2002
(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).
2001
(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)).