EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, February 27, 2010

Complete Denial: Seventh Circuit Turns Aside Defendant's Fifth Amendment Argument Based Upon Rule Of Completeness

A defendant is on trial for defrauding the Medicare program. One piece of evidence that the prosecution admits against her is a redacted audio recording on which she seemingly makes incriminatory statements. On appeal, the defendant claims that the admission of the tape violated her Fifth Amendment privilege against self-incrimination because the redacted portions of the recording were exculpatory, but she would have needed to take the witness stand to explain why. How should the court rule? As the Seventh Circuit correctly found in its recent opinion in United States v. Phillips, 2010 WL 652852 (7th Cir. 2010), the court should found the argument without merit based upon the rule of completeness.

In Phillips, the facts were as listed above, with Theresa Phillips being the defendant. Specifically, the prosecution alleged that "Phillips and her company, Health Care Creations, defrauded the Medicare program by billing it for services that were not actually performed, were not medically necessary, and were provided by an unlicensed therapist instead of by a doctor as claimed."  

One piece of evidence admitted against Phillips at trial was a redacted audio recording and transcript of undercover investigators asking Phillips whether "you" participate in various aspects of Medicare billing....Phillips contend[ed] that she responded affirmatively to these questions addressed to "you" on behalf of her company-not herself personally-and that this might have been evident had the jury heard portions of the audio recording that were redacted, although she [wa]s unsure because she never received an unredacted version, or so she claim[ed]. The government ha[d] always contended that the redacted portions consisted solely of irrelevancies, such as silent airtime, and it argue[d] on appeal that it provided Phillips with the complete, unredacted version well before trial. 

According to the Seventh Circuit, the problem with Phillips' argument that the government never provided her with an unredacted version of the recordings was that 

Phillips was required to alert the trial court that the government had not provided her the complete recordings, in order to preserve her objection to the admission of the redacted version on the grounds that the complete version was unavailable. Having failed to do so, the circumstance of the government failing to provide an unredacted version “cannot be relied upon on appeal.

Moreover, the court turned aside Phillips aforementioned Fifth Amendment argument, noting that pursuant to Federal Rule of Evidence 106, the rule of completeness,

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.

Thus, according to the court,

Phillips need not have taken the stand to provide any exculpatory statements. All she had to do was identify them from the complete recording and have those portions introduced via Federal Rule of Evidence 106-as unlikely as this might have been, for as we revealed, the redacted portion inculpated her personally.



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