I:\28531 Ind Law Rev 46-2\46masthead.wpd


Indiana Law Review
Volume 46 2013 Number 2

NOTES

THE ADMISSION OF HEARSAY THROUGH RULE 106:
AND NOW YOU KNOW THE REST OF THE STORY

ANDREA N. KOCHERT*

INTRODUCTION
At trial, both parties have been crafting a story: a story of what happened and

who is responsible.  And a bombshell just dropped.  After admission of the
defendant’s self-incriminating statement under Federal Rule of Evidence1
801(d)(2),2 the government likely has enough evidence to persuade the jury of the
defendant’s guilt.  The story seems clear.  The facts line up almost perfectly. 
Then, defense counsel moves to admit another part of that statement under Rule
106, arguing that the additional, exculpatory portion of the statement is necessary
to correct the misleading impression created by taking the defendant’s statement
out of context.3  The jury must know the rest of the story.  

Under Federal Rule of Evidence 106, “[i]f 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.”4  Generally, in order for

* J.D. Candidate, 2013, Indiana University Robert H. McKinney School of Law,
Indianapolis, Indiana; B.B.A., 2010, University of Notre Dame, Notre Dame, Indiana.  I would like
to thank Jeffrey O. Cooper, Associate Professor of Law at Indiana University Robert H. McKinney
School of Law; J.P. Hanlon, Partner at Faegre Baker Daniels; Molly Briles, Executive Notes Editor,
Indiana Law Review, Volume 45; and Alex Whitted, Note Development Editor, Indiana Law
Review, Volume 45, for their invaluable guidance and advice throughout the writing of this Note. 
Additionally, I would like to thank my family and friends for their encouragement and support.  

1. The restyled Federal Rules of Evidence went into effect on December 1, 2011.  The
restyled Rules are written in the active voice with no substantive change intended.  Unless
otherwise noted, this Note references the restyled Rules.

2. FED. R. EVID. 801(d)(2) (“The statement is offered against an opposing party and: (A) was
made by the party in an individual or representative capacity; (B) is one the party manifested that
it adopted or believed to be true; (C) was made by a person whom the party authorized to make a
statement on the subject; (D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during
and in furtherance of the conspiracy.”).   

3. FED. R. EVID. 106.
4. Id. 



500 INDIANA LAW REVIEW [Vol. 46:499

evidence to be admitted under Rule 106, such evidence must be relevant to or
explanatory of the allegedly misleading passages offered by the opponent.5 
However, whether Rule 106 operates as an independent rule of admissibility,
admitting otherwise inadmissible evidence such as hearsay, is unclear. 

The split among the circuit courts and authorities revolves around the
perceived function of Rule 106: whether the Rule serves only a timing function
or also a trumping one.6  As written, Rule 106 does not restrict admission to
otherwise admissible evidence; rather, the scope of Rule 106 extends to “any
other writing or recorded statement . . . that in fairness ought to be considered.”7 
Further, Rule 106 expresses the doctrine of completeness, which at common law
could “trump[],” i.e. override, exclusionary rules of evidence.8  In 1991, this issue
was called “the by far most intriguing” problem to transpire under Rule 106.9 
Over twenty years later, little has changed. 

Although Rule 106 should operate as an independent rule of admissibility,
some circuits fail to recognize its trumping function.  Part I of this Note reviews
the common law origins of Rule 106, the most recent Supreme Court decision in
Beech Aircraft Corp. v. Rainey,10 and each circuit’s stance on the issue.  Part II
examines five arguments for a trumping function under Rule 106: a textual,
functional, and legislative analysis, as well as a focus on the exclusion of
confusing or misleading evidence under Rule 403 and on the admission of
evidence against a criminal defendant under Rule 801(d)(2).  Part III addresses
the decision of the Advisory Committee on Evidence Rules not to amend Rule
106 in 2003.11  Finally, Part IV explores the possibility of amending Rule 106 to
exclude misleading evidence when the necessary completing evidence is
inadmissible because of privilege. 

I.  HISTORY OF RULE 106
The history of Rule 106 consists of two parts: the common law doctrine of

completeness and the interpretation of Rule 106 subsequent to its promulgation. 

5. United States v. Lewis, 641 F.3d 773, 785 (7th Cir. 2011) (quoting United States v.
Marin, 669 F.2d 73, 84 (2d Cir. 1982)).  The Seventh Circuit requires “a complete statement . . .
to be read or heard when ‘it is necessary to (1) explain the admitted portion, (2) place the admitted
portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial
understanding.’”  Id. (quoting United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987)).

6. See discussion infra Part I.C.
7. FED. R. EVID. 106 (emphasis added).
8. Dale A. Nance, Verbal Completeness and Exclusionary Rules under the Federal Rules

of Evidence, 75 TEX. L. REV. 51, 54 (1996) [hereinafter Nance, Verbal Completeness].
9. TRIAL EVIDENCE COMM., A.B.A., EMERGING PROBLEMS UNDER THE FEDERAL RULES OF

EVIDENCE, 21 (David A. Schlueter et al. eds., 2d ed. 1991) [hereinafter EMERGING PROBLEMS]. 
10. 488 U.S. 153, 172 (1988).  
11. MINUTES OF THE ADVISORY COMMITTEE ON EVIDENCE RULES MEETING OF APRIL 25,

2003, at 8-9 [hereinafter ADVISORY COMMITTEE MINUTES APR. 25, 2003], available at http://www.
uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/403EVMin.pdf.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 501

When proposing Rule 106 in 1972, the Advisory Committee on Evidence noted
that “[Rule 106] is an expression of the rule of completeness.”12  At common law,
the doctrine of completeness possessed a trumping function.13  However, in
Rainey, the Supreme Court failed to address whether Rule 106 incorporated this
trumping function.14  Lacking guidance, the circuit courts remain split.15

A.  Common Law Origins
Rule 106 traces back to the common law doctrine of completeness.16  As

exemplified by the seventeenth-century trial of Algernon Sidney, the remainder
of a defendant’s out-of-court statement was admissible if necessary to provide
context for previously-admitted evidence.17  In his formulation of the common
law doctrine, Professor Wigmore recognized a trumping function.18  However,
because Rule 106 expressed, rather than completely codified, the doctrine of
completeness,19 the issue arose as to whether the Rule had in fact incorporated
the trumping function of the common law doctrine. 

1.  Trial of Algernon Sidney.—The doctrine of completeness traces as far
back as the famous seventeenth-century English trial of Algernon Sidney, where
the defendant Sidney successfully argued against the piecemeal admission of his
allegedly “certain false, seditious, and traitorous Libel.”20  Sidney, an English
politician and political theorist, had been accused of conspiring in the death of
the king and indicted for high treason.21  In the manuscript evidence at issue,

12. FED. R. EVID. 106 advisory committee’s note.
13. See infra Part I.A.
14. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170-72 (1988).
15. Compare United States v. Crosgrove, 637 F.3d 646, 661 (6th Cir. 2011) (finding no

trumping function), with United States v. Lopez-Medina, 596 F.3d 716, 735-36 (10th Cir. 2010)
(finding a trumping function).  

16. Nance, Verbal Completeness, supra note 8.
17. See infra Part I.A.1.
18. See infra Part I.A.2; see also 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON

LAW § 2094, at 597-601 (James H. Chadbourn rev. 1978) (stressing wholeness, as illustrated by
Algernon Sidney’s Trial, where the remainder of a text—an out-of-court statement—was admitted).

19. See FED. R. EVID. 106 advisory committee’s note; accord 21A CHARLES ALAN WRIGHT
ET AL., FEDERAL PRACTICE & PROCEDURE: FEDERAL RULES OF EVIDENCE § 5072.1 (2d ed. 2012)
(noting the Advisory Committee described Rule 106 as “an expression of the rule of completeness”
(quoting FED. R. EVID. 106 advisory committee’s note)). 

20. Trial of Algernon Sidney, 9 HOW. ST. TR. 818, 868 (K.B. 1683), reprinted in 3 A
COMPLETE COLLECTION OF STATE-TRIALS, AND PROCEEDINGS UPON HIGH-TREASON AND OTHER
CRIMES AND MISDEMEANOURS, FROM THE REIGN OF KING RICHARD III TO THE END OF THE REIGN
OF KING GEORGE II, 710 (2d. ed. 1730); see also 7 WIGMORE, supra note 18, at 601; Dale A. Nance,
A Theory of Verbal Completeness, 80 IOWA L. REV. 825, 829 & n.12 (1995) [hereinafter Nance,
A Theory]; James P. Gillespie, Note, Federal Rule of Evidence 106: A Proposal to Return to the
Common Law Doctrine of Completeness, 62 NOTRE DAME L. REV. 382, 383 (1987).  

21. Trial of Algernon Sidney, supra note 20, at 710-711, 721.



502 INDIANA LAW REVIEW [Vol. 46:499

Discourses Concerning Government, Sidney laid out a justification for rebellion
against absolute monarchy.22  At trial, the clerk read the following excerpt from
Discourses:

[T]he King hath three Superiors, to wit, Deum, Legem, & Parliament[],
that is, the Power, originally in the People of England, is delegated unto
the Parliament.  He is subject unto the Law of God as he is a Man, to the
People that makes him a King, in as much as he is a King: The Law sets
a Measure unto that Subjection . . . . If he doth not like this Condition,
he may renounce the Crown.23

Sidney objected that his indictment was based on “200 and odd Sheets . . . scraps
of Paper found in his House” showing “neither Beginning nor Ending.”24  Sidney
further argued: “My Lord, if you will take Scripture by pieces, you will make all
the Penmen of the Scripture blasphemous; you may accuse David of saying,
There is no God; and accuse the Evangelists of saying, Christ was a Blasphemer
and a Seducer; and the Apostles, That they were drunk.”25  The court accepted
Sidney’s argument: “Mr. Sidney, if there be any Part of it that explains the Sense
of it, you shall have it read; indeed we are trifled with a little.”26  Sidney replied,
“If they will produce the whole, my Lord, then I can see whether one Part
contradicts another.”27  

Although Sidney’s Discourses would conceptually qualify as hearsay, it
would likely be admissible (barring a Rule 403 analysis28) under Rule 801(d)(2)29
as statements of a party-opponent.  Under the doctrine of completeness, as
exemplified in the trial of Algernon Sidney, any part of these statements that
provided context would also be admissible.  Thus, as Rule 106 expresses the
doctrine of completeness, any evidence needed to provide further context would
arguably also be admissible under Rule 106—even if classified as hearsay.  

2.  Wigmore on Evidence.—Well-regarded by jurists, authors of treatises, and
scholars for his formulation of the common law doctrine of completeness,30

22. JONATHAN SCOTT, ALGERNON SIDNEY AND THE RESTORATION CRISIS, 1677-1683, at 260-
64 (1991). 

23. Trial of Algernon Sidney, supra note 20, at 719. 
24. Id. at 724.
25. Id.
26. Id.
27. Id. 
28. FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”). 

29. FED. R. EVID. 801(d)(2).
30. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988) (“[T]he rule of

completeness was stated succinctly by Wigmore . . . .” (quoting 7 WIGMORE, supra note 18, § 2113,
at 653), quoted in 2 CLIFFORD S. FISHMAN & ANNE T. MCKENNA, JONES ON EVIDENCE § 11:35 n.80
(7th ed. 2012))); 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 56, at 283-84 (6th ed.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 503

Professor Wigmore stressed the concept of wholeness:  
[T]he thought as a whole, and as it actually existed, cannot be
ascertained without taking the utterance as a whole . . . . To look at a
part alone would be to obtain a false notion of the thought.  The
total—that is to say, the real—meaning can be got at only by going on
to the end of the utterance.  One part cannot be separated and taken by
itself without doing injustice, by producing misrepresentation.31

Wigmore went on to distinguish two forms of incompleteness: (1) the “lack
of verbal precision” and (2) “the lack of entirety of parts.”32  The lack of verbal
precision relates to how the presence or absence of a single word within an
utterance may “substantially alter the true meaning of even the shortest sentence”
while the lack of entirety of parts expresses how the correct understanding of an
utterance depends upon other parts of the utterance.33  Wigmore explained:

A word is interpretable in the light of the use of the same word in
another part; a clause is modified by a prior or subsequent clause; one
sentence qualifies another; and one paragraph may form only part of a
whole exposition.  We must compare the whole [utterance], not because
we desire the remainder for its own sake, but because without it we
cannot be sure that we have the true sense and effect of the first part.34

The doctrine of completeness encompasses Wigmore’s “[e]ntirety of parts”
theory.35  

2006) (citing 7 WIGMORE, supra note 18, § 2094 for “[t]he oft-repeated classic illustration” of
misquoting the Bible and presenting a “half-truth because it divorces the quotation from its
context”); 1 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE ¶ 106[02], at
106-14 (Joseph P. McLaughlin ed., 2d ed. 1996) [hereinafter 1 WEINSTEIN’S EVIDENCE] (“For this
reason Wigmore—dignifying common sense by impressive terminology—speaks of the principle
codified in Rule 106 . . . .”); 21A WRIGHT ET AL., supra note 19, § 5072 (“Wigmore codified what
he called the principle of ‘Verbal Completeness’ . . . .” (quoting JOHN HENRY WIGMORE,
WIGMORE’S CODE OF THE RULES OF EVIDENCE IN TRIALS AT LAW 371 (3d ed. 1942))); see also
Nance, Verbal Completeness, supra note 8, at 129 n.16 (“Wigmore . . . did more than any other
evidence scholar to render the doctrine comprehensible . . . .”); Nance, A Theory, supra note 20 at
829 (“Wigmore’s synthesis of the common-law rule provides an excellent starting point . . . .”);
Gillespie, supra note 20 (“Many scholars and judges credit Professor Wigmore with recognizing
and synthesizing the common law on the subject into a unified doctrine.”).  

31. 7 WIGMORE, supra note 18, at 597 (emphases omitted); see Nance, A Theory, supra note
20, at 826 (questioning “whether the mandate to tell ‘the whole truth,’ as distinct from the mandate
not to lie, has any practical significance”).

32. 7 WIGMORE, supra note 18, at 597, 601; see also Nance, A Theory, supra note 20, at 829
n.13.

33. 7 WIGMORE, supra note 18, at 601.
34. Id.
35. 1 WEINSTEIN’S EVIDENCE, supra note 30, at 106-15; accord Nance, A Theory, supra note

20, at 830.



504 INDIANA LAW REVIEW [Vol. 46:499

Under Wigmore’s formulation, the doctrine of completeness dealt with the
substantive admission of evidence and not merely timing.36  In his treatise,
Wigmore “distinguish[ed] the completeness doctrine from rules governing the
timing of evidence presentation.”37  He explained, “That the stage of
reexamination or cross-examination is the proper time for putting in explanatory
utterances is one of the rules for the order of evidence and does not involve the
tenor or limits of the utterance.”38 

3.  Codification.—The Federal Rules of Evidence were enacted on January
2, 1975 and became effective on July 1, 1975.39  It is generally accepted that Rule
106 expresses or reflects—rather than completely codifies—the common law
doctrine of completeness.40  For example, whereas the common law doctrine of
completeness allowed oral statements, Rule 106 excludes such statements.41

B.  The Supreme Court: Beech Aircraft Corp. v. Rainey
In Beech Aircraft Corp. v. Rainey,42 the Supreme Court skirted the question

of whether Rule 106 operates as an independent rule of admissibility for
otherwise inadmissible evidence.  In Rainey, a Navy flight instructor and her
student were killed when their aircraft banked sharply to avoid another plane, lost
altitude, and crashed.43  At issue was whether pilot error or equipment
malfunction had caused the crash.44  Plaintiff John Rainey, husband of the
deceased pilot and himself a Navy flight instructor, wrote a “detailed letter” (the
contested evidence in Rainey), taking issue with an investigative report that had
concluded the accident was due to pilot error and outlining his theory that

36. See Nance, A Theory, supra note 20, at 835-47 (citing 7 WIGMORE, supra note 18, § 2095,
at 607) (arguing that Wigmore described two distinct completeness rules: (1) a rebuttal rule, which
included a “timing” function (removing the limit on the scope of cross-examination to the subject
matter of the direct examination) and a trumping function; and (2) an interruption rule, which
allowed the proponent of the completing evidence to “interrupt” the other party’s case
immediately)). 

37. Nance, A Theory, supra note 20, at 837 & n.37 (citing 7 WIGMORE, supra note 18,
§ 2114, at 661-62) (internal citations omitted).

38. 7 WIGMORE, supra note 18, § 2114, at 661-62.
39. The Federal Rules of Evidence were enacted pursuant to Pub. L. No. 93-595, § 1, 88 Stat.

1926 (1975) (codified at 28 U.S.C. app. (2006 & Supp. V 2011)).  See Gillespie, supra note 20, at
382 n.1.

40. See FED. R. EVID. 106 advisory committee’s note; accord 21A WRIGHT ET AL., supra note
19 (noting the Advisory Committee described Rule 106 as “an expression of the rule of
completeness”) (quoting FED. R. EVID. 106 advisory committee’s note); Nance, Verbal
Completeness, supra note 8, at 53.

41. Gillespie, supra note 20; see 21A WRIGHT ET AL., supra note 19 (discussing the
differences between Rule 106 and the common law).

42. 488 U.S. 153 (1988).
43. Id. at 156. 
44. Id. at 157.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 505

equipment malfunction was “[t]he most probable primary cause” of the
accident.45  The trial court permitted defense counsel to question Rainey
(presumably under 801(d)(2)(A)) regarding a statement in his report that tended
to suggest pilot error.46  However, the court sustained an objection to plaintiff
counsel’s questioning of Rainey as to whether he had said the primary cause of
the accident was equipment malfunction.47  

Although the jury returned a verdict for the defendants (the manufacturer and
the company that serviced the plane), “[a] panel of the Eleventh Circuit reversed
and remanded [the case] for a new trial.”48  On rehearing en banc, the Eleventh
Circuit Court of Appeals unanimously reaffirmed the panel’s decision that Rule
106 (or alternatively Rule 801(d)(1)(B)) “require[ed] the court to let Rainey
testify as to the whole letter.”49  Upon review, the Supreme Court affirmed under
“the general rules of relevancy” (Rules 401 and 402) but declined to address
whether Rule 106 or Rule 801(d)(1)(B) applied.50  

The Court’s decision in Rainey is puzzling in that, although the Court
recognized that “[c]learly the concerns underlying Rule 106 are relevant here,”
it reverted to the argument that where “misunderstanding or distortion can be
averted only through presentation of another portion [of a document], the
material required for completeness is ipso facto relevant and therefore admissible
under Rules 401 and 402.”51  At least one authority has described Rainey as
implicitly upholding the common law doctrine of completeness as “a supplement
to Rule 106.”52  However, the Court presented the rule of completeness as merely
an alternative to Rule 106,53 rendering the latter superfluous.  

The Court’s reasoning suggests that the rule of completeness renders the
additional evidence relevant and thus admissible under Rule 402.54  After citing
Wigmore’s doctrine of completeness,55 the Court described the Advisory
Committee note to Rule 106 as “a reaffirmation of the obvious: 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 relevant and therefore admissible
under Rules 401 and 402.”56  The Court added:  

45. Id. at 159 (alteration in original).
46. Id. at 159-60.
47. Id. at 160.
48. Id. 
49. Rainey v. Beech Aircraft Corp., 827 F.2d 1498, 1500 (11th Cir. 1987), aff’d in part, rev’d

in part, 488 U.S. 153 (1988).
50. Rainey, 488 U.S. at 172.
51. Id. at 172.
52. 21A WRIGHT ET AL., supra note 19 (attributing the ability to offer evidence on cross-

examination to the common law doctrine rather than Rule 106).
53. See FED. R. EVID. 106 & advisory committee’s note.
54. FED. R. EVID. 402.
55. See Rainey, 488 U.S. at 171 (citing 7 WIGMORE, supra note 18, § 2113, at 653).
56. Id. at 172 (citing 1 WEINSTEIN’S EVIDENCE, supra note 30, at 106-20). 



506 INDIANA LAW REVIEW [Vol. 46:499

While much of the controversy in this suit has centered on whether Rule
106 applies, we find it unnecessary to address that issue. Clearly the
concerns underlying Rule 106 are relevant here, but, as the general rules
of relevancy permit a ready resolution to this litigation, we need go no
further in exploring the scope and meaning of Rule 106.57

The primary difficulty with the Court’s avoidance of Rule 106 derives from
the hearsay nature of Rainey’s letter.  Although all relevant evidence may be
admissible under Rule 402, that admissibility is conditioned upon the “as
otherwise provided” clause of the rules of evidence.58  And under Rule 802,
hearsay is inadmissible unless a federal statute, the rules of evidence, or the
Supreme Court provides otherwise.59  While Rainey may be construed as a
roundabout route to admit otherwise inadmissible evidence required for
completeness, the Court’s language is not so clear—the Court focuses on
relevance rather than a hearsay exception.  Furthermore, the Court’s reliance
upon a common law approach thwarts legislative intent by ignoring Rules 106
and 802—rules specifically codified to handle evidence required for
completeness and out-of-court statements respectively.60 

C.  The Circuit Split
Lacking guidance from the Supreme Court, the circuit courts split on whether

Rule 106 operates as an independent rule of admissibility.61  The circuits that find

57. Id. 
58. In 1975, Congress passed an Act to Establish Rules of Evidence for Certain Courts and

Proceedings, Pub. L. No. 93-595, 88 Stat. 1926 (1975) (amended 2011). 
59. FED. R. EVID. 802.
60. The Court’s decision in Rainey could be seen as an implicit “judicial codification” of a

trumping function for Rule 106.  Rainey, 488 U.S. at 171-72.  After all, in an evidentiary situation
where Rule 106 could apply, the Court invoked the trumping function of the common law doctrine
of completeness.  However, the Court did not address the use of Rule 106: “While much of the
controversy in this suit has centered on whether Rule 106 applies, we find it unnecessary to address
that issue.  Clearly the concerns underlying Rule 106 are relevant here, but, as the general rules of
relevancy permit a ready resolution to this litigation, we need go no further in exploring the scope
and meaning of Rule 106.”  Id. at 172 (emphasis added).  The Court’s stance toward a trumping
function for Rule 106 is thus unclear.  It is interesting to note that the Fourth Circuit changed its position
after Rainey was decided in December 1988.  Compare United States v. Gravely, 840 F.2d 1156, 1163
(4th Cir. 1988) (pre-Rainey; recognizing a trumping function), with United States v. Wilkerson, 84 F.3d
692, 696 (4th Cir. 1996) (post-Rainey; not recognizing a trumping function).

61. Compare United States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010), United
States v. Kopp, 562 F.3d 141, 144 (2d Cir. 2009), United States v. Bucci, 525 F.3d 116, 133 (1st
Cir. 2008), United States v. Baker, 432 F.3d 1189, 1222-23 (11th Cir. 2005), United States v.
Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986), and United States v. LeFevour, 798 F.2d 977, 981
(7th Cir. 1986), with United States v. Collicott, 92 F.3d 973, 982-83 (9th Cir. 1996), Wilkerson,
84 F.3d at 696, United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987), and United



2013] ADMISSION OF HEARSAY THROUGH RULE 106 507

no trumping function often state that Rule 106 serves a timing or order-of-proof
function.62  In contrast, circuits recognizing a trumping function base their
reasoning on statutory rules of construction,63 arguing principally that, in order
for Rule 106 to fulfill its purpose, the admission of otherwise inadmissible
evidence must be permitted.64

1.  Trumping Function.65—The First,66 Second,67 Seventh,68 Tenth,69
Eleventh,70 and D.C.71 Circuits recognize the trumping function of Rule 106.  The
Second Circuit recently adopted this position, stressing the importance of
satisfying the common law requirements of Rule 106, namely, that the additional
evidence is necessary to explain the admitted portion, to provide context, to avoid
misleading the jury, or to ensure a fair and impartial understanding of the
admitted portion.72  The Seventh Circuit, in often-cited dicta, has gone beyond

States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982).
62. Costner, 684 F.2d at 373 (citing 1 WEINSTEIN’S EVIDENCE, supra note 30, ¶ 106[01], at

106-13), cited by United States v. Crosgrove, 637 F.3d 646, 661 (6th Cir. 2011); see also Donald
F. Paine, The Rule of Completeness, 38 TENN. B.J. 31, 31 (2002).  But see 1 JACK  B. WEINSTEIN
& MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 106.03[1], at 106-13 (Joseph M.
McLaughlin ed., Matthew Bender 2d ed. 2011) [hereinafter 1 WEINSTEIN FEDERAL EVIDENCE]
(recognizing a conflict among the circuit courts).

63. See infra Part II. 
64. See, e.g., Sutton, 801 F.2d at 1368, cited in Lopez-Medina, 596 F.3d at 735-36; Bucci,

525 F.3d at 133; United States v. Glover, 101 F.3d 1183, 1190-92 (7th Cir. 1996); Gravely, 840
F.2d at 1163.

65. Authorities who agree with this position include: BROUN ET AL., supra note 30, at 286
(stating that “as a categorical rule,” the statement that the additional material must be otherwise
admissible “is unsound”); 2 FISHMAN & MCKENNA, supra note 30, § 11:39 (describing this position
as “[t]he better view”); 2 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 106.1 (7th
ed. 2012) (discussing “waiver of objection through ‘door opening’” (citing United States v.
Corrigan, 168 F.2d 641, 645 (2d Cir. 1948))); 1 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES
OF EVIDENCE MANUAL 89 (6th ed. 1994) (citing the “open door principle”); see also Adam H.
Kurland, Prosecuting Ol’ Man River: The Fifth Amendment, the Good Faith Defense, and the Non-
Testifying Defendant, 51 U. PITT. L. REV. 841, 894 (1990) (stating “the better view seems to be that
Rule 106 provides for a limited independent source of admissibility that overrides hearsay
objections”).

66. See Bucci, 525 F.3d at 133 (rejecting the government’s argument that Rule 106 is limited
to the order of proof). 

67. See United States v. Kopp, 562 F.3d 141, 144 (2d Cir. 2009).
68. See United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986); accord United States

v. Lewis, 641 F.3d 773, 785 (7th Cir. 2011).
69. Lopez-Medina, 596 F.3d at 735 (citing 1 CHRISTOPHER B. MUELLER & LAIRD C.

KIRKPATRICK, FEDERAL EVIDENCE § 1.43 (3d ed. 2007); Bucci, 525 F.3d at 133; and Sutton, 801
F.2d at 1368). 

70. United States v. Baker, 432 F.3d 1189, 1222-29 (11th Cir. 2005).
71. Sutton, 801 F.2d at 1368.
72. Kopp, 562 F.3d at 144 (quoting United States v. Johnson, 507 F.3d 793, 796 (2d Cir.



508 INDIANA LAW REVIEW [Vol. 46:499

recognizing Rule 106 as a rule for the admission of hearsay to also exploring the
possibility of excluding the original misleading evidence.73  And the D.C. Circuit
is a well-cited jurisdiction for its reasoning 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.”74

2.  No Trumping Function.75—In contrast, the Fourth,76 Sixth,77 Eighth,78 and
Ninth79 Circuits do not recognize a trumping function under Rule 106.  Pre-
Rainey, the Fourth Circuit admitted hearsay under Rule 106;80 however, now it
asserts that the Rule does “not render admissible the evidence which is otherwise
inadmissible.”81  The Sixth Circuit stresses the timing function of Rule 106,82
while the Eighth Circuit demands that the hearsay evidence falls within a defined

2007)) (rejecting admission of statement because defendant’s intent to kill was irrelevant).  Contra
U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1375-76 (2d Cir. 1988) (rejecting
the letter on the bases of hearsay under Rule 805 and “unduly prejudicial” content under Rule 403).

73. United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) (“If otherwise inadmissible
evidence is necessary to correct a misleading impression, then either it is admissible for this limited
purpose by force of Rule 106 . . . or, if it is inadmissible (maybe because of privilege), the
misleading evidence must be excluded too.”).  However, the Seventh Circuit found “no danger of
a misleading impression” in LeFevour.  Id. 

74. Sutton, 801 F.2d at 1368, quoted in Lopez-Medina, 596 F.3d at 735-36.  The Sutton court
also provided reasoning for the admission of hearsay under Rule 106 and added that “Rule 106
[would] be invoked rarely and for a limited purpose.”  Id. at 1367-69.  See also United States v.
Glover, 101 F.3d 1183, 1192 (7th Cir. 1996) (citing Sutton’s finding that excluded portions of a
recorded conversation should be admitted to protect a defendant’s constitutional right to not take
the stand and testify); United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988) (citing Sutton
to support the proposition “that parties should not be able to lift selected portions out of context”).

75. Authorities who agree with this position include: 1 MUELLER & KIRKPATRICK, supra note
69; JOHN C. O’BRIEN & ROGER L. GOLDMAN, FEDERAL CRIMINAL TRIAL EVIDENCE 98-99 (1989).

76. United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).
77. United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982).
78. United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987).
79. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996).
80. United States v. Gravely, 840 F.2d 1156, 1163-64 (4th Cir. 1988) (pointing out that the

defendant had selectively omitted fourteen intervening and undesirable lines in a thirty-page
memorandum: “The cross-designated portions, while perhaps not admissible standing alone, are
admissible as a remainder of a recorded statement. . . . The rule simply speaks the obvious notion
that parties should not be able to lift selected portions out of context.” (citing United States v.
Sutton, 801 F.2d 1346, 1366-69 (D.C. Cir. 1986))).

81. Wilkerson, 84 F.3d at 696 (holding the judge did not abuse discretion in omitting
exculpatory portions of defendant’s confession, despite admitting the inculpatory portions under
Rule 801(d)(2), in part, because hearsay may not come in under Rule 106).

82. Costner, 684 F.2d at 373 (citing 1 WEINSTEIN’S EVIDENCE, supra note 30, ¶ 106[01], at
106-13), see also United States v. Crosgrove, 637 F.3d 646, 661 (6th Cir. 2011); Paine, supra note
62.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 509

hearsay exception.83  The Ninth Circuit is entrenched in its position with no
explanation other than citing the authority of the Second Circuit.84  

3.  Issue Remains Unaddressed.—The issue whether Rule 106 possesses a
trumping function remains a noted, yet unaddressed, quandary in the Third85 and
Fifth86 Circuits.  The Third Circuit considered the admission under Rule 106 of
an entire tape of statements made to an undercover government
operation—portions of which were already admitted under Rule 801(d)(2)—but
declined because the tape was not necessary to explain or place in context other
evidence (another tape recording), avoid misleading the jury, or insure a fair and
impartial understanding.87  Similarly, based on the facts presented before the
court, the Fifth Circuit has also found it unnecessary to resolve the issue.88

II.  THE ADMISSION OF OTHERWISE INADMISSIBLE EVIDENCE
An analysis of Rule 106 strongly suggests that the Rule operates as an

independent rule of admissibility.  First, the text of Rule 106 does not ban a
trumping function.89  Second, Rule 106 depends upon the ability to trump other
evidentiary rules to fulfill its function of providing context.90  Third, an
examination of the legislative history of Rule 106 makes clear that Congress
refused banning the admission of otherwise inadmissible evidence and, in fact,
recently considered amending Rule 106 to explicitly include a trumping
function.91  Fourth, a broader treatment of Rule 106 to include all additional
evidence—whether otherwise admissible or not—would advantageously address
the purpose of Rule 403 with less complexity.  Finally, in the case of hearsay
evidence admitted against a criminal defendant under Rule 801(d)(2), much may

83. Woolbright, 831 F.2d at 1395 (“We conclude, however, that neither Rule 106, the rule
of completeness, which is limited to writings, nor Rule 611 . . . empowers a court to admit unrelated
hearsay in the interest of fairness and completeness when that hearsay does not come within a
defined hearsay exception.”, cited in United States v. Ramos-Caraballo, 375 F.3d 797, 802-03 (8th
Cir. 2004)).  But see infra Part IV; Brewer v. Jeep Corp., 724 F.2d 653, 657 (8th Cir. 1983)
(admitting “the complete report . . . [both] the mundane as well as the sensational”).

84. Collicott, 92 F.3d at 983 (citing U.S. Football League v. Nat’l Football League, 842 F.2d
1335, 1375-76 (2d Cir. 1988)) (identifying the impermissibility of the admission of hearsay under
Rule 106 as one of three reasons for error in the admission of defendant’s statements).

85. See United States v. Hoffecker, 530 F.3d 137, 192-93 (3d Cir. 2008).
86. See United States v. Branch, 91 F.3d 699, 727-28 (5th Cir. 1996).
87. Hoffecker, 530 F.3d at 192.
88. Branch, 91 F.3d at 728 (declining to reach the issue because the defendant failed to show

how additional evidence would “qualify, explain, or place into context” the portion already
introduced). 

89. 21A WRIGHT ET AL., supra note 19, § 5078.1.
90. See infra Part II.B (discussing the purpose of Rule 106).
91. MINUTES OF THE ADVISORY COMMITTEE ON EVIDENCE RULES MEETING OF OCTOBER 18,

2002, at 3-4 [hereinafter ADVISORY COMMITTEE MINUTES OCT. 18, 2002], available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/1002EVMin.pdf. 



510 INDIANA LAW REVIEW [Vol. 46:499

depend upon the admission of the remainder of that evidence under Rule 106. 

A.  Text
Interpretation of a statute begins with its text.92  Under Rule 106, “[i]f 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.”93 
On its face, Rule 106 neither limits admission to otherwise admissible evidence94
nor overrides the rules of hearsay.95  The title for Rule 106—“Remainder of or
Related Writings or Recorded Statements”96—provides little further guidance. 
Thus, the recognition of a trumping function under Rule 106 would not be
inconsistent with its text. 

Furthermore, a timing function under Rule 106 would be consistent with the
rule’s lack of an “except as otherwise provided by the rules”97 qualifier. 
Authorities recognize that Rule 106, unlike other major rules of admissibility,
lacks this qualifier.98  Under the rules of statutory construction, the drafters of
Rule 106 presumably knew of the option to qualify Rule 106 with an “except as
otherwise provided” provision but nevertheless chose otherwise.99  

There are two main avenues to interpret this decision.  First, the courts may
interpret Rule 106 to be free from exclusionary rules such as Rule 802.100 
However, as the late Professor Charles A. Wright and Professor Kenneth W.
Graham point out, “another of the meta-rules—Rule 104(a)—contains an explicit
clause that frees the trial judge from the other exclusionary Rules.”101  This

92. Dean v. United States, 556 U.S. 568, 572 (2009).
93. FED. R. EVID. 106 (emphasis added).
94. 21A WRIGHT ET AL., supra note 19, § 5078.1.
95. 1 SALTZBURG ET AL., supra note 65.
96. FED. R. EVID. 106.
97. “[E]xcept as otherwise provided by the rules” is a commonly-known phrase from the pre-

December 1, 2011 version of the Federal Rules of Evidence.  The restyled Rules are written in the
active voice and thus lack this phrasing.  “There is no intent to change any result in any ruling on
evidence admissibility.”  See id.; FED. R. EVID. 106 advisory committee’s note.

98. See, e.g., United States v. Sutton, 801 F.2d 1346, 1368 & n.17 (D.C. Cir. 1986) (citing
21A WRIGHT ET AL., supra note 19, § 5078); 21A WRIGHT ET AL., supra note 19, § 5078.1 n.6
(citing Rules 402, 501, 602, 613(b), 704, 802, 806, 901(10), and 1002 as examples); Gillespie,
supra note 20, at 390-91 & 391 n.82.  Cf. FED. R. EVID. 402 (admissibility of relevant evidence);
FED. R. EVID. 802 (inadmissibility of hearsay).  

99. 21A WRIGHT ET AL., supra note 19, § 5078.1 n.7.
100. FED. R. EVID. 802 (“Hearsay is not admissible unless any of the following provides

otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.”).
101. 21A WRIGHT ET AL., supra note 19, § 5078.1 n.6; see FED. R. EVID. 104(a) (“The court

must decide any preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible.  In so deciding, the court is not bound by evidence rules, except those on
privilege.”).



2013] ADMISSION OF HEARSAY THROUGH RULE 106 511

analogy is faulty.  Rule 104(a) differs from Rule 106 in that Rule 104 handles
how a judge may decide questions of admission.  It does not address the
admission of evidence under a rule.  

Second, as Professors Wright and Graham also note, “with respect to the
exclusionary [r]ules that do contain such a clause, Rule 106 could be said to be
a [r]ule that ‘otherwise provides.’”102  For example, under Rule 802, “[h]earsay
is not admissible unless [the rules] provide[] otherwise.”103  A situation may arise
where a party introduces all or part of a writing under a hearsay exception and
Rule 106 could operate to admit “any other part—or any other writing or
recorded statement—that in fairness ought to be considered at the same time,”104
regardless of the hearsay rules.  This interpretation also best aligns with the
recognition of a trumping function under Rule 106.  Although Rule 106’s lack
of an “except as otherwise provided by the rules” qualifier may be seen as a
deliberate omission by Congress, which clearly is not opposed to circuits treating
Rule 106 as an independent rule of admissibility.  And Congress’s inaction since
1975 may be seen as an affirmation of a trumping function.   

B.  The Purpose of Rule 106: Timing and Trumping Functions
The split among the circuit courts and authorities revolves around the

perceived function of Rule 106: whether the Rule serves only a timing function
or also a trumping one.  The placement of Rule 106 provides little guidance. 
However, an analysis of Rule 102105—which provides the purpose for the Federal
Rules of Evidence—suggests the inclusion of a trumping function under Rule
106.  Such an interpretation, consistent with the rules of statutory construction,
would also avoid rendering Rule 611—which governs “the mode and order of
examining witnesses and presenting evidence”—superfluous.106 

1.  Placement.—Rule 106’s placement in the Federal Rules of Evidence
under Article “I: General Provisions” and not under Articles “IV: Relevance and
Its Limits” or “VIII: Hearsay” sets it apart.107  This placement is consistent with
both a timing-only position and a trumping position.  Under a timing-only
interpretation, this placement would be logical because there would be no need
to determine admissibility.  On the other hand, under a trumping interpretation,
this placement also would make sense because Rule 106—incorporating the
common law doctrine of completeness—serves a “responsive role.”108  Unlike
rules of admission under Article IV or VIII, Rule 106 requires that an adverse
party first introduce all or part of a writing.  Furthermore, as the D.C. Circuit

102. 21A WRIGHT ET AL., supra note 19, § 5078.1.
103. FED. R. EVID. 802.
104. FED. R. EVID. 106.
105. FED. R. EVID. 102.
106. FED. R. EVID. 611(a) & advisory committee’s note to subdiv. a; see Gillespie, supra note

20, at 391 n.84.
107. FED. R. EVID. art. I, art. IV, art. VIII.  
108. Nance, A Theory, supra note 20, at 835. 



512 INDIANA LAW REVIEW [Vol. 46:499

Court pointed out in United States v. Sutton,109 “Article I . . . contains rules that
generally restrict the manner of applying the exclusionary rules.”110  By allowing
the admission of otherwise inadmissible evidence, a trumping function under
Rule 106 would restrict the manner of applying exclusionary rules such as Rule
802—the rule against hearsay.  

2.  Guidance from Rule 102.—Rule 102,111 which provides the purpose for
the Federal Rules of Evidence, should be used to interpret Rule 106.112  Under
Rule 102, the rules of evidence “should be construed so as to administer every
proceeding fairly, eliminate unjustifiable expense and delay, and promote the
development of evidence law, to the end of ascertaining the truth and securing
a just determination.”113  The advisory committee notes for Rule 106 parallel
Rule 102: “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.”114

A trumping function under Rule 106 would more fully serve the purpose of
the Federal Rules of Evidence.  Rule 106 is not only about timing; it is
substantive and supports the paramount purpose of our judicial system: to
determine the truth.  Professors Wright and Graham confirm the importance of
a trumping function under Rule 102: “No one has ever explained how these
standards would be met by a construction that would allow a party to present
evidence out of context so as to mislead the jury, [and] then assert an
exclusionary rule to keep the other side from exposing his deception.”115  A
trumping function would also promote efficiency by avoiding jury confusion.116 

The alternative theory for Rule 106, a timing-only purpose, may satisfy the
letter but fails to satisfy the spirit of Rule 102.  Should a party invoke Rule 106
immediately, a timing-only purpose would help eliminate the expense and delay
of fixing a misleading impression later at trial.  However, the committee notes for
Rule 106 preserve a party’s right to invoke Rule 106 upon cross-examination,
which would lessen this benefit should the party wait until cross to invoke the
rule.117  Further, inadmissible evidence would not come in, and some misleading

109. 801 F.2d 1346 (D.C. Cir. 1986).
110. Id. at 1368 (emphasis added) (citing 21 CHARLES A. WRIGHT & KENNETH W. GRAHAM,

JR., FEDERAL PRACTICE AND PROCEDURE § 5078, at 377 (1977 & 1985 Supp.)) [hereinafter 21
WRIGHT & GRAHAM]. 

111. FED. R. EVID. 102.
112. See Sutton, 801 F.2d at 1369-70.
113. FED. R. EVID. 102.
114. FED. R. EVID. 106 advisory committee’s note (referring to remedial measures undertaken

later in trial to correct the misleading impression); see FED. R. EVID. 102.
115. 21A WRIGHT ET AL., supra note 19, § 5078.1.
116. Id. 
117. FED. R. EVID. 106 advisory committee’s note (“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.”). 
But see Gillespie, supra note 20, at 392 (claiming a party will have no opportunity to introduce this
evidence at a later time).



2013] ADMISSION OF HEARSAY THROUGH RULE 106 513

impressions would remain. 
3.  Impact on Rule 611.—A timing-only purpose for Rule 106 would render

Rule 611(a)118 meaningless because Rule 611(a) governs the mode and order of
examining witnesses and presenting evidence.119  Rule 611(a) provides, “The
court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to: (1) make those procedures effective
for determining the truth; [and] (2) avoid wasting time . . . .”120  Thus, a timing-
only reading of Rule 106 would oppose one of the most basic interpretative
canons—“[a] statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant . . . .”121  As Judge Weinstein noted, “Rule 106 might well have been
omitted or covered by a more general provision acknowledging the court’s broad
power to insure that any evidence is presented in a way that avoids misleading,
unfairness, and undue consumption of time.”122  However, Congress chose
otherwise.  And a similar reading of Rule 106 would render Rule 611
superfluous, contrary to the rules of statutory construction. 

C.  Legislative History
The legislative history of Rule 106 reveals that Congress did not intend to

limit the application of Rule 106 to only otherwise admissible evidence.  During
the drafting of Rule 106 and despite a contrary request from the Department of
Justice,123 Congress refused to explicitly bar the admission of otherwise
inadmissible evidence.  Furthermore, Congress modeled the Federal Rules of
Evidence using the California Evidence Code—which consistently has included
a trumping function under its codification of the doctrine of completeness.124 
Under the original text, additional evidence introduced under Rule 106 could be
construed as nonhearsay.125  This legislative history culminated in 2002 when the
Advisory Committee on Evidence Rules considered amending Rule 106 to

118. FED. R. EVID. 611(a).
119. Gillespie, supra note 20, at 391 n.84.
120. FED. R. EVID. 611(a) (emphasis added). 
121. Corley v. United States, 556 U.S. 303, 314 (2009) (alterations in original) (quoting Hibbs

v. Winn, 542 U.S. 88, 101 (2004)) (internal quotation marks omitted).
122. 1 WEINSTEIN’S EVIDENCE, supra note 30.
123. Letter from W. Vincent Rakestraw, Asst. Attorney Gen., Legislative Affairs, to Hon.

James O. Eastland, Chairman, Senate Judiciary Comm. (June 14, 1974), Federal Rules of Evidence:
Hearings on H.R. 5463, Before the S. Comm. on the Judiciary, 93d Cong. 121-23 (1974)
[hereinafter Rakestraw Letter]; accord Gillespie, supra note 20, at 387.

124. See CAL. LAW REVISION COMM’N, TENTATIVE RECOMMENDATION AND A STUDY
RELATING TO THE UNIFORM RULES OF EVIDENCE: ARTICLE VIII HEARSAY EVIDENCE 599 (1962)
(discussing Section 1854); 1 WEINSTEIN’S EVIDENCE, supra note 30, at 106-20 (discussing Section
356); 21A WRIGHT ET AL., supra note 19, § 5078.1 nn.17-18.

125. See Nance, Verbal Completeness, supra note 8, at 59-60.



514 INDIANA LAW REVIEW [Vol. 46:499

explicitly include a trumping function.126  
1.  Committee Hearings.—During hearings on the Federal Rules of Evidence,

although Assistant Attorney General W. Vincent Rakestraw and the Department
of Justice specifically requested that the Senate Judiciary Committee amend Rule
106 to only permit the introduction of “any other part or any other writing or
recorded statement which is otherwise admissible,”127 no such proviso was added. 
Some scholars suggest that the advisory committee was “satisfied with the
[Committee] Reporter’s mischievous explanation that the ‘fairness’ standard [in
Rule 106] implicitly required that completing evidence be admissible.”128  In
other words, in order to determine whether the additional evidence “ought in
fairness to be considered with” the original evidence under Rule 106, a judge
would have “to know what the offered evidence purport[ed] to be”129 and
presumably reject any hearsay.  However, a rule of statutory construction stresses
that Congress intends what is written.  Courts “ordinarily resist reading words or
elements into a statute that do not appear on its face.”130  Here, Congress chose
not to exclude a trumping function from Rule 106. 

2.  The California Evidence Code.—The Federal Rules of Evidence were
modeled after the California Evidence Code.131  A member of the Advisory
Committee, Herman Selvin, had been the Chair of the California Law Revision
Commission—the group that drafted California’s codification of the common
law.132  And when updating the California Code, the drafters noted that “[t]o the
extent that this section [Section 1854, California’s doctrine of completeness]
makes hearsay admissible, we may regard the section as a special exception to
the hearsay rule.”133  Then section 1854 provided: 

When part of an act, declaration, conversation, or writing is given in
evidence by one party, the whole on the same subject may be inquired
into by the other; when a letter is read, the answer may be given; and
when a detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing, which is
necessary to make it understood, may also be given in evidence.134

126. ADVISORY COMMITTEE MINUTES OCT. 18, 2002, supra note 91; ADVISORY COMMITTEE
MINUTES APR. 25, 2003, supra note 11, at 8.

127. Rakestraw Letter, supra note 123, at 122; accord Gillespie, supra note 20, at 387.
128. 21A WRIGHT ET AL., supra note 19, § 5078.1.  The reasoning behind the word choice

“mischievous” is interesting but unknown. 
129. 1 SALTZBURG ET AL., supra note 65.
130. Dean v. United States, 556 U.S. 568, 572 (2009) (quoting Bates v. United States, 522

U.S. 23, 29 (1997)).
131. CAL. CIV. PROC. CODE § 1854 (West 1872) (recodified at Cal Evid. Code § 356 (West

1965)). 
132. 21A WRIGHT ET AL., supra note 19, § 5078.1 n.21.
133. CAL. LAW REVISION COMM’N, supra note 124, at 599, quoted in 1 WEINSTEIN’S

EVIDENCE, supra note 30, at 106-20; 21A WRIGHT ET AL., supra note 19, § 5078.1. 
134. CAL. LAW REVISION COMM’N, supra note 124, at 599.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 515

Like Rule 106, § 1854 did not explicitly mention a trumping function although
it possessed one.  Even after the enactment of Rule 106, California courts
continued to admit otherwise inadmissible evidence under the completeness
doctrine.135

3.  Hearsay?  The Original Language.—As originally enacted, additional
evidence introduced under Rule 106 could be construed as nonhearsay because
the original party offering the evidence would introduce the remainder.136 
Subsequent amendments to the rule were not intended to cause any changes in
substance.137  Originally, Rule 106 stated: “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
ought in fairness to be considered contemporaneously with it.”138  In 1987, the
rule was amended to emphasize gender neutrality—“no substantive change was
intended.”139  The amended rule provided that “[w]hen 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.”140  In 2011, Rule 106 again underwent stylistic, but not substantive, changes
when the Federal Rules of Evidence were restyled in their entirety.141

Under the originally-enacted Rule 106, it was possible to interpret that the
original party was offering the evidence and therefore that evidence met a
hearsay exception.142  As the amendments were not intended to substantively
change Rule 106, this fiction is still possible under the current Rule.  

4.  The Almost-Amendment to Rule 106 in 2003.—From 2002 to 2003, the
Advisory Committee on Evidence Rules considered an amendment to explicitly
add that Rule 106 “operat[ed] as an independent rule of admissibility.”143  At its
April 2002 meeting, the Committee requested that its reporter, Professor Daniel
J. Capra, prepare a report on a number of rules that required amendment.144  At

135. CAL. EVID. CODE § 356 (West 1965) (California’s equivalent of Rule 106); 21A WRIGHT
ET AL., supra note 19, § 5078.1. 

136. See Nance, Verbal Completeness, supra note 8, at 59-60.
137. FED. R. EVID. 106 advisory committee’s note.
138. FED. R. EVID. 106 (emphasis added) (original enactment by Congress, effective July 1,

1975), quoted in Nance, Verbal Completeness, supra note 8, at 59 & n.27; see also 1 MUELLER &
KIRKPATRICK, supra note 69 (describing Rule 106 as a “force the proponent rule”).

139. Nance, Verbal Completeness, supra note 8, at 59 n.28; 1 WEINSTEIN FEDERAL EVIDENCE,
supra note 62, § 106App.02.  

140. FED. R. EVID. 106 (emphasis added) (amended 1987); see 1 WEINSTEIN FEDERAL
EVIDENCE, supra note 62, § 106App.02.  

141. The restyled Rules went into effect December 1, 2011.
142. Nance, A Theory, supra note 20, at 845-46.
143. ADVISORY COMMITTEE MINUTES OCT. 18, 2002, supra note 91, at 3; ADVISORY

COMMITTEE MINUTES APR. 25, 2003, supra note 11, at 8.
144. See ADVISORY COMMITTEE MINUTES OCT. 18, 2002, supra note 91, at 2.



516 INDIANA LAW REVIEW [Vol. 46:499

the October 2002 meeting, Professor Capra submitted his memorandum on Rule
106, indicating that the courts and commentators were in dispute over whether
the rule operated as an independent rule of admissibility.145  The Committee
“noted that while the courts appeared to be in dispute over the existence of a
trumping function, this dispute [did] not seem to make a real difference in the
cases.”146  In light of this discussion, Professor Capra prepared a memorandum
on Rule 106, analyzing the split in authority and concluding “that few if any of
the cases [with respect to their holdings] would be affected by the addition or
rejection of a trumping function in Rule 106.”147  Relying upon this analysis, at
its April 2003 meeting, the Committee decided not to amend Rule 106 to include
a trumping function because “the costs of amending Rule 106 to include a
trumping function were far outweighed by the risks that a change in language
would be misinterpreted, and concluded that any problems under the current rule
were being well-handled by the courts.”148

While the Committee did not explicitly state that Rule 106 possessed a
trumping function, it considered the costs and benefits of amending Rule 106 to
include a trumping function.149  This effort would have been misplaced had the
Committee thought otherwise—that a trumping function did not exist under Rule
106. 

D.  A Focus on Rule 403
A broader treatment of Rule 106 to include all evidence—whether otherwise

admissible or not—would address the purpose of Rule 403150 with less
complexity.  When addressing Rule 403 in a Rule 106 context, some authorities
focus on the problems of the additional evidence rather than the original
evidence.151  However, this overlooks the prejudicial impact of the original
misleading statement.  As Professor Dale Nance stresses in A Theory of Verbal
Completeness: “Indeed, the risks of misleading inaccuracies usually associated
with a party’s presentation of her own out-of-court statements for the truth

145. Id. at 3-4.
146. ADVISORY COMMITTEE MINUTES APR. 25, 2003, supra note 11, at 8-9.
147. Id. at 9 (emphasis added).
148. Id. 
149. ADVISORY COMMITTEE MINUTES OCT. 18, 2002, supra note 91.
150. FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”). 

151. See 21A WRIGHT ET AL., supra note 19, § 5078.2; 2 GRAHAM, supra, note 65;
1 SALTZBURG ET AL., supra note 65, at 97 (citing United States v. Sutton, 801 F.2d 1346 (D.C. Cir.
1986)); Memorandum from Daniel J. Capra, Professor, Fordham Univ. Sch. of Law, to the
Advisory Comm. on Evidence Rules (Apr. 1, 2003) [hereinafter Capra Memo], available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Evidence/EV2003-
04.pdf (pdf pages 107-26).



2013] ADMISSION OF HEARSAY THROUGH RULE 106 517

thereof, even when that party does not testify, are overwhelmed by the likelihood
of distortion accompanying the proponent’s selective presentation of portions of
the opponent’s statement.”152  The admission of additional evidence under Rule
106 would serve as an alternative to the exclusion of the original misleading
evidence under Rule 403.

Rule 106 and Rule 403 share many similarities.  Both address the idea of
fairness as well as the dangers of misleading evidence and undue delay.  Under
Rule 403, “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”153  Similarly, Rule 106 only
admits evidence “that in fairness ought to be considered at the same time” as the
original statement.154  The advisory committee notes for Rule 106 also parallel:
“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.”155

A Rule 403 analysis does not suit well the narrow context where the original
evidence unfairly creates a misleading impression by taking a statement out of
context.  The difficulty with Rule 403 derives from (1) its complicated two-step
analysis—evaluation of probative value and dangers followed by their
comparison—and (2) its substantial tilt toward the admission of the contested
evidence.156  The admission of otherwise inadmissible evidence under Rule 106
would more fairly address the misleading context in two respects.  

First, a Rule 106 analysis would focus on the admission of additional
explanatory evidence rather than exclusion of the original misleading evidence.157 
Within the misleading impression context, the exclusion of the original evidence
under Rule 403 would not necessarily erase its prejudicial impact upon the
jury—despite any instructions to the contrary.  The addition of context would
better rectify the situation by giving the jury the rest of the story.  

Second, a Rule 106 analysis would be simpler and more neutral than one
under Rule 403.  The focus would be to evaluate the fairness of admitting
additional explanatory evidence (a one-step analysis) rather than to evaluate the
probative value of either the original or the additional evidence and then
determine whether the dangers of unfair prejudice substantially outweighed such
probative value158 (a two-step analysis).  Otherwise inadmissible evidence would
come in freely under Rule 106 for the sole purpose of correcting a misleading

152. Nance, A Theory, supra note 20, at 846.
153. FED. R. EVID. 403.
154. FED. R. EVID. 106.
155. FED. R. EVID. 106 advisory committee’s note (referring to remedial measures undertaken

later in trial to correct the misleading impression).
156. See FED. R. EVID. 403.
157. But see discussion infra Part IV.
158. FED. R. EVID. 403; see, e.g., United States v. LeFevour, 798 F.2d 977, 983-84 (7th Cir.

1986).



518 INDIANA LAW REVIEW [Vol. 46:499

impression.  

E.  A Focus on the Criminal Defendant and Rule 801(d)(2)
During a criminal trial, the prosecutor routinely admits the defendant’s

self-incriminating statements under Rule 801(d)(2).159  With his life, liberty, and
future livelihood at stake, the defendant’s arsenal should include an equally
powerful exception to the rule against hearsay for the limited purpose of
correcting a misleading impression.  Without Rule 106,160 the jury would never
know the rest of the story.161  A court may invoke Rule 106 without harm; in fact,
the rule lessens the hearsay dangers presented both by the original misleading
evidence and by the additional evidence.  Further, the admission of otherwise
inadmissible evidence through Rule 106 counters any burden that a court may
place upon a criminal defendant’s Fifth Amendment right not to testify.162 

1.  Lessening the Hearsay Dangers of the Original Misleading Evidence.—
As a responsive—as opposed to a proactive—rule,163 Rule 106 lessens the
hearsay dangers presented by the original misleading evidence.  Although the
rationale behind the Rule 801(d)(2) hearsay exception is based on an adversarial
concept—that it is fair to hold a party opponent to her previous
statements—rather than reliability, the reliability of any evidence admitted under
Rule 801(d)(2) has already been called into question by virtue of its hearsay
origins.164  A Rule 106 motion makes that portion appear even less reliable.165 

159. FED. R. EVID. 801(d)(2).
160. FED. R. EVID. 106.
161. See John D. Cline, It Is Time to Fix the Federal Criminal System, 35-SEP CHAMPION 34,

36 (2011) (presuming a defendant’s self-incriminating statements under Rule 801(d)(2)(A) would
be admissible under Rule 106 and further arguing, nevertheless, that “[t]his imbalance permits the
government to select inculpatory snippets from a defendant’s wiretapped conversations, FBI
interview, or civil deposition testimony while barring the defendant from introducing the
exculpatory portions except to the limited extent [Rule 106] requires.  The defendant’s apparently
inculpatory statements are thus wrenched out of context, and the jury is left with the distorted
impression that the defendant spoke and thought about nothing but criminal conduct.” (footnote
omitted)).

162. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, . . . nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself . . . .”  U.S. CONST. amend V (emphasis added).

163. A court may invoke Rule 106 only in response to the introduction of another statement. 
FED. R. EVID. 106 (“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.”); see Nance, A Theory, supra
note 20, at 835.

164. Interview with Jeffrey O. Cooper, Assoc. Professor of Law, Ind. Univ. Robert H.
McKinney Sch. of Law in Indianapolis, Ind. (Oct. 26, 2011).

165. Id. 



2013] ADMISSION OF HEARSAY THROUGH RULE 106 519

Therefore, in order to restore confidence in the original misleading evidence, a
court must admit otherwise inadmissible evidence166 under Rule 106 to provide
context and clarification. 

2.  Lessening the Hearsay Dangers of the Additional Explanatory
Evidence.—Similarly, as a responsive— as opposed to a proactive—rule, Rule
106 lessens the hearsay dangers of the additional evidence.  The lack of cross-
examination, and thus reliability, is a common problem with the admission of
hearsay statements.167  Within the context of 801(d)(2) also lurks the danger of
lack of candor.  Most likely, a defendant will always wish to admit his self-
serving statements.  However, as Professor Nance correctly points out, “[T]hat
the proponent has already chosen to inject the statement into the trial of the issue
assures the tribunal that the proponent has the wherewithal to challenge the
opponent’s version of the complete statement, an important check upon total
fabrication of self-serving hearsay.”168  After all, when the proponent cleverly
admits a portion of an otherwise inadmissible hearsay statement for the truth of
the matter asserted—yet also consciously creates a misleading impression in
favor of his case—fairness demands that a court admit the remainder under Rule
106 for the purpose of providing context and clarification and avoiding jury
confusion.  

3.  The Fifth Amendment Right Not to Testify.—Both commentators and
courts recognize that special considerations accompany motions made by
criminal defendants.169  These authorities voice concern that a bar on the
admission of otherwise inadmissible evidence under Rule 106 would unduly
burden a defendant’s Fifth Amendment right not to testify—that a defendant
would be coerced into “testify[ing] in order to get what he feels is a full
explanation admitted into the record as substantive evidence.”170  In United States
v. Walker,171 the Seventh Circuit explained: 

In criminal cases where the defendant elects not to testify, as in the
present case, more is at stake than the order of proof.  If the Government
is not required to submit all relevant portions of prior testimony which

166. In the 801(d)(2) context, such evidence could be a portion of the same statement as the
original evidence; see FED. RULE EVID. 801(d)(2).

167. Gillespie, supra note 20, at 392 & n.91 (claiming also that exceptions to the rule against
hearsay must have “circumstantial guarantee[s] of trustworthiness (citing FED. R. EVID. 801
advisory committee’s note)).

168. Nance, A Theory, supra note 20, at 846.
169. See Gillespie, supra note 20, at 385 & n.27 (stating that courts tend to “show[] more

sensitivity” (citing United States v. Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986)); United States
v. Walker, 652 F.2d 708, 713 (7th Cir. 1981))); see also Kurland, supra note 65, at 898-99;
O’BRIEN & GOLDMAN, supra note 75.

170. Kurland, supra note 65, at 899 (noting that the original evidence must be misleading and
that merely desiring a fuller explanation would be insufficient); see also Gillespie, supra note 20,
at 389-92.

171. 652 F.2d at 708.



520 INDIANA LAW REVIEW [Vol. 46:499

further explain selected parts which the Government has offered, the
excluded portions may never be admitted.  Thus there may be no “repair
work” which could remedy the unfairness of a selective presentation
later in the trial of such a case. While certainly not as egregious, the
situation at hand does bear similarity to “[f]orcing the defendant to take
the stand in order to introduce the omitted exculpatory portions of [a]
confession [which] is a denial of his right against self-incrimination.”172

The D.C. Circuit also supports this reasoning.173
Not all circuits are in agreement with the Seventh or D.C. Circuits.  In United

States v. Holden,174 the Sixth Circuit emphasized, “The mere fact that evidence
admitted under Rule 801(d)(2) motivates a defendant to take the stand does not
mean that he was compelled to do so in a manner that implicates his privilege
against self-incrimination.”175  However, such reasoning overlooks the effect that
a ban on the admission of otherwise admissible evidence would have under Rule
106.  Although such a ban may not compel a violation of the Fifth Amendment,
it would burden such a right.  The admission of otherwise inadmissible evidence
under Rule 106 would counter this problem.  Considering that much is at stake
for the criminal defendant and that Rule 106 lessens hearsay dangers, a ban
makes little sense. 

III.  A PRACTICAL PROBLEM: UNITED STATES V. HOLDEN

A.  The 2003 Decision Not to Amend Rule 106
At the October 2002 meeting of the Advisory Committee on Evidence Rules,

the Reporter, Professor Capra, submitted his memorandum on Rule 106,
indicating that the courts and commentators were in dispute over whether the rule
operated as an independent rule of admissibility.176  At the April meeting, the
Committee “noted that while the courts appeared to be in dispute over the
existence of a trumping function, this dispute [did] not seem to make a real
difference in the cases.”177  In his memorandum, Professor Capra concluded:

[F]ew if any of the cases would be affected by the addition or rejection
of a trumping function in Rule 106.  The cases rejecting a trumping
function would come out the same because the proffered evidence would

172. Id. at 713 (alterations in original) (emphasis added) (quoting 1 WEINSTEIN’S EVIDENCE,
supra note 30, ¶ 106[01] at 106-9). 

173. United States v. Sutton, 801 F.2d 1346, 1370 (D.C. Cir. 1986) (“Since this was a criminal
case Sucher had a constitutional right not to testify, and it was thus necessary for Sucher to rebut
the government's inference with the excluded portions of these recordings.” (citing United States
v. Walker, 652 F.2d 708, 713 (7th Cir. 1981))). 

174. 557 F.3d 698 (6th Cir. 2009).
175. Id. at 706.
176. ADVISORY COMMITTEE MINUTES OCT. 18, 2002, supra note 91, at 3.
177. ADVISORY COMMITTEE MINUTES APR. 25, 2003, supra note 11, at 8.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 521

still have been excluded under the circumstances, most commonly
because the proffered statements were not needed to correct any
misimpression. And the cases adopting a trumping function could all
have been decided on other grounds, most commonly because the
proponent “opened the door” to completing evidence, or because the
“fairness” language of Rule 106 mandated the result.178

Professor Capra correctly asserts that the holdings of most cases would be
unaltered should a court admit otherwise impermissible evidence under Rule 106. 
However, a court rarely bases its opinion upon one facet of law.  Rather, a well-
written legal argument often supports a court’s conclusion with alternative
assumptions and chains of reasoning.  In Capra’s memorandum, the jurisdictions
that did not recognize a trumping function also happened to reject the contested
additional evidence for other reasons.179  

Professor Capra also recognized that his view could be incongruent with the
holding in United States v. Ortega180—where the court did not specify whether
the portions of a confession presented by the prosecution were misleading.181 
Further, the Committee’s rejection of an amendment because of the lack of a
“real effect on the results of the cases”182 left open the possibility that a federal
court could base its decision solely on its belief that Rule 106 did not possess a
trumping function.  Time has played out the consequences.  In at least one case
since 2003, the court’s holding hinged upon its unexplained assertion that

178. Id. at 9 (emphases added).
179. See Capra Memo, supra note 151, at 5-8; see, e.g., United States v. Ortega, 203 F.3d 675,

682-83 (9th Cir. 2000) (finding Rule 106 does not extend to oral statements), holding modified by
United States v. Larson, 495 F.3d 1094 (9th Cir. 2007); United States v. Edwards, 159 F.3d 1117,
1126-27 (8th Cir. 1998) (explaining that the initially proffered portions of the various confessions
were not misleading); United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (finding the
omitted statements unnecessary for completeness);  United States v. Wilkerson, 84 F.3d 692, 696
(4th Cir. 1996) (stating that Rule 106 does not cover oral statements and that omitted portion was
unnecessary to correct a misimpression); Phoenix Assoc. III v. Stone, 60 F.3d 95, 103 (2d Cir.
1995) (finding working papers independently admissible as working papers); U.S. Football League
v. Nat’l Football League, 842 F.2d 1335, 1375-76 (2d Cir. 1988) (finding letter was also excluded
under Rule 403); United States v. Woolbright, 831 F.2d 1390, 1395-96 (8th Cir. 1987) (holding
honeymoon statement properly admitted as residual hearsay); United States v. Terry, 702 F.2d 299,
314 (2d Cir. 1983) (finding Rule 106 inapplicable to oral statements but determining that
defendants’ completing statements should have been admitted under the state-of-mind exception
to the hearsay rule); United States v. Costner, 684 F.2d 370, 373-74 (6th Cir. 1982) (portion offered
by the government did not correct any misimpression); United States v. Burreson, 643 F.2d 1344,
1349 (9th Cir. 1981) (finding the additional excluded portion was irrelevant). 

180. 203 F.3d 675 (9th Cir. 2000), holding modified by United States v. Larson, 495 F.3d
1094 (9th Cir. 2007).

181. Id. at 682-83.  
182. Capra Memo, supra note 151, at 9.



522 INDIANA LAW REVIEW [Vol. 46:499

hearsay could not be admitted through Rule 106.183 
For those jurisdictions recognizing a trumping function within Rule 106,

Professor Capra noted that a court could decide these “minority of cases” under
either an “opening the door” principle or nonhearsay purpose.184  Or such
language in these minority cases constituted dictum.185  Although a court might
reason such cases under a common law principle, this does not alter the reality
that these circuit courts based their reasoning upon the admission of otherwise
inadmissible evidence through Rule 106.

B.  United States v. Holden
Although Professor Capra’s memorandum characterized the “apparent

conflict in the cases” as “more [of] an academic problem than a practical one”
because “the Rule [had] not been used to reach an unfair result,”186 the recent
case of United States v. Holden187 unfairly hinged on the Sixth Circuit’s
exclusion of hearsay under Rule 106.  

In Holden, Mike Holden, the operator of a water treatment plant, was
convicted of two counts: first, “knowingly falsifying and concealing material
facts in a matter within the jurisdiction of the Environmental Protection Agency”
and, second, “falsifying documents with the intent to impede an investigation.”188 
The district court held that certain admissions Holden made to an agent of the
Tennessee Bureau of Investigation were admissible under Rule 801(d)(2).189 
However, when Holden sought to bring in other statements from the same
conversation during cross-examination, the court sustained the government’s
hearsay objections.190  The court held that Holden had waived his rights under the
rule of completeness by failing to invoke the rule at the time the purportedly
misleading evidence was introduced.191  Holden appealed his conviction.192  

The Sixth Circuit found the trial court erred because Rule 106 “does not
circumscribe the right of the adversary to [introduce completing evidence] on
cross-examination or as part of his own case.”193  However, “this error was
harmless . . . [b]ecause the statements Holden s[ought] to introduce [were]

183. United States v. Holden, 557 F.3d 698, 706 (6th Cir. 2009); see infra Part III.B.
184. Capra Memo, supra note 151, at 8; see, e.g., United States v. Gravely, 840 F.2d 1156,

1163-64 (4th Cir. 1988); United States v. Sutton, 801 F.2d 1346, 1368-69 (D.C. Cir. 1986); United
States v. Rubin, 609 F.2d 51, 70 (2d Cir. 1979).

185. See, e.g., United States v. LeFevour, 798 F.2d 977, 981-82 (7th Cir. 1986).
186. Capra Memo, supra note 151, at 1, 4.
187. 557 F.3d 698 (6th Cir. 2009).  
188. Id. at 700.
189. Id. at 705.  
190. Id. at 705-06.
191. Id. 
192. Id. at 702.
193. Id. at 706.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 523

inadmissible hearsay” and properly excluded.194  Further, “Rule 106 [was] . . . not
designed to make something admissible that should be excluded.”195  Contrary
to the findings Professor Capra presented to the Committee,196 how a court
interprets Rule 106 does have a real impact on cases.

C.  Need for Simplicity & Uniformity
An amendment to Rule 106, namely clarification that the rule contains a

trumping function, would create simplicity and uniformity in how courts apply
the rule.  In his memorandum, while reserving to the Committee the decision
“whether the process-oriented gains of an explicit trumping function [would]
justify the costs of an amendment,” Professor Capra quoted Professors Wright
and Graham in espousing the benefits:

No self-respecting judge would permit a party to manipulate the rules of
evidence to put on a case that looked like an advertisement for a bad
movie—bits and pieces taken out of critical context to create a
misleading impression of what was really said.  If this cannot be done in
a forthright manner under Rule 106, the judge must find some other way
to see that justice is done.  He can accomplish this in a number of ways;
a fictional waiver of the right to object can be based on the introduction
of the part of a writing, hearsay objections can be surmounted by ruling
that evidence is not offered for the truth of the matter but only to aid in
interpretation, other rules can be strained or deliberately misinterpreted,
and if all else fails, the part of the evidence introduced by the proponent
can be stricken under Rule 403.  In short, there will be few cases in
which the judge cannot reach the result that sound policy compels; to say
that he cannot do this under Rule 106 is to prefer the costly, roundabout,
fictional method over the direct and honest approach.197

In addition to simplicity, it would be more fair and just—especially within the
801(d)(2) context—if evidence law were applied uniformly across the federal
courts.198 

IV.  THE EXCLUSION OF MISLEADING EVIDENCE: UNITED STATES V. LEFEVOUR
An interesting question arises when the necessary completing evidence is

194. Id. at 705-06.
195. Id. at 706 (quoting United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982)). 
196. See Capra Memo, supra note 151, at 1.
197. Id. at 9 (emphases added) (quoting 21 WRIGHT & GRAHAM, supra note 110; see also

United States v. Sutton, 801 F.2d 1346, 1369 n.18 (D.C. Cir. 1986)).
198. It is important to note that the Federal Rules of Evidence are mirrored at the state level. 

Compare FED. R. EVID. 106, with IND. R. EVID. 106 (mirroring the pre-2011 version of Rule 106)
and MISS. R. EVID. 106 (mirroring the pre-1987 version of Rule 106).  But see OHIO R. EVID. 106
(adding that the additional evidence must be otherwise admissible).  Accordingly, an amendment
to Rule 106 would have far reaching effects.



524 INDIANA LAW REVIEW [Vol. 46:499

inadmissible because of privilege—an unlikely but plausible situation.199  For
example, suppose a party successfully admits incriminating selections of a letter
written by the party opponent into evidence—a letter that tells a story but also
contains privileged attorney-client information.  In United States v. LeFevour,200
the Seventh Circuit proposed the exclusion of the original misleading evidence.201 
Exclusion would offer an escape valve for the rare situation when Rule 106
demands the introduction of additional, but privileged, evidence.202  However,
authorities do not universally endorse this position.203  Accordingly, an
amendment will most likely be necessary.  Such an amendment would offer
courts the option of excluding evidence that a party has strategically selected to
create a factually true, although misleading, impression.  

A.  United States v. LeFevour
In LeFevour, Judge Posner agreed with the admission of otherwise

inadmissible evidence under Rule 106: 
If otherwise inadmissible evidence is necessary to correct a misleading
impression, then either it is admissible for this limited purpose by force
of Rule 106 . . . or, if it is inadmissible (maybe because of privilege), the
misleading evidence must be excluded too.  The party against whom that
evidence is offered can hardly care which route is taken, provided he
honestly wanted the otherwise inadmissible evidence admitted only for
the purpose of pulling the sting from evidence his opponent wanted to
use against him.  Rule 106 was not intended to override every privilege
and other exclusionary rule of evidence in the legal armamentarium, so
there must be cases where if an excerpt is misleading the only cure is to
exclude it rather than to put in other excerpts.204

In LeFevour, the additional evidence proffered by the defendant—a portion
of a tape recording—was inadmissible under Rule 106, not because of its hearsay
nature, but rather because the original evidence was not misleading.205  In that
case, the defendant LeFevour, a former state court judge, was convicted of
violating the RICO Act, committing mail fraud, and filing false income tax
returns during a fourteen-year career of taking bribes.206  At trial, the government
played a portion of a taped conversation between LeFevour and a police

199. Interview with Jeffrey O. Cooper, supra note 164.
200. 798 F.2d 977 (7th Cir. 1986).
201. Id. at 981; see 21A WRIGHT ET AL., supra note 19, § 5078.3 (describing this situation as

“The Rule 403 blackjack”).
202. See discussion infra Part IV.B.
203. Gillespie, supra note 20.
204. United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) (emphasis added); see

EMERGING PROBLEMS, supra note 9, at 22.
205. LeFevour, 798 F.2d at 981.
206. Id. at 979.



2013] ADMISSION OF HEARSAY THROUGH RULE 106 525

officer.207  LeFevour moved to admit an excluded portion of the recording
wherein the officer told the FBI agents who had wired him that “he had ‘put on
his best scare act’ with LeFevour.”208  However, the trial judge ruled the
additional evidence “inadmissible because it would confuse the jury and was not
relevant to impeaching [the officer’s] testimony.”209  

The Seventh Circuit affirmed.210  Although both conversations were on the
same tape, there was no misleading impression created by the admitted
conversation because the government’s purpose admitting the tape recording into
evidence was to show that LeFevour knew the identity of a witness’s lawyer;
such a statement was “complete in itself.”211  
This portion of Judge Posner’s opinion may safely be characterized as dicta, as
the evidence in that case was unnecessary to correct a misleading impression.212 
However, Judge Posner offers a novel solution to the dilemma when the
additional evidence permitted under Rule 106 is otherwise barred by privilege. 
LeFevour retains support in the Seventh Circuit.213 

B.  Exclusion as an Escape Valve
Exclusion under Rule 106 can serve as an escape valve when additional

evidence that would otherwise correct a misleading impression is inadmissible
due to privilege.  To leave the original misleading evidence would be unjust,
creating an opportunity for opposing parties to carefully select evidence with the
knowledge that any opposing additional evidence most likely would be
inadmissible.  In essence, exclusion under Rule 106 serves as an alternative to
exclusion under Rule 403.214  In addition, exclusion under Rule 106 would
remove the undue emphasis on admissibility in this unique situation where the
danger of the original evidence is principally that it lacks the rest of the story. 
And exclusion under Rule 106 would offer a simpler analysis, speeding

207. Id. at 980.
208. Id. 
209. Id. 
210. Id. at 985.
211. Id. at 981-82.
212. Id. at 981 (“But this is not a matter we need pursue further here, as we do not think there

was any danger of a misleading impression.”); see United States v. Pendas-Martinez, 845 F.2d 938,
944 n.10 (11th Cir. 1988) (characterizing as dictum); United States v. Benton, 54 M.J. 717, 723 n.7
(A. Ct. Crim. App. 2001) (describing as a “comment”).  But see Liftee v. Boyer, 117 P.3d 821, 833-
34 (Haw. Ct. App. 2005, as amended) (referring to LeFevour’s ruling and describing “fairness” as
the basis for admittance in these “minority” cases).

213. See United States v. Glover, 101 F.3d 1183, 1188 (7th Cir. 1996) (finding that neither
the trial court nor the Seventh Circuit questioned defense counsel’s statement of the law that
“Federal Rule of Evidence 106 required that nearly all of his prior testimony be entered as evidence
in the second trial, or, alternatively, that the entire testimony be excluded.”) (emphases added);
1 WEINSTEIN FEDERAL EVIDENCE, supra note 62, at 106-17. 

214. See discussion supra Part II.D (focusing on Rule 403).



526 INDIANA LAW REVIEW [Vol. 46:499

efficiency in the decision of evidentiary issues. 

C.  Rule 106 as Written
Most likely, Rule 106 must be amended to enact an exclusionary function. 

Under Rule 106, “[i]f 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.”215  As written, Rule 106 appears to be an
inclusionary—rather than an exclusionary—rule.216  Professor Nance notes that
Dean McCormick grouped the rule of completeness (§ 56: “The Effect of the
Introduction of Part of a Writing or Conversation) with two other inclusionary
rules of general applicability: Waiver of Objection (§ 55) and Curative
Admissibility (§ 57: “Fighting Fire with Fire: Inadmissible Evidence as Opening
the Door”).217  Although McCormick also located these rules under “Chapter 6. 
The Procedure of Admitting and Excluding Evidence,”218 it is difficult to stray
far from the text of Rule 106, which expressly condones the introduction of
additional evidence but does not mention the exclusion of the original misleading
evidence. 

D.  Practical Effect
An exclusionary amendment to Rule 106 would have the largest impact

before the admission of excerpts of a statement.  After a jury hears the evidence,
exclusion by a strike is unlikely to correct a misleading impression.219  However,
motions in limine or objections upon the offer of excerpts could effectively
invoke the exclusionary (or, in the alternative, trumping) function of Rule 106. 
Such invocations have worked.  In Brewer v. Jeep Corp.,220 the Eighth Circuit
upheld the trial court’s refusal to admit a film dealing with jeep rollovers unless
the filmmakers’ companion report was also offered into evidence.221  The film
had been commissioned by the defendant, and the parties agreed to admit it as an
admission of a party opponent.222

215. FED. R. EVID. 106 (emphasis added).
216. Nance, Verbal Completeness, supra note 8, at 52 (“[Rule 106’s] peculiarity lies in the fact

that, unlike almost all other admissibility rules, it is inclusionary rather than exclusionary.”); see
also Gillespie, supra note 20, at 385 n.34 (“Judge Posner’s analysis while appealing, especially
when the remainder is considered privileged, cannot withstand close scutiny [sic]. . . . Rule 106 is
a rule of inclusion, not exclusion; thus, a court acting within its sound discretion cannot exclude
evidence pursuant to Rule 106.”).

217. EDWARD W. CLEARY ET AL., MCCORMICK ON EVIDENCE §§ 55-57, at 141-49 (3d ed.
1984). 

218. Id. ch.6, at 122 (emphasis added).
219. Id. § 52, at 126-27.
220. 724 F.2d 653 (8th Cir. 1983).
221. Id. at 657. 
222. Id.  



2013] ADMISSION OF HEARSAY THROUGH RULE 106 527

CONCLUSION
As written, Rule 106 extends to the admission of otherwise inadmissible

evidence.  The rule expresses the common law doctrine of completeness, which
served a trumping function in cases such as the trial of Algernon Sidney.  Under
a textual, functional, and legislative analysis, as well as a focus on Rule 403 and
Rule 801(d)(2), Rule 106’s trumping function—or at least the need for its
recognition—could not be more apparent.  The express recognition of such a
trumping function through an amendment would advantageously serve the
purposes of the Rules of Evidence with minimal setbacks.  Further, an
amendment to exclude misleading evidence when the necessary completing
evidence is inadmissible because of privilege would offer the trial judge a simple
and effective alternative to Rule 403.  Under both amendments, following Judge
Posner’s formulation in LeFevour, 223 Rule 106 would read as follows:

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—whether otherwise
admissible or not—that in fairness ought to be considered at the same
time.  In the alternative, if the additional part or any other writing or
recorded statement is inadmissible because of privilege, the original
misleading evidence must be excluded too.

At trial, both parties have been crafting a story—a story of what happened and
who is responsible.  Rather than permit the cherry-picked admission of evidence,
an amended Rule 106 would foster an atmosphere of fairness with the twin goals
of “ascertaining the truth and securing a just determination”—much in line with
the purpose of the Rules of Evidence.224  And the jury would know the rest of the
story. 

223. United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986).
224. FED. R. EVID. 102.