24 | March/April 2022 | BAEC Bulletin 488 US 153 (1988), the author points to the FRE Advisory Committee’s recommendation that the rule be amended to state: If a party introduces all or part of a STATEMENT, an adverse party may require the introduction at that time of another part, or any other statement that in fairness ought to be considered at the same time. a. A statement admissible under this rule should NOT be excluded under the rules against hearsay. b. In a criminal case, if evidence admissible under this rule and offered by the defendant is excluded under any other rule, the entire statement must be excluded. If amended as recommended, the rule would permit the admission of oral statements into evidence. SECOND CIRCUIT VIEW: The Second Circuit, like the Sixth Circuit, views FRE 106 as NOT including oral statements to complete or clarify an incomplete statement but points to FRE 611 which empowers the trial court to control the mode and order of presenting and examining witnesses to promote the truth- finding purpose of the proceedings. In US v Williams, 2019 WL 932436 (2d Cir 2019), the court noted that the broader common law rule of completeness (embodied in FRE 611) covers not only writings (and recordings) taken out of context, but also extends to the incomplete use of acts, declarations, and conversations, (See also Beech Aircraft Corp v Rainey, supra). The guiding principle is that trial courts should be guided by fairness and common sense in promoting clarity, context, and completeness whether contemporaneously or on cross examination to elucidate the true tenor of the statement as a whole. (See “Second Circuit Fleshes Out Common Law Rule of Completeness,” 7/29/19, Ed., Colin Miller, Univ. of South Carolina Law School, EvidenceProfBlog, lawprofesors@typepad.com_ In Williams, the court held, however, that it was not error to preclude introduction of the defendant’s initial denial of ownership of a gun found in a vehicle after which he changed his tune and confessed. The court said that the
Rule of Completeness does not mandate the admission of a self-serving, exculpatory statement which is followed, not by an explanation or qualification, but by a reversal of position on the defendant’s part. •
JUDGE THOMAS (“TIM”) FRANCZYK (RET.) Mentor-At-Large Assigned Counsel Program, Aid To Indigent Prisoner’s Society, Inc
Become a Contributing Member! The BAEC bylaws confer “contributing member” status on any member who resides or maintains an office in Erie County and elects to pay an additional $50 in annual dues to help support Association programs. Contributing members have the same rights and privileges as regular members and “such additional rights and privileges as the board of directors shall bestow”, including special recognition in the Bulletin, annual dinner program, and other publications. Visit eriebar.org/membership to apply today!
Powered by FlippingBook