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Evidentiary Irony and the Incomplete Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106

By Daniel J. Capra and Liesa L. Richter. Full Text. 

In recent years, there have been many calls and suggestions for a more equitable criminal justice system. Although sometimes overlooked in that dialogue, the fair operation of the Federal Rules of Evidence is a crucial component in ensuring such an equitable system. Unfortunately, the interpretation of Federal Rule of Evidence 106 in some jurisdictions permits unjust results, particularly for criminal defendants seeking to rely upon the Rule.

Rule 106, also known as the “rule of completeness,” is premised upon notions of fundamental fairness and ostensibly permits a party to force its adversary to introduce the remainder of a written or recorded statement when the adversary has offered a portion in a selective and misleading manner. This Rule, designed to prevent unfair cherry-picking presentation of out-of-court statements, is a critical tool necessary to achieving the fundamental goals of the Federal Rules of Evidence to “ascertain truth” and “secure just determinations.” But inconsistent and unfair application of Rule 106 has plagued the Rule since its adoption in 1975 and has frustrated its core purpose of demanding fair presentation of out-of-court statements. Most significantly, criminal defendants often run headlong into a prosecutorial hearsay objection when they attempt to utilize Rule 106 to introduce the remainders of their own statements presented in a fragmented and distorted manner by the government. Alternatively, prosecutors object to defense attempts to offer completing evidence of statements made orally because Rule 106 permits completion only of written or recorded statements. When such objections are sustained, the fact-finder is left with a distorted scrap of the truth.

The unfair application of a rule designed to promote fairness was made possible because the original drafters of Rule 106 chose to craft a rule of completeness that only partially codified the common law doctrine of completeness, leaving the admissibility of hearsay and oral statements unresolved. This incomplete rule of completeness has left federal courts struggling for decades with objections to oral statements and otherwise inadmissible hearsay offered to correct a misleading partial presentation of a statement. Although the federal courts have been wrestling with the proper operation of Rule 106 since its adoption, they are no closer to a uniform and just interpretation of the provision than they were forty-five years ago. Accordingly, Rule 106 should be reconstructed to allow completion of oral statements and to permit completion with otherwise inadmissible hearsay whenever necessary to prevent distorted evidence from influencing the fact-finder improperly. Only then will the “rule of completeness” be truly complete.