Second Circuit Opinion Fleshes Out Common Law Rule of Completeness
Federal Rule of Evidence 106, the rule of completeness, provides that
If 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.
So, imagine that Defendant is on trial for murdering Victim. During its case-in-chief, the prosecution wants to introduce part of of a letter Defendant sent Victim, which stated, “I’m going to kill you.” Assume, however, that (1) another part of the letter says, “Just kidding about that whole killing thing;” (2) Defendant sent Victim a second letter the next day that said, “Just kidding about that whole killing thing;” or (3) Defendant left a voicemail on Victim’s cell phone the next day, saying, “Just kidding about that whole killing thing.” Under any of these three scenarios, the rule of completeness would say that fairness requires that the defense could introduce the exculpatory statement at the same time as the inculpatory statement rather than having to wait to introduce it (during cross-examination or the defense case).
But now, assume a fourth scenario, in which Defendant tells Victim the next day in front of Friend, “Just kidding about the whole killing thing.” What does the rule of completeness tell us about this scenario.
As the recent opinion of the Second Circuit in United States v. Williams, 2019 WL 2932436 (2nd Cir. 2019), makes clear, the answer is “nothing.” As that court noted, “Rule 106 does not cover oral statements-as the advisory committee note states, “[f]or practical reasons, [Rule 106] is limited to writings and recorded statements and does not apply to conversations.” That said, the court then observed that
the common law rule of completeness is substantially broader than Rule 106, covering “not only writings taken out of context, but also…the truncated use of acts, declarations, and conversations.”…And as the Supreme Court made clear in Beech Aircraft Corp. v. Rainey, the common law doctrine persists in the wake of Rule 106’s adoption.
And, for the Second Circuit, this common law rule of completeness is covered by Federal Rule of Evidence 611(a), which states:
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
According to the court,
in this Circuit, the completeness principle applies to oral statements through Rule 611(a), so that “whether we operate under Rule 106’s embodiment of the rule of completeness, or under the more general provision of Rule 611(a), we remain guided by the overarching principle that it is the trial court’s responsibility to exercise common sense and a sense of fairness” so as to require completion, whether contemporaneous or on cross-examination, in instances in which testimony regarding oral statements is elicited in fragments that fail to present “‘the tenor of the utterance as a whole.’”
In the end, though, none of this helped the defendant in Williams, who wanted to introduce the fact that he denied knowledge or ownership of a firearm found in the center console of a car after the State introduced evidence that he later admitted ownership. Instead, the court held that
Williams has failed to show that the district court abused its discretion in deciding to exclude them. To require completion under the doctrine of completeness, Williams had to demonstrate that admission of his initial statements denying ownership of the gun was “necessary to explain” his later statements that the gun was his, “to place [these statements] in context, to avoid misleading the jury, or to ensure fair and impartial understanding” of these later statements….Williams did not make such a showing. It is not uncommon for a suspect, upon interrogation by police, to first claim in a self-serving manner that he did not commit a crime, only thereafter to confess that he did. But the rule of completeness does not require the admission of self-serving exculpatory statements in all circumstances,…and the mere fact that a suspect denies guilt before admitting it, does not—without more—mandate the admission of his self-serving denial. As the district court here aptly pointed out, Williams’s confession was “simply a reversal of his original position.”