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The Rule of Verbal Completeness – A “Grimm” Analysis

In United States v. Bailey, No. Criminal No. PWG-16-0246, 2017 WL 2276849 (D. Md. May 25, 2017), United States District Judge Paul W. Grimm has once again provided guidance to practitioners regarding a rule of evidence that is often troublesome in its application.

The applicable Federal and Maryland rules are substantially similar and, therefore, Judge Grimm’s analysis should be persuasive authority in State court proceedings as well as in Federal Court in those cases where the rule of completeness is at issue. The Federal and Maryland Rules follow:

Federal Rule of Evidence 106. Remainder of or Related Writings or Recorded Statements: 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.

Maryland Rule 5-106. Remainder of or Related or Recorded Statements: When part or all of a writing or recorded statement 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.


While this article reviews Judge Grimm’s opinion in Bailey, we must disclose that most of this article is a digest of the most pertinent portions of Judge Grimm’s opinion and not the product of any independent analysis by the authors of this article. Judge Grimm’s analysis speaks for itself and all are encouraged to read his entire opinion. Issues of verbal completeness frequently arise in criminal cases and Judge Grimm’s guidance to trial courts, prosecutors and defense counsel provides a roadmap as to how to resolve these issues.

The Issue in United States v. Bailey

In Bailey, the Government filed a motion in limine, in which it sought to preclude Bailey from “eliciting on cross-examination of law enforcement agents certain potentially exculpatory statements Bailey made during his [recorded] interviews with law enforcement on May 5, 2016.” Opinion at 1. The Government’s position was that anything Bailey told the agents during his recorded interview that it intended to introduce during its case in chief would be admissible non-hearsay (as an admission by a party opponent under Fed. R. Evid. 801(d)(2)(A)), but that anything exculpatory that Bailey told the agents that he intended to elicit under cross examination or otherwise would be inadmissible hearsay, unless Baily was prepared to testify about it and be subject to cross examination.

Rule 106 and the Common Law Rule of Completeness

Judge Grimm provided a historical analysis of the common law evidentiary principle known as the “doctrine of completeness” and noted that it has been partially codified as Fed. R. Evidence 106. Opinion at 5 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988)). In explaining the differences between the common law rule and Rule 106 he instructs that first, Rule 106 applies only to writings and recorded statements, not to conversations or other oral statements that have not been memorialized in some written or recorded form (hence, Rule 106 only partially incorporates the common law rule). Second, when the Rule applies, it permits the party against whom the incomplete information has been introduced to require the introduction of completing information at the same time (the so called “acceleration clause”). Third, the rule only requires the introduction of the completing information when fairness requires that it be considered at the same time as the incomplete information.

Raising the question of whether the evidence offered for purposes of completeness must be admissible if offered independently, Judge Grimm commented that

What is concerning about many of the cases that have restricted Rule 106 to evidence that is independently admissible is the ease with which they have done so without any real consideration of the common-law history of the doctrine of completeness (which did not limit completing evidence to that which was independently admissible), its purpose to guard against abuses of the adversary system, or the harm that can result from letting one party (for example, the government in a criminal case) have an unfair advantage over another by creating a misleading impression in the minds of the jury that is, as a practical matter, uncorrectable. This hardly lives up to the aspirations of Rule 102 that the rules of evidence should be construed to the ‘end of ascertaining the truth and securing a just determination.’

Opinion at 8.

Oral Statements Not Recorded or Memorialized

Judge Grimm posits a “vexing issue raised (but not answered) by Rule 106 and the enigmatic language of the Advisory Committee Note. What should courts do with regard to oral statements or conversations that have not been memorialized by a writing or recording-particularly when the unwritten or unrecorded statement is the defendant’s confession to a law-enforcement officer.” Opinion at 13.

Judge Grimm points out that on its face, Rule 106 is limited to “writings” and “recorded statements,” and the Advisory Committee Note states that for (unnamed) “practical reasons” the rule does not apply to conversations and many courts have taken this to mean that in a criminal case, the prosecution may elicit a law-enforcement officer’s testimony about inculpatory statements made by the defendant because they are admissible under Rule 801(d)(2)(A) as admissions but these courts have also held that, during cross examination of the officer, the defendant may not elicit non-inculpatory statements the defendant made during the same interview because (a) Rule 106 does not apply to oral statements and (b) even if it did, the defendant’s exculpatory statements (even if necessary to dispel the misleading, out-of-context impression left by the officer’s direct examination) are inadmissible hearsay.

Judge Grimm acknowledged that while the “practical reasons” why oral conversations are excluded from Rule 106 undoubtedly include the need to avoid the “he said, she said” disputes about the content of an unrecorded or unwritten statement, those concerns do not justify creating an environment in which the prosecution may be able to introduce the defendant’s out-of-context inculpatory oral statements, where the defendant is powerless to do anything at that time because Rule 106 does not reach oral statements. Judge Grimm continues, if there is legitimate concern about the difficulty in establishing what was said in oral conversations, there are factors (described herein) that can provide a judge with the analytical tools to determine whether to allow the evidence during the proponent’s case or thereafter during cross examination or during the adversary’s case in chief on a case by case basis. He suggests that a blanket rule of prohibition is unwarranted. If the content of some oral statements are disputed and difficult to prove, others are not, because they have been summarized (for example, in a FBI agent’s form 302 summary of the defendant’s confession), or because they were witnessed by enough people to assure that what was actually said can be established with sufficient certainty. Opinion at 14.

Judge Grimm notes that the Supreme Court appears to have recognized that Rule 106 only partially codifies the common law doctrine of completeness and that for situations beyond the reach of Rule 106, the common law still applies. Beech Aircraft v. Rainey, 488 U.S. 153, 170-172 (1988). Judge Grimm further states that to the extent that the common-law doctrine of completeness (which allowed even inadmissible evidence to be introduced to dispel misleading evidence of written, recorded and oral statements) applies to oral statements or conversations, commentators have recognized that, when necessary to avoid the prejudice created by introduction of misleading characterization of oral statements, inadmissible evidence should be permitted for completion purposes.

A hearsay objection to the statement sought to be introduced for completeness purposes is unsound according to Judge Grimm and “contrary to the completeness principle embodied in Rule 106. A party should not be able to admit an incomplete statement that gives an unfair impression and then object on hearsay grounds to completing statements that would rectify the unfairness.”

Judge Grimm further concludes that to the extent that the common-law doctrine of completeness (which allowed even inadmissible evidence to be introduced to dispel misleading evidence of written, recorded and oral statements) applies to oral statements or conversations, commentators have recognized that, when necessary to avoid the prejudice created by introduction of misleading characterization of oral statements, inadmissible evidence should be permitted for completion purposes.

A Rule 403 Analysis

Judge Grimm suggests that Federal Rule of Evidence 403 should not be overlooked when considering the implications of the rule of completeness as it relates to writings, recordings, and oral statements. Rule 403 states: “The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusion the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Even in circuits (such as the Fourth Circuit) that seem to limit Rule 106 to written or recorded statements, the trial court is not powerless to address an abuse of the adversary system. If allowing a government witness to testify only to a defendant’s inculpatory statements, without being subject to cross examination about the exculpatory portions of the same statement (because they are not independently admissible) would leave the jury with a misleading understanding of the defendant’s statement to the extent that it would cause unfair prejudice, the court may give the government a choice: either allow cross examination to provide a complete picture of what the defendant said; or exclude the testimony of the incomplete portion of the statement.

Judge Grimm continues that Rule 403 should not be used in this manner, however, unless the testimony regarding the defendant’s statement is unfairly incomplete, when measured by the factors discussed below and, if a defendant seeks to introduce excluded portions of his statement (either during cross examination or in his own case) in order to complete the record, the same factors should be used by the court to ensure that only what is actually necessary to dispel the misleading impression is permitted.

Factors to be Considered

Judge Grimm reviews suggested factors that trial courts might consider to determine whether statements should be admitted pursuant to the rule of completeness. He notes that the Seventh Circuit in United States v. Velasco, 953 F.2d 1467, 1474-75 (7th Cir. 1992) has identified a four-part test to determine what the trial court must ask about the proffered statement. Suggested factors are:

(1) Does it explain the admitted evidence;

(2) Does it place the admitted evidence in context;

(3) Will admitting it avoid misleading the trier of fact; and

(4) Will admitting it insure a fair and impartial understanding of all the evidence.

Judge Grimm also recommends consideration of factors suggested in a treatise that identified a series of factors that could assist courts in identifying when the fairness requirement of Rule 106 has been met. These factors include:

(1) Is the proffered evidence taken out of context (does what is missing change the meaning of what was introduced)?

(2) Does the lack of context make the evidence misleading (does the admitted evidence “invite” or “permit” a false premise)?

(3) Can the misleading impression be dispelled by other means (for example, by instructing the jury not to draw the misleading inference, or by permitting introduction of completing evidence at a later time, such as during cross examination or the defense case, so as not to interrupt the presentation of the prosecution’s case)?

(4) How much evidence is needed to dispel misleading effects (lawyers should be precise in identifying the information actually needed to correct the misleading impression created by the incomplete evidence, and judges should be skeptical about allowing expansive introduction of lengthy excerpts from writings or recordings under the guise of “correcting” a misimpression)?

(5) How strong is the evidence admitted and omitted (how does the strength of the admitted evidence compare to the strength of the omitted evidence-a minor discrepancy does not require “correction” with a massive introduction of information of little probative value)?

(6) How long will repair be delayed if not accelerated (if the completing information is not introduced during the prosecution’s case, can the defendant effectively dispel any misleading impression during cross examination or during his case in chief, or will the damage, once done, be irremediable if not immediately addresses)?

(7) What is the consequential fact to be proved (if the misimpression goes to an essential element of the prosecution’s case-such as the defendant’s motive or intent-then there is a more exigent need to insure immediate correction than exists if the incomplete information is primarily relevant to a less critical issue, such as an assessment of a witness’s credibility)?

(8) How much will completion disrupt or prejudice the proponent (the more disruptive the immediate completion will be of the proponent’s case, the more cautious the court should be before allowing it at that time)?

(9) Does truncation or completion implicate constitutional rights (if the prosecution introduces incomplete portions of a defendant’s confession that, if not completed by introducing other parts of the confession, would require the defendant to waive his Fifth Amendment right not to testify)?

See 21A Wright & Graham, Federal Practice and Procedure, § 5077.2. (2d ed. 2005).

Judge Grimm’s Conclusion

Quoting directly from Judge Grimm’s conclusion:

First, the rule of completeness, like its common-law predecessor, is more than just an obscure procedural rule governing the timing of the introduction of writings and recordings. It is tied to the very purpose of the adversary system, which allows the parties to strike blows that are hard but not unfair. The adversary system finds its most important application in the trial of a criminal case. The government has nearly unlimited resources to investigate and bring charges. With that power comes the obligation to prove the charges beyond a reasonable doubt. We take pains to instruct criminal juries that the government bears the entire burden of proof. The defendant is presumed to be innocent, and is not required to prove anything, or even testify. We admonish juries to draw no adverse inference when a defendant elects not to testify in his case. We also esteem the defendant’s right not to be compelled to incriminate himself and take precautions to avoid the chilling effect that comes with any comment in front of the jury that suggests that they should take note of the fact that he chose not to testify.

If a prosecutor introduces an incomplete version of the defendant’s written or oral statement to the investigating officers by eliciting only the inculpatory portions, while leaving out exculpatory ones that, in fairness, would paint a more complete picture and dispel a misleading impression that the jury may have reached having heard only the incomplete portions, then the defendant is at a serious disadvantage. If he is unable to introduce the parts of his statement that the government omitted at the same time that the incomplete version is presented to the jury (or instead very shortly thereafter on cross examination, or even later during his own case) because the court rules that the omitted parts are inadmissible hearsay or (if the statement was an oral one) that Rule 106 is inapplicable to oral statements, then he has only two remaining options: (1) allow the misleading version to stand unchallenged; or (2) waive his rights against self-incrimination and testify-but only after the government has completed its case. This is a high price to pay to correct misleading information. If one accepts, as the language of the Rule requires, that Rule 106 may only be invoked in the first place to correct an unfair presentation of incomplete information, then construing Rule 106 the way that many courts have done countenances an abuse of the adversary system that the common-law rule of completeness was designed to prevent. That is why the better-reasoned cases have held that, where necessary to redress an unfairly incomplete rendition of a written, recorded or oral statement, evidence that would otherwise be inadmissible may be introduced.

Second, the goal of Rule 106 and the common-law rule of completeness is to level the playing field, not tilt it in favor of the defendant. For that reason, it should only come into play when it is clear that the incomplete version of a written, recorded or oral statement is unfairly misleading. And only information that is essential to dispel the misleading impression should be admitted. This is especially true if, as the better-reasoned cases have concluded, inadmissible evidence may be used for this purpose. For this reason, judges have an obligation to carefully examine both the assertedly misleading information and the proffered completing information to insure that the evidence that was introduced requires clarification or explanation, and the proffered evidence is essential to clarify or explain. Careful consideration of the factors that courts and commentators have developed will allow a judge to strike the right balance, and offset any concern about the use of inadmissible evidence where necessary to correct unfairly incomplete evidence.

Third, there is little persuasive justification for not applying the same principles to oral statements that Rule 106 applies to written or recorded ones. A misleading oral statement is no less unfair that a written one. And the cases that have allowed the use of Rule 611(a) to achieve this result seem better reasoned than the ones that have not.

Opinion at 20-22.

Maryland’s Doctrine of Verbal Completeness

The Court of Appeals in Conyers v. State, 345 Md. 525 (1997), digests the history of Maryland Rule 5-106 and the common law doctrine of completeness. Similar to the Federal Rules of Evidence, “Maryland’s doctrine of verbal completeness is partially codified, at least as to timing, in Maryland Rule 5-106 which reads: ‘When part or all of a writing or recorded statement 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.'” Conyers v. State, 345 Md. 525, 540-41 (1997).

The timing aspect of Maryland Rule 5-106 is important because it allows certain writings or recorded statements to be admitted earlier in the proceedings than the common law doctrine of completeness. See Md. Rule 5-106, Committee Note.

Generally, Rule 5-106 does not change the requirements for admissibility under the common law doctrine or allow the admission of otherwise inadmissible evidence, except to the extent that is necessary, in fairness, to explain what the opposing party has elicited. In such a circumstance, the evidence is offered merely as an explanation of previous-admitted evidence and not as substantive proof.

Conyers is an interesting case because in that case, the defendant did not seek to admit a subsequent portion of the same statement that was offered by the State, but rather, the defendant sought to admit a portion of a separate statement altogether, in order to explain away inferences made by the State’s offering of the initial statement.

Before Conyers, there had been no case previously cited under the doctrine of completeness, or Rule 5-106, that admitted a writing or statement that was not the remaining part of a single writing or conversation.

In its analysis, the Conyers Court first considered whether a second statement offered by the defendant was admissible under Rule 5-106, to explain the first statement put into evidence by the State. The Conyers Court found that that Ms. Wilson’s statement concerning the location of the defendant’s gun on the night of the murder was not offered by the defendant contemporaneously with Ms. Wilson’s statement, admitted by the State, that the defendant owned two guns. Thus, the issue was not one of timing, and Rule 5-106 was inapplicable. 345 Md. at 541.

The Conyers Court then considered whether Ms. Wilson’s second statement was admissible under the common law doctrine of completeness. “The doctrine allows a party to respond to the admission, by an opponent, of part of a writing or conversation, by admitting the remainder of that writing or conversation.” 345 Md. at 541 (citing Richardson v. State, 342 Md. 611 (1991)). The requirements of the common law doctrine of completeness were first set forth by the Court of Appeals in Feigley v. Balto. Transit Co.:

(1) No utterance irrelevant to the issue is receivable;

(2) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable;

(3) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony.

211 Md. 1, 10 (1956) (quoting 7 Wigmore, EVIDENCE, § 2113 (1940)).

The doctrine is further limited in that the remainder of a writing or conversation sought to be introduced must not be irrelevant and should be excluded if “the danger of prejudice outweighs the explanatory value.” Richardson, 324 Md. at 622-23 (quoting MCCORMICK ON EVIDENCE,§ 56 (E. Cleary ed., 3d ed. 1984)).

In Conyers, the State’s witness, Ms. Wilson, first testified that the defendant owed two .38 caliber handguns. On cross-examination, the defendant wished to have Ms. Wilson testify that she had been told by the defendant that he had given his guns to Mr. Bradshaw sometime before Ms. Johnson’s murder. The Court of Appeals held that the trial judge did not abuse his discretion by refusing to admit the separate hearsay statement under the doctrine of verbal completeness. 345 Md. at 543.

When the State questioned Ms. Wilson about her conversation with Conyers shortly after he was incarcerated, all Ms. Wilson and the defendant discussed was “that he had two guns, not where they were…” 345 Md. at 544. Though the defendant may have been entitled to question Ms. Wilson about other parts of that same conversation under the doctrine of verbal completeness, the statement that the defendant sought to elicit took place during a different conversation between himself and Ms. Wilson.

*Note: The Conyers Court did state that in an appropriate circumstance, the doctrine would permit the admission of a separate writing or conversation to place in context a previously-admitted writing or conversation. 345 Md. at 542. An example of such a case cited by Conyers is State v. Baca, 120 N.M. 383 (1995). In that case, Baca appealed his convictions for the murder of his wife, Geraldine, and the attempted murder of his daughter, Renee. The State had introduced into evidence Renee’s statement made during a therapy session with social worker Breault, that she was afraid of dogs because she was bitten by a dog in the house where “they killed me.” The use of the word “they” bolstered the State’s theory that two men, Baca and Flores, killed Geraldine and attempted to kill Renee. Baca objected to the admission of the statement made during the Breault therapy session as hearsay. In the alternative, Baca asked to introduce contemporaneously a video tape of Renee’s later therapy session with therapist Fuhrer where Renee used the phrase “they killed me” several times, but each time Renee was asked who “they” were and she answered “Huero” which was Flores’s nickname.

Baca argued that under the rule of completeness, the second statement should be admitted into evidence to explain or place into context the evidence admitted by the State, although it derived from a separate conversation. The trial court excluded the evidence as inadmissible hearsay. The Supreme Court of New Mexico considered the rule of completeness, which like Maryland’s, allows courts to admit any writing or recorded statement that should, in fairness, be considered contemporaneously with a writing or statement previously introduced by another party. The Supreme Court of New Mexico explained that “Renee’s statement, when viewed alone, was misleading because when Renee said “they” she meant “Huero.”” The Court held that the video tape should have been admitted to plan in context Renee’s use of the word “they” in her first statement.

The Conyers Court held that the facts in its case was not a case like Baca, where jury clearly could have been misled by the first statement if not also allowed to consider the second.

The Conyers Court also discussed the two legal doctrines called “opening the door” and “curative admissibility” which are doctrines that in limited circumstances, give a party the right to introduce otherwise inadmissible evidence.

The distinction between the doctrines was discussed in Clark v. State, 332 Md. 77 (1993). The doctrine of “opening the door” gives a party “the right to introduce evidence in response to (a) admissible evidence, or (b) inadmissible evidence admitted over objection…” Clark, 332 Md. at 84. This is a rule of expanded relevancy, allowing the admission of evidence that is competent, but otherwise irrelevant, in order to respond to evidence introduced by the opposing party during its direct examination.

In Conyers, the State put into evidence during direct of Ms. Wilson, the fact that the defendant owned two .38 caliber handguns. The evidence the defendant wished to elicit on cross was that he told Ms. Wilson he had given the guns to Mr. Bradshaw before Ms. Johnson’s murder. This was hearsay and inadmissible because it was incompetent. “Opening the door” doctrine does not permit the admission of incompetent evidence.

The “curative admissibility” doctrine, on the other hand, “in rare instances allows otherwise irrelevant and incompetent evidence to repair the damage caused by previously admitted [highly prejudicial] incompetent inadmissible evidence.” Clark, 332 Md. at 88. This doctrine allows a party to admit evidence to respond to “inadmissible evidence admitted without objection.”

However, the incompetent inadmissible evidence in Conyers could not be admitted under this doctrine because the evidence was offered in response to the State’s evidence that was competent and admissible. The Conyers Court went on to say that even if the second statement were part of the same conversation in which the first statement had been made, it still would have been inadmissible. This is because, unlike the first statement, which was offered against the defendant and thus came within the hearsay exception for admissions of the party opponent, the second statement was offered in support of the defendant and, as such, was inadmissible hearsay. 325 Md. at 544.

Both Judge Grimm’s Memorandum Opinion and the Conyers Opinion give parties wiggle room when it comes to painting the whole picture after an initial impression is left by the first statement. Parties need to be knowledgeable of the applicable factors, and all of the nuances that come with the rules and the common law doctrines.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney