Circuit Split: Does FRE 106 Rule Of Completeness Apply To Oral Statements?

While it is clear that the Rule of Completeness under FRE 106 applies to written and recorded statements, does it apply to oral statements? The Ninth Circuit recently noted a division on this issue; nonetheless the rule did not apply because the statements "were neither misleading nor taken out of context," in United States v. Liera-Morales, _ F.3d _ (9th Cir. July 21, 2014) (No. 12-10548)

FRE 106 provides for the Rule of Completeness. Under the rule:

If 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.

The Ninth Circuit recently noted an issue dividing the circuits: whether the rule applies to oral statements. Ultimately, the rule was properly applied by the trial court on other grounds.

Trial Court Proceedings: Excluding Exculpatory Statemets

In the case, defendant Liera-Morales was prosecuted for his role in a human-trafficking ring and was charged with hostage taking after making ransom demands to the mother of an undocumented immigrant from Honduras, known as Aguillar. A sting operation let to the defendant's arrest. In a field office, ICE agent Mason Nicholls interviewed the defendant who recounted that

“he and another man went out to the desert” south of Tucson, “picked [Aguilar] and two other individuals up,” and “brought [them] to a residence...in Tucson.” During the interview, Liera-Morales also said that he told Avila she owed “$750 for bringing [Aguilar] out of the...desert,” that Avila had previously made arrangements to pay Aguilar’s ransom, and that, on December 15, “they were taking [Aguilar] to meet up with another individual[] that his mom had arranged to make the payment.”

Liera-Morales, _ F.3d at _. At trial, the government introduced certain portions of the defendant's post-arrest interview. The defendant sought to admit some of the exculpatory statements he made under FRE 106. The trial court excluded the exculpatory statements. After the defendant was convicted, he challenged the exclusion of his exculpatory statements on appeal, arguing that the statements were admissible under FRE 106.

Ninth Circuit Review: Noting Circuit Split

The Ninth Circuit affirmed the exclusion of the exculpatory statements. However, the circuit noted a split on the application of the Rule of Completeness.

First, within the Ninth Circuit, it was settled that the rule "applies only to written and recorded statements." Liera-Morales, _ F.3d at _ (citing United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000); United States v. Hayat, 710 F.3d 875, 896 (9th Cir. 2013) (noting “our cases have applied the rule only to written and recorded statements.” )(internal quotation marks omitted)).

However, "at least two of our sister circuits have recognized that 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.” Liera-Morales, _ F.3d at _ (citing United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994) (internal quotation marks omitted); accord United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995) (“[T]he rule of completeness applied to the oral statement.”); United States v. Collicott, 92 F.3d 973, 983 & n.12 (9th Cir. 1996) (noting division and citing cases)).

Nonetheless, it was not necessary for the circuit to address the scope of the rule, since the proffered exculpatory statements "were neither misleading nor taken out of context," as the trial court had determined. Liera-Morales, _ F.3d at _ (citing United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014) (holding that “if the complete statement [does] not serve to correct a misleading impression in the edited statement that is created by taking something out of context, the Rule of Completeness will not be applied to admit the full statement” (alteration in original) (internal quotation marks omitted); Collicott, 92 F.3d at 982–83 (noting one role of the Rule of Completeness to correct "the misleading impression created by taking matters out of context") (citing ACN)).

Conclusion

The Liera-Morales case identifies an interesting circuit split on whether the Rule of Completeness can be used on oral statements. However, it was unnecessary to consider the division in authority, since the rule is used to correct misleading statements or statements taken out of context.

For more information on the United States v. Ortega case, see A Party Wishing To Offer Its Own Exculpatory Statements Must Testify; and on the United States v. Vallejos case, see Noting The Limits To The Rule Of Completeness In Introducing Party's Statement.

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