Rule 106 Remainder of, or Related Writings or Recorded Statements

Recorded Statements. The standard rule at common law does provide that when a writing or recorded statement or part thereof is introduced by any party, an adverse party can require admission of the entire statement, assuming that the entire statement is relevant. But at common law this evidence often is introduced as part of the adverse party’s own case-in-chief, which may be presented after much time has elapsed following the introduction of the original segment. In theory, the trial judge has discretion to change the normal order of proof and to permit the full statement, or all relevant portions, to be introduced together with the first portion offered. But many judges are hesitant to depart from the usual order and to “interfere” with counsel’s approach to a case. Common law courts are even less apt to allow additional statements to be introduced immediately than they are to allow an adverse party to offer a complete statement as soon as some portions are presented. Where time elapses between the offer of part of a statement and the offer of the remainder, the jury may become confused or find it difficult to reassess evidence that it has heard earlier in light of subsequent material. Rule 106 creates a right to require immediate admission of a complete written or recorded statement or of all relevant portions. It 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. See McCormick § 56 (2d ed.); Cal. Evid. Code § 356 (West 1966). The rule also provides that it extends to immediate admission of all matters so closely related to a statement that in fairness they should be admitted immediately. Although the Rule does not create any right of discovery of documents, the Rule should be read to permit a court to require a party who has introduced part of a writing or recorded statement to show that writing or recorded statement to the other side before the other side asks that it be introduced into evidence. It would be impractical to allow the adverse party to require that all statements on the same subject be produced for inspection. Arguably, any statement that is relevant to the issues being tried would have to be turned over in order to avoid a later claim that the Rule was not complied with. If all statements were produced, the burden on the court might be tremendous. Fairness does not require such full discovery, in view of the countervailing concerns giving rise to the general protections for witness statements. Thus, it is only where a specific statement is relied upon by one party that the other should be permitted to see the entire statement. This understanding regarding disclosure of writings and recorded statements builds upon the Jencks Act, 18 U.S.C. § 3500 and on AS 12.45.060. But this Rule applies in both civil and criminal actions, and it applies to defendants as well as to plaintiffs. Nothing in this Rule changes the pre-trial discovery rules currently in use. See, e.g., Rule 16, Alaska R. Crim. P., Rule 26(b), Alaska R. Civ. P. These procedural rules define what may be discovered before trial. Whatever a party has discov- ered before trial may be offered under the last sentence of Rule 106 so that the trial judge can decide whether in fairness it should be considered along with a statement or part thereof put forth by another party. Rule 106 does expand discovery at trial, as opposed to pretrial discovery. Generally, in civil cases witness statements will not be discoverable before trial. They usually will qualify as trial preparation materials. Under Rule 16, Alaska R. Crim. P., as recently amended, criminal defendants usually will see witness’ statements before trial. But there are exceptional cases, see, e.g., Rule 16(d) (4), Alaska R. Crim. P., which is governed by AS 12.45.060. Rule 106 advances the point at which such statements are discoverable to the point at which discovery will do the most good — i.e., the point at which part of a statement is introduced in evidence. In civil cases, no Jencks Act applies, and there is no general obligation to turn over a witness’ previous statement to an opposing party after a witness testifies. Rule 106 takes the position that once a civil litigant offers into evidence a portion of a witness’ statement, fairness requires that the litigant turn over the entire relevant portion of the statement to an opposing party. This Rule is consistent with the United States Supreme Court decision in United States v. Nobles, 422 U.S. 225, 45 L.Ed.2d 141 (1975). Rule 106 does not create any affirmative duty to proffer the whole of any statement when one desires to introduce only a part, but the Rule allows an adverse party to inspect the whole immediately upon request in order to ascertain that no misleading impression will result from incomplete admission. Adequate protection against disclosure of irrelevant information is afforded the offering party and third persons by the fact that the judge might delete irrelevant material, if requested to do so. Article IV should be consulted on relevance issues. At first blush any privilege that might be claimed with respect to a statement would seem to be waived by offering a portion of it into evidence. But a statement may address several unrelated issues, and any waiver may be partial. The court cannot demand the complete statement without permitting the offering party to claim a privilege as to unrelated matters. Some minimal inquiry into the nature of the privileged matter may be required. But in view of the common law experience with waiver, the judicial task should not be unfamiliar. See United States v. Weisman, 111 F.2d 260, 261-62 (2d Cir. 1940) (L. Hand, J.). Article V will govern privilege questions. Once privileged matter is deleted, the judge will make the relevant determination regarding non-privileged matters. Cf., AS 12.45.070. Upon request, the court should provide protection against undue annoyance, embarrassment, or oppression, a philosophy reflected in Fed. R. Civ. P. 26(c) and Rule 26(c), Alaska R. Civ. P. Among other things, the court may wish to restrict the extrajudicial flow of information and to hear argument in chambers on the offer of certain information which may be highly prejudicial and which ultimately may be excluded under Rule 403. For practical reasons, Rule 106 is limited to the introduction of a writing or recorded statement; testimony by a witness is not affected by the rule. Any attempt to include testimony within the coverage of this rule would open the door to immediate cross-examination of a witness who refers during testimony to any out-of-court statement by anyone. Rule 106 takes the position that there is no more reason to allow immediate cross-examination of this testimony than any other testimony by the witness which presumably could be made more complete by cross-examination. Testimony is not likely to have the impact of a written or recorded statement which, when offered, may appear to be extremely trustworthy. Note: The Alaska Supreme Court’s Committee on Rules of Evidence voted to adopt, in lieu of the Reporter’s Comment to this rule, the commentary contained in the Advisory Committee’s note to Federal Rule 106, with the following addition: “The rule of completeness as set forth in Rule 106 does not deal with issues of relevancy and privilege, nor is it intended to alter or affect the normal rules pertaining to relevancy and privilege contained elsewhere in the Alaska Rules of Evidence. Accordingly, the problem of deletion of privileged or irrelevant material from a writing whose admission is sought under the provisions of Rule 106 should appropriately be dealt with by pertinent provisions of the Rules of Evidence dealing with relevancy and privilege.” ARTICLE II. JUDICIAL NOTICE