October 2, 2023

FRE 106: The Rule of Completeness, Now Even More Complete!


Written by: Scot Goins, Assistant Dean of Academic Achievement and Bar Success and Associate Professor of Legal Practice

Future bar exam takers take heed! The Federal Rules of Evidence (‘FRE’) will receive three significant updates at the end of 2023. These updates will impact FRE 106, FRE 615, and FRE 702. As all of these are fair game to be tested on the bar exam in the future, it is important to be aware of these amendments (NOTE: The NCBE has provided guidance and insight regarding the three-year development process for questions, and it is difficult to determine exactly when these changes will be reflected in either the current or NextGen bar exam questions, but it is important to be aware of these changes nonetheless.)

These changes were recommended by the Advisory Committee on Federal Rules to the Standing Committee on Rules of Practice and Procedure on May 15, 2022, after being unanimously approved. These amendments, after being approved by the United States Supreme Court, were submitted to Congress on April 24, 2023. Congress took no action to the contrary, and the new rules will go into effect on December 1, 2023.

The first part of this three-part series on the changes will address FRE 106.

Current title of FRE 106: Remainder of or Related Writings or Recorded Statements

The current language of FRE 106, colloquially and affectionately known as the “Rule of Completeness” reads:

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.

The amended language, effective December 1, 2023, will read as follows:

Amended title of FRE 106: Remainder of or Related Statements

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

So, what changed?

For starters, the name of the rule changed. As you undoubtedly noticed, amended FRE 106 will have a bit of a title shift. This reflects the changes made after public comment that specifically address the fact that the rule now covers all statements, including oral statements that have not been recorded, and statements made through conduct and sign language. In addition, the rule now explicitly states that there can be no hearsay objection to admitting the remainder of a statement or a related statement if in fairness, such statements ought to be considered. This change was made because “courts have been in conflict over whether completing evidence properly required for completion under FRE 106 can be admitted over a hearsay objection.” FRE 106 removes any potential conflict between courts in applying FRE 106 moving forward. See, Committee Notes to Rule 106 Proposed Amendment. See also, Hardly a Fait Accompli: Federal Rule 106 (elaborating on the previous court conflicts).

Remember, that despite the changes to both the title and the substance of the rule, a party “seeking completion with an unrecorded statement would of course need to provide admissible evidence that the statement was made. Otherwise, there would be no showing that the original statement is misleading, and the request for completion should be denied. In some cases, the court may find that the difficulty in proving the completing statement substantially outweighs its probative value—in which case exclusion is possible under Rule 403.” See, Committee Notes to Rule 106 Proposed Amendment.

What does it all mean?

The confusion surrounding the current version of FRE 106, considered a “partial codification” of common law, has led to uncertainty in courts and among practitioners. However, these amendments aim to definitively displace the common law, aligning FRE 106 with other FRE components. These changes address the admissibility of out-of-court statements, stipulating that introducing part of a statement misleadingly forfeits the right to prevent admission of the necessary remainder. Courts may decide whether the remainder serves a hearsay or non-hearsay purpose. Additionally, the amendment simplifies the handling of unrecorded oral statements under FRE 106, providing clarity and avoiding pitfalls. Importantly, the core rule remains unchanged, focusing solely on instances where a party creates a misimpression about a statement, and the opposing party offers a correcting completion. Mere probative value or contradiction alone does not warrant FRE 106 application. Id.

These changes to FRE 106 should limit potential conflict, avoid confusion, and provide clarification around the “Rule of Completeness,” making it now, in my humble opinion, “even more complete.” If tested on this material, the general gist is that we are simply not going to allow one party to mislead the court by introducing partial statements without allowing the other side to introduce other pertinent parts.

Part Two of this series will examine the changes to FRE 615 and Part Three will examine the changes to FRE 702.