Wait a Minute, That’s Not All I Said!

March 24, 2015
By Hanging Out with Carl Gunn


  •  While the “rule of completeness” in Rule 106 doesn’t allow a defendant generally to introduce the remainder of his statement when the government introduces just part of the statement, case law supports an argument that the defendant does have a right to introduce those parts that are necessary to put the part offered by the government in context or prevent the part offered by the government from being misleading.
  • While Rule 106 applies by its terms only to written statements, courts have interpreted Rule 611 to create a similar rule for oral statements.
  • If the judge won’t read Rule 106 or Rule 611 to create this affirmative right, argue that the government should be precluded from introducing only part of a defendant’s statement under Rule 403 because introducing only part of the statement “confus[es] the issues” and/or “mislead[s] the jury” in violation of Rule 403.


Why is it that the government gets to pick and choose what parts of your client’s statement or confession to introduce?  Why don’t they have to put in the whole thing if they want to put in part of it?  Or why can’t we at least put in the rest of it if they don’t?  (Yes, I know, every now and then we’re thankful they don’t put in the whole thing because the rest of it’s even worse.  But usually they put in the worst stuff, no?)

Unfortunately, there’s an answer to these questions which isn’t helpful, albeit one that’s qualified.  It’s the rule of evidence governing admissions of party-opponents, codified in the Federal Rules of Evidence as Rule 801(d)(2)(A).  This creates an exception to the hearsay rule for a statement made by a party (such as a criminal defendant) that “is offered against [the] opposing party.”  When the government offers part of a defendant’s statement, it’s being offered against an opposing party.  But when the defendant tries to offer it, it’s being offered not against an opposing party, but by the party who made the statement.

There is a limitation, however, in Rule 106 of the Federal Rules of Evidence.  The limitation is known as “the rule of completeness,” which was recognized at common law long before there were any evidence codes.  Rule 106 provides that “[i]f 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.”  While the rule by its terms applies only to written or recorded statements, case law has extended it to oral statements – through a provision in Rule 611(a) that allows courts to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence.”  See United States v. Collicott, 92 F.3d 973, 983 n.12 (9th Cir. 1996) (noting that “other circuits have held that ‘Fed. R. Evid. 611(a) grants district courts the same authority regarding oral statements which [Rule] 106 grants regarding written and recorded statements’” (quoting United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995)).  See also United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir. 2014) (noting other Ninth Circuit opinions suggesting rule applies only to written and recorded statements, but going on to acknowledge that “at least two of our sister circuits have recognized the principle underlying Rule 106 also applies to oral testimony ‘by virtue of Fed. R. Evid. 611(a), which obligates the court to make the interrogation and presentation effective for the ascertainment of the truth’” (quoting United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994) and citing Li)).  And where it’s a criminal defendant who wants to offer the remainder of a statement, there are constitutional confrontation and due process rights that are implicated.  See, e.g., United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (framing issue as whether defendant’s “constitutional right to cross-examine witnesses [was] severely restricted [ ]or . . . his due process rights offended”).

So far I may not have told you anything you don’t already know.  What led me to write this post is what I see as overly restrictive Ninth Circuit case law interpreting and applying Rule 106 and the way the government trumpets that case law in its boilerplate trial briefs.  The bad case law started with the Collicott case I cite above, which was actually a defense challenge to the government’s use of Rule 106.  Collicott found the rule didn’t allow admission of the other parts of a declarant’s statements there because (1) “in textual form, Rule 106 is inapplicable to the present action because no writing or recorded statement was introduced,” id. at 983 (though the court then acknowledged this was “not dispositive” because of the alternative Rule 611 theory noted above, id. at 983 n.12); (2) Rule 106 “does not compel admission of otherwise inadmissible hearsay evidence,” id. at 983 (quoting Phoenix Associates III v. Stone, 60 F.3d 95, 103 (2d Cir. 1995) and United States Football League v. National Football League, 842 F.3d 1335, 1375-76 (2d Cir. 1988)); and (3) the purpose of Rule 106 was not served “because there was no concern in this case that [the defendant] introduced a misleadingly-tailored snippet from [the out-of-court declarant’s] statement,” Collicott, 92 F.3d at 983.  The court then went on in a later case – which the government loves to cite in its boilerplate trial briefs – to apply these rationales to statements or confessions by criminal defendants.  See United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir. 2000).

Ortega – and other cases – do leave an opening, however, which the government likes to ignore.  Even in Ortega, the court felt compelled to point out that the testimony about the limited portions of the defendant’s statements actually introduced “did not distort the meaning of [the defendant’s] statements.”  Id. at 683.  And other cases both before and after Ortega have similarly felt compelled to emphasize this.  In United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985), the court emphasized that the excluded portions of the defendant’s confession “did not change the meaning of the portions of his confession submitted to the jury.”  Id. at 435.  In United States v. Duran-Orozco, 192 F.3d 1277 (9th Cir. 1999), the court similarly noted that “the excluded portion of [the defendant’s] statement would not have cast further any extenuating light on his declaration.”  Id. at 1282.  In United States v. Mitchell, supra, the court cited Ortega and mirrored Ortega’s reasoning to find there was no constitutional violation, because the selected defendant statements “were not taken out of context or otherwise distorted.”  Id., 502 F.3d at 965.  Finally, in United States v. Vallejos, 742 F.3d 902 (9th Cir. 2014) and United States v. Liera-Morales, supra, the court found no violation because the redacted statements were “not misleading,” Vallejos, 742 F.3d at 905, or were “neither misleading nor taken out of context,” Liera-Morales, 759 F.3d at 1111.  A four-factor test suggested by the Second, Third, and Seventh Circuits focuses on whether the other statements are “necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.”  United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987) (quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984) and citing United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982)).  See also United States v. Dorrell, 758 F.2d at 435 (citing Marin with approval).

The clear implication of this line of cases taken as a whole is that the government can offer portions of a defendant’s statements only when the statements it offers are not taken out of context, when offering those statements alone is not misleading, and when offering those statements alone does not change the meaning of the statements.  That this is a requirement is illustrated by United States v. Haddad, 10 F.3d 1252 (7th Cir. 1993), in which the court held it was error, albeit harmless error, to admit a defendant’s statement that he knew about marijuana found under a bed without also admitting testimony that he had denied knowing about a gun found right next to the marijuana.  The court explained:

The admission of the inculpatory portion only (i.e. that he knew of the location of the marijuana) might suggest, absent more, that the defendant also knew of the gun.  The whole statement should be admitted in the interest of completeness and context, to avoid misleading inferences, and to help insure a fair and impartial understanding of the evidence.

Id. at 1259.

It doesn’t have to be an all or nothing call, moreover.  One middle-of-the-road approach a court can take is suggested by United States v. Burreson, 643 F.2d 1344 (9th Cir. 1981).  The district court there had not simply let the government alone decide what to introduce but had, as described by the court of appeals, “carefully considered the entire transcript, and added material to the excerpt offered by the government to put it in proper context.”  Id. at 1349.  So consider asking the judge to at least take this middle ground.  Remember to also point out that the published court of appeals opinions hold only that it wasn’t an abuse of discretion for the district courts in those cases to exclude the other parts of the defendants’ statements.  That doesn’t mean a different court couldn’t exercise its discretion differently in a different – or even similar – case.  The only thing a “not abuse of discretion” holding by a court of appeals means is “that within substantial margins the district court could be upheld had it determined the issue one way or the other.”  Speiser, Krause & Madole, P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir. 2001) (emphasis added).  (For more on this point, see my prior post on what prior cases finding no abuse of discretion do and don’t mean – “The Case Law They Cite Is About the Abuse of Discretion, Not the Exercise of Discretion” – in the March 2013 link at the right.)

Finally, in the event none of this convinces the trial court in your case and the court interprets Rule 106 narrowly and expresses doubt about whether it has discretion to require the government to include other portions of the defendant’s statements, think about Rule 403 of the Federal Rules of Evidence.  Rule 403 allows a court to exclude any evidence whose probative value is substantially outweighed by a danger of, among other things, “unfair prejudice,” “confusing the issues,” and/or “misleading the jury.”  If the judge has doubts about whether he or she can affirmatively tell the government to include something, suggest the judge can use Rule 403.  The judge can tell the government it has to include enough of the defendant’s statements to avoid unfair prejudice, confusing the issues, and/or misleading the jury and that the statements will simply be excluded in their entirety if it doesn’t avoid those things.  Cf. 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 1:43 (4th ed. 2013) (suggesting that “basic notions of relevancy embodied in Rule 401, coupled with the principle in Rule 403 that evidence can be excluded if it is misleading or overly prejudicial, both complemented by the power of trial judges acknowledged in Rule 611 to exercise ‘reasonable control’ over the presentation of evidence in order to aid in ‘determining the truth,’ provide ample basis to apply the completeness principle more broadly”).