Let's (Not) Go To The Tape: First Circuit Notes That Rule Of Completeness Doesn't Apply To Unrecorded Oral Statements

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.

As the text of the Rule and the recent opinion of the First Circuit in United States v. Verdugo, 2010 WL 3260805 (1st Cir. 2010), make clear, the triggering event for application of Rule 106 is the admission of a writing or recorded statement (or part thereof); the Rule is not triggered by the introduction of testimony about unrecorded oral statements.

In Verdugo, Adolfo Verdugo and Rafael Fernández-Roque challenged their convictions for conspiracy to distribute and possess with intent to distribute cocaine. After he was arrested,

Verdugo initially denied having any involvement in the drug transaction. [DEA Agent Michael] Naylor then confronted Verdugo with evidence of his intercepted remarks to [Omar] Altamirano[-Nunez] regarding their planned meeting near Springfield, and Verdugo admitted that he had delivered the 29 kilograms of cocaine to Massachusetts two months earlier, but denied that he had received any money. Naylor also showed Verdugo a photograph of Altamirano, whom he identified as Juan Carlos. Verdugo agreed to cooperate, but told the agents that he had nothing to offer.

Agents then brought Verdugo to an interview room at the Pomona police station. There, Naylor presented Verdugo with a form explaining his Miranda rights and read the form to him. Verdugo signed the form, and the agents began questioning him. Verdugo immediately invoked his right to counsel and refused to acknowledge his earlier confession. The interview, which lasted approximately eight minutes, was recorded on videotape.

At trial, Naylor relayed the details of Verdugo's confession to the jury. Naylor thereafter sought to introduce the video of the interview, claiming that it contradicted Naylor's testimony. The district court, however, deemed the video inadmissible. On appeal, Verdugo claimed for the first time that the district court should have admitted the video under Federal Rule of Evidence 106. The First Circuit was easily able to turn this argument aside, noting that Verdugo's initial confession was not recorded and concluding "that Rule 106 does not apply to testimony about unrecorded oral statements such as the one that Verdugo gave to Naylor...when he was arrested."

-CM