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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLIE WILLIE STEVEN,
Court of Appeals No. A-13170
Appellant, Trial Court No. 4BE-16-00670 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2764 - November 9, 2023
Appeal from the Superior Court, Fourth Judicial District, Bethel,
Nathaniel Peters, Judge.
Appearances: Marjorie A. Mock, Attorney at Law, under
contract with the Public Defender Agency, and Samantha
Cherot, Public Defender, Anchorage, for the Appellant.
RuthAnne Beach, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr.,
Acting Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Judge WOLLENBERG, writing for the Court and concurring
separately.
----------------------- Page 2-----------------------
Following a jury trial, Charlie Willie Steven was convicted of second-
degree sexual assault for engaging in sexual penetration with M.F. while knowing she
1
was incapacitated.
At Steven's trial, the superior court allowed the State to introduce
a redacted version of a telephone conversation between Steven and M.F. that had been
recorded pursuant to a Glass warrant.
On appeal, Steven argues that the State's redactions unfairly altered the
meaning of his statements during the conversation, and that the entirety of the Glass
recording should have been admitted under the common law rule of completeness and
Alaska Evidence Rule 106. The State responds that Steven's redacted statements were
inadmissible hearsay when offered by Steven, and that the redacted statements were
unnecessary to provide context for the remaining statements.
Steven's appeal requires us to interpret Alaska Evidence Rule 106. Under
this rule, "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
2
contemporaneously with it."
In prior cases, we have suggested that Rule 106 is only a
rule of timing, not admissibility - i.e., that the rule allows an adverse party to accelerate
the introduction of other portions of the statement that are already admissible, but does
not provide an independent basis to introduce otherwise inadmissible evidence.
But the facts of this case demonstrate that such a strict reading of the rule
- with no allowance for the admissibility of evidence when necessary to provide a
complete understanding of a statement - can result in an outcome that is fundamentally
1 Former AS 11.41.420(a)(3)(B) (2016).
2 Alaska R. Evid. 106.
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----------------------- Page 3-----------------------
unfair and misleading. In the State's redacted version of the telephone conversation,
Steven acknowledged that he had sex with M.F. when she was not sober, and he asked
M.F. to forgive him. But in the portions kept from the jury, Steven asserted that, when
he asked M.F. that day if she would have sex with him, she "kept saying ya." This
statement placed Steven's request for forgiveness in context and potentially undermined
the State's proof that M.F. was actually incapacitated or that Steven knew that M.F. was
incapacitated.
Given our conclusion that these complementary statements were essential
to a proper understanding of the conversation and to avoid misleading the jury, we have
reviewed our prior decisions on this topic, together with the history of the common law
rule of completeness and Evidence Rule 106, as well as cases from other jurisdictions
interpreting similar rules. Having done so, we conclude that our prior statements
suggesting that Alaska Evidence Rule 106 is solely a rule of timing were dicta and that,
upon closer consideration, they were incorrect.
As we explain in detail below, the more well-reasoned interpretation of
Evidence Rule 106, and the one that we adopt today, is that Rule 106 is both a rule of
timing and a rule of admissibility. In particular, with respect to admissibility, writings
and recorded statements that would otherwise be inadmissible if offered by one party are
admissible under Evidence Rule 106 when those statements are necessary to explain or
clarify a writing or recording that the proponent introduces - that is, when the
complementary portions "ought in fairness to be considered contemporaneously."
In light of this holding, and given our determination that the superior
court's ruling was not harmless, we reverse Steven's conviction.
- 3 - 2764
----------------------- Page 4-----------------------
Background facts
In the early morning of October 10, 2016, Charlie Steven and his girlfriend,
Wilma Michael, heard a woman "hollering" outside their home in Tuntutuliak. When
Steven went to investigate, he found M.F., his second cousin, lying on the nearby
boardwalk. M.F. was too intoxicated to stand and was yelling incoherently. Together,
Steven and Michael carried M.F. into their house, where she fell asleep on the floor.
Two or three hours later, M.F. woke up and moved to a bed in the living
room, where Steven was sitting at a table. According to Michael's testimony at trial,
M.F. still appeared intoxicated at this point, but she was no longer slurring her words or
yelling and she could stand and walk on her own. Michael heard M.F. speaking with
Steven, but she could not hear the substance of the conversation. Michael then briefly
left the home to run an errand.
After Michael returned, M.F. called her friend, Marcella Jimmie, for a ride
home. Jimmie and Michael later testified that M.F. did not seem emotional on the call.
When Jimmie arrived at Steven's house a short while later, she observed M.F. sitting at
the kitchen table, "look[ing] sad or something" and drinking alcohol. After ten to fifteen
minutes, M.F. and Jimmie left because M.F. was becoming intoxicated.
As M.F. and Jimmie were getting on Jimmie's four-wheeler, M.F. began
to cry and told Jimmie that Steven had raped her. Jimmie took M.F. to her father's
house, where M.F. told her father the same thing. M.F. later contacted the village police
officer and told the officer that she had been raped. The officer referred the matter to the
Alaska State Troopers.
Later that day, M.F. flew into Bethel for an interview and sexual assault
examination. During the interview, M.F. reported that she could not remember how she
- 4 - 2764
----------------------- Page 5-----------------------
wound up at Steven's house but that she woke up from a blackout to find herself lying
on a mattress with Steven on top of her, penetrating her with his penis.
The next day, Trooper Nicholas Hayes recorded a phone conversation
3
between M.F. and Steven pursuant to a Glass warrant. (The call was conducted mostly
in Yup'ik - with some statements in English - and a written transcript of the call, with
4
translation from Yup'ik, was prepared prior to trial. )
During the call, Steven acknowledged having had sex with M.F., and he
agreed that M.F. would not have consented to having sex if she had been sober.
According to the prepared transcript, the following exchange occurred:
M.F. : You know I wouldn't approve of it if I was
sober.
Steven: Yea, I know you wouldn't.
But Steven also told M.F. that he had sought her consent before anything happened, and
she "kept saying 'ya'":
M.F. : What made you think it was okay to go ahead
and do that while I was unconscious?
Steven: I asked you and you kept saying ya.
(Background noise) And if, and if you said no, I would have
respected it.
3 See State v. Glass, 583 P.2d 872 (Alaska 1978).
4 On appeal, Steven attached a transcript of the complete call as an appendix to his
opening brief. Although the transcript appears to have been mistakenly excluded from the
formal trial record transmitted to this Court, our review of the record indicates that a
transcript of the complete call was submitted to the superior court so that the court could rule
on the State's proposed redactions. The full transcript is therefore properly before us. The
State does not object to our reliance on the transcript attached to Steven's brief.
- 5 - 2764
----------------------- Page 6-----------------------
M.F. : I was really drunk and you should know that's
not okay.
Steven: You kept. Well you kept saying ya.
M.F. : I don't even -
Steven: Qalarlluten-llu. Qalarlluten-llu assiklarnilua.
(You kept saying, you kept saying that you like me.) . . .
assikpialarnilua qalarlluten. (You kept saying that you really
like me.)
Steven also told M.F. that he had asked several times if she was sure about having sex:
Steven: Ya, if you had said no, I would have left you alone,
but I asked you five times. And you kept saying ya. And if you
were sure about it and you said ya.
M.F. : You should know not to do that to anybody
that's really drunk.
Steven: Well that's why, that's why I kept asking.
M.F. : You don't take advantage of that kind of stuff.
Steven: Five times aptell (ask) that's why I asked you
five times. And I asked you if you were sure about it and you
said ya.
As the call ended, Steven asked M.F. not to report him and promised to "not do that
again."
Trooper Hayes also interviewed Steven. During the interview, Steven
initially denied having sex with M.F. However, after Hayes informed Steven that he had
listened to Steven's call with M.F. earlier that day, Steven acknowledged having had sex
with M.F. But Steven also said that he "asked [M.F.] if she wanted to and . . . asked her
if she was sure about it."
- 6 - 2764
----------------------- Page 7-----------------------
Following the investigation, a grand jury indicted Steven on one count of
second-degree sexual assault for engaging in sexual penetration with M.F. while
knowing that she was incapacitated.5
Trial proceedings
Prior to trial, the State gave notice that it intended to introduce the Glass
warrant recording and written transcript (with necessary translation) at trial, but wished
6
to redact certain portions of Steven's statements.
The State argued that the statements
it sought to redact were "self-serving" hearsay and inadmissible when offered by
7
Steven. In particular, the State wanted to redact Steven's assertions that he repeatedly
asked M.F. if she wanted to have sex and that she "kept saying ya" - while introducing
his acknowledgments that M.F. would not have consented to having sex if she had been
sober.
5 See former AS 11.41.420(a)(3)(B) (2016). Under AS 11.41.470(2),
"incapacitated" is defined as "temporarily incapable of appraising the nature of one's own
conduct or physically unable to express unwillingness to act[.]"
6 The State sought to introduce Steven's statements under Alaska Evidence
Rule 801(d)(2), which provides that a party's own statement, when offered against that party,
is not hearsay.
7 See State v. Agoney, 608 P.2d 762, 764 (Alaska 1980) (holding that statements
made by the defendant during a custodial interrogation over an hour after his arrest were
hearsay and did not fall within the excited utterance exception to the hearsay rule). Agoney
and its progeny do not preclude a defendant's "self-serving" statements as a categorical
matter. Rather, those cases stand for the general rule that out-of-court statements (including
a defendant's) are inadmissible if the statements are hearsay - i.e., offered for the truth of
the matter asserted - and do not fall within an exception to the hearsay rule. See Marino
v. State, 934 P.2d 1321, 1331 (Alaska App. 1997); Stumpf v. State, 749 P.2d 880, 899
(Alaska App. 1988).
- 7 - 2764
----------------------- Page 8-----------------------
Steven's attorney objected to the State's redactions, arguing that fairness
8
required the entire phone call to be admitted under Alaska Evidence Rule 106. The
attorney noted that Steven did not know the call was being recorded; he contended that
the State's proposed redactions would materially misrepresent Steven's statements and
mislead the jury into believing Steven had confessed to the crime when in fact he had
repeatedly asserted that M.F. was awake and actively consenting (and thus, was either
not incapacitated or was acting in such a way that Steven would not know she was
incapacitated).
The superior court made some additional redactions that it believed were
necessary to avoid misleading the jury, but generally rejected Steven's argument that the
entire conversation needed to be admitted for appropriate context. In the end, the State
was permitted to introduce Steven's acknowledgment that he knew M.F. "wouldn't
approve" of the encounter if she had been sober - but Steven was not allowed to present
his contemporaneous statements that M.F. seemed conscious, that she "kept saying ya"
when he sought her consent, and that he had tried to confirm five times that she was
"sure" about her decision. (Both the redacted audio and redacted transcript were
admitted at trial.)
The primary disputed issues at trial were whether M.F. was incapacitated
and whether Steven knew that she was incapacitated. M.F. testified that she woke up in
the late afternoon on October 9 and began drinking. After midnight, she went to see a
8 Alaska Rule of Evidence 106 provides: "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."
- 8 - 2764
----------------------- Page 9-----------------------
friend, Daryl, with whom she continued drinking, had sex, and eventually blacked out.
She did not remember leaving Daryl's house or heading toward Steven's house.
According to M.F., once at Steven's house, she went "in and out of the
blackout." At one point when she woke up, she was lying on her back on a mattress,
without her pants or underwear, and Steven was on top of her, penetrating her vagina
with his penis. M.F. testified that she was angry and upset, and did not want to have sex
with Steven. M.F. did not know how long she was at Steven's house. Based on witness
interviews, a trooper estimated that M.F. had been at Steven's house for approximately
six to eight hours.
M.F.'s friend, Daryl, testified that M.F. came to his house sometime late at
night on October 9 or in the early morning on October 10 to have sex and drink, at which
point he estimated her intoxication level to be a five out of ten. Daryl stated that M.F.
appeared to be more intoxicated when she left his house than when she arrived (a seven
out of ten), but he had no reason to think that she was blacked out. Daryl also testified
that he had had sex with M.F. on a prior occasion, believing that she was conscious of
her actions, but later learned from M.F. that she had been blacked out.
Steven elected not to testify in his defense. The jury ultimately found
Steven guilty of second-degree sexual assault.
This appeal followed.
The parties' arguments regarding the rule of completeness and Alaska
Evidence Rule 106, and why we reconsider our prior statements regarding
Alaska Evidence Rule 106
On appeal, Steven argues that the superior court's decision to admit a
redacted version of his telephone conversation with M.F. resulted in a materially
misleading presentation of his statements, and that fairness, the rule of completeness, and
- 9 - 2764
----------------------- Page 10-----------------------
Evidence Rule 106 required the admission of the redacted portions together with the
portions introduced by the State.
The State responds that the redacted portions were hearsay if offered by
Steven and therefore inadmissible. For support, the State relies on prior cases from this
Court characterizing Alaska Evidence Rule 106 as a rule of timing rather than a rule of
admissibility. In Sipary v. State , for instance, we wrote that "Evidence Rule 106 is not
a 'rule of completeness' in the sense that it authorizes the admission of the
complementary evidence" but instead "gives the parties against whom written or
recorded evidence has been admitted the power to accelerate the timing of their
9
opportunity to introduce complementary evidence."
The State further contends that, in
any event, the redactions did not materially alter the substance or tenor of Steven's
statements.
Steven offers three rationales for admission of his additional statements.
First, Steven suggests that the common law rule of completeness - which was a rule of
10
admissibility - survived the codification of the Alaska Rules of Evidence. Second,
relying on scholarly commentary and decisions from other jurisdictions, Steven argues
that a restrictive interpretation of Alaska Evidence Rule 106 as a rule of timing is
incorrect. Third, Steven contends that a party who offers a portion of a statement forfeits
9 Sipary v. State, 91 P.3d 296, 300 (Alaska App. 2004) (emphasis in original) (citing
Stoneking v. State, 800 P.2d 949, 951-52 (Alaska App. 1990)).
10 See, e.g., 21A Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice
and Procedure, Federal Rules of Evidence § 5072, at 387-88 (2d ed. 2005; updated Daniel
D. Blinka ed., Apr. 2023) (explaining that, under the common law, a party "can introduce
what would otherwise be hearsay to complete a truncated statement offered by the
proponent").
- 10 - 2764
----------------------- Page 11-----------------------
any objection to the admission of the completing evidence when that evidence is
necessary to correct a misleading impression. 11
Having reviewed the record, we conclude that Steven's additional
statements should have been admitted. Alaska Evidence Rule 102 provides that the rules
of evidence "shall be construed to secure fairness in administration . . . to the end that
truth may be ascertained and proceedings justly determined." The State has not
meaningfully explained how its proposed construction of Alaska Evidence Rule 106 -
which would allow the State to introduce a misleading version of a defendant's statement
and then preclude the defendant from correcting the resulting misimpression - would
be consistent with due process and the requirement that the rules be interpreted to
"secure fairness."
Thus, the difficulty presented by this case is not in deciding whether an
error occurred, but in explaining why - so that future litigants and courts have a clearer
understanding of how to proceed when similar issues arise.
An overview of our analysis
The proper interpretation of Evidence Rule 106 has been a source of dispute
12
across the country. A number of courts have interpreted their versions of Rule 106 as
both a rule of timing and a rule of admissibility - i.e., as authorizing a party to
11 See 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 106.02[3],
at 106-13 (12th ed. 2019) ("The appropriate way to resolve the hearsay issue is to hold that
the party who offers an incomplete statement or document forfeits any hearsay objection to
completing evidence that is necessary to correct a misleading impression.").
12 The language of the rule is largely consistent across jurisdictions. See, e.g., Fed.
R. Evid. 106; Colo. R. Evid. 106; N.M. R. Evid. 11-106; S.C. R. Evid. 106; Utah R.
Evid. 106; Wis. Stat. § 901.07.
- 11 - 2764
----------------------- Page 12-----------------------
accelerate the introduction of evidence when necessary for completion purposes, even
if that evidence would otherwise be inadmissible. Other courts have interpreted
Rule 106 restrictively, as solely a rule of timing. But even those courts that have adopted
a restrictive view of Rule 106 have often adopted alternative, and frequently convoluted,
theories of admissibility in an attempt to avoid the worst consequences of their restrictive
interpretation.
We are mindful, however, that we are not writing on a blank slate. While
early cases from this Court could be read to suggest that hearsay is admissible if
13
necessary for completeness under Alaska Evidence Rule 106,
other cases declared that
Rule 106 does not serve this purpose. For example, in Stoneking v. State, this Court
stated that Alaska Evidence Rule 106 "does not make admissible statements that would
otherwise be inadmissible; it is meant only to allow contemporaneous admission of
14
evidence that would ordinarily not be admissible until later stages of the trial." We
later affirmed and expanded this assertion in Sipary v. State - although we suggested
13 See, e.g., Stumpf v. State, 749 P.2d 880, 899 (Alaska App. 1988) ("Generally,
defendants may not offer their own statements into evidence because they are hearsay. When
the state, however, presents one part of a conversation or statement, or one conversation in
a series, the defendant may be entitled to offer or require the state to offer, the rest of the
statement or conversations in order to set the context for statements already in evidence."
(citation omitted)); Brannen v. State, 798 P.2d 337, 340 (Alaska App. 1990) ("[B]ecause the
edited portion of the tape that was played for the jury was not misleading or confusing, the
exculpatory statements that were excised as hearsay were not necessary or admissible on
grounds of testimonial completeness.").
14 Stoneking, 800 P.2d at 951-52.
- 12 - 2764
----------------------- Page 13-----------------------
that litigants seeking to introduce otherwise inadmissible evidence for completion
15
purposes could potentially resort to a common law theory of admissibility.
But our analysis in Stoneking was cursory and, as we explain later in this
opinion, both cases relied too heavily on the Commentary to Alaska Evidence Rule 106
to the exclusion of other critical sources. Moreover, in both Stoneking and Sipary, we
ultimately concluded that the disputed evidence was not truly complementary - i.e., it
was not needed for completion purposes. Our discussion of the scope of Rule 106 was
therefore dicta.
In contrast, in this case, we are directly faced with a situation in which the
redactions created an inherent unfairness and a distorted view of the defendant's
statements. We must therefore address definitively the question of whether Alaska
Evidence Rule 106 authorizes the admission of otherwise inadmissible hearsay for
completion purposes.
We begin our analysis by discussing the common law rule of completeness
and the history of Federal Evidence Rule 106, on which our rule is expressly based. We
address the emergence of a federal circuit court split regarding the proper interpretation
of Federal Evidence Rule 106 - and recent clarifying amendments to the federal rule
by the United States Supreme Court, which will resolve the issue in favor of explicitly
authorizing the introduction of otherwise inadmissible hearsay for completion purposes.
We then turn to the history of Alaska Evidence Rule 106 and our prior
cases addressing the scope of the rule. We conclude with a closer examination of the
work-around solutions that some courts have endorsed to avoid the unfairness that can
result from the exclusion of completing evidence on hearsay grounds.
15 Sipary v. State, 91 P.3d 296, 300-01 (Alaska App. 2004).
- 13 - 2764
----------------------- Page 14-----------------------
After carefully reviewing all of these authorities, we are convinced by the
position adopted by a number of federal circuit courts and state appellate courts, and
nearly all scholarly commentary, that Evidence Rule 106 is a rule of both timing and
admissibility - and that our contrary suggestion in earlier cases was misguided and
based on an incomplete analysis of the historical underpinnings of the rule.
The history of Federal Evidence Rule 106
Alaska Evidence Rule 106 was modeled on Federal Evidence Rule 106,16
17
which in turn traces its origin to the common law rule of completeness.
Under the
common law rule of completeness, "'a party has the right to introduce the remainder of
a writing [or] statement . . . that his or her opponent introduced' to the extent that this
remainder 'relates to the same subject matter and . . . tends to explain or shed light on the
18
meaning of the part already received.'"
The rule was "designed to prevent litigants
from introducing portions of an out-of-court statement when these portions, taken out of
19
context, would tend to be misleading."
16 See Marron v. Stromstad, 123 P.3d 992, 1004 (Alaska 2005) ("Alaska's rules of
evidence are similar to, and were modeled after the Federal Rules of Evidence.").
17 21A Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and
Procedure, Federal Rules of Evidence § 5071, at 362-63 (2d ed. 2005; updated Daniel D.
Blinka ed., Apr. 2023) (explaining the history of Federal Evidence Rule 106).
18 Sipary, 91 P.3d at 299 (alterations in original) (quoting State v. Warren, 732 A.2d
1017, 1019 (N.H. 1999)).
19 Id. ; see also 1 Barbara E. Bergman & Nancy Hollander, Wharton's Criminal
Evidence § 4:10, at 309 (15th ed. 1997) (noting that "unlike almost all other admissibility
rules, [the rule of completeness] is inclusionary rather than exclusionary" and "manifests a
commitment to override adversarial partiality in the presentation of evidence" (citation
(continued...)
- 14 - 2764
----------------------- Page 15-----------------------
As Professor Dale A. Nance has written, the common law rule of
completenessgenerally included whathecalls"thetrumping function,"which means that
evidence necessary for completeness was admissible even though it would otherwise be
20
inadmissible under some other rule of evidence - like the prohibition on hearsay.
Thus, under the common law, an opponent is generally permitted to introduce hearsay
in order to complete a truncated statement that would otherwise be misleading.21
Although courts were fairly uniformin permitting the admission of hearsay
under the common law rule of completeness, courts were not uniform in allowing an
opponent to accelerate completion of the statement by requiring the proponent to
22
introduce the completing material.
Courts were often reluctant to permit this type of
19 (...continued)
omitted)); United States v. Williams, 930 F.3d 44, 58 (2d Cir. 2019) ("[T]he doctrine of
completeness arose to permit a party against whom a part of a writing or utterance has been
introduced to 'in his turn complement it by putting in the remainder, in order to secure for
the tribunal a complete understanding of the total tenor and effect' of the whole." (quoting
7 Wigmore on Evidence § 2113, at 653 (Chadbourn rev. ed. 1978))).
20 Dale A. Nance, A Theory of Verbal Completeness, 80 Iowa L. Rev. 825, 839-
40 (1995).
21 Wright & Graham, Federal Practice and Procedure § 5072, at 387-88; Daniel J.
Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule of Completeness: A
Proposal to Amend Federal Rule of Evidence 106, 105 Minn. L. Rev. 901, 909 (2020); see
also 1 Edward W. Cleary et al., McCormick on Evidence § 56, at 131 (2d ed. 1972) (the
treatise in effect at the time of the adoption of Federal Evidence Rule 106 and Alaska
Evidence Rule 106).
22 Wright & Graham, Federal Practice and Procedure § 5072, at 389; Capra &
Richter, Evidentiary Irony, 105 Minn. L. Rev. at 908.
- 15 - 2764
----------------------- Page 16-----------------------
interruption and instead generally required the opponent to complete the statement
during cross-examination or during the opponent's own case. 23
Federal Evidence Rule 106, on which the Alaska rule is based, was
24
intended to address this timing issue. The original version of the federal rule, which
is nearly identical to the current Alaska rule, provided that, "When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require him at
that time to introduce any other part or any other writing or recorded statement which
25
ought in fairness to be considered contemporaneously with it."
By its plain language, the federal rule appears to incorporate the trumping
function of the common law rule of completeness, although there is no explicit mention
23 Capra & Richter, Evidentiary Irony , 105 Minn. L. Rev. at 907-08 (comparing
"compulsory completeness," which required the proponent to "present the completing portion
of a statement during her initial presentation," and "optional completeness," which permitted
the opponent to present the completing portion themselves, either on cross-examination or
later during their own case); see also Wright & Graham, Federal Practice and Procedure
§ 5072, at 389.
24 Capra & Richter, Evidentiary Irony , 105 Minn. L. Rev. at 911 ("The principal
advancement of the codification [of the rule of completeness] was the creation of a right to
interrupt a proponent's preferred presentation of his case to require him to introduce
completing information 'at that time.'").
25 Former Fed. R. Evid. 106 (1975). The language of the federal rule has since been
twice amended, although neither change was substantive. The current rule reads, "If a party
introduces all or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part - or any other writing or recorded statement -
that in fairness ought to be considered at the same time."
As discussed later in this opinion and in the concurrence, amendments to the
federal rule are scheduled to go into effect on December 1, 2023. These amendments will
expressly reflect that statements that are otherwise inadmissible hearsay and all oral
statements are admissible for completion purposes.
- 16 - 2764
----------------------- Page 17-----------------------
of admissibility. The rule provides that an adverse party "may require" the introduction
"of any other part" or " any other writing or recorded statement," while also fixing the
timing problemthat existed under thecommonlawby providing thatthis complementary
evidence may be admitted "at that time" (i.e., at the time the original evidence is
26
introduced). In addition, the touchstone of the rule is "fairness," and fairness would
27
seemingly require the admission of hearsay under some circumstances.
The original commentary to the federal rule - the Advisory Committee on
Evidence Rules's Note to Federal Evidence Rule 106 - likewise does not contain an
28
explicit mention of the common law trumping function. There are nonetheless some
indications in the Advisory Committee's Note that the rule was intended to serve this
purpose. For instance, the Note begins by explaining that the rule "is an expression of
26 Fed. R. Evid. 106 (emphasis added).
27 A classic example of the unfairness of the restrictive interpretation of Evidence
Rule 106 (discussed by Professors Capra and Richter) is where the prosecution introduces
a defendant's confession to buying the firearm used to commit the charged murder, but omits
the defendant's accompanying statement that he sold the weapon months before the murder.
Capra & Richter, Evidentiary Irony, 105 Minn. L. Rev. at 901-02.
See Report of the Advisory Committee on Evidence Rules (May 15, 2022),
contained in Judicial Conference Standing Committee on Rules of Practice and Procedure
Agenda Book [hereinafter "Standing Committee Agenda Book"], at 868 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf ("Simple notions of f airness, already embodied in [Federal] Rule 106, dictate that
a misleading presentation cannot stand unrebutted.").
28 Wright & Graham, Federal Practice and Procedure § 5078.1, at 521 ("The
Advisory Committee's Note says nothing about the use of inadmissible evidence for
completeness.").
- 17 - 2764
----------------------- Page 18-----------------------
29
the rule of completeness." The Note then states that Federal Evidence Rule 106 is
based on two considerations: "The first is the misleading impression created by taking
matters out of context. The second is the inadequacy of repair work when delayed to a
point later in the trial." In doing so, the Note cites to McCormick on Evidence § 56 and
California Evidence Code § 356 - two sources that, at the time of the rule's enactment
and continuing to today, endorse the view that completing statements that would
otherwise constitute hearsay when introduced by an opponent are admissible. 30
29 The entire Advisory Committee's Note to the original version of Federal Evidence
Rule 106 reads:
The rule is an expression of the rule of completeness. McCormick
§ 56. It is manifested as to depositions in Rule 32(a)(4) of the Federal
Rules of Civil Procedure, of which the proposed rule is substantially a
restatement.
The rule is based on two considerations. The first is the misleading
impression created by taking matters out of context. The second is the
inadequacy of repair work when delayed to a point later in the trial.
See McCormick § 56; California Evidence Code § 356. The rule does
not in any way circumscribe the right of the adversary to develop the
matter on cross-examination or as part of his own case.
For practical reasons, the rule is limited to writings and recorded
statements and does not apply to conversations.
30 See 1 Edward W. Cleary et al., McCormick on Evidence § 56, at 130-31
(2d ed. 1972); 1 Robert P. Mosteller et al., McCormick on Evidence § 56, at 468-69 (8th
ed. 2020) ("It is sometimes stated that the additional material may be introduced only if it is
otherwise admissible. However, as a categorical rule, that statement is unsound." (citations
omitted)); Capra & Richter, Evidentiary Irony, 105 Minn. L. Rev. at 944-45 (noting that the
drafters of Federal Evidence Rule 106 maintained "textual silence on the hearsay issue while
citing in Committee notes to the California completeness provision, which allows hearsay
(continued...)
- 18 - 2764
----------------------- Page 19-----------------------
That said, because there is no explicit mention of admissibility in the
language or commentary of the rule, "whether evidence that is inadmissible under one
of the other Evidence Rules can be admitted for completeness under Rule 106 has proved
31
to be one of the most contentious issues among the writers and courts."
Following the enactment of the Federal Rules of Evidence in 1975, two
competing schools of thought regarding Federal Evidence Rule 106 emerged. The first
originated with noted jurist and former member of the federal Advisory Committee on
Evidence Rules, Judge Jack Weinstein. According to Professors Wright and Graham,
Judge Weinstein's influential treatise "took the position that the Rule did not admit
otherwise inadmissible evidence."32
However, it remains unclear why Judge Weinstein
reached this conclusion because the Weinstein treatise is in loose-leaf format, and thus,
as Wright and Graham explain, early versions have "disappear[ed] from library
33
shelves."
30 (...continued)
to be admitted for its truth when necessary to complete"); see also Carson v. Facilities Dev.
Co., 686 P.2d 656, 668 (Cal. 1984) (in bank) (stating that California Evidence Code § 356
"permits admission of the remainder of an otherwise inadmissible conversation," and that a
hearsay objection "will be overruled . . . if the remainder of the conversation . . . has 'some
bearing upon, or connection with, the admission or declaration in evidence.'" (quoting
Rosenberg v. Wittenborn, 3 Cal. Rptr. 459, 464 (Cal. Dist. App. 1960))).
31 See Wright & Graham, Federal Practice and Procedure § 5078.1, at 518-19.
32 Id. at 525.
33 Id. at 525 n.38. We, too, were unable to access Weinstein's original treatise. But
an updated version of the first edition (dated September 1986) confirmed Weinstein's
restrictive view of Rule 106, stating that "[R]ule [106] covers an order of proof problem; it
is not designed to make something admissible that should be excluded." 1 Jack B. Weinstein
et al., Weinstein's Evidence ¶¶ 106[01]-[02], at 106-13 (1st ed. update 1986). As we note
(continued...)
- 19 - 2764
----------------------- Page 20-----------------------
Regardless of the reason for Judge Weinstein's position, courts and
34
commentators subsequently echoed his view on the matter.
In United States v. Costner,
for example, theSixth Circuit, relyingdirectlyonWeinstein's treatiseand providing little
else to defend its position, held that Rule 106 "covers an order of proof problem; it is not
35
designed to make something admissible that should be excluded."
The second edition of the Weinstein treatise retreated from this restrictive
reading and instead takes the position that Federal Evidence Rule 106 is unclear and that
36
the cases are divided. But some courts continued to adhere to Weinstein's original
33 (...continued)
later, this line is not included in the second edition of Weinstein's treatise. See 1 Jack B.
Weinstein et al., Weinstein's Federal Evidence §§ 106.03[1]-.04[1], at 106-15 to 106-18
(2d ed. 1997; updated Mar. 2023).
34 Wright & Graham, Federal Practice and Procedure § 5078.1, at 525 n.39
(collecting authorities); see, e.g., United States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014)
(stating that Rule 106 does not "render admissible . . . evidence which is otherwise
inadmissible under the hearsay rules"); Dolo v. State , 942 N.W.2d 357, 364 (Minn. 2020)
("Rule 106 . . . addresses the timing of when certain additional material is admitted. The rule
does not govern its admissibility - in fact, the additional material must be independently
admissible."); United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013) (stating that "Rule
106 covers an order of proof problem; it is not designed to make something admissible that
should be excluded"). But see United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988)
(stating that the government's requested portions, "while perhaps not admissible standing
alone, are admissible as a remainder of a recorded statement").
35 United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982) (citing 1 Weinstein's
Evidence ¶ 106[01] (1981)).
36 See Wright & Graham, Federal Practice and Procedure § 5078.1, at 525 n.38; see
also Weinstein et al., Weinstein's Federal Evidence § 106.03[1], at 106-15 (2d ed. 1997;
updated Mar. 2023) (noting that the language of Federal Evidence Rule 106 is ambiguous
as to "whether the rule addresses merely the timing for the introduction of admissible
(continued...)
- 20 - 2764
----------------------- Page 21-----------------------
view on the matter. The Sixth Circuit, for example, has continued to affirm Costner,
even in cases where the panel agrees that the government's selective presentation of
evidence was "unfair" - finding that "this court's bar against admitting hearsay under
Rule 106 leaves defendants without redress." 37
But a second school of thought also emerged: a number of federal and state
courts have expressly held that Rule 106 authorizes the admission of otherwise
inadmissible hearsay when necessary to prevent a misleading impression caused by the
38
admission of only a partial statement. This school of thought first arose in the courts,
36 (...continued)
evidence or whether it authorizes the admission of otherwise inadmissible evidence").
37 Adams , 722 F.3d at 827. The panel appeared to affirm Costner reluctantly,
suggesting in a footnote "that should th[e] court sitting en banc address whether Rule 106
requires that the other evidence be otherwise admissible, it might consider" a series of
authorities criticizing the restrictive interpretation of Rule 106. Id. at 826 n.31.
38 Federal courts: See, e.g., United States v. Altvater, 954 F.3d 45, 49 (1st Cir. 2020)
("[T]he rule of completeness allows for the admission of otherwise inadmissible statements
only when such statements are 'explanatory' or 'relevant to the admitted passages.'" (quoting
United States v. Williams, 930 F.3d 44, 58 (2d Cir. 2019))); United States v. Sweiss, 814 F.2d
1208, 1211-12 (7th Cir. 1987) (explaining that a hearsay statement is admissible for
completion purposes under Rule 106 if the statement: (1) explains the admitted evidence;
(2) puts the evidence in context; (3) is not itself misleading; and (4) will facilitate a fair and
impartial understanding of the evidence); United States v. Williston, 862 F.3d 1023, 1038-39
(10th Cir. 2017) (same); United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986)
(recognizing that "Rule 106 can adequately fulfill its function only by permitting the
admission of some otherwise inadmissible evidence when the court finds in fairness that the
proffered evidence should be considered contemporaneously").
State courts: See e.g., People v. Short, 425 P.3d 1208, 1219-20 (Colo. App. 2018)
(collecting authorities for the proposition that otherwise inadmissible hearsay may be
admitted under Rule 106 and concluding that the trial court "properly determined that
(continued...)
- 21 - 2764
----------------------- Page 22-----------------------
but it has been articulated and defended most effectively by Professor Daniel Capra, the
long-serving Reporter to the United States Judicial Conference's Advisory Committee
on Evidence Rules, and his co-author, Professor Liesa Richter, the Academic Consultant
to the Advisory Committee. Their law review article on the topic provides a thorough
history of Federal Evidence Rule 106 and a strong defense of the position that Rule 106
is a rule of both timing and admissibility. 39
38 (...continued)
[defendant's] otherwise inadmissible self-serving hearsay was admissible" under the rule);
State v. Norman P., 186 A.3d 1143, 1154 (Conn. 2018) (stating that the "express language"
of Connecticut's version of Rule 106 "requires the trial court to admit the remainder of a
statement, when necessary to provide context, 'whether or not otherwise inadmissible . . .'"
(citing Conn. Code. Evid. § 1-5(b))); Hawkins v. State, 884 N.E.2d 939, 947-48 (Ind. App.
2008) (noting that Rule 106 "even applies to self-serving hearsay statements," but also
stating that the decision to admit this hearsay "should be and is left to the trial court's
discretion"); State v. Keith, 618 A.2d 291, 293 (N.H. 1992) ("Although Rule 106 is not an
automatic rule of admissibility, we have held that a trial court may admit otherwise
inadmissible evidence to counter a misleading advantage if a party has 'opened the door' to
such evidence." (citation omitted)); In re Commitment of Sugden , 795 N.W.2d 456, 466 (Wis.
App. 2010) (stating that Wisconsin's version of Rule 106 is "often called 'the rule of
completeness,'" and that this rule may, in certain instances, "require[] that an additional
portion be introduced into evidence even if it is otherwise inadmissible" (citing State v.
Anderson , 600 N.W.2d 913 (Wis. App. 1999))); see also State v. Gray, 511 S.E.2d 873, 875,
878 (W. Va. 1998) (finding no abuse of discretion where trial court admitted complete police
report under West Virginia's Evidence Rule 106 over defense's hearsay objection); Hayes
v. State, 935 P.2d 700, 706 (Wyo. 1997) (same under Wyoming's Evidence Rule 106).
39 See Daniel J. Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule
of Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 Minn. L. Rev.
901 (2020).
- 22 - 2764
----------------------- Page 23-----------------------
As Professors Capra and Richter note, the D.C. Circuit Court of Appeals
40
in United States v. Sutton set out a particularly well-reasoned articulation of that view.
The D.C. Circuit provided five reasons for concluding that Rule 106 authorizes the
admission of otherwise inadmissible hearsay if necessary for completion purposes.
First, the structure of the evidence rules supports the conclusion that
41
Rule 106 is "concerned with more than merely the order of proof." In particular,
Federal Evidence Rule 106 is located in Article I - the "General Provisions" section -
rather than as part of Federal Evidence Rule 611, which governs the order in which
42
evidence is presented. (Alaska Evidence Rule 106 is also located in Article I of the
Alaska Evidence Rules, and Alaska Evidence Rule 611 similarly governs the "Mode and
Order of Interrogation and Presentation.")
Second, Federal Evidence Rule 106 does not contain the phrase "except as
otherwise provided by these rules" - a phrase that appears in every major evidentiary
rule of exclusion - which suggests that Rule 106 should not be interpreted so
43
restrictively.
(Alaska Evidence Rule 106 similarly does not contain this phrase.)
40 See id. at 915-16 (discussing United States v. Sutton, 801 F.2d 1346 (D.C.
Cir. 1986)).
41 Sutton, 801 F.2d at 1368.
42 Id.
43 Id. ; see also 1 Barbara E. Bergman & Nancy Hollander, Wharton's Criminal
Evidence § 4:10, at 318 (15th ed. 1997) (noting that the phrase "except as otherwise provided
by these rules," which appears in every major rule of exclusion in the Federal Rules of
Evidence, does not appear in Rule 106, thus supporting the view that Rule 106 authorizes the
introduction of otherwise inadmissible evidence if excluding the evidence would result in
unfairness); 21A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure, Federal Rules of Evidence § 5078.1, at 520 & n.6 (2d ed. 2005; updated Daniel
(continued...)
- 23 - 2764
----------------------- Page 24-----------------------
Third, prior to the enactment of the rule, the Department of Justice
specifically asked the Senate Judiciary Committee (in a letter to the Chairman of the
Committee) to add language to Federal Evidence Rule 106 stating that it was limited to
44
evidence that was "otherwise admissible," but Congress did not add any such language.
Fourth, the Advisory Committee's Note to Federal Evidence Rule 106
shows that Rule 106 was modeled on California's codification of the rule of
completeness and the federal rule of civil procedure governing partial use of depositions,
both of which are not restricted by other rules of evidence.45
Fifth, and most importantly, Rule 106 can only fulfill its promise of
"fairness" if it authorizes the admission of otherwise inadmissible hearsay when that
hearsay is necessary to correct a misleading impression. "A contrary construction," the
court wrote, "raises the specter of distorted and misleading trials, and creates difficulties
46
for both litigants and the trial court."
43 (...continued)
D. Blinka ed., Apr. 2023) (citing federal rules of evidence that contain this clause).
44 Sutton , 801 F.2d at 1368 n.17; see also Minutes of
Advisory Committee on Rules of Evidence, at 10 (May 21-26, 1970),
https://www.uscourts.gov/sites/default/files/fr_import/EV05-1970-min.pdf; Wright &
Graham, Federal Practice and Procedure § 5078.1, at 523 & n.32 (discussing the letter by
the Department of Justice to the Chairman of the Senate Judiciary Committee and concluding
that the "most plausible" interpretation of the Senate's decision not to adopt the Department
of Justice's proposed limitation on Rule 106 is that the Senators "agreed with the Justice
Department's reading of the Rule, but disagreed that this policy should be changed").
45 Sutton, 801 F.2d at 1368 n.17; see Cal. Evid. Code § 356; Fed. R. Civ. P. 32(a)(4);
see also Wright & Graham, Federal Practice and Procedure § 5078.1, at 522.
46 Sutton, 801 F.2d at 1368.
- 24 - 2764
----------------------- Page 25-----------------------
These two schools of thought both emerged decades ago, not long after the
federal rules were enacted in 1975. (Costner, for example, was issued in 1983; Sutton
was issued in 1986.) But the United States Supreme Court has never issued a decision
resolving the issue.
The closest the Supreme Court came was in Beech Aircraft Corporation v.
47
Rainey.
In Beech Aircraft, the Court held that the trial court's refusal to allow the
plaintiff to present a more complete picture of a letter he had written resulted in a
48
"distorted and prejudicial impression" of the letter. But while the Court briefly
discussed Federal Evidence Rule 106 - stating that Rule 106 "partially codified" the
common law rule of completion - the Court found it "unnecessary to address" the
49
application of Rule 106 to the case. Rather, the Court relied on the rules of relevancy
to reach its conclusion, stating that "when one party has made use of a portion of a
document, such that misunderstanding or distortion can be averted only through
presentation of another portion, the material required for completeness is ipso facto
50
relevant and therefore admissible under Rules 401 and 402." The Court also noted that
the proffered evidence was not hearsay because it was not offered for the truth of the
51
matter asserted. Thus, Beech Aircraft offers little guidance in resolving the issue in this
case.
47 Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
48 Id. at 170.
49 Id. at 171-72.
50 Id. at 172.
51 Id. at 173 n.18.
- 25 - 2764
----------------------- Page 26-----------------------
Nonetheless, the language in the Beech Aircraft opinion stating that
Rule 106 "partially codified" the doctrine of completeness has led some to conclude that
"the Court impliedly held that Rule 106 [did] not repeal the common law completeness
52
doctrine." This "common law survives" theory has been proposed as the solution to
the competing interpretations of Rule 106 discussed above, because it would allow
evidence necessary for completeness to be admitted over a hearsay objection.
But if that is what the Supreme Court intended, that is not what happened.
As Wright and Graham have acknowledged, since "the decision can be read more
narrowly," the practical reality is that "many courts have ignored Beech Aircraft or read
53
the discussion of Rule 106 and common law completeness as dicta."
52 21A Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and
Procedure, Federal Rules of Evidence § 5072.1, at 401 (2d ed. 2005; updated Daniel D.
Blinka ed., Apr. 2023). The Beech Aircraft Court did not further elaborate on its statement
that "[t]he Federal Rules of Evidence have partially codified the doctrine of completeness
in Rule 106." Beech Aircraft, 488 U.S. at 171-72; see Wright & Graham, Federal Practice
and Procedure § 5078.1, at 519 n.3 (explaining confusion over the holding in Beech
Aircraft).
53 Wright & Graham, Federal Practice and Procedure § 5072.1, at 401 & n.76. At
least one court has held that the "common law survives" approach is barred by Federal
Evidence Rule 802, which provides that "[h]earsay is not admissible unless any of the
following provides otherwise: a federal statute; these rules; or other rules prescribed by the
Supreme Court." United States v. Oloyede, 933 F.3d 302, 313-14 (4th Cir. 2019) (noting,
in connection with the defendant's request for admission of his completing oral statement,
"While we doubt that a residual common law rule of completeness survives Rule 106's
codification, we hold [relying on Federal Evidence Rule 802] that any such common law rule
cannot be used to justify the admission of inadmissible hearsay"); see also Alaska R.
Evid. 802 ("Hearsay is not admissible except as provided by these rules, by other rules
prescribed by the Alaska Supreme Court, or by enactment of the Alaska Legislature.").
- 26 - 2764
----------------------- Page 27-----------------------
The issue therefore remained unresolved at the federal level until recently.
In the spring of 2021, the Advisory Committee on Evidence Rules unanimously
54
approved for public comment amendments to Federal Evidence Rule 106. The
proposed amendments clarify that Rule 106 permits an adverse party to introduce
completing evidence "over a hearsay objection" - in other words, the amendments
55
clarify that Rule 106 is a rule of both timing and admissibility. The Committee
received very few comments on this proposed change, and all of those comments were
56
in favor of the change. (As discussed in the concurrence to this opinion, the proposed
amendments also clarify that Federal Evidence Rule 106 applies to all statements,
including unrecorded oral statements.)
Following the public comment period, in the spring of 2022, the Advisory
Committee unanimously approved the proposed amendments, and recommended that
they be approved by the Standing Committee on Rules of Practice and Procedure and
54 See Report of the Advisory Committee on Evidence Rules (May 15, 2022),
contained in Standing Committee Agenda Book, at 867 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf.
55 See Proposed Amendments to Federal Evidence Rule 106 & Committee Note
(Appendix A to the Report of the Advisory Committee on Evidence Rules, dated
May 15, 2022), contained in Standing Committee Agenda Book, at 879 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf.
56 See Report of the Advisory Committee on Evidence Rules, contained in Standing
Committee Agenda Book, at 867; Proposed Amendments to Federal Evidence Rule 106 &
Committee Note, contained in Standing Committee Agenda Book, at 883-85.
- 27 - 2764
----------------------- Page 28-----------------------
57
referred to the Judicial Conference of the United States. In a Committee Note
accompanying the proposed amendments, the Advisory Committee - citing the D.C.
Circuit's decision in United States v. Sutton - stated: "The Committee has determined
that the rule of completeness, grounded in fairness, cannot fulfill its function if the party
that creates a misimpression about the meaning of a proffered statement can then object
on hearsay grounds and exclude a statement that would correct the misimpression." 58
The Standing Committee approved the proposal and recommended that the
Judicial Conference approve the amendments and transmit them to the United States
59
Supreme Court for consideration. In April 2023, following approval and transmission
by the Judicial Conference, the Supreme Court issued an order adopting the amendments
60
to Federal Evidence Rule 106 and submitting them to Congress. Barring contrary
57 See Report of the Advisory Committee on Evidence Rules, contained in Standing
Committee Agenda Book, at 868.
58 Proposed Amendments to Federal Evidence Rule 106 & Committee Note,
contained in Standing Committee Agenda Book, at 879-80 (citing United States v. Sutton,
801 F.2d 1346, 1368 (D.C. 1986) (noting that "[a] contrary construction raises the specter
of distorted and misleading trials, and creates difficulties for both litigants and the trial
court")).
59 See Summary of the Report of the Judicial Conference
Committee on Rules of Practice and Procedure, at 22, 24 (Sept.
2022), https://www.uscourts.gov/sites/default/files/sept_2022_jcus_rules_report_final_for
_website.pdf.
60 See U.S. Sup. Ct. Order Amending Fed. Rules of Evidence & Letters from C.J.
John G. Roberts Jr., U.S. Sup. Ct., to Rep. Kevin McCarthy, Speaker of the U.S. House of
Representatives, and Vice President Kamala D. Harris, President of the U.S. Senate
(Apr. 24, 2023), https://www.supremecourt.gov/orders/courtorders/frev23_5468.pdf; see also
Memorandum Transmitting Proposed Amendments to the Fed. Rules of Evidence from J.
Roslynn R. Mauskopf, Sec'y of the U.S. Jud. Conf., to the C.J. and Associate JJ.
(continued...)
- 28 - 2764
----------------------- Page 29-----------------------
Congressional action, the amendments will go into effect on December 1, 2023. 61
The amended rule reads as follows (with deleted language noted with
strike-outs and added language underlined):
If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at
that time, of any other part-or any other writing or recorded
statement-that in fairness ought to be considered at the same
time. The adverse party may do so over a hearsay
objection.[62]
The history of Alaska Evidence Rule 106 and our prior analysis of the rule
We now return to the history of Alaska Evidence Rule 106 and our prior
cases addressing the scope of the rule - namely, Stoneking and Sipary.
The Alaska Rules of Evidence were prepared by the Advisory Committee
on the Rules of Evidence and adopted by the Alaska Supreme Court in 1979 - four
years after the enactment of the Federal Rules of Evidence.63
Alaska Evidence Rule 106
- l
ocated in Article I of the Rules ("General Provisions") - is nearly identical to the
original version of the federal rule and reads as follows:
60 (...continued)
of the U.S. Sup. Ct. (Oct. 19, 2022), contained in U.S. Courts Pending
Rules and Forms Amendments, Cong. Package, at 199 (Apr. 2023),
https://www.uscourts.gov/sites/default/files/2023_congressional_package_april_24_2023
_0.pdf.
61 See 28 U.S.C. § 2074.
62 Proposed Amendments to Federal Evidence Rule 106 & Committee Note,
contained in Standing Committee Agenda Book, at 879; see also United States Supreme
Court Order Amending Federal Rules of Evidence, at 1.
63 Alaska Supreme Court Order No. 364 (eff. Aug. 1, 1979).
- 29 - 2764
----------------------- Page 30-----------------------
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 we previously noted, early cases from this Court could be read to
suggest that Alaska Evidence Rule 106 authorizes the admission of hearsay if necessary
64
for completeness.
Other cases, however, have declared that Rule 106 itself has a
restrictive scope - i.e., that it is solely a rule of timing and not admissibility (although
we left open the question of whether hearsay statements might be admissible under a
common law theory of completion).
In Stoneking, for example, we stated that Rule 106 "does not make
admissible statements that would otherwise be inadmissible; it is meant only to allow
contemporaneous admission of evidence that would ordinarily not be admissible until
65
We summarily cited to the Commentary to Alaska Evidence
later stages of the trial."
Rule 106 but offered no further analysis on this point. Ultimately, however, our
assertion regarding the scope of Rule 106 made no difference to the outcome of the case;
we instead concluded that nothing about the omitted statements in that case "appear[ed]
64 See, e.g., Stumpf v. State, 749 P.2d 880, 899 (Alaska App. 1988) ("Generally,
defendants may not offer their own statements into evidence because they are hearsay. When
the state, however, presents one part of a conversation or statement, or one conversation in
a series, the defendant may be entitled to offer or require the state to offer, the rest of the
statement or conversations in order to set the context for statements already in evidence."
(citation omitted)); Brannen v. State, 798 P.2d 337, 340 (Alaska App. 1990) ("[B]ecause the
edited portion of the tape that was played for the jury was not misleading or confusing, the
exculpatory statements that were excised as hearsay were not necessary or admissible on
grounds of testimonial completeness.").
65 Stoneking v. State, 800 P.2d 949, 951-52 (Alaska App. 1990).
- 30 - 2764
----------------------- Page 31-----------------------
to have been necessary to clarify, explain, or provide context to the [recording] that the
66
jury heard."
We expanded on our discussion of Evidence Rule 106 in Sipary - our
most extensive discussion of the rule to date.
The brief facts of Sipary are as follows: The defendant was charged with
first-degree assault. At trial, the trial court allowed the State to introduce the defendant's
admissions to striking the victim, but precluded, on hearsay grounds, the introduction of
other statements by the defendant in which, according to defense counsel, the defendant
67
asserted that he was acting in self-defense. The defendant was convicted, and on
appeal, he argued that the trial court's ruling violated Alaska Evidence Rule 106 and the
rule of completeness.
We ultimately concluded, after an extensive review of the record, that the
68
facts of Sipary's case "[did] not raise an issue of completeness." But we first examined
the rule of completeness and Alaska Evidence Rule 106.
We initially noted the United States Supreme Court's assertion in Beech
Aircraft that Federal Evidence Rule 106 only "partially codified" the common law rule
of completeness, and we interpreted this language as meaning "that there are instances
in which evidence will be admissible under the rule of completeness irrespective of
whether the evidence in question also qualifies for admission under Federal Evidence
66 Id. at 952.
67 Sipary v. State, 91 P.3d 296, 299 (Alaska App. 2004).
68 Id. at 301-02.
- 31 - 2764
----------------------- Page 32-----------------------
69
Rule 106." (As we have already explained, this "common law survives" interpretation
of Beech Aircraft , although arguable, has never been widely adopted by federal courts.)
We then turned to Alaska Evidence Rule 106, asserting that the "distinction
between the common-law rule of completeness and Evidence Rule 106 is even more
70
clearly delineated in Alaska law." Relying exclusively on Stoneking and the first two
paragraphs of the Commentary to Alaska Evidence Rule 106, we stated that "Rule 106
was designed to solve a problem of timing, not to enhance the admissibility of
71
evidence."
We nonetheless asserted that, based on the Commentary, "it appears that
the drafters of Rule 106 assumed" that the common law rule of completeness survived
the codification of Alaska's Rules of Evidence.72 We did not further elaborate on this
assertion. But we did note that this left unanswered the question of whether a litigant
might be entitled to introduce, under the common law rule of completeness,
73
complementary portions of their statements that were otherwise hearsay.
69 Id. at 300.
70 Id.
71 Id.
72 Id.
73 Id. at 301. To the extent we suggested in Sipary that there was a meaningful
divide in the common law as to whether hearsay was admissible for completion purposes, we
misspoke. As we noted above, courts were - and remain - divided on whether Evidence
Rule 106 directly permits the introduction of otherwise inadmissible evidence for purposes
of completeness. But there is no serious dispute that the common law rule of completeness
permitted the introduction of otherwise inadmissible evidence. 21A Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure, Federal Rules of Evidence
§ 5072, at 387-88 (2d ed. 2005; updated Daniel D. Blinka ed., Apr. 2023).
- 32 - 2764
----------------------- Page 33-----------------------
Ultimately, we did not need to answer this question in Sipary because, as
in Stoneking, we concluded that the defendant's statements were not necessary for
74
completion purposes.
That is, even assuming the hearsay rule did not bar the admission
of completing evidence, the statements Sipary sought to introduce were not necessary
to provide context to the admitted statements or avoid misleading the jury - mainly
because the prosecution witnesses did not materially mischaracterize Sipary's out-of-
court statements and those statements did not relate to the particular assaultive conduct
75
charged by the State.
(Notably, even though we announced that we were declining to decide
whether hearsay statements could be admitted for completion purposes, we nonetheless
indicated that if the statements Sipary sought to introduce had been directly tied to his
assertions of self-defense (and thus necessary for completeness), then those statements
- which were clearly hearsay when offered by Sipary - would have been admissible
once the prosecutor chose to introduce other, incriminatory portions of the defendant's
statements.76)
We have closely examined Stoneking, Sipary, and our other prior cases
interpreting Alaska Evidence Rule 106. Having done so, we conclude that our
74 Sipary, 91 P.3d at 301-02.
75 Id. at 307-11.
76 Id. at 299, 301; see also State v. Warren, 732 A.2d 1017, 1020 (N.H. 1999)
("Because the State's presentation of [the officer's] testimony created the misleading
impression that the defendant was confessing moments after the incident rather than offering
an explanation consistent with his claim of self-defense, we conclude that the trial court's
failure to admit the completing portion prejudiced the defendant's case and constituted an
abuse of discretion.").
- 33 - 2764
----------------------- Page 34-----------------------
discussions regarding the scope of Alaska Evidence Rule 106 were dicta and in any
event, were incorrect.
We acknowledge that we have cited Stoneking and Sipary several times
since those cases were decided, and we have stated or implied that our discussions of
77
Rule 106 were "holdings." But the discussions of Rule 106 in both Stoneking and
78
Sipary were ultimately "not necessary to [our] decision in the case." In both cases, as
well as in every case relying on them, we ultimately ruled - unlike in this case - that
the excluded statements were not necessary to clarify or explain any admitted
79
statements.
In other words, we ruled that the statements would not have been
admissible under Rule 106 even if Rule 106 was a rule of admissibility.
77 See, e.g., State v. McDonald, 872 P.2d 627, 651 (Alaska App. 1994); Peter v.
State, 2004 WL 1254089, at *4 (Alaska App. June 9, 2004) (unpublished).
78 See Scheele v. Anchorage, 385 P.2d 582, 583 (Alaska 1963) (describing obiter
dictum as a statement that "was not necessary to the decision in the case"), superseded by
statute on other grounds, AS 09.65.070; "Obiter dictum," Black's Law Dictionary (11th ed.
2019) ("A judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential (although it may be
considered persuasive).").
79 See Sipary, 91 P.3d at 301-02; Stoneking v. State, 800 P.2d 949, 952 (Alaska
App. 1990); McDonald , 872 P.2d at 651; D'Antorio v. State, 837 P.2d 727, 736 (Alaska
App. 1992); Alto v. State , 2013 WL 1558157, at *3 (Alaska App. Apr. 10, 2013)
(unpublished); Bavilla v. State, 2012 WL 1959557, at *9 (Alaska App. May 23, 2012)
(unpublished); Adams v. State , 2008 WL 1914340, at *4 (Alaska App. Apr. 30, 2008)
(unpublished); Morris v. State , 2004 WL 1737561, at *5 (Alaska App. Aug. 4, 2004)
(unpublished); Peter, 2004 WL 1254089, at *3; see also Strumsky v. State, 69 P.3d 499, 505
(Alaska App. 2003) (holding that the defendant's argument regarding the rule of
completeness was unpreserved); Smart v. State, 2019 WL 12044102, at *1 (Alaska App.
Apr. 10, 2019) (unpublished summary disposition).
- 34 - 2764
----------------------- Page 35-----------------------
But more importantly, even if Stoneking and Sipary established binding
precedent on the question of whether Rule 106 is solely a rule of timing, we would
conclude that the precedent should be overruled under the test for determining whether
we should adhere to stare decisis - because the question was wrongly decided, and
because more good than harm would come from clarifying the law on this point. 80
First, it is unclear why both cases relied almost exclusively on the
Commentary to Alaska Evidence Rule 106. As a general matter, the Commentary -
which was prepared by Professor Stephen A. Saltzburg, the Reporter for the Alaska
Rules of Evidence - is considered persuasive authority in interpreting the Alaska Rules
81
of Evidence.
But the Commentary to Alaska Evidence Rule 106 is unique. At the end
of the Commentary to Rule 106 is a "Note" explaining that the drafters of Alaska's rule
-the Alaska Supreme Court's Advisory Committee on the Rules of Evidence - "voted
to adopt, in lieu of the Reporter's Comment to this rule, the commentary contained in the
82
Advisory Committee's note to Federal Rule 106[.]" In other words, the drafters of the
80 See State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986) (stating that a court may
depart from precedent when the court is "clearly convinced the rule was originally erroneous
or is no longer sound because of changed conditions, and that more good than harm would
result from a departure from precedent").
81 See, e.g., Allen v. State , 945 P.2d 1233, 1239-43 (Alaska App. 1997). The
Commentary itself was never formally adopted or approved by the Alaska Supreme Court.
Alaska R. Evid. intro. cmt. para 1.
82 Alaska R. Evid. 106 cmt. note. This Note also included an additional piece of
commentary t hat is not relevant here, addressing "issues of relevancy and privilege." The
Note explained that "the problem of deletion of privileged or irrelevant material from a
writing whose admission is sought under . . . Rule 106 should appropriately be dealt with by
(continued...)
- 35 - 2764
----------------------- Page 36-----------------------
Alaska Evidence Rules expressly declined to adopt the Commentary prepared by
Professor Saltzburg in connection with Rule 106. Instead, the drafters - who adopted
a version of Evidence Rule 106 almost identical to the federal rule - voted to adopt the
commentary contained in the federal Advisory Committee's Note to Federal Evidence
Rule 106. 83
It is not clear why the drafters of the Alaska Evidence Rules declined to
adopt Professor Saltzburg's Commentary to Rule 106. But given this Note, our primary
guide to interpreting Alaska Evidence Rule 106 should be the federal Advisory
Committee's Note to Federal Evidence Rule 106 - not Professor Saltzburg's
Commentary. Yet neither Stoneking nor Sipary addressed the Advisory Committee's
Note to Federal Evidence Rule 106 nor grounded their analysis on that commentary or
the history of the federal rule.
Moreover, even assuming that we should give weight to Professor
Saltzburg's Commentary, we are uncertain why Stoneking and Sipary interpreted this
Commentary as clearly expressing the view that "Rule 106 was designed to solve a
84
problem of timing, not to enhance the admissibility of evidence."
There can be no
doubt that the Commentary supports the first assertion - that Rule 106 was designed to
82 (...continued)
. . . the Rules of Evidence dealing with relevancy and privilege."
83 Id. ; Pingree v. Cossette, 424 P.3d 371, 378 n.20 (Alaska 2018) (noting that "[t]he
Alaska Supreme Court Committee on Rules of Evidence voted to adopt the federal advisory
committee's commentary on Rule 106 as the commentary to Alaska Evidence Rule 106").
84 Sipary, 91 P.3d at 300; see also Stoneking, 800 P.2d at 952-53.
- 36 - 2764
----------------------- Page 37-----------------------
85
solve a timing problem. But little in the Commentary supports the second assertion -
that the rule was not intended to authorize the admission of completing evidence that
would otherwise be hearsay - and there is certainly nothing in the Commentary
86
expressly saying so.
The interpretation of Professor Saltzburg's Commentary in Stoneking and
Sipary is particularly questionable in light of his later comments on the subject. In
addition to serving as the Reporter for the Alaska Rules of Evidence, Professor Saltzburg
is one of the authors of a widely cited treatise on the Federal Rules of Evidence.87
In that
treatise, Professor Saltzburg has written that restrictive interpretations of Rule 106 "are
88
misguided and contrary to the completeness principle." He takes the position that
"[t]he appropriate way to resolve the hearsay issue is to hold that the party who offers
85 See Alaska R. Evid. 106 cmt. paras. 1-2.
86 Indeed, the Commentary provides strong support for the notion that Rule 106
addresses both timing and admissibility. The Commentary states that "Rule 106 creates a
right to require immediate admission of a complete written or recorded statement or of all
relevant portions" and explains that the rule "is designed to enable one party to correct
immediately any misleading impression created by another party who offers part of a
statement out of context." Alaska R. Evid. 106 cmt. para. 1 (emphasis added). It is difficult
to imagine how the rule could accomplish this goal without authorizing the introduction of
evidence when that evidence is necessary to correct a misleading impression.
87 Alaska R. Evid. intro. cmt.; see also 1 Stephen A. Saltzburg et al., Federal Rules
of Evidence Manual (12th ed. 2019).
88 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 106.02[3],
at 106 (11th ed. 2015); 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual
§ 106.02[3], at 100 (7th ed. 1998); see also 1 Saltzburg et al., Federal Rules of Evidence
Manual § 106.02[3], at 106-8 to 106-9 (12th ed. 2019) (noting that "legislative history, a fair
reading of the Evidence Rules, and the placement and language of Rule 106 support the
conclusion that Rule 106 can operate as a hearsay exception for completing evidence").
- 37 - 2764
----------------------- Page 38-----------------------
an incomplete statement or document forfeits any hearsay objection to completing
89
evidence that is necessary to correct a misleading impression."
As the Alaska Supreme
Court has noted, Professor Saltzburg was "one of the main architects of the Alaska Rules
of Evidence and the [accompanying] Commentary," and his position is thus "especially
persuasive."90
Finally, there is no need to conclude that Rule 106 was designed to enhance
the admissibility of evidence in order to conclude that the rule authorizes the admission
of otherwise inadmissible evidence for completion purposes; it is only necessary to
conclude that the rule was designed to maintain the long-standing trumping function of
91
the common law rule.
Ultimately, our analysis of the history of Alaska Evidence Rule 106 as a
whole - including our past case law, the history of the federal rule on which it is based,
and the unnecessary complexity of the work-around theories courts have employed to
avoid unfairness (as discussed in the next section) - leads us to conclude that our prior
statements on the restrictive scope of Alaska Evidence Rule 106 are not, and should not
be, controlling.
89 1 Saltzburg et al., Federal Rules of Evidence Manual § 106.02[3], at 106-13 (12th
ed. 20 19) ("It is up to the proponent of the initial portion to decide whether to forgo that
portion, or to forgo the hearsay objection to the remainder."); see also 1 Saltzburg et al.,
Federal Rules of Evidence Manual § 106.02[3], at 100 (7th ed. 1998).
90 See Marron v. Stromstad, 123 P.3d 992, 1005 n.50 (Alaska 2005).
91 See State v. ABC Towing, 954 P.2d 575, 579 (Alaska App. 1998) (recognizing that
"statutes are construed so as to preserve the pre-existing common law unless the legislature
has clearly indicated its purpose to change that law," and citing the rule that statutes in
derogation of the common law are to be narrowly construed); see also Ray v. State, 513 P.3d
1026, 1035 n.64 (Alaska 2022).
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----------------------- Page 39-----------------------
The "evasions of the restrictionists"
HavingdiscussedthecompetinginterpretationsofEvidenceRule106 at the
federal level and our prior case law on this issue in Alaska, we must now discuss one
additional aspect of the legal landscape: the various attempts by courts to avoid the most
egregious consequences of the restrictive interpretation of Rule 106, which Professors
Wright and Graham have aptly termed the "evasions of the restrictionists." 92
As we have explained, the restrictive interpretation of Evidence Rule 106
as a rule only of timing can lead to unfair results. Some jurisdictions adhering to a
restrictive construction of Rule 106 have adopted various mechanisms to "escape the
worst consequences" of that construction - i.e., to escape the fact that such a
construction would allow a party to introduce a misleading version of an opponent's
statements and would then prohibit the opponent from correcting that misleading
impression.93
The most notable of these solutions, endorsed by our dicta in Sipary, is the
view that the common law rule of completeness survived the enactment of Evidence
Rule 106.94 But as the federal Advisory Committee recently noted in connection with
its proposal to resolve the existing circuit split by amending Federal Evidence Rule 106
to explicitly permit completion over a hearsay objection, the notion that the common law
survived the codification of Evidence Rule 106 has created confusion and added
92 21A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure, Federal Rules of Evidence § 5078.3, at 540 (2d ed. 2005; updated Daniel D.
Blinka ed., Apr. 2023).
93 See id. at § 5078.1, at 531.
94 Sipary v. State, 91 P.3d 296, 299-300 (Alaska App. 2004).
- 39 - 2764
----------------------- Page 40-----------------------
unnecessary complexity. According to the Committee Note accompanying the proposed
rule amendments:
There is no other rule of evidence that is interpreted as
coexisting with common-law rules of evidence, and the
practical problem of a rule of evidence operating with a
common-law supplement is apparent-especially when the
rule is one, like the rule of completeness, that arises most
often during the trial. [95]
Some jurisdictions have also suggested that a statement introduced for
completeness is not hearsay because it is not being admitted for the truth of the matter
96
asserted.
But as Professors Capra and Richter have noted, "Admitting completing
statements on the same basis and for the same purpose as the partially admitted
95 Proposed Amendments to Federal Evidence Rule 106 & Committee Note
(Appendix A to the Report of the Advisory Committee on Evidence Rules, dated
May 15, 2022), contained in Standing Committee Agenda Book, at 882 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf; see also Report of the Advisory Committee on Evidence Rules (May 15, 2022),
contained in Standing Committee Agenda Book, at 868 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf ("What has been particularly confusing to courts and practitioners is that Rule 106
has been considered a 'partial codification' of the common law - meaning that the parties
must be aware that common law may still be invoked. As stated in the Committee Note, the
amendment is intended to displace the common law, just as the common law has been
displaced by all of the other Federal Rules of Evidence.").
96 See, e.g., Conn. Code Evid. § 1-5(a) cmt. ("Because the other part of the statement
is introduced for the purpose of placing the first part into context, the other part need not be
independently admissible."); see also Wright & Graham, Federal Practice and Procedure
§ 5078.3, at 542. Another commentator suggests that once the government introduces a
misleading selective portion of a statement, the remaining portions needed for completeness
are no longer hearsay because they must be introduced by the government. See Dale A.
Nance, A Theory of Verbal Completeness , 80 Iowa L. Rev. 825, 845-46 (1995).
- 40 - 2764
----------------------- Page 41-----------------------
statements they complete is most consistent with the underlying fairness rationale for
97
Rule 106."
If it were otherwise, "the proponent who misleadingly presented evidence
[would] retain the benefit of the distorted statement" by arguing the truth of that
statement, while the opponent would be left with the "weak and confusing response" that
98
the jury may only consider the completing statements for "context."
A third option invokes the concept of "opening the door" -the theory that,
once a party has introduced a misleading portion of a statement, that party is prohibited
97 See Daniel J. Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule
of Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 Minn. L. Rev.
901, 944 (2020). Of course, there may be some situations in which the completing
statements are not hearsay because there is genuinely a valid non-hearsay purpose for the
statement. As the Advisory Committee's Note to the recently proposed amendments to
Federal Evidence Rule 106 explained, "An example would be a completing statement that
corrects a misimpression about what a party heard before undertaking a disputed action,
where the party's state of mind is relevant. The completing statement in this example is
admitted only to show what the party actually heard, regardless of the underlying truth of the
completing statement." Proposed Amendments to Federal Evidence Rule 106 & Committee
Note, contained in Standing Committee Agenda Book, at 880.
98 Capra & Richter, Evidentiary Irony, 105 Minn. L. Rev. at 944-45 ("Requiring
completing remainders to be accompanied by limiting instructions in every case [would] lead
to confusion at least and fairness defeating rejection of the remainder at worst."); see also
Wright & Graham, Federal Practice and Procedure § 5078.3, at 542-43 (stating that limited
admissibility "does not provide an adequate solution" because "the truncator still benefits
from . . . abuse of the adversary system; i.e., the prosecutor can use the inculpatory parts of
the defendant's confession to prove his guilt, but the exculpatory parts can only be used to
provide context, not to prove the defendant's innocence"). We note that the common law
rule of completion did not limit the use of complementary portions of a statement to the non-
hearsay purpose of providing context; rather, common law courts generally admitted
completing statements for the truth of the matter asserted. See Capra & Richter, Evidentiary
Irony , 105 Minn. L. Rev. at 944 ("[T]he majority of courts at common law . . . allowed
completing statements to be admitted for their truth.").
- 41 - 2764
----------------------- Page 42-----------------------
fromobjecting on hearsay grounds when their opponent seeks to introducetheremainder
99
of the statement to correct the misleading impression.
This is the theory endorsed by
100
Professor Saltzburg.
We need not address each of these approaches in detail here. We note them
because they illustrate the predictable consequences of adopting a construction of
Rule 106 that results in obvious unfairness: courts will look to the availability of
alternative legal theories to address that unfairness. The adoption of these alternative
theories - including the theory that this Court previously endorsed in the dicta in Sipary
- leads to essentially the same result as if the court had avoided the restrictive
interpretation of Rule 106 altogether. But as several commentators have noted, these
101
alternativesolutionscreatedoctrinalconfusion without providingany obvious benefit.
The more well-reasoned approach is to interpret Evidence Rule 106 as a rule of
both timing and admissibility.
99 See generally Wright & Graham, Federal Practice and Procedure § 5078.3,
at 540-41; 1 Robert P. Mosteller et al., McCormick on Evidence § 56, at 468-71 (8th
ed. 2020) (stating that a categorical rule against the introduction, under Rule 106, of
otherwise inadmissible evidence to correct a misleading impression is "unsound" and noting
the existence of multiple doctrines to circumvent such an unfair result, including admission
of the other evidence for the nonhearsay purpose of providing context, or because the
proponent of the initial portion of the statement waived any objection by "opening the door").
100 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 106.02[3],
at 106-13 (12th ed. 2019).
101 Wright & Graham, Federal Practice and Procedure § 5078.3, at 540-44; Capra
& Richter, Evidentiary Irony, 105 Minn. L. Rev. 901, at 945-46.
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Why we now hold that Alaska Evidence Rule 106 is a rule of timing and
admissibility
Having reviewed the language and history of Alaska Evidence Rule 106
and the purpose of the evidence rules more generally, we conclude that a party is
permitted to contemporaneously complete a statement with otherwise inadmissible
hearsay - i.e., that Alaska Evidence Rule 106 is a rule of both timing and admissibility.
In particular, given our drafters' reliance on the commentary contained in the Advisory
Committee's Note to Federal Evidence Rule 106, we find persuasive the reasoning set
102
out by the D.C. Circuit in United States v. Sutton .
First, like the federal rule, Alaska Evidence Rule 106 is located within the
"General Provisions" section of the evidence rules. Second, the Alaska rule, like the
federal rule, does not contain the type of exclusionary clause that would suggest the rule
should be interpreted narrowly (such as "except as otherwise provided by these rules").
Third, our rule is based on the federal rule, and in the case of Federal Evidence Rule 106,
Congress declined to adopt requested language limiting the rule to evidence that was
"otherwise admissible." Fourth, the federal Advisory Committee noted that Evidence
Rule 106 was modeled on California's codification of the rule of completeness as well
as McCormick on Evidence, both of which are not restricted by the other rules of
evidence. Similarly, the Commentary to Alaska Evidence Rule 106 - though not
directlygoverningbecauseofthedrafters' adoption ofthefederal Advisory Committee's
Note - cites to the California Evidence Code and McCormick .
Finally, and most importantly, we agree with the Sutton court that
"Rule 106 can adequately fulfill its function only by permitting the admission of some
102 United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986).
- 43 - 2764
----------------------- Page 44-----------------------
otherwise inadmissible evidence when the court finds in fairness that the proffered
103
evidence should be considered contemporaneously."
This conclusion is particularly persuasive in light of Alaska Evidence
Rule 102, which provides that the rules of evidence "shall be construed to secure fairness
in administration . . . to the end that truth may be ascertained and proceedings justly
104
determined."
As Professors Wright and Graham explain, "No one has ever explained
how the[] standards [articulated in Rule 102] would be met by a construction [of
Rule 106] that would allow a party to present evidence out of context so as to mislead
the jury, then assert an exclusionary rule to keep the other side from exposing his
105
deception."
The United States Supreme Court's recent adoption of amendments
clarifying that Federal Evidence Rule 106 authorizes the admission of completing
evidence, even over a hearsay objection, provides further support for our conclusion.
For all these reasons, we now hold that Alaska Evidence Rule 106 has two
functions: (1) it accelerates the admission of completing evidence to the time when the
original portion is introduced; and (2) it provides an independent basis, even over a
hearsay objection, to admit "any other part or any other writing or recorded statement
103 Id. at 1368.
104 Alaska Evidence Rule 102 provides, in its entirety: "These rules shall be
construed to secure fairness in administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to the end that truth may
be ascertained and proceedings justly determined."
105 Wright & Graham, Federal Practice and Procedure § 5078.1, at 524; see also
Capra & Richter, Evidentiary Irony, 105 Minn. L. Rev. at 933 ("An interpretation of
Rule 106 that permits a selective and misleading presentation of a statement to go unrebutted
is a clear perversion of its fundamental promise of 'fairness.'").
- 44 - 2764
----------------------- Page 45-----------------------
which ought in fairness to be considered contemporaneously with" the initial portion put
forward by the proponent.
We emphasize, however, that therule of completeness under Rule 106 does
not authorize the introduction of the entirety of a statement simply because a litigant
introduces a part. "Rather, the admissibility of other portions of the statement is limited
to those portions that are necessary to a proper understanding of the previously admitted
106
portions."
That is, "no more of the remainder . . . should be admitted than that which
explains or qualifies the part already received" to ensure that the initial portion is not
107
presented in a misleading or distorted manner.
Given this construction of Alaska Evidence Rule 106, we reject the State's
argument that the superior court properly redacted Steven's additional statements on the
ground that they were inadmissible hearsay.
106 Sipary v. State, 91 P.3d 296, 300 (Alaska App. 2004).
107 1 Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 4:10,
at 317 (15th ed. 1997); Capra & Richter, Evidentiary Irony, 105 Minn. L. Rev. at 938 (noting
that the federal courts, while split on the scope of Federal Evidence Rule 106, have
"uniformly interpreted [the] fairness standard [of Rule 106] to permit completion only when
the original partial presentation of a statement is misleading and creates a distorted
impression of the statement that was made"); see also id. at 941 ("Because [Rule 106] must
be triggered by the selective and misleading presentation of a statement, the proponent of that
initial statement possesses exclusive control over the admissibility of a completing
remainder.").
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----------------------- Page 46-----------------------
Why we conclude that fairness required the admission of the redacted
portions of the Glass warrant recording in Steven's case, and that failure
to admit these portions was not harmless
Returning to the facts of Steven's case, we conclude that the superior court
erred in declining to admit the remainder of Steven's phone conversation with M.F., as
the redaction of those statements fundamentally altered the nature of the admissions and
misled the jury. In Sipary, we noted that the admissibility of other portions of a written
or recorded statement for purposes of completeness is "limited to those portions that are
necessary to a proper understanding of the previously admitted portions" - namely, to
"explain or clarify the previously admitted statement."108
That standard is met here.
Steven was charged with second-degree sexual assault for engaging in
109
sexual penetration with M.F. while knowing she was incapacitated. For purposes of
this offense, the term "incapacitated" means "temporarily incapable of appraising the
110
nature of one's own conduct or physically unable to express unwillingness to act[.]"
In the Glass warrant recording, Steven acknowledged that he should not
have had sexual intercourse with M.F., and he asked for M.F.'s forgiveness. But the
State introduced this apology without the necessary context. As redacted, these
statements implied that Steven knew that M.F. was "incapacitated," as that word is
defined under Alaska law. But the omitted portions (that M.F. "kept saying ya" and that
Steven asked five times whether she was sure she wanted to have sex) suggest that he did
108 Sipary, 91 P.3d at 300 (quoting Stumpf v. State, 749 P.2d 880, 899 (Alaska
App. 1988)).
109 Former AS 11.41.420(a)(3)(B) (2016). The legislature has since removed the
requirement that a defendant must know that the person is incapacitated to be convicted of
the offense. FSSLA 2019, ch. 4, § 4.
110 AS 11.41.470(2).
- 46 - 2764
----------------------- Page 47-----------------------
not know that M.F. was unable to consent and believed she was actively consenting.
That is, the omitted portions support the notion that while Steven might have known that
M.F. was not sober, he may not have known that M.F. was "incapacitated," or "incapable
of appraising the nature of [her] conduct or physically unable to express a willingness
to act[.]" 111
Allowing the State to introduce Steven's request for M.F.'s forgiveness, in
which he acknowledged having sex with M.F. when she was not sober, while redacting
his statements providing context for his request, misleadingly suggested that Steven was
apologizing for having sex with M.F. while knowing she was incapacitated. In other
words, the State's selective presentation of evidence wrongly suggested that Steven had
admitted to the crime with which he was charged. The State's argument to the contrary
- that the omitted portions of the recording were "not necessary to clarify, explain, or
provide context to the jury" - is conclusory and unpersuasive.
For largely thesesamereasons, weconcludethat thesuperiorcourt's failure
to admit the remainder of the conversation when the State chose to introduce it was not
harmless. The central issues in this case were whether M.F. was incapacitated and
whether Steven was aware of her incapacitation. By selectively editing Steven's
statements, the State made it appear as if Steven had confessed that he was aware that she
111 See Wilson v. State, 670 P.2d 1149, 1152 (Alaska App. 1983) (holding that,
although the alleged victim was heavily intoxicated, the evidence was insufficient to establish
that she was "incapacitated" - i.e., that she was temporarily incapable of understanding that
she was engaged in sexual penetration or unable to express her unwillingness to act); see also
Ragsdale v. State, 23 P.3d 653, 657-58 (Alaska App. 2001).
- 47 - 2764
----------------------- Page 48-----------------------
112
was incapacitated. But the redacted portions suggested that Steven believed that M.F.
was awake and able to express her willingness to have sex with Steven.
The only other evidence that M.F. expressed a willingness to have sex with
Steven was contained in Steven's recorded statements to the trooper. But the recording
shows that the trooper disbelieved Steven's assertion of consent and largely discouraged
discussion of it after Steven initially denied having any sexual encounter with M.F.
Moreover, the fact that Steven made repeated assertions of consent in a telephone
conversation with M.F. that he did not knowwas being recorded hadinherent evidentiary
value that neither the trooper interview - nor even Steven's testimony, if he had elected
to testify - could have replaced. 113
112 See State v. Warren, 732 A.2d 1017, 1020 (N.H. 1999) (where defendant told an
officer that he did not know the location of the knife he used to stab the victim, that he was
sorry, and that the victim had pulled a knife on him, the court abused its discretion in
admitting the first two statements but precluding the defendant's statement that the victim
had pulled the knife). Cf. Mayuyo v. State, 400 P.3d 136, 139-40 (Alaska App. 2017)
(holding that the alteration of the defendant's statement, which made it appear as if the
defendant had incriminated himself to a significantly greater degree, constituted a material
misrepresentation that was not harmless beyond a reasonable doubt).
113 See Daniel J. Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule
of Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 Minn. L. Rev.
901, 936-38 (2020) (noting the inadequacy of a defendant's later testimony as a substitute
for "contemporaneous completion" of a defendant's out-of-court statement and expressing
concern about the "prohibitive cost" of requiring a defendant to sacrifice their Fifth
Amendment right to decline to testify, particularly given that a defendant is often precluded,
in any event, from testifying about their own out-of-court statements based on the same
hearsay objection lodged to completion); 1 Stephen A. Saltzburg et al., Federal Rules of
Evidence Manual § 106.02[3], at 106-9 to 106-11 (12th ed. 2019) (expressing same
concerns).
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----------------------- Page 49-----------------------
The error in this case was exacerbated by certain remarks the prosecutor
made in closing argument - remarks that Steven separately challenges on appeal. The
prosecutor argued that Steven had "create[d] a narrative of consent" after being
confronted by the trooper with his admission (during the Glass warrant recording) to
having had sex with M.F.:
And think about the motives that Charlie Steven has not to
tell the truth when he's interviewed by Trooper Hayes.
Remember that Charlie Steven came into this trial knowing
from that Glass warrant phone call that [M.F.] did not
remember most of that night. So, on the one hand, Charlie
Steven has facts that he can't escape, he can't escape the fact
that [M.F.] was so drunk that he had to carry her in from the
boardwalk. He can't escape the fact that they had sex
because he admitted to it on the Glass warrant so what does
Charlie Steven do? He creates a narrative of consent that fits
the facts. Creates a narrative of consent that fits the fact[s].
Although Steven did not object to this argument at the time it was made, Steven argues
on appeal that the prosecutor's comments misleadingly suggested that he had invented
the consent narrative for purposes of trial after he admitted on the Glass warrant that he
and M.F. had sex - when in fact Steven had claimed, during the Glass warrant
conversation itself, that M.F. had consented. The State responds that, when understood
in context, the prosecutor's remarks referred only to Steven's shifting narratives during
his interview with the trooper after he was arrested.
Given our reversal of Steven's conviction, we need not directly resolve the
parties' dispute regarding these remarks. We note this issue only to illustrate the serious
problems that can arise when the government is allowed to present a misleading version
of a defendant's statements. Even if the prosecutor meant only to refer to Steven's
shifting narratives during his interview with the trooper, the jury easily could have
- 49 - 2764
----------------------- Page 50-----------------------
misunderstood the prosecutor to be arguing that Steven invented the narrative of consent
to explain away his admission to having sex with M.F. And because the full version of
the Glass warrant recording was never provided to the jury, there was no way for defense
counsel to correct that potential misunderstanding. Indeed, had the prosecutor attacked
Steven's credibility in this manner prior to the close of evidence, Steven likely would
have been entitled to introduce his full statement on the Glass warrant recording for the
non-hearsay purpose of refuting the prosecutor's contention that he fabricated his
114
consent defense in response to police questioning.
When one party is allowed to present a redacted version of a statement or
recording that permits a false inference, such misunderstandings are likely to arise and
the integrity of the proceedings is undermined. Interpreting Alaska Evidence Rule 106
as a rule of admissibility, as we have done in this case, provides a straightforward
framework f
or avoiding obvious unfairness.
Conclusion
We REVERSE Steven's conviction for second-degree sexual assault and
remand this case for further proceedings.
114 See Putnam v. State, 629 P.2d 35, 40 (Alaska 1980) (holding that when "testimony
is offered merely to establish the fact that the statement was made, and not to prove the truth
of the matter stated, the hearsay rule does not apply").
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----------------------- Page 51-----------------------
Judge WOLLENBERG, concurring.
I write separately to address an additional issue that, while not raised in this
case, is likely to arise in future cases. Alaska Evidence Rul e 106, like its current federal
analogue, applies only to written and recorded statements; it does not apply to
unrecorded oral statements. This means that if one party seeks to admit a portion of an
unrecorded oral statement, and this portion is misleading without contemporaneous
admission of completing statements from the same conversation, Rule 106 would not
entitle the opposing party to require admission of the completing statements over a
hearsay objection.
AccordingtoProfessors Capraand Richter, courtshaveaddressed thisissue
in various ways. Under the common law, the rule of completeness applied to unrecorded
1
oral statements as well as to writings and recordings.
Some courts have therefore
expressed support for admitting a completing portion of an unrecorded oral statement
under a common law theory, resorting to general principles of relevancy (like those
2
referred to in Beech Aircraft). Some courts have indicated that these statements are
admissible under Evidence Rule 611(a), which authorizes courts to alter the mode and
3
order of interrogating witnesses and presenting evidence. And other courts have simply
1 State v. Warren, 732 A.2d 1017, 1020 (N.H. 1999) ("By its express terms,
Rule 106 applies only to writings or recorded statements. The common law rule, however,
applied to conversations as well as to writings and recorded statements.").
2 See, e.g., United States v. Sanjar, 876 F.3d 725, 739 (5th Cir. 2017) (stating that
the common law rule of completeness "is just a corollary of the principle that relevant
evidence," including oral statements, "is generally admissible" if needed to "explain, vary,
or contradict the testimony already given" (citation omitted)).
3 See, e.g., United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995); United States v.
(continued...)
- 51 - 2764
----------------------- Page 52-----------------------
excluded unrecorded oral statements under the theory that they are not covered by
4
Rule 106.
In their treatise on the Federal Rules of Evidence, Wright and Graham
discuss a variety of other "evasions of the restrictionists" that have been used to admit
written or recorded statements that are otherwise hearsay in jurisdictions that narrowly
interpret Rule 106 as solely a rule of timing. These approaches could also potentially be
5
used to admit unrecorded oral statements that are not covered by Rule 106.
As this Court discusses in its leadopinion, permittingoneparty tointroduce
a misleading portion of a statement while precluding the opposing party from correcting
the resulting misimpression is fundamentally unfair. This is true regardless of whether
the statement at issue is a written statement, a recorded statement, or an unrecorded oral
statement. Thus, were this Court faced with a situation in which one party was allowed
to introduce a misleading portion of an unrecorded oral statement while the necessary
complementary portion was excluded, I am confident that - like other courts - we
would closely examine the various theories noted above in an effort to remedy that
6
unfairness.
3 (...continued)
Castro, 813 F.2d 571, 576 (2d Cir. 1987); see also Sipary v. State, 91 P.3d 296, 301 n.7
(Alaska App. 2004) (collecting cases).
4 Daniel J. Capra & Liesa L. Richter, Evidentiary Irony and the Incomplete Rule of
Completeness: A Proposal to Amend Federal Rule of Evidence 106, 105 Minn. L. Rev. 901,
927-28 (2020) (collecting cases).
5 See 21A Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and
Procedure, Federal Rules of Evidence § 5078.3, at 540-44 (2d ed. 2005; updated Daniel D.
Blinka ed., Apr. 2023).
6 See Proposed Amendments to Federal Evidence Rule 106 & Committee Note
(Appendix A to the Report of the Advisory Committee on Evidence Rules, dated
(continued...)
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----------------------- Page 53-----------------------
But the far better approach would be for Alaska to eliminate the potential
7
for the "hodgepodge . . . coverage of unrecorded statements"
and instead adopt the
amendments to Federal Evidence Rule 106 scheduled to take effect on
December 1, 2023. In 2021, the federal Advisory Committee on Evidence Rules
unanimously approved for public comment amendments that would remove the words
"writing or recorded" from the text of Federal Evidence Rule 106, making it clear that
8
the rule applies to all statements. (As the lead opinion notes, the proposed amendments
would also make clear in the text of Rule 106 that an adverse party may require the
9
introduction of a completing portion of a statement "over a hearsay objection." )
6 (...continued)
May 15, 2022), contained in Judicial Conference Standing Committee
on Rules of Practice and Procedure Agenda Book [hereinafter
"Standing Committee Agenda Book"], at 881 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf (recognizing that "[m]ost courts have already found unrecorded completing
statements to be admissible under either Rule 611(a) or the common-law rule of
completeness"); see, e.g., Castro, 813 F.2d at 576 (noting that "courts historically have
required a party offering testimony as to an utterance to present fairly the 'substance or
effect' and context of the statement," and citing Federal Evidence Rule 611 and the rule of
completeness as the basis for admitting completing oral statements).
7 Report of the Advisory Committee on Evidence Rules (May 15, 2022), contained
in Standing Committee Agenda Book, at 868 (June 7, 2022),
https://www.uscourts.gov/sites/default/files/2022-06_standing_committee_agenda_book_
final.pdf.
8 See id. at 867; Proposed Amendments to Federal Evidence Rule 106 & Committee
Note, contained in Standing Committee Agenda Book, at 879.
9 Following the amendments, scheduled to take effect on December 1, 2023, Federal
Evidence Rule 106 will read:
(continued...)
- 53 - 2764
----------------------- Page 54-----------------------
In the Committee Note accompanying the proposed amendments, the
Advisory Committee detailed these two goals. First, with respect to the admission of
completing statements that would otherwise be hearsay, the Committee explained that
"the rule of completeness, grounded in fairness, cannot fulfill its function if the party that
creates a misimpression about the meaning of a proffered statement can then object on
10
hearsay grounds and exclude a statement that would correct the misimpression." I
agree with the Committee that "[a] party that presents a distortion can fairly be said to
have forfeited its right to object on hearsay grounds to a statement that would be
11
necessary to correct the misimpression."
Second, with respect to unrecorded oral statements, the Committee
explained:
Most courts have already found unrecorded completing
statements to be admissible under either Rule 611(a) or the
common-law rule of completeness. This procedure, while
reaching the correct result, is cumbersome and creates a trap
for the unwary. Most questions of completion arise when a
statement is offered in the heat of trial-where neither the
parties nor the court should be expected to consider the
9 (...continued)
If a party introduces all or part of a statement, an adverse party may
require the introduction, at that time, of any other part-or any other
statement-that in fairness ought to be considered at the same time.
The adverse party may do so over a hearsay objection.
U.S. Sup. Ct. Order Amending Fed. Rules of Evidence, at 1 (Apr. 24, 2023),
https://www.supremecourt.gov/orders/courtorders/frev23_5468.pdf.
10
Proposed Amendments to Federal Evidence Rule 106 & Committee Note,
contained in Standing Committee Agenda Book, at 879.
11 Id. at 880.
- 54 - 2764
----------------------- Page 55-----------------------
nuances of Rule 611(a) or the common law in resolving
completeness questions. The amendment, as a matter of
convenience, covers these questions under one rule. [12]
Ultimately, the Committee wrote, "The intent of the amendment is to displace the
common-law rule of completeness," and avoid the confusion created by partial
incorporation of the common law. 13
During the public comment period on the proposed amendments, the
Committee received only a few comments, and all were in favor of the allowance for
completing hearsay and nearly all were in favor of the inclusion of unrecorded oral
14
statements.
Following the public comment period, in the spring of 2022, the Advisory
Committee on Evidence Rules unanimously approved the proposed amendments, and
recommended that they be approved by the Standing Committee on Rules ofPractice and
15
Procedure and referred to the Judicial Conference of the United States. Both the
12 Id. at 881.
13 Id. at 882. The Committee Note cautions that "[a] party seeking completion with
an unrecorded statement would of course need to provide admissible evidence that the
statement was made," and acknowledges that in some cases, "the difficulty in proving the
completing statement [may] substantially outweigh[] its probative value," resulting in
possible exclusion under Evidence Rule 403. Id.
14 See Report of the Advisory Committee on Evidence Rules, contained in Standing
Committee Agenda Book, at 868; Proposed Amendments to Federal Evidence Rule 106 &
Committee Note, contained in Standing Committee Report, at 883-85.
15 See Report of the Advisory Committee on Evidence Rules, contained in Standing
Committee Agenda Book, at 868.
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----------------------- Page 56-----------------------
Standing Committee and the Judicial Conference subsequently approved the proposal, 16
and the proposal was transmitted to and approved by the United States Supreme Court
17
in April 2023. The amendments are scheduled to take effect on December 1, 2023.
For all the reasons discussed by the Advisory Committee in the Committee
Note, I urge the Alaska Supreme Court to adopt the proposed amendments to Federal
Evidence Rule 106 in Alaska. By "treat[ing] all questions of completeness in a single
18
rule,"
such an amendment would ensure greater consistency in application of the rules
and bring Evidence Rule 106 closer to its underlying goal of securing "fairness."
16 See Summary of the Report of the Judicial Conference Committee
on Rules of Practice and Procedure, at 22-24 (Sept. 2022),
https://www.uscourts.gov/sites/default/files/sept_2022_jcus_rules_report_final_for_websi
te.pdf; Memorandum Transmitting Proposed Amendments to the Fed. Rules of Evidence
from J. Roslynn R. Mauskopf, Sec'y of the U.S. Jud. Conf., to the C.J. and Associate JJ. of
the U.S. Sup. Ct. (Oct. 19, 2022), contained in U.S. Courts Pending
Rules and Forms Amendments, Cong. Package, at 199 (Apr. 2023),
https://www.uscourts.gov/sites/default/files/2023_congressional_package_april_24_2023
_0.pdf.
17 See U.S. Sup. Ct. Order Amending Fed. Rules of Evidence & Letters from C.J.
John G. Roberts Jr., U.S. Sup. Ct., to Rep. Kevin McCarthy, Speaker of the U.S. House of
Representatives, and Vice President Kamala D. Harris, President of the U.S. Senate
(Apr. 24, 2023), https://www.supremecourt.gov/orders/courtorders/frev23_5468.pdf.
18 See Report of the Advisory Committee on Evidence Rules, contained in Standing
Committee Agenda Book, at 867.
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