Sunday, May 18, 2008
I'm Incomplete: Recent Opinions Reveal 1st and 4th Circuits Differ Over Whether Rule 106 Allows For The Admission Of Otherwise Inadmissible Evidence
Opinions on consecutive days reveal that the Fourth and First Circuits have different interpretations of the "rule of completeness" contained in Federal Rule of Evidence 106. In the May 12, 2008 opinion, United State v. Lentz, 2008 WL 2008920 (4th Cir. 2008), the Fourth Circuit affirmed Jay Lentz's conviction for interstate kidnapping resulting in the death of his ex-wife, Doris Lentz, in violation of the Federal Kidnapping Act. Lentz was initially convicted of this crime back in 2003, but he was later granted a new trial after it was determined that, inter alia, unadmitted, prejudicial information had found its way into the jury room during deliberations. While Lentz was in prison awaiting his re-trial on this kidnapping charge, he allegedly planned a murder-for-hire of witnesses who testified against him and discussed the details of this plan over a prison phone with this attorney. Unbeknownst to Lentz, these conversations were being recorded, and at Lentz' retrial, the prosecution introduced redacted excerpts from these recordings.
These redacted excerpts, which contained incriminatory statements by Lentz, were admissible because they were admissions of a party opponent under Federal Rule of Evidence 801(d)(2)(A) and covered by the crime-fraud exception to the attorney-client privilege. While the Fourth Circuit opinion is unclear, the redacted portions ostensibly did not relate to the murder-for-hire plot and/or consisted of exculpatory or innocuous statements by Lentz, which would not be admissible under Federal Rule of Evidence 801(d)(2)(A). The trial court rejected Lentz's claim that he should be able to introduce the redacted portions simultaneously with the admitted excerpts pursuant to the "rule of completeness" (Federal Rule of Evidence 106), which states that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
On appeal, the Fourth Circuit affirmed, finding that Federal Rule of Evidence 106 does not render admissible evidence which is otherwise inadmissible under the hearsay rules. In other words, according to the Fourth Circuit and several other courts, Federal Rule of Evidence 106 is merely a rule regarding timing. If, for instance, the plaintiff in a breach of contract action wants to introduce only a portion of the contract, which would be admissible in its entirety, the defendant would be able to get the entire contract seen by the trier of fact at the same time. An example might be a plaintiff introducing only page 6 of a contract and claiming that the term "bad faith" means one thing, which the defendant can rebut by simultaneously introducing the definitions page at the same time. Conversely, when a prosecutor introduces a redacted recording of a defendant making only incriminatory statements, the defendant would not be entitled to introduce the excised portions where he made exculpatory statements because the latter would be inadmissible hearsay that is not transformed into admissible evidence under Federal Rule of Evidence 106.
The opinion of the First Circuit in United States v. Bucci, 2008 WL 2025017 (1st Cir. 2008), from May 13th, comes to the opposite conclusion. Bucci also involved a redacted recording being introduced against a defendant. In Bucci, however, the First Circuit ruled as follows:
"Peculiarly, the Government maintains that the purview of Rule 106 is limited to the order of proof. To the contrary, our case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence."
To me, the First Circuit's opinion takes the day(s). Why? Well, let's look at Federal Rule of Evidence 410. Rule 410 deems nolo contendere pleas, statements made during plea negotiations, etc., inadmissible "against the defendant who made the plea or was a participant in plea discussions" in any civil or criminal proceeding. What is clear from this rule (although some courts disagree) is the defendant is not precluded from admitting such evidence on his behalf, which means, for instance, that a defendant may be able to introduce evidence that he rejected a plea deal to prove that he had an innocent state of mind. In this situation, however, there is an exception to Rule 410's general proscription "in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."
In essence, this means that when, inter alia, the defendant introduces evidence relating to plea discussions, the prosecutor can now admit otherwise inadmissible evidence. So, let's say that Dennis is charged with first degree murder, and he enters into plea discussions with the prosecutor. The prosecutor eventually offers Dennis a plea deal where he will plead guilty to voluntary manslaughter. Dennis rejects the plea deal, telling the prosecutor, "I was at the scene of the shooting and saw Jim shoot the victim." Many courts would allow Dennis to later testify that he rejected the plea deal to show his innocent state of mind. By doing so, however, Dennis triggers the aforementioned exception, which would allow the prosecutor to introduce his otherwise inadmissible statement about being at the crime scene (which might be especially relevant if Dennis claims at trial that he was somewhere else at the time of the shooting).
The Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the situation thusly: "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue."
So, what is the relevance of this to Federal Rule of Evidence 106? Well, the next line of the Advisory Committee's Note indicates that "[t]he language of the amendment follows closely that in Fed.R.Evid. 106, as the considerations involved are very similar." Ergo, if the exception to Federal Rule of Evidence 410 allows for the admission of otherwise inadmissible evidence when certain evidence relating to a plea or plea discussions is admitted, Federal Rule of Evidence 106 should also allow for the admission of otherwise admissible evidence (such as redacted portions of recordings) when part of a recording/document/etc. is introduced.