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Univ. of South Carolina School of Law

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Wednesday, October 1, 2008

Welcome To The O.C.: Trial Of Former O.C. Sheriff Raises Interesting Rule Of Completeness Issue

I'm not sure how a key evidentiary issue will play out in the upcoming trial of former Orange County Sheriff Mike Carona, but I am certainly interested in finding out.  Carona resigned from his prior post in January after being indicted on charges of receiving cash and gifts while a public official, and he also has been charged with two counts of obstruction of justice.  Carona is being tried alongside Debra Hoffman, a Newport Beach attorney who has been described by prosecutors as his longtime mistress, and who is charged with conspiracy, public corruption and bankruptcy fraud.  Carona's wife, Deborah, has also been charged in the case, but she will be tried separately, defusing the possibility of what might have otherwise been a theatre of the absurd.

So, what's the evidentiary issue?  Well, the prosecution wants to introduce transcripts from several secretly recorded conversations between Carona and former Assistant Sheriff Don Haidl, who had pleaded guilty to tax evasion charges and agreed to tape the conversations.  According to the prosecution, those conversations contain statements in which Carona admitted to getting cash and gifts.  The problem for the state is that the conversations also allegedly contain what it characterizes as "self-serving, exculpatory statements" by Carona.  So, the prosecution wants the transcripts of the tapes admitted, but it wants the judge to excise the portions in which Carona makes these exculpatory statements.

And under the hearsay rules, the prosecution would have a good argument.  Under Federal Rule of Evidence 801(d)(2)(A), Carona's incriminatory statements would be admissible as admissions by a party-opponent, while under Federal Rule of Evidence 802, Carona's exculpatory statements would be inadmissible as hearsay.  The potential fly in the ointment, however, is Federal Rule of Evidence 106, the so-called "rule of completeness." Under Rule 106,

"When 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."

But, what does this rule mean?  As I have noted before, there is a circuit split over how the rule of completeness should be applied, with some courts holding that it is merely a rule of timing and not a rule of admissibility.  So, for instance, if the plaintiff in a breach of contract action wanted 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.  But under this reading of the rule, when the prosecution admits portions of a recording containing incriminatory statements by a defendant, the defendant would not be able to introduce his exculpatory statements from the recording because they would still be inadmissible.

Meanwhile, the precedent in other circuits "unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence."  Under this reading of the rule, which, as I have noted before, I wholeheartedly endorse, Carona's exculpatory statements should not be excised.  So, how has the Ninth Circuit ruled?

Well, in United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996), the Ninth Circuit found that "Rule 106 does not compel admission of otherwise inadmissible hearsay evidence."  That being the case, why did I say above that I'm not sure how the evidentiary ruling is going to play out?  Well, this statement in Collicott was dicta, and in the few rulings in which the Ninth Circuit did not repeat this statement in dicta, it seemed to undercut its seeming absoluteness.  For instance, in United States v. Lopez-Figueroa, 2008 WL 4185755 (9th Cir. 2008), the prosecution introduced a redacted version of the defendant's statement to a Customs and Border Protection Officer, and the defendant wanted the rest of the statement, which was allegedly exculpatory, to be introduced.  The Ninth Circuit rejected this argument, citing the statement from Collicott, but it did not stop the analysis there and instead rejected the defendant's argument only after finding that "[t]he redacted parts of his statement were not necessary to explain those parts that were admitted."

And earlier this year, the United States District Court for the Central District of California, the court in which Carona's trial will be held, went even further in United States v. Castro-Cabrera, 534 F.Supp.2d 1156 (C.D. Cal. 2008).  In Castro-Cabrera, the defendant was charged with illegal reentry to the United States following deportation.  During the proceeding leading to his deportation, the defendant was asked:

     "Q: Of what country are you a citizen? A: Hopefully United States through my mother. question: What country are you a citizen of now? A: I guess Mexico until my mother files a petition."

At the defendant's trial, the prosecution sought to introduce only this second Q&A while the defendant also wanted the first Q&A admitted under the rule of completeness.  The court agreed with the defendant, concluding that:

     "By itself, the answer 'I guess Mexico until my mother files a petition' suggests that Defendant believes he is currently a Mexican citizen. Read together, the answers are less conclusive. The two answers could alternatively mean that Defendant believes he has dual citizenship. On the other hand, the two answers could mean that Defendant was uncertain regarding his citizenship status. The point is that reading the statements in context results in one set of possible meanings, whereas reading the latter statement in isolation tends to create a different meaning. There is a serious risk that presentation of only the latter answer, separate and apart from the one before it, would distort, misrepresent, or confuse the meaning of the Defendant's statement."

The court was than careful in noting that it was not undermining the holding of Collicott.  It noted:

     "To be clear, the Court does not dispute the general rule against using the Rule of Completeness to obtain admission of inadmissible hearsay. In essence, as a general rule, the Rule of Completeness cannot be used to trump the normal rules concerning the admissibility of evidence. A defendant may, during the course of an interrogation, make an inculpatory statement and later make an exculpatory statement. The general rule precluding the Rule of Completeness from being the basis for admitting the exculpatory statement would apply. A defendant would then need to base admission of the exculpatory statement on some other rule of evidence, if such rule were applicable to the particular situation at hand....Thus, while the Rule of Completeness cannot be used in a general sense as an end run around the usual rules of admissibility, each analysis must be done on a case-by-case basis in order to avoid the injustice of having the meaning of a defendant's statement distorted by its lack of context."

So, where does that leave us?  Well, without knowing the content of Carona's statements, I can't say whether this same analysis from Castro-Cabrera could apply to make his exculpatory statements admissible.  And even if this analysis from Castro-Cabrera could apply, that still leaves the question of whether the Central District will again find that it can admit otherwise inadmissible exculpatory statements without violating Ninth Circuit precedent.  As noted, I will be very interested in the outcome of this case and whether the Ninth Circuit ever steps in and approves or disapproves of this practice.

-CM

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