Toward a More Perfect Trial: Amending Federal Rules of Evidence 106 and 803 to Complete the Rule of Completeness

Louisa M. A. Heiny & Emily Nuvan | November 25, 2021

The common law Rule of Completeness was designed to prevent parties from introducing incomplete—and thereby misleading—statements at trial. It ensured fundamental fairness by ensuring that a fact finder heard an entire statement or series of statements if the whole would “complete” the partial evidence presented. It served this important role in Anglo-American jurisprudence for centuries before the drafters of Federal Rule of Evidence 106 attempted to capture its essence in 1975. Unfortunately, what was once a simple and principled rule has been muddled by Federal Rule of Evidence 106 (FRE 106). The common law rule language was lost when FRE 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether FRE 106 applies to oral as well as written statements, and whether FRE 106 allows a court to admit otherwise inadmissible evidence. The federal and state courts are split on these issues, and the United States Supreme Court has failed to provide guidance. Academics and commentators in the past have suggested these issues should be solved by amending FRE 106. However, these suggested amendments have generally been limited to FRE 106 itself, and each has tucked the equivalent of a new hearsay exception into an amended 106—a departure from the otherwise well-ordered Federal Rules of Evidence. This Article critically examines current Rule of Completeness jurisprudence. It compares and contrasts the common law with FRE 106, and then dives deeply into state and federal courts disparate interpretations of FRE 106. Finally, it recommends that the Federal Rules of Evidence Advisory Committee resolve doctrinal conflicts inherent in Rule 106 and draft two new Rules of Evidence. First, it recommends an expanded and clarified Federal Rule of Evidence 106 that applies to both written and oral statements. Second, it recommends a new addition to FRE 803 that would create a hearsay exception for statements otherwise qualified for admission under FRE 106 but currently barred under the Rule Against Hearsay.