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Rule 106. Remainder of or Related Writings or Recorded Statements

  • militarydefenselawyers356When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
  1. In United States v. Rodriquez, 56 M.J. 336 (2002), the CAAF held that in the military there are two distinct rules of completeness, Rule 106 and Rule 304(h)(2). CAAF held that Rule 106 applies when fairness demands that the rest of the evidence be considered contemporaneously with the portions of the evidence offered by the opposing side. They adopted a standard regarding Rule
    304(h)(2) that allows for admissibility of statements made by the accused when
    the defense introduces the remainder of a statement or statements that are
    explanatory or relevant to the confession or admission of the accused previously
    offered by the government. This is allowed even if the statements the defense
    seeks to admit are otherwise inadmissible hearsay. CAAF requires a case-bycase
    determination when the defense attempts to admit a series of statements as
    part of the original confession or admission in order to determine if they are part
    of an ongoing statement or a separate transaction or course of action.
  2. In the context of a confession or an admission, read this rule in connection with
    Rule 304(h)(2) (where only part of the alleged admission or confession is
    introduced, the defense may introduce other portions). Other portions admitted
    by the defense do not need to overcome a hearsay objection. United States v.
    Benton, 54 M.J. 717 (A. Ct. Crim. App. 2001). However, note that this has the
    potential to open the door to an accused’s character – the Goldwire trap. In
    United States v. Goldwire, 55 M.J. 139 (2001), the CAAF held that when defense
    counsel uses the rule of completeness to admit portions of their client’s
    statements into evidence through cross examination of a government witness they
    open the door to reputation and opinion testimony regarding the truthfulness of
    the accused. CAAF analyzed the potential application of the rule of
    completeness under both the federal and military rules, as well as the common
    law doctrine of completeness.
  3. Supplementary Statements. In United States v. Foisy, 69 M.J. 562 (N.M. Ct.
    Crim. App. 2010), the accused gave a sworn statement to an NCIS agents
    admitting that he had sex with the victim, but insisting that it was consensual. He
    also described his interactions with the victim which led him to believe that it
    was consensual. Another NCIS agent took a second statement from the accused
    which was labeled as a “supplementary statement.” The facts in supplementary
    statement began immediately before appellant penetrated the victim. At trial, the
    government admitted only the supplementary statement. The defense attempted
    to admit the first statement under the rule of completeness. The government
    objected and the military judge sustained the objection. The Navy-Marine Court
    of Criminal Appeals held that under MRE 304(h)(2), “where the Government
    links two statements by constructing them as a statement and a ‘supplement’ to
    that statement, the Government may not deconstruct those statements for the
    purposes of trial where the admission of the second statement standing alone
    would create a misimpression on the part of the fact finder as to an accused’s
    actual admissions.” The military judge erred in not allowing the defense to
    introduce the first statement.

Supplementary Statements

In the context of a confession or an admission