CORE CRIMINAL LAW SUBJECTS: Evidence: Rule of Completeness


United States v. Rodriguez, 56 MJ 336 (the rule of completeness, which has its roots in common law principles of evidence, has two purposes: (1) to ensure that the court not be misled because portions of a statement are taken out of context, and (2) to avoid the danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material).

(under the Military Rules of Evidence adopted in 1980, there are two distinct rules of completeness: Rule 106, the general rule of completeness, and Rule 304(h)(2), which applies when a confession or admission is introduced against an accused).

(Rule 106 may be invoked by either the prosecution or defense to address matter introduced by the opposing party; the primary concern of Rule 106 is the order of proof, permitting an adverse party to compel the introduction of favorable evidence during the opponent’s case).

(Rule 106 applies only to evidence that ought in fairness to be considered contemporaneously with the proponent’s evidence, and does not necessarily require that the entire document be admitted into evidence; however, when a misleading impression might be created by introducing a document without accompanying documents or related correspondence, Rule 106 requires consideration as to whether the situation is one in which the proponent should be compelled to offer into evidence the entire correspondence or all accompanying documents that ought to be considered contemporaneously with the writing being introduced into evidence).

(Rule 304(h)(2): (1) applies to oral as well as written statements; (2) governs the timing under which applicable evidence may be introduced by the defense; (3) permits the defense to introduce the remainder of a statement to the extent that the remaining matter is part of the confession or admission or otherwise is explanatory of or in any way relevant to the confession or admission, even if such remaining portions would otherwise constitute inadmissible hearsay; and (4) requires a case-by-case determination as to whether a series of statements should be treated as part of the original confession or admission or as a separate transaction or course of action for purposes of the rule).

(appellant’s subsequent statements, which he sought to introduce at trial under the rule of completeness, were made at a different time, at a different place, and to a different set of persons; although the latter statements may rebut, explain, or modify the content of his earlier statements, they are not admissible under the rule of completeness because they were not part of the same transaction or course of action).

(the rule of completeness is an evidentiary rule designed to promote fairness by precluding unfair omissions, not a rule intended to allow an accused to avoid the crucible of cross-examination).

(the rule of completeness under Rule 304(h)(2) is a tool that is available to the defense if the defense chooses to use it; however, in the absence of a defense request, the military judge was not called upon to decide whether the rule of completeness applied after references to appellant's confessions were elicited by the defense during cross-examination, and, if so, which statements by appellant were covered by the rule of completeness).

(there are four major differences between Mil.R.Evid. 106 and Mil.R.Evid. 304(h)(2): (1) the general rule of completeness in Mil.R.Evid. 106 may be used by any party, but Mil.R.Evid. 304(h)(2) may be invoked only by an accused, and only after the prosecution has introduced an alleged admission or confession; (2) Mil.R.Evid. 106 applies only to documents and recordings, while Mil.R.Evid. 304(h)(2) also covers oral statements; (3) Mil.R.Evid. 106 is primarily concerned with timing, permitting a party to compel an opponent to introduce matter during the opponent’s case-in-chief, while Mil.R.Evid. 304(h)(2) is primarily concerned with authorizing the introduction of the substance of the remaining portions of the statement at issue; and (4) Mil.R.Evid. 106 provides the military judge with discretion to determine whether the additional material ought in fairness be considered with the original matter, whereas Mil.R.Evid. 304(h)(2) requires admission of the remaining portions of the statement if such material falls within the criteria set forth under the rule and applicable case law).

United States v. Gilbride, 56 MJ 428 (Mil. R. Evid. 304(h)(2), the rule of completeness, applies to oral as well as written statements; and when both an oral statement and a written confession are involved, the issue in determining whether both must be admitted is whether the accused’s written statement is separate and unrelated from the oral confession, or whether it is part of or the product of the same transaction or course of action).

(military judge erred in denying appellant’s request to introduce the exculpatory remarks from his written statement under the rule of completeness in Mil.R.Evid. 304(h)(2) because the written statement was made as part of the same transaction or course of action as the oral statement where:  (1) investigating agents promptly followed their oral questioning of appellant with a request that he make a written statement as part of the routine interrogation process; (2) the written statement was prepared shortly after the verbal interrogation; and (3) the written statement covered the same subject matter as the immediately preceding oral confession).

(military judge’s error in denying appellant’s request to introduce the exculpatory remarks from his written statement under the rule of completeness in Mil.R.Evid. 304(h)(2) was harmless where:  (1) although the military judge initially rejected defense counsel’s completeness argument, he subsequently permitted the defense to introduce appellant’s exculpatory statement during the prosecution’s case; (2) defense counsel was able to effectively argue that appellant did not have the requisite intent for the offense of intentional infliction of grievous bodily harm; (3) appellant was convicted only of the lesser-included offense of aggravated assault, and (4) the damage from the error in applying the completeness doctrine was not irreparable.

United States v. Benton, 57 MJ 24 (under the rule of completeness in Mil.R.Evid. 304(h)(2), proffered testimony that appellant said he was threatened at the time of an alleged kidnapping was admissible; this exculpatory statement was part of appellant’s purported confession, otherwise evidenced on direct examination by the Government’s witness).

(error in excluding part of appellant’s purported confession (Mil.R.Evid. 304(h)(2)) was harmless where:  (1) appellant himself was allowed to testify that his participation in the kidnapping was coerced and that he did not sodomize the victim; (2) the corroborative value of the excluded evidence that appellant told a fellow pretrial confinee sometime after the crime the same exculpatory story was not great; and (3) any corrective value which the excluded evidence might have had to prevent the members from thinking appellant had confessed was largely minimized by appellant’s own testimony which denied the conversation with the fellow pretrial confinee).


United States v. Goldwire
, 55 MJ 139 (the rule of completeness is a rule that governs the scope of evidence; it particularizes the type of evidence [written and oral], the relationship between when all or part of a written or oral statement may be introduced, and the operation of procedural rules).

(the rule of completeness must be examined in terms of the common law rule and the authority of the judge under Fed. R. Evid 611(a) – under either the federal or military rules version, Rule 106 only applies to written and recorded statements; however, under the common-law version, and at the discretion of the judge under Rule 611(a), the rule is applicable to oral testimony as well).

(under the common-law completeness doctrine, a party may wait until their own stage of presentation of proof and introduce the remainder of a statement, which was introduced in part by the other party, since there is no question as to the relevance of the remainder of the statement).

(Mil. R. Evid. 304(h)(2) allows the defense to complete an admission or confession whether it is oral or in writing, and provides the defense the option of doing so using Mil. R. Evid 106 or 304(h)(2)).

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