Rule 106 Remainder of writings or recorded statements.

Advisory Committee’s Notes

This rule constitutes a specialized application of the common law completeness doctrine. See 7 J. Wigmore, Wigmore on Evidence § 2113 (Chadbourn rev. 1978). When one party introduces a portion of a writing or a recorded statement, it is deemed only fair that the adverse party be allowed to have admitted any other part of the writing or recorded statement that in fairness ought to be considered. Rule 106 constitutes a rejection of that portion of the corresponding federal rule that expands the historic doctrine of completeness to include the admission of any additional writing or recorded statement that ought in fairness to be considered contemporaneously with an already admitted writing or recorded statement. See Fed.R.Evid. 106.

The doctrine of completeness has traditionally been recognized in Alabama law. Coleman v. Sparkman, 370 So.2d 977 (Ala.1979); C. Gamble, McElroy’s Alabama Evidence § 316.01 (4th ed. 1991). With regard to completeness of depositions, Rule 106 is virtually a restatement of Ala.R.Civ.P. 32(a)(4), which provides that if only part of a deposition is offered in evidence by a party, then an adverse party may require the party introducing it to introduce all of it that ought in fairness to be considered with the part introduced. Both this Rule 106 and Ala.R.Civ.P. 32(a)(4) vest in the trial judge considerable discretion to determine what “in fairness” ought to be considered with the part introduced. See Hargress v. City of Montgomery, 479 So.2d 1137 (Ala.1985).

Rule 106 applies only to writings and recorded statements or parts thereof. This rule is not intended to affect preexisting Alabama applications of the completeness doctrine that lie outside the confines of Rule 106. The rule, for example, has no impact upon instances when the completeness doctrine is applied to unrecorded conversations. A prominent example of such an application, having continuing existence after adoption of Rule 106, is the rule that if one party proves any part of an unrecorded oral conversation or oral statement, the other party has the right to prove the relevant remainder of it. Abram v. State, 574 So.2d 986 (Ala.Crim.App.1990); Stockard v. State, 391 So.2d 1049 (Ala.Crim.App.1979), rev’d, 391 So.2d 1060 (Ala.1980). Another completeness principle lying outside of Rule 106 is that under which a party, whose admission has been admitted against him or her, may prove all that was said at the same time as the admission and on the same subject. Bank of Loretto v. Bobo, 37 Ala.App. 139, 67 So.2d 77, cert. denied, 259 Ala. 374, 67 So.2d 90 (1953); C. Gamble, McElroy’s Alabama Evidence § 180.01(8) (4th ed. 1991).

In addition to specifying evidence that should be admitted as part of the doctrine of completeness, Rule 106 contains a provision regarding timeliness. The adverse party may require that the evidence needed to provide fairness be admitted at the time the initial evidence is admitted. Compare Ala.R.Civ.P. 32(a)(4). This allowance is afforded in the belief that delay in providing completeness evidence will render it less effective. This rule of contemporaneous admission in no way limits the right of the adverse party to go into the same matter on crossexamination of the witness or to offer evidence on the same matter as part of the adverse party’s own case. See Fed.R.Evid. 106 advisory committee’s note.

Advisory Committee's Notes to Amendment to Rule 106 Effective

July 15, 2024

Rule 106 has been amended to follow two amendments to the corresponding federal rule that became effective December 1, 2023. First, the newly added final sentence to Rule 106 clarifies that if the existing fairness standard requires completion, the completing statement is admissible over a hearsay objection. This amendment is consistent with traditional Alabama law. See, e.g., 1 Charles W. Gamble et al., McElroy’s Alabama Evidence § 14.03(3) (7th ed. 2020); Charles W. Gamble et al., Gamble’s Alabama Rules of Evidence § 106(a) (3d ed. 2014) ("One party may not introduce a portion of a conversation and then object to the opponent's offer of the remainder as violative of the hearsay rule."). As aptly noted by the drafters of the corresponding federal amendment,

"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. … 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 necessary to correct the misimpression."

Advisory Committee Notes to 2023 Amendments to Rule 106, Fed. R. Evid.

Second, while Rule 106 was previously limited to writings and recorded statements, it "has been amended to cover all statements, including oral statements that have not been recorded." Id. Applying the completeness doctrine to unrecorded oral statements is not new to Alabama law, because such statements have been covered by Alabama's common-law completeness doctrine before and after adoption of the Alabama Rules of Evidence. 1 Gamble et al., McElroy’s Alabama Evidence §§ 14.03(1) and (2). One change created by this amendment is that the timeliness provision of Rule 106 now applies to unrecorded oral statements. If a party introduces part of any statement, whether recorded or not, the adverse party may require introduction of the remainder of the statement at the same time as the admitted portion if the trial judge determines in his or her discretion that they should be considered together. Of course, the adverse party may instead choose to prove the remainder of the statement later in the trial, such as on cross-examination or during the adverse party's case-in-chief.

As observed by the drafters of the amendment to the corresponding federal rule,

"[a] party seeking completion with an unrecorded statement would of course need to provide admissible evidence that the statement was made. Otherwise, there would be no showing that the original statement is misleading, and the request for completion should be denied. In some cases, the court may find that the difficulty in proving the completing statement substantially outweighs its probative value in which case exclusion is possible under Rule 403[, Fed. R. Evid.]"

Advisory Committee Notes to 2023 Amendments to Rule 106, Fed. R. Evid. In addition,

"[t]he amendment does not give a green light of admissibility to all excised portions of statements. It does not change the basic rule, which applies only to the narrow circumstances in which a party has created a misimpression about the statement, and the adverse party proffers a statement that in fact corrects the misimpression. The mere fact that a statement is probative and contradicts a statement offered by the opponent is not enough to justify completion under Rule 106. So, for example, the mere fact that a defendant denies guilt before later admitting it does not, without more, mandate the admission of his previous denial. See United States v. Williams, 930 F.3d 44 (2d Cir. 2019)."

Id.

Finally, some stylistic changes were made to Rule 106 to make it more consistent with stylistic changes to the corresponding federal rule that became effective December 1, 2011. Most notably, the rule's original language, "contemporaneously with it," has been replaced with "at the same time." Alabama continues to reject the portion of the corresponding federal rule that would allow the adverse party to secure admission of an entirely separate statement.

Note from the reporter of decisions: The order amending Rule 106, Alabama Rules of Evidence, and adopting the Advisory Committee's Notes thereto, effective July 15, 2024, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.