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

46 Pages Posted: 13 Apr 2020 Last revised: 14 Apr 2020

See all articles by Daniel J. Capra

Daniel J. Capra

Fordham University School of Law

Liesa Richter

University of Oklahoma - College of Law

Date Written: January 31, 2020


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.

Keywords: Federal Rules of Evidence, Rule 106, rule of completeness, oral statements, evidence, hearsay, completeness, criminal procedure

Suggested Citation

Capra, Daniel J. and Richter, Liesa, Evidentiary Irony and the Incomplete Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106 (January 31, 2020). Minnesota Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3574760

Daniel J. Capra

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Liesa Richter (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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