22 | March/April 2022 | BAEC Bulletin The Rest of the Story... The Rule of Completeness
BY HON. THOMAS P. FRANCYZK
No one likes to be quoted out of context or damned by half-truths or incomplete statements that reveal only the inculpatory parts when the remainder, if exposed, would cast the story in an entirely different (and more favorable) light. The law is no different in its distaste for mis-(or under-) representations of fact that would steer factfinders to a particular (i.e., erroneous) conclusion (e.g., that the defendant admitted guilt) if the adversary did not elicit the entirety of the statement. (e.g., “the defendant did admit that he stabbed the victim BUT added that it was in self- defense.”). Dating back to the common law, the Rules of Evidence have allowed that when one party has offered only a portion of a statement or conversation or writing in support of a particular conclusion, the adverse party may offer any relevant remainder that is NECESSARY TO COMPLETE, EXPLAIN OR QUALIFY such evidence. As stated by the Court of Appeals in Rouse v Whited, 28 NY 170 [1862), a Civil War-era case, “where a statement forming part of a conversation is given in evidence, whatever was said by the same person in the same conversation that would in any way qualify or explain that statement is also admissible. (Citing Prince v Samo, 7 Adol & Ellis 627 [1838]). The rule is basically one of fairness that permits the party against whom only some evidence has been offered to clarify or explain an alleged admission, explain a prior inconsistent statement, or put it into proper context by bringing out other parts that fill in the blanks left by the other side. As the Court of Appeals observed in Gratton v Metropolitan Life Insurance Co., 92 NY 274 (1883), “the rule appears to be firmly settled both as to conversations and writings that the introduction of a part renders admissible so much of the remainder as tends to explain or qualify what has been received and that is to be deemed a qualification which rebuts and destroys the inference to be derived from or the use to be made of the portion put in evidence.” THE NEW YORK RULE: New York Advisory Evidence Rule 4.03 (Completing, Explaining a Writing, Recording, Conversation or Transaction), states that: When part of a writing, conversation, recorded statement or testimony, or evidence of part of a transaction is
admitted, ANY OTHER PART of that writing, conversation, recorded statement or testimony, or evidence of any other part of the transaction, may be admitted WHEN NECESSARY TO COMPLETE, EXPLAIN OR CLARIFY the previously admitted part. The TIMING of the admission of such additional parts is WITHIN THE DISCRETION OF THE TRIAL JUDGE. (See People v Torre, 42 NY2d 1036 [1977}, People v Gallo, 12 NY2d 12 [1962]). So, for example, if the prosecutor were to admit on direct examination only a portion of a taped jailhouse conversation between the defendant and his girlfriend wherein, he admitted that cocaine was found in his gym bag, defense counsel might: immediately ask the judge to direct the prosecutor to play that part where the defendant claimed that he had previously lent the gym bag to a friend who had recently returned it, or elicit such information on cross examination or bring it in during the defense case (which might well be too late for maximum benefit). See also CPLR 3117(b): If only part of a deposition is read at trial by a party, any other party MAY READ ANY OTHER PART OF THE DEPOSITION WHICH OUGHT, IN FAIRNESS, BE CONSIDERED IN CONNECTION WITH THE PART READ. THE RULE HAS ITS LIMITS: In People v Schlessel, 196 NY 476, 487 (1909), the Court of Appeals reversed the defendant’s conviction for defrauding creditors (by assigning a check payable to him for $1,972.43 to his brother) because the trial court admitted evidence of a third-party petition filed in Bankruptcy Court to set aside the allegedly fraudulent, subsequent sale of the defendant’s house (as evidence of criminal intent when he conveyed the above-referenced check to his brother). The People argued and the trial court agreed that the defendant had opened the door to this evidence when he asked a prosecution witness (receiver-in-bankruptcy) about the sale of the property, specifically whether the petition had alleged that the buyer realized a benefit of $22,000.00 on property for which he only paid $2,700.00. The witness answered that he didn’t know whether such information was contained in the petition. The petition was received into evidence in its entirety over objection and was published to the jury. The court told the defense, “If you open the door on cross examination, they (the People) have the right on rebuttal to prove what they want to prove in the petition.” When the jury asked the court how to interpret the petition
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