Completing the Quantum of Evidence: A Response to Daniel Capra and Liesa Richter’s Evidentiary Irony and the Incomplete Rule of Completeness

By Edward K. Cheng & Brooke Bowerman. Full Text.

In Evidentiary Irony and the Incomplete Rule of Completeness, Daniel Capra and Liesa Richter propose an amendment to Federal Rule of Evidence 106, the “rule of completeness,” that formally recognizes the Rule’s trumping power over objections to hearsay.  In this Response, we suggest a conceptual framework to support Capra and Richter’s proposal.  We argue that the rule of completeness defines what is effectively a “quantum” for evidence law.  Specifically, when a party offers evidence, Rule 106 demands that the proponent offer either the whole quantum of evidence or none of it at all.  This framework helps explain why Rule 106 should operate like a trump card against hearsay objections.  It can also help us interpret other evidentiary rules in which courts have had difficulty defining the term “statement.”