22 February 2010

MRE 106 - Remainder of Writings Rule

MRE 106 allows counsel to use rule to give the Judge or the court-members an accurate and clear understanding of a writing or recording offered by opposing counsel.

2. Key points.

a. Counsel may effectively use the rule when their opposition attempts to offer only a portion of a writing or recorded statement. The rule allows counsel to require their opposition “at that time” to introduce any other portion of the document or recording in question, or an entirely different document when “fairness” demands it.
b. The rule is a timing rule and not a rule of additional admissibility. In United States v. Cannon, 33 M.J. 376 (C.M.A. 1991), the defense counsel examined the prosecutrix about inconsistencies between trial testimony and a previous OSI statement. Relying on Rule 106, the trial counsel thereafter offered the witness’ entire OSI statement which contained extrinsic offense evidence. Reversing the conviction, the court held the military judge should have excluded the evidence. Rule 106 does not justify admitting an entire statement merely to show that one segment of it is consistent with previous testimony.
c. Under Rule 106, the party offering evidence is required to introduce more evidence than they want to. In such a situation, it is the offering party that is introducing the evidence.
d. Goldwire Trap - Counsel should understand that in the context of a confession or an admission of an accused, this distinction is potentially an important one. If defense uses Rule 304(h)(2), instead of Rule 106, to admit other portions of an admission or confession when only part of the alleged admission or confession is introduced, the defense has placed the accused’s character for truthfulness in issue. Under Rule 806, the government may impeach the credibility of the offered portions of the confession just as they could if the accused had taken the stand and testified under oath. See United States v. Goldwire, 55 M.J. 139 (2001). In the author’s opinion, this should not be the case if the other portions of an admission or confession of an accused are offered by the government due to the requirements of Rule 106.