Some Case Law Backing Up a Prior Post
- A recent concurring opinion by Judge Fisher, along with a district court Judge Pregerson opinion he cites with approval, provides support for a broader application of the rule of completeness.
- First, the rule of completeness applies to oral statements just as much as it applies to written statements, albeit through a different rule of evidence and common law principles.
- Second, where presenting just a portion of the statement makes it misleading, the rule of completeness trumps the general rule excluding hearsay.
NOW THE BLOG:
Last year, I put up a post on what’s called the “rule of completeness” (see “Wait a Minute, That’s Not All I Said!” in the March 2015 link at the right). That rule, as codified in Rule 106 of the Federal Rules of Evidence, 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.” Fed. R. Evid. 106. I noted a number of bad Ninth Circuit cases that limit the rule but then suggested some possible ways to get around those cases in sufficiently egregious circumstances.
To refresh your memory, the bad cases suggest two problematic limitations on Rule 106: first, that the rule doesn’t apply to oral statements because by its plain language it applies only to “writing[s] or recorded statement[s]”; and, second, that the rule doesn’t allow the admission of otherwise inadmissible hearsay evidence. See United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir. 2000); United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). This latter limitation is particularly problematic for a defendant’s statement, because the government can offer anything a defendant says, under the admissions exception to the hearsay rule, and the defendant is limited to the other, far narrower exceptions to the hearsay rule.
But, to refresh your memory again, I suggested two qualifications to these limitations, which while not part of the cases’ express holdings, are consistent with them and/or other authority. First, the rule of completeness can still be applied to oral statements under the more general Rule 611(a), which directs courts to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to . . . make those procedures effective for determining the truth.” Fed. R. Evid. 611(a). Second, the limitation excluding hearsay doesn’t apply when the government’s suggestive parsing of the statement makes the portion offered misleading.
Lest you think all I’m doing here is repeating something I’ve already posted about, to move beyond just refreshing your memory, and to add something to the prior post, I’ve now got a couple of opinions to point out that back up the caveats suggested in the prior post. The first opinion is a concurring and dissenting opinion by Judge Fisher in the unpublished Ninth Circuit case of United States v. Quinones-Chavez, No. 13-50555, 2016 WL 722999 (9th Cir. Feb. 24, 2016) (unpublished). Judge Fisher first opined that the rule of completeness applies just as much to oral statements as written statements, by suggesting that (a) Rule 106 simply “partially codified” the pre-existing common law rule of completeness, id. at *4 (Fisher, J., concurring and dissenting) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988)), and (b) the rule applies to oral statements under both the old common law rule and through the more general Rule 611(a), as recognized in both a Ninth Circuit footnote and other circuits’ cases, see Quinones-Chavez, 2016 WL 722999, at *4 (Fisher, J., concurring and dissenting).
Judge Fisher also agreed with the second qualification to the limitations on the rule of completeness, namely, by opining that the rule “trumps” the hearsay rule when completeness is necessary to prevent a misleading impression. See Quinones-Chavez, 2016 WL 722999, at *5-6 (Fisher, J., concurring and dissenting). He cited both commentators and cases from other circuits that recognize this. See id. at *5 (Fisher, J., concurring and dissenting). He also noted this trumping function is all the more important where a criminal defendant’s privilege against self-incrimination is at stake, as it is when the government offers a defendant’s statement and the defendant wishes to exercise his right not to testify. See id. at *6 (Fisher, J., concurring and dissenting).
Judge Fisher also cited with approval a Central District of California Judge (Dean) Pregerson opinion that discusses use of the rule of completeness to prevent the government from creating a misleading impression of what a defendant admitted. See id. at *5 (Fisher, J., concurring and dissenting) (citing United States v. Castro-Cabrera, 534 F. Supp. 2d 1156 (C.D. Cal. 2008)). Judge Pregerson was considering a written statement, so he didn’t need to address the first question Judge Fisher addressed, namely, whether the rule of completeness applies to oral statements just as much as it applies to written statements. But Judge Pregerson did address the second question Judge Fisher addressed, concluding that the rule of completeness isn’t defeated by the hearsay rule and articulating a nice “inextricably intertwined” test in so concluding:
The Rule of Completeness “does not compel admission of otherwise inadmissible hearsay evidence.” See, e.g., United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (internal citations and quotations omitted). However, the Rule of Completeness was designed to prevent the Government from offering a “misleadingly-tailored snippet.” See id. The Rule of Completeness warrants admission of statements in their entirety when the Government introduces only a portion of inextricably intertwined statements.
Statements are inextricably intertwined when the meaning of a statement, if divorced from the context provided by the other statement, is different than the meaning the statement has when read within the context provided by the other statement. Under those circumstances, a court must take care to avoid distortion or misrepresentation of the speaker’s meaning, by requiring that the statements be admitted in their entirety and allowing the jury to determine their meaning.
Castro-Cabrera, 534 F. Supp. 2d at 1160.
The two cases also provide nice illustrations of application of the rule. In the Quinones-Chavez case, the statement allegedly made in an aiding and abetting alien smuggling case was an admission by the defendant that he had driven the boat while the captain was urinating and fixing the engine and the government offered only the admission that he had driven the boat. See id., 2016 WL 722999, at *3. In the Castro-Cabrera case, the statement was a sworn statement in the defendant’s immigration file that read as follows:
Q: Of what country are you a citizen?
A: Hopefully United States through my mother.
Q: What country are you a citizen of now?
A: I guess Mexico until my mother files a petition.
Id., 534 F. Supp. 2d at 1159. Judge Pregerson ruled that the answer to the second question could be offered only if the answer to the first question was admitted as well, reasoning:
By itself, the answer “I guess Mexico until my mother files a petition” suggests that Defendant believes he is currently a Mexican citizen. Read together, the answers are less conclusive. The two answers could alternatively mean that Defendant believes he has dual citizenship. On the other hand, the two answers could mean that Defendant was uncertain regarding his citizenship status. The point is that reading the statements in context results in one set of possible meanings, whereas reading the latter statement in isolation tends to create a different meaning. There is a serious risk that presentation of only the latter answer, separate and apart from the one before it, would distort, misrepresent, or confuse the meaning of the Defendant’s statement.
Id. at 1160.
As to what to do with these opinions, keep several options in mind. First, Judge Pregerson’s ruling implies and Judge Fisher’s ruling expressly states that the published Ninth Circuit opinions don’t foreclose using the rule of completeness in this context, so you shouldn’t concede Ninth Circuit case law is against you. Second, assuming arguendo that Judge Pregerson and Judge Fisher are wrong, there’s a clear split in the circuits, because other circuits expressly hold the rule of completeness can be used in these circumstances. See Quinones-Chavez, 2016 WL 722999, at *5 (Fisher, J., concurring and dissenting) (citing United States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008) and United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986)). So the issue should be preserved for a subsequent petition for rehearing en banc and/or cert petition.