In drug robbery trial, excluding the defendant's proffer of a redacted exculpatory part of the defendant’s confession (describing what happened during the alleged robbery) because under FRE 106, rule of completeness, the redactions did not explain or place in context the portion of the confession that the prosecution proffered to describe only the planning for the alleged robbery, in United States v. Johnson, 507 F.3d 793 (2d Cir. Nov. 14, 2007) (No. 05-5529-cr)
The application of the FRE 106 "rule of completeness" involves an inherent limitation in the doctrine. The rule allows a party opposing the admission of a particular writing or statement to "require ... any other part or any other writing or recorded statement" to also be admitted if "in fairness" it should be "considered contemporaneously" with the writing to which the party objects. See ACN-FRE 106 ("The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial.") The inherent premise of the rule is that "the remainder" of the writing or statement the party submits must be otherwise admissible in evidence - that is, it must be both relevant and not unduly prejudicial. See, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988) (In products liability suit noting that FRE 106 codified the rule of completeness, but that it also was “a reaffirmation of the obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402.”); United States v. Garrett, 716 F.3d 257, 272 (5th Cir. 1983) (FRE 106’s “‘completeness doctrine,’ however, does not require introduction of portions of a statement that are neither relevant to nor explanatory of the admitted passages. Here, the redacted portion contained irrelevant matters (excluded at least in part due to possible prejudice to Moore by including wrongdoings that were not the subject of the trial), and Moore elicited the relevant information through cross-examination, such that ‘fairness’ did not require playing of the entire tape.”)) Three years ago, the Second Circuit revisited this inherent limitation in the rule of completeness doctrine.
In the case, two perpetrators tried to rob drug dealers and in a struggle that occurred, defendant Freeman was wounded and the other perpetrator was killed. The defendant was hospitalized and agents obtained a confession from him. His confession recounted the perpetrators' planning for the robbery by posing as drug purchasers, gain entry and check the marijuana quality from the dealer and then offer “fake” money for it. The defendant and his dead companion carried two guns to the robbery. In the confession, the defendant described how the robbery happened and how the shootings started.
During the defendant's trial on drug and robbery charges, the prosecution submitted a redaction of the confession. The part admitted described the planning of the robbery. The prosecution did not offer any part of the confession describing “what happened inside the apartment and afterwards.” It also excluded the defendant's description of the robbery itself (which included some possibly exculpatory statements). The defendant objected that if the confession was admitted, the entire confession should go to the jury and not simply the redacted confession. This was denied and the jury, exposed only to the redacted confession, convicted the defendant. He appealed, contending that the whole confession should have been admitted under FRE 106.
The Second Circuit affirmed the admission of the redacted confession that the prosecution had submitted. The circuit explained that under the FRE 106 rule of completeness, when part of a statement is admitted, the opponent may require that any “omitted portion of [the] statement … be placed in evidence if necessary to explain the admitted portion, to place the admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding of the admitted portion.” Johnson, 507 F.3d at 798 (quoting United States v. Castro, 813 F.2d 571, 575-76 (2d Cir. 1987) (In drug trial, no error where court admitted redacted version of statement defendant made to police after arrest because court balanced competing interests of protecting defendant and judicial economy against the defendant’s interest in presenting the whole statement where defendant was able to achieve his goal by cross examining officer with regard to the matter in issue), cert. denied, 484 U.S. 844 (1987) (citations omitted))
Inherent in this was that the rule of completeness did not provide for the admission of any excluded portions that are not relevant or explanatory of the admitted sections. Johnson, 507 F.3d at 798 (citing United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999) (“Medina contends that the district court erred in refusing to allow him to introduce parts of the tape of his January 16, 1997 conversation with Thompson. The conversation was roughly 42 minutes long; the government offered in evidence only a 90-second portion of the tape near the beginning of the conversation, in which Thompson warned that the scheme in which Jackson was engaged constituted the federal crime of extortion. The excerpt was admitted as evidence of Medina’s awareness of the unlawfulness of the extortion scheme. The court denied Medina’s request that the remainder of the tape be admitted pursuant to the “rule of completeness.” We see no error in that denial.”))
The application of this to defendant Freeman's situation was clear. The redacted portion that the defendant wanted admitted under FRE 106 “did not explain the admitted portion or place the admitted portion in context." The redacted confession that the court admitted related solely to the defendant and his colleague's plans to execute the robbery. The portion eliminated dealt with how the plan went off. Moreover, the admitted portion of the defendant's confession pertained only to the conduct that occurred before the defendant entered the drug dealer-victim's apartment, while the redacted portion related to what happened inside the apartment.” Johnson, 507 F.3d at 796.
Of course, not only must evidence to be admitted under FRE 106 satisfy the requirements of relevance in FRE 401 and 403. It must also, as suggested by other cases, satisfy the hearsay requirements of the FRE as well. See, e.g., United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (“‘Rule 106 does not compel admission of otherwise inadmissible hearsay evidence’”) (citation omitted); Phoenix Associates III v. Stone, 60 F.3d 95, 102 (2d Cir. 1995) (“Stone argues that even if Rule 106 applies, the work paper constituted inadmissible hearsay. Rule 106 ‘does not compel admission of otherwise inadmissible hearsay evidence’")
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