Completing the Rule of Completeness: Amending Rule 106 of the Federal Rules of Evidence

Abstract

FIRST PARAGRAPH(S)|The rule of completeness, embodied in Rule 106 of the Federal Rules of Evidence, has received relatively little attention in the courts and scholarship, regardless of the fact that there is currently a threeway circuit split in its application. Today, several circuits view the Rule 106 as a mere rule of timing-allowing otherwise admissible evidence to be admitted at a more advantageous time when necessary for completion. Others interpret Rule 106 to have a trumping function,finding that it makes any evidence admissible, for the purpose of completion, regardless of whether such evidence would be admissible on its own. Still other circuits have opted to let judicial discretion rule on how Rule 106 should function in any given proceeding. While such a circuit split clearly signifies an issue worthy of correction and unification, a more significant issue lurks beneath the split: Fifth Amendment violations for criminal defendants who would choose not to take the stand. In circuits which have adopted a narrow construction of Rule 106, meaning that the Rule of Completeness cannot trump exclusionary rules, inculpatory statements made by a defendant can be used against him or her, while exculpatory statements, even those objectively necessary for completion or to correct a misunderstanding, can only be introduced with the defendant on the stand. Thus, the only way for a criminal defendant to introduce exculpatory completion evidence in many circuits is for him or her to waive his or her constitutional rights and take the stand. This Article proposes amending the Federal Rules of Evidence to unify the circuits and to protect the constitutional rights of criminal defendants...