Rule 106. Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
In United States v. Rodriquez, 56 M.J. 336 (2002), the CAAF held that in the military there are two distinct rules of completeness, Rule 106 and Rule 304(h)(2). CAAF held that Rule 106 applies when fairness demands that the rest of the evidence be considered contemporaneously with the portions of the evidence offered by the opposing side. They adopted a standard regarding Rule
304(h)(2) that allows for admissibility of statements made by the accused when
the defense introduces the remainder of a statement or statements that are
explanatory or relevant to the confession or admission of the accused previously
offered by the government. This is allowed even if the statements the defense
seeks to admit are otherwise inadmissible hearsay. CAAF requires a case-bycase
determination when the defense attempts to admit a series of statements as
part of the original confession or admission in order to determine if they are part
of an ongoing statement or a separate transaction or course of action.
In the context of a confession or an admission, read this rule in connection with
Rule 304(h)(2) (where only part of the alleged admission or confession is
introduced, the defense may introduce other portions). Other portions admitted
by the defense do not need to overcome a hearsay objection. United States v.
Benton, 54 M.J. 717 (A. Ct. Crim. App. 2001). However, note that this has the
potential to open the door to an accused’s character – the Goldwire trap. In
United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense
counsel uses the rule of completeness to admit portions of their client’s
statements into evidence through cross examination of a government witness they
open the door to reputation and opinion testimony regarding the truthfulness of
the accused. CAAF analyzed the potential application of the rule of
completeness under both the federal and military rules, as well as the common
law doctrine of completeness.
Supplementary Statements. In United States v. Foisy, 69 M.J. 562 (N.M. Ct.
Crim. App. 2010), the accused gave a sworn statement to an NCIS agents
admitting that he had sex with the victim, but insisting that it was consensual. He
also described his interactions with the victim which led him to believe that it
was consensual. Another NCIS agent took a second statement from the accused
which was labeled as a “supplementary statement.” The facts in supplementary
statement began immediately before appellant penetrated the victim. At trial, the
government admitted only the supplementary statement. The defense attempted
to admit the first statement under the rule of completeness. The government
objected and the military judge sustained the objection. The Navy-Marine Court
of Criminal Appeals held that under MRE 304(h)(2), “where the Government
links two statements by constructing them as a statement and a ‘supplement’ to
that statement, the Government may not deconstruct those statements for the
purposes of trial where the admission of the second statement standing alone
would create a misimpression on the part of the fact finder as to an accused’s
actual admissions.” The military judge erred in not allowing the defense to
introduce the first statement.
Representing Guilty Clients: How do defense lawyers sleep at night?