The Rule of Completeness

I got an email from a forensic computer analyst in which he raises some good questions about how a rule of evidence applies to instant messages, comments posted on a blog and comments made during a chat session. I’m going to take a shot at dealing with his questions, but I’d be interested in hearing what others have to say on the issues.

The rule in question is Rule 106 of the Federal Rules of Evidence. States have their own versions of the rule, but since his issues arose in a federal case, we’re going to analyze the federal rule.

Rule 106 provides as follows: “When 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.” It codifies what, at common law, was known as the “rule of completeness.”

Rule 106 is meant to prevent two kinds of prejudice to one party in civil or criminal litigation. Since this is a cybercrime blog, I’m going to use criminal examples. The first kind of prejudice the rule is intended to prevent occurs when, say, the prosecutor introduces part of a “writing or recorded statement” and, in so doing, provides the jury with comments that are taken out of context. Rule 106 is meant to let the defendant -- in my example – require the prosecutor to introduce the rest of the writing or statement so the jury can see everything in context.

The other kind of prejudice Rule 106 addresses is the risk that if the prosecution is allowed to introduce statements that were taken out of context, the defense won’t be able to overcome the effect of that evidence by presenting other evidence later. In other words, the concern here is that the original, taken-out-of-context statements will so influence the jury the defendant won’t be able to change their minds -- to convince them that the statements were taken out of context and so don’t mean what they seem to mean. Rule 106 and similar state rules are meant to ensure that the jury gets the entire picture when it comes to writings or recorded statements.

In Henderson v. U.S., 632 A.2d 419 (D.C. 1993), for example, the defendant was convicted of murder and appealed. One of the issues he raised on appeal was that the trial court allowed the prosecution to introduce excerpts of the 80 page transcript of an interview he had with a police detective. The prosecution introduced approximately 21 of the 80 pages; the statements in those pages inferentially supported the defendant’s guilt by showing he lied to the detective and made comments that seemed to tie him to the victim’s murder. At trial, Henderson had asked the court to introduce the rest of his statement “in order to reflect fairly the length and nature of his statement and to show that he had provided an explanation of his conduct.” U.S. v. Henderson, supra. In other words, Henderson said the jury should have been able to put his comments into context.

The District of Columbia Court of Appeals said “fairness required” that the ”omitted portions be admitted . . . to avoid presenting the jury with a distorted understanding of the tenor of appellant's statement and, thus, of the admitted portions” of his statement.” U.S. v. Henderson, supra. In so doing, the court explained the importance of the rule:

[T]he rule of completeness is . . . implicated when the prosecution selectively introduces only the inculpatory portions of a statement made by the defendant. Although the decision . . . falls within the sound discretion of the trial judge, . . . to implement the fairness purpose underlying the rule, the trial judge upon request must admit additional portions that `concern the same subject and explain the part already admitted.’ . . . In addition, where the defense demonstrates that the admitted portions are misleading because of a lack of context, . . . the trial judge should permit `such limited portions to be . . . introduced as will remove the distortion.’ . . .

Furthermore, in a criminal case, the usual fairness concerns . . . are amplified by constitutional considerations. The rule . . . must be applied to ensure that a defendant is not forced to choose between allowing his or her statement to stand distorted as a result of selective introduction and abandoning his or her Fifth Amendment right not to testify in order to clarify that statement.

U.S. v. Henderson, supra.

Now let’s get back to the email we began with. The forensic analyst’s questions resulted from his testifying in an arson trial. Here’s a slightly edited version of the essence of the email:

The defendant had private messaged his co-defendant (who later made a deal), and other individuals. I found private messages which included their discussions, as well as discussions between the defendant and other parties, where the messages told several stories. The accurate story was that the fire was an incendiary (set with an open flame) fire, and other stories where the defendant indicated the fire was an accidental fire.

During my testimony the defense objected to the introduction of the private message conversation where the defendant admitted to starting the fire. The objection was that the other private messages should also be admitted, because they were occurring at the same time, contemporaneously during the other message sessions (Rule 106). Initially the Judge overruled the objection, then after further arguments sustained the objection.

In my view having an understanding of the different types of messaging is important in the determination of whether the message documentation is part of a single recording or different recordings, and is then therefore complete, or lacking completeness.

In a chat room, a chat session can be seen by all the participants of the chat room, and they all can participate in the discussion, so everyone’s responses and comments are needed for completion. On a blog where a discussion is made and individuals respond with comments a similar situation is created.

Typically in a private message and/or instant message session however, only two people are involved, carrying on a conversation, which no other participant has access to. Multiple private message sessions can be carried on simultaneously creating a condition where two distinctly different conversations/recordings can take place at the same time.

Email from Computer Forensic Analyst (October 21, 2008).

Let’s see what we can do with all this. I agree with the gentleman who sent this email as to how Rule 106 should apply (assuming its other requirements are met) to comments made during chat sessions and posted on a blog. In both those instances, I think that if the prosecution introduced only a portion of the chat session/blog posts, the defendant could logically and reasonably argue that other parts of the session/posts (at least) should be introduced to put everything into context. I think there would probably be some line-drawing involved, i.e., I think the court would have to decide how much of a chat session or how many posts on the blog really needed to be introduced to give the jury an adequate context for the portions introduced by the prosecution.

Now let’s get to the more difficult issue – the instant/private messages. Here, we have two distinct issues: The first one is whether the private/instant messages between two people in a session constitute a conversation, so that introducing only portions of the messages they exchanged (the conversation) would require the introduction of the rest of the messages under Rule 106. The other issue arises in either of two situations: if we decide the messages exchanged in an instant/private message session do not constitute a conversation but something else (a series of severable conversations, maybe); and if the participant in one such session wants to introduce messages exchanged in another session, on the premise that this additional conversation between the two is essential to put the first conversation into context.

I can’t find any reported cases or law review articles that deal with any of these issues, so we’re pretty much on our own here. As to the first issue, it seems to me that, as the forensic analyst points out, we are in effect dealing with a conversation . . . a single conversation between two people. This scenario seems to me to be analogous to a transcript of a telephone call or the transcript of Henderson’s conversation with the detective. If the other requirements of Rule 106 are met -- i.e., if the proponent of introducing the “rest of the conversation” shows that fairness requires that the jury hear that information in order to put the portions already introduced into context -- then I think the rest of the conversation should come in (subject to the line-drawing I noted above).

What about the residual issue . . . the situation in which the proponent of introducing the “rest of the conversation” argues that it in effect extends to other instant/private message sessions between the same two people? I found a reported federal case in which (a) the prosecutor had used transcripts of two calls between the defendant and his girlfriend made on one day and (b) the defendant wanted the court let the jury have the transcript of a third conversation between the two, a conversation that occurred on another day. The court declined to do so because it didn’t find that the third conversation was needed to put the others into context, but it assumed such a step could be appropriate, if the other requirements of Rule 106 were met. And I found another case in which the court made the same assumption, but told the defendant it would address the propriety of introducing particular additional conversations when the case came to trial (this opinion was ruling on pre-trial issues).

So a defendant (continuing with the example we’ve been using) could argue that instant/private messages exchanged by Persons A and B in session #2 (and maybe sessions #3 and #4) should be introduced to let the jury put comments made in session #1 (which they already have) into context. If the trial court finds that the messages in Session(s) #2/#3/#4 "ought in fairness to be considered contemporaneously with" the messages from Session #1, then it should let them in (again subject to the line-drawing process I noted earlier).

What do you think? Comments, corrections, additions . . . objections?