evidence, Rule 106


Federal Rule of Evidence 106 provides that when one party in a trial or hearing offers into evidence a portion of a statement in a misleading way, the opposing party can offer the rest, or some other portion of, that document or recorded statement at the same time if it is necessary for the factfinder to understand and contextualize the first part. Sometimes, however, the other portion, or “remainder,” would be inadmissible if it were offered by itself, either because it is hearsay or for some other reason. This leaves the court in a difficult position: Should it allow the remainder to be entered into evidence in violation of some other rule that would exclude it? Or should the court exclude the remainder and allow the initial misleading portion to stand, uncorrected?

Some circuits have held that Rule 106 must trump the other rules of evidence in order to do its job. These courts admit otherwise inadmissible hearsay evidence for its truth. Other circuits have held that if no independent hearsay exception exists for the remainder, it must be excluded despite Rule 106. Finally, some opinions have suggested that Rule 106 allows the remainder of a statement to be admitted for the narrow purpose of contextualizing the initial misleading portion.

This Note argues the following: if one party offers a misleading portion of a statement into evidence, the opposing party should be able to offer the remainder, but the jury should only be allowed to use it for context. The evidentiary basis for doing so is not Rule 106, but rather the U.S. Supreme Court case Beech Aircraft Corp. v. Rainey, which holds that remainders necessary to correct misleading impressions are automatically relevant for a nonhearsay purpose. The end of this Note offers courts a step–by–step process for judges to follow when ruling on whether to admit remainders.

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