BAEC Bulletin | March/April 2022 | 23
as evidence, the court explained (contrary to its earlier cautionary instruction), that the petition was allowed into evidence just as other checks and transactions were received because they reflected upon the defendant’s intent when transferring his property, including the check which he handed over to his brother. The Court of Appeals found the “open door” argument (permitting evidence of an allegedly fraudulent subsequent sale of his house as evidence of the defendant’s intent in transferring the check to his brother) to be so unsound as to barely warrant serious consideration. The Court observed that there was “no tenable theory” which permits the reception of evidence that is not only irrelevant but is also “intensely hostile’ (i.e., unfairly prejudicial) to the defendant. The Court further explained that where part of a document Is received, other parts may become admissible (because they QUALIFY, LIMIT OR EXPLAIN the relevant matter first introduced), but this was no such case. Here, when the witness claimed ignorance of the bankruptcy petition’s contents, in the Court’s view, there was nothing that required further explanation or clarification. In short, it was reversible error to admit evidence of an allegedly fraudulent sale of his house in bankruptcy (for grossly inadequate consideration) to prove criminal intent in conveying a check to the defendant’s brother months earlier. With respect to the right of a party against whom an utterance has been admitted to offer the remainder in order to elucidate the total tenor and effect thereof, the Court directed that:
transactions), and it provides for an IMMEDIATE response (rather than leaving the timing of the introduction of responding evidence to the judge’s discretion). Like its New York counterpart, the Federal Rule is based on principles of fundamental fairness, thus permitting receipt of other portions of a statement offered only in part. The Federal Rule also allows RELATED STATEMENTS to be admitted to ensure that the jury will view the statement in question in its full context. (See article, “FRE 106: Hardly a Fait Acompli,” by Prof. Veronica Finkelstein, Drexel Law Review, Thomas R. Kline School of Law, 8/14/19, drexel.edu). In the article, the author notes that Federal Circuit Courts are split over whether the rule also admits oral testimony/statements (1st and 7th Circuits-yay, 6th Circuit-nay, [US v Shaver, 81 F Appx 529 [6th Cir 2009]), as well as otherwise inadmissible evidence (e.g., hearsay) to complete or clarify evidence that was introduced only partially. For example, the Sixth Circuit has interpreted FRE 106 to admit only admissible evidence while the First and Third Circuits (focusing more on the rule’s purpose than its text) view the rule as creating an exception to exclusionary rules (e.g., Hearsay) in the interest of providing context, completeness, and fairness. In suggesting that the FRE should be broadened to include oral statements (e.g., memorialized in writings, reports, and letters as in Beech Aircraft Corp v Rainey,
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Since 2001, I have been honored to have been chosen to serve as a mediator or neutral arbitrator in over 3,000 claims which were pending in our court system. The vast majority of the non-binding mediations were successfully resolved. In addition to having over 30 years of experience in the litigation and trial of personal injury claims, I have lectured on behalf of the Bar Association of Erie County’s Erie Institute of Law and have given in-house presentations on
a. No utterance that is irrelevant to the issue be admitted
b. No more of the remainder of the utterance than concerns the SAME SUBJECT and is EXPLANATORY OF THE FIRST PART is receivable. c. The remainder thus received MERELY AIDS in the CONSTRUCTION OF THE UTTTERANCE AS A WHOLE and is NOT ITSELF TESTIMONY. So, to be admissible, the remainder of the statement must be RELEVANT, EXPLANATORY, LIMITED TO THE SAME SUBJECT MATTER and only serve to aid in the understanding of the entire statement. THE FEDERAL RULE: Federal Rule of Evidence (FRE) 106 states that 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. This rule appears by its terms to be limited to written or recorded statements (unlike the New York Rule which also includes oral conversations, testimony, or evidence of
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