Legal Intelligencer: Use Rule 106 to Your Advantage: Introducing the Rest of the Story in Real Time

Consider this scenario: Your client is under cross-examination. The opposing counsel is reading from your client’s deposition transcript. Your client admitted to something unfavorable. The judge hears it; the jury hears it. You can tell that it’s affecting their opinions of your client. You are also aware that within the next page of the deposition transcript, your client provided an explanation for her actions that provides the context for the earlier answer. You object as you know there is an explanation for the answer that would also render the cross-examiner’s question misleading. The cross-examiner objects stating, “counsel can redirect if he wishes.” And the judge sustains the objection. What is your course of action? You know that waiting until the end of cross-examination could be too late as it is hard to overcome one’s view on something once it is formed.

Cue Rule 106. Known as a version of the common law rule of completeness, if a party introduces an incomplete statement at trial, Rule 106 allows the opposing party to stop the proceedings and offer other excerpts necessary to properly recontextualize the statement before any other evidence is presented. For practitioners, Rule 106 can be a powerful tool – and for practitioners who litigate or have open cases in federal court, it is important to understand the Rule’s expanded scope after new amendments to the Rule take effect on December 1, 2023.

The Common Law Roots and the Purposes of Federal Rule of Evidence 106

The common law rule of completeness can be succinctly stated as follows: “The opponent, against whom a party of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.” 7 J. Wigmore, Evidence in Trials at Common Law Section 2113. In its current form, Federal Rule of Evidence 106 partially codifies the common law rule of completeness. Notably, it goes further than the common law rule by including an “acceleration clause.” At common law, in most cases, the opposing party would often have to wait until its case in chief, or at least until cross-examination, before entering a remainder into evidence. Rule 106 allows the opposing party to interrupt and offer the remainder as soon as the misleading portion of the statement is offered, whatever examination is being conducted at the time.

A similar principle is expressed in a rule addressing the use of deposition in trial. Federal Rule of Civil Procedure 32(a)(6) states that if a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.

Key Changes in the 2023 Amendments to Federal Rule of Evidence 601

On Dec. 1, amendments to Federal Rule of Evidence 106 will take effect. The current Rule 601 states:

Rule 106. Remainder of or Related Writings or Recorded Statements

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 amended Rule 106 will read as follows:

Rule 106. Remainder of or Related Statements

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

Notably, there are two key changes in the amendments. First, the Rule will explicitly address the admissibility of hearsay: if in fairness, the remainder or related statement should be considered, there can be no hearsay objection to admitting such a statement. Second, the Rule will cover all statements, including conversations or oral statements that have not been recorded.

The Scope of the Current Federal Rule

The current rule, in its plain language, does not expressly address whether it allows the admissibility of otherwise inadmissible evidence, such as hearsay, for the purposes of completeness. The Supreme Court has not defined the scope of Rule 106 when it collides with hearsay. See Beech Aircraft v. Rainey, 488 U.S. 153 (1988); Hemphill v. New York, 595 U.S. 140 (2022). As a result, federal circuit courts have continued to split, both on the question of whether the rule is merely a rule of timing or also a rule of admissibility, and on whether the Rule also applies to conversations or oral statements. See, e.g., United States v. Harvey, 653 F.3d 388, 394–95 (6th Cir. 2011) (affirming the district court’s decision to admit under the rule of completeness recordings that were otherwise inadmissible); United States v. Hassan, 742 F.3d 104, 134–35 (4th Cir. 2014) (holding that the district court did not abuse its discretion by excluding defendant’s exculpatory statements under Rule 106 because they were inadmissible hearsay). The new amendments will address both questions.

Notably, the U.S. Court of Appeals for the Third Circuit has interpreted the current rule to favor completeness, even if it means allowing evidence at trial that would otherwise be deemed inadmissible. If a remainder is necessary to provide context, no other rule of evidence, including the rule against hearsay, should exclude it from being admitted into evidence under Rule 106. See United States v. Green, 694 F. Supp. 107, 110 (E.D. Pa. 1988) (noting with approval the D.C. Circuit’s holding that Rule 106 allows the introduction of evidence that is otherwise inadmissible), aff’d, 875 F.2d 312 (3d Cir. 1989).

Use Rule 106 in Practice

Rule 106 proves particularly useful when the remainder of a statement is necessary to dispel an improper inference the jury might draw from the incomplete version of the statement. For example, in United States v. Castro-Cabrera, the defendant faced charges of reentering the United States after being deported. In an earlier deportation hearing, the defendant was questioned twice about his claimed citizenship. In the first instance, he responded, “Hopefully United States through my mother.” In the second instance, he said, “I guess Mexico until my mother files a petition.” The government presented only the second answer as evidence. But, the court found that the first answer was admissible as a remainder, reasoning that the meaning of the second answer, if divorced from the context provided by the first answer, would differ significantly from the original intent. Specifically, without considering the first answer, the second answer appeared to be a straightforward admission of Mexican citizenship. Yet, when both answers were considered together, they suggested the defendant’s uncertainty about dual citizenship. 534 F. Supp. 2d 1156 (C.D. Cal. 2008).

There are limits to using Rule 106 to dispel unfair inferences, however. The remainder has to provide context for the portion it supplements, not only to provide an alternative narrative or to advance the opposing party’s theory of the case. See, e.g., United States v. Herman, 997 F.3d 251, 267 (5th Cir. 2021). Moreover, courts are more likely to exclude a reminder when it was made at a different time than the portion initially offered. See, e.g., United States v. McAllister, 693 F.3d 572, 584-85 (6th Cir. 2012).

Pennsylvania Rule of Evidence 106

Pennsylvania Rule of Evidence 106 is identical to Federal Rule of Evidence 106 in its current form. The Pennsylvania Supreme Court has explained that Rule 106 can be invoked as follows: a writing is introduced; the writing creates “a misleading impression;” and thus “the adverse party [may] seek admission of all or part of that or another writing … in order to provide context.” See Commonwealth v. Raboin, 258 A.3d 412, 422-23 (Pa. 2021). Following the same fairness principle, Pennsylvania Rule of Civil Procedure 4020(a)(4) closely tracks Federal Rule of Civil Procedure 32(a)(6), allowing the introduction of relevant portions of a deposition to provide context when only part of a deposition is offered in evidence.

What Rule 106 Is Not

Rule 106 is not an exclusionary rule: it does not exclude the initially offered portions of the statements that are misleading. Instead, it offers the opposing party a chance to offer the remainder if necessary for a fair interpretation. Nor does Rule 106 offer the only chance for a remainder to be admitted to rectify a misleading perception: If a party fails to object under Rule 106 at the time a portion of a statement is offered, the Rule does not preclude the party from trying to admit the remainder later in the trial, such as during cross-examination or in the party’s case-in-chief.

The Takeaways

Rule 106 is more than just an obscure procedural rule governing the timing of the introduction of statements. It is tied to the fundamental objective of the adversary system, enabling parties to deliver robust arguments that are forceful yet within the bounds of fairness. In addition to cross-examination and later admission of evidence at trial, Rule 106 provides a powerful tool to rectify a misleading perception. Practitioners should keep in mind that, under certain circumstances, there is no need to wait for the cross-examination or your case-in-chief: Rule 106 allows for immediate introduction of additional evidence to provide context, complete the jury’s understanding, and to correct misimpressions before they become lasting impressions.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.