Monday, December 21, 2009
Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal
Federal Rule of Evidence 106, the rule of completeness, provides that
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.
There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.
In Evans, Kenneth A. Evans was convicted of three counts of filing false tax returns and two counts of tax evasion. To prove that Evans committed these crimes, the prosecution presented into evidence, inter alia, the "Employee's Withholding Allowance Certificate," IRS Form W-4, completed by Evans in the years 2002, 2003, and 2004. Meanwhile, the trial court denied Evans' motion to contemporaneously "admit letters and a videotape Evans attached to his W-4s, including letters to his employer explaining his view that he had no income tax liability and instructing his employer not to withhold any taxes."
On Evans' subsequent appeal, the Third Circuit noted that the issue was governed by Federal Rule of Evidence 106 and noted that the contemporaneous admission of additional evidence is compelled under the Rule "'if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'"
The Third Circuit acknowledged Evans' argument "that failure to include his writings and the video with the Form W-4s gave the jury a distorted and misleading view, as Evans incorporated them specifically to provide his reasoning for completing the forms in the manner he did." Nonetheless, the Third Circuit agreed with the trial court that "the Form W-4 alone was not so misleading or unfairly prejudicial as to warrant application of Rule 106."
I have no problem with this holding of the court, but I do have a problem with the court's later conclusion. According to the court,
Even were we to assume this was an abuse of discretion, any conceivable error was harmless....Here, one of the letters attached to a Form W-4 was discussed in detail during cross-examination of Evans' employer's corporate counsel....Moreover, Evans testified about various letters he wrote to the IRS containing largely the same arguments he made in letters attached to the Form W-4s. Evans opined at length at trial about his reasons for completing the Form W-4s as he did. Therefore, any error was harmless.
What the court seemed to be saying was that any error by the district court in not allowing Evans to contemporaneously present evidence of his attachments to his W-4s was necessarily harmless because he was allowed to present this evidence at other points during trial. But the whole point of the rule of completeness is that, in some circumstances, it is unduly prejudicial to disallow an opposing party from giving the jury a contemporaneous, complete understanding of a statement introduced by the proponent. I thus question whether the Third Circuit would ever find that a violation of the Rule would ever lead to a reversal.