Rules of Evidence – Comment Period Closed March 10, 2024

Perhaps I am missing something here, or misunderstanding the rule, as I am not familiar with whether (or how) existing case law has already sculpted its application, but, it appears that the rule permits a judge to allow the additional statement “if in fairness” it should be considered. It seems that one of the aspects of whether it is fair or not is if the additional statement sought is hearsay, and perhaps objected to as such at the time the other statement was made (i.e. deposition or hearing transcript). To add the language to the rule that “The adverse party may do so over a hearsay objection” makes it sound like the judge’s “fairness” evaluation cannot consider the hearsay aspect of the proposed statement. Of course, if the statement being introduced is hearsay, then that would be a factor for the judge to consider in allowing what the adverse party seeks to add. But, if the other statement is not just another statement by the same declarant as the one being introduced, then it could be determined to not be fair because of hearsay.

This seems problematic because Rule 106 does not appear to limit the additional statement to being one from the same declarant or same document that is being introduced. The language simply states “any other statement.” While that is essentially what the rule has stated previously, with this new limiting language prohibiting what the judge can include in a “fairness” evaluation, it could prejudice the party wanting to introduce a statement that is not objectionable (and otherwise admissible) because they would then risk opening the door to objectionable material being added by the adverse party and be foreclosed from objecting to it on what might be the most obvious objection of hearsay (or double hearsay).

If statements are going to come in, the complete statement should come in. Thank you for proposing this rule change.

DUPLICATE
We, the undersigned organizations, oppose the proposed amendment to rule 106, the rule of completeness. As explained below, the proposed rule changes are unnecessary to protect the truth-seeking process of a trial and, particularly in criminal trials, are much more likely to undermine that process than protect it. The rule changes will encourage defendants to fabricate defenses at any time before trial and potentially allow those inherently unreliable statements to be admitted at trial—despite their not being subjected to cross-examination—in response to clearly admissible inculpatory statements. Neither the federal constitution nor the state constitution requires such corrosion of the truth-finding process. Fairness to the State and crime victims strongly counsels against it. And the rules of evidence should not allow it.

The genesis of these rule changes appears to be State v. Sanchez (Sanchez I), 2016 UT App 189, 380 P.3d 375, vacated in relevant part, 2018 UT 31, 422 P.3d 866 (Sanchez II). And the facts in Sanchez show why the proposed rule changes should be rejected.

Sanchez was charged with murder and obstruction of justice after killing his roommate, whom he had kidnapped and assaulted just two weeks before. See Sanchez I, 2016 UT App 189, ¶1; State v. Sanchez, 2015 UT App 27, 344 P.3d 191. At his murder trial, the officer who interviewed Sanchez testified for the State that Sanchez admitted repeatedly assaulting the victim on the day she died. 2016 UT App 189, ¶¶1,4. On cross-examination, Sanchez tried to elicit his explanation for the assault to support a defense of extreme emotional distress—“that ‘he started fighting with [Victim] because he thought she was cheating on him with his brother,’ that ‘she admitted it and she kept saying it,’ that ‘she wouldn’t tell [him] that’ she would stop the affair, and that Victim’s statement ‘hurt [his] feelings.’” Id. The trial court “ruled that the fairness analysis does not require the admission of Sanchez’s statements offered to explain the reasons for his brutal assault on the victim,” because the explanation was “a self-serving, after-the-fact explanation.” Id. at ¶14 (cleaned up).

Despite the fact that Sanchez’s statements impugned the reputation of his victim—who could not defend her name because he had killed her—and despite the fact that Sanchez’s inherently unreliable self-serving statements would not be subject to cross-examination by the State, a majority of the court of appeals reversed. The majority held that rule 106’s fairness standard “requires admission of those things that are relevant and necessary to qualify, explain, or place into context the portion already introduced”—as substantive evidence, apparently—even though the already-introduced statements are not misleading and even though the self-serving explanation is otherwise inadmissible hearsay. See id. at ¶13 (quotation omitted). The majority then concluded that “[b]ecause Sanchez did not testify” and “no other testimony presented his explanation,” Sanchez’s inherently unreliable, self-serving hearsay statement was necessary. Id. at ¶16.
Accordingly, even though Sanchez’s explanation “was self-serving, fairness required that Sanchez be allowed ‘to qualify, explain, or place into context’ the portion of his confession introduced by the detective’s testimony.” Id. (citation omitted). In other words, not only was Sanchez’s inherently unreliable hearsay admissible, but it could support an extreme emotional distress defense even though the State had no ability to test Sanchez’s credibility through cross-examination.

On certiorari review, the Utah Supreme Court did not reach the several “important” issues raised by the court of appeals’ rule 106 decision, because Sanchez could not prove prejudice. Sanchez II, 2018 UT 31, ¶¶24-25. But the supreme court did “vacate the portion of the court of appeals decision on rule 106.” Id. at ¶25. Then, “[r]ather than waiting for the appropriate case to weigh in on these issues,” the court referred the issues “to our Advisory Committee on the Rules of Evidence.” Id. at ¶24 n.4.

The current proposed rule changes, which adopt verbatim recent changes made to the corresponding federal rule, are apparently the result of that referral. But there are several Utah evidentiary rules that deviate from the corresponding federal rules. See, e.g., Utah R. Evid. 801(d)(1)(A), (B). And the court of appeals’ “fairness” analysis in Sanchez foreshadows why—in criminal cases, at least—the proposed changes will undermine “fairness” and the truth-seeking process, not help it.

First, the court of appeals’ reasoning was misguided. Historically, the purpose of rule 106 has been only “to prevent a ‘misleading impression created by taking matters out of context.’” State v. Jones, 2015 UT 19, ¶40, 345 P.3d 1195 (citation omitted). But removing a defendant’s explanation of the “motivations for his actions [does] not change the meaning of the portions of his confession submitted to the jury” or “alter the fact that he admitted committing the acts with which he was charged.” See United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985). Admitting a defendant’s inculpatory statements, therefore, does not create a misleading impression that requires inherently unreliable hearsay “to qualify, explain, or place into context” those statements. In other words, rule 106’s fairness standard “does not mean that by introducing a portion of a defendant’s confession in which the defendant admits the commission of the criminal offense, the [prosecution] opens the door for the defendant to use the remainder of that out-of-court statement for the purpose of asserting a defense without subjecting it to cross-examination.” McAtee v. Commonwealth, 413 S.W.3d 608, 630-31 (Ky. 2013) (cleaned up; brackets added); United States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014) (rule of completeness does not require the blind “admission of self-serving, exculpatory statements made by a party which are being sought for admission by that same party”) (cleaned up); Hawkins v. State, 884 N.E.2d 939, 948 (Ind. Ct. App. 2008) (upholding exclusion of inadmissible hearsay under rule 106 where defendant did not testify and thus “admission of the excluded conversations would be unfair since the State could not question [defendant] as to their contents”).

Second, even if Sanchez’s “fairness” analysis carries the day, rule 106 still should not allow for admission of otherwise inadmissible hearsay for the truth of the matter asserted—particularly in the context of a criminal trial. Evidentiary rule 102 states that evidentiary rules “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.” Utah R. Evid. 102. Admitting inadmissible hearsay under rule 106 does not contribute to “ascertaining the truth and securing a just determination.” Particularly in criminal cases, it does just the opposite.

A criminal defendant’s inculpatory statements—whether made to friends, strangers, or in the course of a police interview—are admissible under the rules of evidence. Such statements are “not hearsay” under rule 801(d)(2) because they are statements “offered against an opposing party” and “made by the party.” (emphasis added). More importantly, when the defendant does not testify, they are admissible as statements against interest under rule 804(b)(3) because they are statements “a reasonable person in the declarant’s position would have made only if the person believed [them] to be true because, when made,” they “had so great a tendency” to “expose the declarant” to “criminal liability.”

The admission of a defendant’s inculpatory statements, then, “is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” Williamson v. United States, 512 U.S. 594, 599 (1994). Such statements, therefore, are deemed reliable enough to allow their admission without the safeguards applicable to “in court statements—the oath, the witness’ awareness of the gravity of the proceedings, the jury’s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine.” Id. at 598.

In contrast, a self-exculpatory out-of-court statement is “inherently unreliable,” State v. Fernandez, 604 A.2d 1308, 1313 (Conn. App. 1992), because it has “‘nothing to guarantee its testimonial trustworthiness.’” State v. Brooks. 909 S.W.2d 854, 863 (Tenn. Ct. Crim. 1995) (citation omitted). “The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts.” Williamson, 512 U.S. at 599. This is because such statements “are not unambiguously adverse to the penal interest of the declarant, but instead are likely to be attempts to minimize the declarant’s culpability.” Lilly v. Virginia, 527 U.S. 116, 132 (1999) (cleaned up) (emphasis in original). Such statements, therefore, “are exactly the ones which people are most likely to make even when they are false.” Williamson, 512 U.S. at 600.

Thus, if truth is the goal, these are the statements that must most be subject to cross-examination. As courts have long recognized, “[c]ross-examination is ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’” Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). Indeed, “cross-examination is the ‘greatest legal engine ever invented for the discovery of truth.’” Id. (quoting California v. Green, 399 U.S. 149, 158 (1970)) (additional internal quotation marks and citation omitted). “The right to cross-examination … thus is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial.” Id. at 737. And while in a civil case this necessary cross-examination can be accomplished by simply calling the declarant to the stand, in a criminal case it cannot because defendants have an absolute Fifth Amendment right not to testify. Indeed, in most cases, the prosecution cannot even comment on a defendant’s failure to testify. See Doyle v. Ohio, 426 U.S. 610, 618-19 (1976). And the proposed expansion of rule 106 would thus allow defendants to use the Fifth Amendment as both a sword and a shield. Rule 106 would allow them to admit their own self-serving, inherently unreliable hearsay. And the Fifth Amendment would then allow them to shield that inherently unreliable testimony from cross-examination.

Admission of a defendant’s exculpatory statements for their truth, then, does not serve any truth-seeking function. For that very reason, the hearsay rule requires that when “a party offers his own out-of-court declaration for its truth,” that declaration “must satisfy the hearsay rule.” Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 742 (1996). And rule 106 should not alter that requirement. Rather, as several courts have held, any clarifying statements should not be admitted for their truth, but at most only to put the allegedly misleading statements in context. See, e.g., United States v. Lopez, 4 F.4th 706, 715 (9th Cir. 2021), cert. denied, 143 S.Ct. 121 (2022); cf. Ohio St. Rev. Rule 106 (“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 is otherwise admissible and which ought in fairness to be considered contemporaneously with it.”) (emphasis added). And a limiting instruction should be given to the jury to make that clear.

Sanchez suggests rule 106 must allow inadmissible hearsay because otherwise, a defendant would be unconstitutionally compelled to testify if he wanted to raise a defense supported by his hearsay statements. See Sanchez I, 2016 UT App 189, ¶16. But there is no unfairness in requiring a defendant who wishes to raise a defense at trial to support that defense with reliable and admissible evidence. Indeed, and as discussed, failing to require a defendant to support his claims with admissible evidence would invite defendants to use the Fifth Amendment as both a sword and a shield.

Unsurprisingly, then, Sanchez’s contention was rejected by the Utah Supreme Court in State v. Cruz-Meza, 2003 UT 32, 76 P.3d 1165. There, Cruz-Meza admitted to a friend that he murdered his girlfriend but claimed that he did so only because she refused to let him visit his son and then pointed a gun at him. Id. at ¶¶2,4. The trial court “refused to allow admission of” Cruz-Meza’s explanation “given the lack of any circumstantial guarantees of trustworthiness or indicia of reliability.” Id. at ¶6. On appeal, Cruz-Meza argued the court’s ruling “deprived [him] of the opportunity to present evidence supporting a defense of extreme emotional distress without taking the witness stand and waiving his privilege against self-incrimination,” which violated his right to due process. Id. at ¶16. The supreme court held that Cruz-Meza’s argument was “without merit.” Id. The court recognized parenthetically that “‘the completeness doctrine is not compelled by the Constitution.’” Id. at ¶17 (citation omitted). Moreover, “the fairness and trustworthiness tests” employed by the trial court “are more than adequate to address any constitutional concerns with selective admission of oral statements by criminal defendants.” Id. And “[d]espite the difficulty in making a decision about whether to testify in his own defense, the fact remains that Cruz-Meza was entirely free to choose—the trial court’s ruling excluding evidence did not compel him to testify.” Id.

Cruz-Meza involved the rule of oral completeness under evidentiary rule 611. But courts have applied the same principles to rule 106 in its current form. See, e.g., United States Football League v. Nat’l Football League, 842 F.2d 1335, 1375-76 (2d Cir. 1988) (rule 106 “does not compel admission of otherwise inadmissible hearsay evidence”); United States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014) (rule 106 “‘does not render admissible … evidence which is otherwise inadmissible under the hearsay rules’”) (citation omitted); United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (rule 106 “does not compel admission of otherwise inadmissible hearsay evidence”).

And if the goal is to further the truth-seeking process, rule 106 should not provide a means by which a defendant can simply “thwart hearsay rules” and have his self-serving hearsay statements admitted “without being subject to cross-examination,” see McAtee, 413 S.W.3d at 630-31, when there is nothing to guarantee their trustworthiness. See United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000). Otherwise, a defendant would “never want for testimony” because he could “‘make evidence in his favor at his pleasure.’” Fernandez, 604 A.3d at 1313 (citation omitted). The “door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.” Brooks, 909 S.W.2d at 863 (citation omitted).

Two more points, even if the supreme court retains a hearsay provision in the rule. As currently drafted, the proposed rule implies that hearsay considerations are irrelevant to the “fairness” analysis when deciding whether inadmissible hearsay may be admitted under rule 106 and thus may not be considered when completing statements are challenged under evidentiary rule 403 as more prejudicial than probative. But the supreme court approved of the trial court’s consideration of hearsay issues in Cruz-Meza when deciding whether the completing oral statements in that case were admissible under rule 611. Cruz-Meza. 2003 UT 32, ¶15. And other courts have held that rule 403 “supersedes 106, if the circumstances warrant.” Banther v. State, 823 A.2d 467, 487 (De. 2003) (cleaned up). Any change to rule 106, therefore, should make clear that the hearsay provision does not preclude courts from considering the hearsay nature of a completing statement under rule 403. The hearsay rules are themselves grounded in concerns of reliability, see State v. Workman, 2005 UT 66, ¶14, 122 P.3d 639, and it therefore makes no sense to categorically exclude hearsay concerns from the rule 403 analysis.

Finally, the proposed rule changes expand the reach of rule 106 to oral statements. But Cruz-Meza already adequately addresses the admissibility of completing oral statements under evidentiary rule 611’s rule of oral completeness. And Cruz-Meza’s analysis—unlike the proposed changes to rule 106—takes into account that “‘there is no source of reproducing’” the oral completing statement “‘except the memory of those who saw or heard it,’” and the “‘great possibilities of error in trusting to recollection testimony of oral utterances … have never been ignored.’” Cruz-Meza, 2003 UT 32, ¶13 (citation omitted).

Submitted by Craig Barlow, Division Director, on behalf of the Justice Division, Utah Attorney General’s Office; Karen A. Klucznik, Assistant Solicitor General, on behalf of the Criminal Appeals Division, Utah Attorney General’s Office; and the Utah Statewide Association of Prosecutors & Public Attorneys.