United States Supreme Court has largely remained on the sidelines.

This Article provides a broad yet deep overview of both the common law Rule of Completeness and FRE 106 history and jurisprudence. Part I reviews the history of the common law Rule of Completeness and compares it to its current embodiment in FRE 106. Part II addresses the current split among circuit and state courts and explains the reasons for the divergent approaches. (20) Part II particularly explores how courts deal with two separate issues: (1) whether FRE 106 applies to oral statements; and (2) whether FRE 106 allows the admission of inadmissible evidence. Part III provides a recent case study from Utah, highlighting the problems courts encounter when faced with the unresolved issues in Rule of Completeness jurisprudence. Part TV proposes amendments to FRE 106 that reflect the common law Rule's original purpose, while simultaneously ensuring that a broader interpretation will not allow parties to circumvent other important exclusionary rules of evidence. In addition, Part IV proposes adding another exception to the Rule Against Hearsay that would admit "completed" statements for the truth of the matter asserted in the statement. (21) Finally, the Conclusion engages in a discussion of how changes to FRE 106 and FRE 803 will ensure greater fairness and justice in the courtroom. Amending FRE 106 and FRE 803 at the same time will help ensure an updated and fair Rule of Completeness that remains true to both the historical roots of the Rule of Completeness and the current structure of the Federal Rules of Evidence.

1. HISTORY OF THE COMMON LAW RULE OF COMPLETENESS AND ITS EVOLUTION INTO FRE106

   1. THE COMMON LAW RULE OF COMPLETENESS

      Common law courts "clearly conceded and consciously applied" the Rule of Completeness as early as the 1600s. (22) The Rule was meant to prevent parties from introducing incomplete, and therefore misleading, statements. (23 )The principle behind the Rule was simple. According to Wigmore, statements, whether written or oral, are attempts to express ideas. (24) To break these ideas into pieces and view each part in isolation "would be to obtain a false notion of the thought." (25) Because "the presence or absence or change of a single word may substantially alter the true meaning of even the shortest sentence," (26) "the whole of a verbal utterance must be taken together" (27) in order to prevent injustice and misinterpretation. (28)

      The common law Rule included three main features. First, the doctrine's principal function allowed otherwise inadmissible evidence to be used at trial for the purpose of completeness. (29) This is known as the Rule's "trumping function." (30) Thus, when a party offered incomplete and misleading evidence, an opponent had the right to admit the remainder of the statement despite other applicable exclusionary rules. (31)

      Second, the Rule applied to "every kind of utterance without distinction." (32) Specifically, it applied to written and recorded statements, as well as acts, declarations, and conversations. (33) The Rule's broad scope reflected a recognition that "[a] misleading oral statement is no less unfair than a written...