Thursday, December 3, 2009
You've Got Mail: Military Court Finds Rule Of Completeness Not Violated By Admission Of 10 E-Mails Against Air Force Recruiter
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it...
As the language of this Rule makes clear, when a party introduces a writing or writings, the adverse party must be able to explain to the court what other writings or parts of the introduced writing or writings were excluded and why fairness requires that they be considered contemporaneously. These sound like pretty basic requirements, but they were requirements that the appellant could not satisfy in United States v. Perry, 2009 WL 4111204 (A.F.Ct.Crim.App. 2009), a case that makes me wonder about the interplay between Rule 106 and e-mail evidence.
In Petty, a general court-martial convicted Charles Petty, an Air Force recruiter, of five specifications of violating a lawful general regulation by making sexual advances toward Air Force applicants RS, CB, AO, AL, and AH, and one specification of adultery with AH. Petty pleaded guilty to the to specification with RS but litigated the others. On the issue of the specifications involving AH, and over Petty's objection, the military judge admitted 10 e-mail messages from Petty to AH. Petty's objection was that the "admission of these e-mail messages violate[d] the completeness requirement of Mil. R. Evid. 106, claiming that the messages provide[d] a misleading 'limited snapshot' of his interaction with AH."
After he was convicted, Petty appealed this and other rulings to the Air Force Court of Criminal Appeals. That court affirmed, finding that:
The 10 e-mails span[ned] a period of six months and range[d] in subject matter from the trivial to the sexually explicit. A representative from MySpace testified concerning the chronological context of the subject e-mails. The e-mail document explicitly discussing sexual relations between the appellant and AH contain[ed] both the initial communication from AH as well as the appellant's reply.
Based upon these facts, the court concluded that:
The multiple e-mails admitted in this case span[ned] a lengthy period, [we]re placed in proper chronological context, and, in the e-mail most probative of sexual activity, show[ed] the messages of both AH and the appellant. The e-mail correspondence admitted at trial neither misle[d] nor distort[ed]. We find that the military judge did not abuse her discretion by admitting the subject e-mails over the defense objection based on completeness.
This was undoubtedly the correct ruling because Petty failed to indicate which e-mails were excluded, let alone why these e-mails should have been considered contemporaneously with the admitted e-mails. I wonder what would have happened, though, if Petty pointed to specific e-mails between AH and him beyond the 10 e-mails presented at trial. If those ten e-mails were all from October of a given year, would the rule of completeness require that all other e-mails from that month be admitted and considered contemporaneously? Would the rule of completeness cover e-mails from other months? Other years? Would the rule of completeness cover every e-mail between AH and Petty? Or would the rule of completeness only cover e-mails involving the same subject matter as the subject matter at trial? For instance, in Petty's trial, would the rule only cover e-mails of a sexual nature between AH and Petty?
These are all difficult questions which I assume that courts will have to answer in the upcoming years. It will certainly be interesting to see how they rule when squarely presented with the issue.