Is Rule 106 a Rule of Timing or a Rule of Admissibility?

Federal Rule of Evidence 106 states 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.

For years, there has been a debate raging about whether Rule 106 is a rule of timing or a rule of admissibility. The Fifth Circuit had its chance to address this debate in its recent opinion in United States v. Torres, 808 Fed.Appx. 270 (5th Cir. 2020).

Here’s an example of Rule 106 as a rule of timing. There’s a shooting at the corner of State and Main, and police receive two 911 calls: (1) Carl saying, “Oh my god, some tall guy just shot Vince;” and (2) Carla saying, “Oh my god, some short guy just shot Vince!” Both of these statements would likely be admissible for excited utterances, and, for obvious reasons, the State might only want to introduce Carl’s statement its case-in-chief if it is prosecuting 6’4″ Dan for the murder. Under this version of Rule 106, the defense could (likely successfully) ask the court to admit Carla’s statement at the same time as Carl’s statement.

Conversely, here’s an example of Rule 106 as a rule of timing admissibility. A wiretap records Dana saying she’s going to kill Victoria. The next day, that wiretap records Dana saying she was joking about killing Victoria. The first wiretap recorded a statement that would be admissible as a statement of a party-opponent. the second wiretap recorded a statement that would likely be inadmissible hearsay. Under this version of Rule 106, Dana could (likely successfully) ask the court to admit the second wiretap at the same time as the first wiretap. But, if Rule 106 is just a rule of timing, the second wiretap wouldn’t be admissible at all.

In Torres, Jose Angel Torres appealed his drug-relate convictions.

Torres argue[d] that the district court abused its discretion by denying his request to admit additional portions of the recorded statements offered by the Government at trial. The district court concluded that the additional statements were hearsay. Torres asserts that whether Federal Rule of Evidence 106 and the rule of completeness are subject to a hearsay evidentiary ruling is a novel issue before this court and that a circuit split exists.

The Fifth Circuit found, however, that it didn’t need to resolve the circuit split because “[a]ny error was harmless because even had the additional evidence been admitted at trial, the jury would have found Torres guilty beyond a reasonable doubt based on the trial testimony.”

-CM