Case Western Reserve University School of Law Scholarly Commons Faculty Publications 1995 A Theory of Verbal Completeness Dale A. Nance Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Evidence Commons Repository Citation Nance, Dale A., "A Theory of Verbal Completeness" (1995). Faculty Publications. 391. https://scholarlycommons.law.case.edu/faculty_publications/391 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. A Theory of Verbal Completeness Dale A. Nance* I. Introduction 826 II. The Common-Law Heritage: Identitying Functions of the Completeness Doctrine 829 A Defining "Wholeness" 829 1. The Relevance Test 831 2. Aggressive and Responsive Completeness 835 B. The Rebuttal Rule 835 1. The Timing Function 837 2. The Trumping Function 839 c. The Interruption Rule 847 1. Timing and Trumping Functions Revisited 847 2. The Discovery Function Disinterred 852 D. "Wholeness" Contextualized 855 1. The Embedded Utterance Problem 856 2. The Source Limitation Issue 857 III. Completeness and the Best Evidence Principle 860 A Completeness as a .Component of the Best Evidence Principle 860 1. The Discovery Function 862 2. Tne Trumping Function 865 3. The Timing Function 868 B. Completeness and Curative Admissibility 869 c. Exclusionary Rules and the Reach of the Trumping Function 876 1. Asymmetry and the Trumping Function 876 2. Beyond Formal Asymmetry 881 a. The overinclusiveness of asymmetry 881 b. The underinclusiveness of asymmetry 885 3. The Problem of a Source Limitation Revisited 891 4. A Revised Test for Trumping 896 IV. Conclusion 897 * © Copyright 1994 by Dale A Nance, Professor and Norman and Edna Freehling Scholar, Chicago-Kent College of Law, lllinois Institute of Technology. B.A, 1974, Rice University; J.D., 1977, Stanford University; M.A. (Jurisprudence and Social Policy), 1982, University of California, Berkeley. Financial support for work on this paper was provided through the Marshall D. Ewell Research Fund. Outstanding research assistance was provided by Patrick Carlson, Class of 1993. Craig Callen, Richard Friedman, Roger Park, Michael Seigel, and Alex Stein made valuable comments on a draft, and Jacob Corre was particularly generous with his time in discussing early formulations of my thesis. 825 826 80 IOWA LAW REVIEW []995] L INTRODUCTION Countless rimes a day, wilnesses in court are sworn to tell "me wholie truth." 1 But do we mean it? The simple fact is that our adversarial legal culture condones a large measure of selective reporting by witnesses as weB as selective presentation of doclilllentar<; or real evidence. This tolerance for partial truths is premised on the theory that the partiality of one side will be offSet by the partiality of the other. Amid this adversarial dash, one wonders whether the mandate to tell "the whole truth," as distinct from the mandate not to lie, has any practical significance.2 Of course, the adversarial contest is governed by a variety of procedural rules that regulate the partiality of the evidence introduced. The most significant are rules of discovery, which allow parties access to the information needed to supply that which their adversaries omit, and rules requiring wilnesses to submit to cross-examination. Collectively, these mles enhance and protect the capacit'f of the system to provide adversa..vial cures for adversarial partiality. Also of considerable importance, though less so since the expansion of discovery rights, are the rules of admissibility. Many of these rules control partiality more directly by exerting pressure on parties to present preferred forms of evidence, such as assertions subject to cross-examination and documents subject to direct inspection.3 The so-called "rule of completeness" is different It constitutes the most direct way that the law of evidence rro~nifests a commitment to override adversarial partiality in the presentation of evidence. Whereas most acLrnissibility rules are exclusionary, operating against a badcground preference for the admissibility of relevant evidence! the completeness rule is explicitly inclusionary. It affirmatively provides for the admission of evidence needed to understand other evidence already admitted.5 The 1. The language appea.rs in Lhe familiar requirement of a.'l oath "to tell the truth, the whole truth, a.11d nothing but the truth." See, e.g., Colo. Rev. Stat.§ 13-90-117 (1987); Fla. Stat. Ann.§ 90.605 (West 1979); Ind. Code§ 34-1-14-2 (1986). 2. The problem of selective questioning of witnesses is exacerbated in this country by the fairly peiV<ISive practice of coaching witnesses. See generally John S. Applegate, Witness Preparation, 58 Tex. L. Rev. 227 (1989). 3. See generally Dale A. Na.1ce, The Best Evidence Principle, '73 Iowa L. Rev. 227 (1988) [hereinafter Best Evidence]. To be sure, the exclusionary rules sometimes generate their own distorting side effects. See, e.g., Stephen A. Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Cal. L. Rev. 1011 (197ll) (discussing problem of jury discounting f01 fuilure to produce evidence 1·1hen, unbeknownst to jury, party who would be expected to present such evidence has tried unsuccessfully to introduce it). 4. See, e.g., Fed. R Evid. 402 (providing that all relevant evidence is admissible except as limited by explicit rule). See generally James B. Thayer, A Preliminary Treatise on Evidence at the Common Law 253-'70 (1898). 5. See generally Charles T. McCormick, McCormick on Evidence § 56 (3d ed. 1984). Besides the completeness rule, the only general inclusionary rules, other than constitutional limitations on the e.xdusion of reliabie evidence, are the doctrine of curative admissibility, id. VERBAL COMPLETENESS 827 former "completes" the latter. This root idea-favoring the "whole" evidence, if not the whole truth-provides a potentially wide open door to the admission of evidence, since relevant evidence will almost always aid in understanding other information presented on the same material issue. It thus carries the potential to undermine the entire system of evidence rules. If one side introduces evidence E1 on some material issue, an adversary may want to introduce evidence E2 that affects what the trier of fact infers from E1 about that issue or about other issues in the case. If the presentation of E2 is blocked by some exclusionary or regulatory evidence rule, the adversary may appeal to the principle of completeness in an effort to override the obstruction. And if this is to be allowed, what evidence rule could remain intact? Not surprisingly, the completeness principle has been constrained so as to apply only in certain special contexts. For example, the most commonly encountered codification of the doctrine is Federal Rule of Evidence I 06: 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 that ought in fairness to be considered contemporaneously with it. On its face, this provision limits the completeness idea to assuring the presentation of the entire relevant portion of a writing or recorded statement. Still, the rule applies quite broadly in certain respects. Unlike most other rules that affirmatively provide for the admission of evidence, the rule of completeness is not tied to a particular exclusionary rule:6 Therein lies both its potential power and its realized ambiguity. On the one hand, the completeness rule might operate across admissibility rules, trumping any that would otherwise require the exclusion of potentially "completing" evidence. Alternatively, it might be subordinate to such exclusionary: rules, having only some narrower § 57, and the doctrine of waiver of objections, id. § 55. The relationship of curative admissibility to completeness is discussed infra Part ill.B. 6. Given the presumptive admissibility of relevant evidence, most other inclusionary rules are simply exceptions to exclusionary rules that would otherwise apply. Usually, the status of a rule as an exception is obvious, especially under modern codifications. However, some rules require closer inspection. For example, Fed. R Evid. 609 mandates the admissibility of certain evidence that a witness has been convicted of crime, but it is clear from the context that the ruJe operates as an exception to the otherwise applicable exclusion of character evidence. See Fed. R Evid. 404, 608(b). Yet Rule 609 also operates as an exception to the hearsay prohibition as it would apply to a report of the conclusion of a separate trier of fuct. Cf. Fed. R Evid. 803(22). It should also be noted that there is a much narrower completeness provision in the Federal Rules that is tied to a particular exclusionary rule. See Fed. R Evid. 410(i) (providing for admissibility against defendant of statement made in plea negotiations when necessary to understand another admitted statement from same discussions). c 828 80 JOV\if-1 LAW R.. EVlEW []_ 995] procedw.-al effect indicated by the "at til.at time" language. Modem case bw and commentary are split on fuis question, .reflecting substanti.all confusion about the .rationale of the rule.'' In thls Article I wiH endorse the view that the most important modern function of the completeness rule is to trump oLhenvi_se applicable exdusionar1 rules, though not ever/ rule in every instance. I will also offer the general proposition that it should almost always trump one la:rge and important class of exclusionary rules, those based upon the "best evidence" principle, that is, the principle that parties should present to the tribunal the epistemically best evidence available to them on a given litigated issue.8 The trumping effect arises naturally from the fact that the completeness rule is itself an instantiation of that principle.