Alaska R. Evid. 106 commentary

The standard rule at common law does provide that when a

writing or recorded statement or part thereof is introduced by

any party, an adverse party can require admission of the entire

statement, assuming that the entire statement is relevant. But at

common law this evidence often is introduced as part of the

adverse party’s own case-in-chief, which may be presented

after much time has elapsed following the introduction of the

original segment. In theory, the trial judge has discretion to

change the normal order of proof and to permit the full

statement, or all relevant portions, to be introduced together

with the first portion offered. But many judges are hesitant to

depart from the usual order and to “interfere” with counsel’s

approach to a case. Common law courts are even less apt to

allow additional statements to be introduced immediately than

they are to allow an adverse party to offer a complete statement

as soon as some portions are presented.

Where time elapses between the offer of part of a statement

and the offer of the remainder, the jury may become confused

or find it difficult to reassess evidence that it has heard earlier

in light of subsequent material. Rule 106 creates a right to

require immediate admission of a complete written or recorded

statement or of all relevant portions. It is designed to enable

one party to correct immediately any misleading impression

created by another party who offers part of a statement out of

context. See McCormick § 56 (2d ed.); Cal. Evid. Code § 356

(West 1966). The rule also provides that it extends to

immediate admission of all matters so closely related to a

statement that in fairness they should be admitted immediately.

Although the Rule does not create any right of discovery of

documents, the Rule should be read to permit a court to require

a party who has introduced part of a writing or recorded

statement to show that writing or recorded statement to the

other side before the other side asks that it be introduced into

evidence. It would be impractical to allow the adverse party to

require that all statements on the same subject be produced for

inspection. Arguably, any statement that is relevant to the

issues being tried would have to be turned over in order to

avoid a later claim that the Rule was not complied with. If all

statements were produced, the burden on the court might be

tremendous. Fairness does not require such full discovery, in

view of the countervailing concerns giving rise to the general

protections for witness statements. Thus, it is only where a

specific statement is relied upon by one party that the other

should be permitted to see the entire statement.

This understanding regarding disclosure of writings and

recorded statements builds upon the Jencks Act, 18 U.S.C.

§ 3500 and on AS 12.45.060. But this Rule applies in both civil

and criminal actions, and it applies to defendants as well as to

plaintiffs.

Nothing in this Rule changes the pre-trial discovery rules

currently in use. See, e.g., Rule 16, Alaska R. Crim. P., Rule

26(b), Alaska R. Civ. P. These procedural rules define what

may be discovered before trial. Whatever a party has discovered before trial may be offered under the last sentence of Rule

106 so that the trial judge can decide whether in fairness it

should be considered along with a statement or part thereof put

forth by another party.

Rule 106 does expand discovery at trial, as opposed to

pretrial discovery. Generally, in civil cases witness statements

will not be discoverable before trial. They usually will qualify

as trial preparation materials. Under Rule 16, Alaska R. Crim.

P., as recently amended, criminal defendants usually will see

witness’ statements before trial. But there are exceptional

cases, see, e.g., Rule 16(d) (4), Alaska R. Crim. P., which is

governed by AS 12.45.060. Rule 106 advances the point at

which such statements are discoverable to the point at which

discovery will do the most good — i.e., the point at which part

of a statement is introduced in evidence. In civil cases, no

Jencks Act applies, and there is no general obligation to turn

over a witness’ previous statement to an opposing party after a

witness testifies. Rule 106 takes the position that once a civil

litigant offers into evidence a portion of a witness’ statement,

fairness requires that the litigant turn over the entire relevant

portion of the statement to an opposing party. This Rule is

consistent with the United States Supreme Court decision in

United States v. Nobles, 422 U.S. 225, 45 L.Ed.2d 141 (1975).

Rule 106 does not create any affirmative duty to proffer the

whole of any statement when one desires to introduce only a

part, but the Rule allows an adverse party to inspect the whole

immediately upon request in order to ascertain that no

misleading impression will result from incomplete admission.

Adequate protection against disclosure of irrelevant information is afforded the offering party and third persons by

the fact that the judge might delete irrelevant material, if

requested to do so. Article IV should be consulted on relevance

issues.

At first blush any privilege that might be claimed with

respect to a statement would seem to be waived by offering a

portion of it into evidence. But a statement may address

several unrelated issues, and any waiver may be partial. The

court cannot demand the complete statement without

permitting the offering party to claim a privilege as to

unrelated matters. Some minimal inquiry into the nature of the

privileged matter may be required. But in view of the common

law experience with waiver, the judicial task should not be

unfamiliar. See United States v. Weisman, 111 F.2d 260, 261-62

(2d Cir. 1940) (L. Hand, J.). Article V will govern privilege

questions. Once privileged matter is deleted, the judge will

make the relevant determination regarding non-privileged

matters. Cf., AS 12.45.070.

Upon request, the court should provide protection against

undue annoyance, embarrassment, or oppression, a philosophy

reflected in Fed. R. Civ. P. 26(c) and Rule 26(c), Alaska R. Civ.

P. Among other things, the court may wish to restrict the

extrajudicial flow of information and to hear argument in

chambers on the offer of certain information which may be

highly prejudicial and which ultimately may be excluded under

Rule 403.

For practical reasons, Rule 106 is limited to the introduction

of a writing or recorded statement; testimony by a witness is

not affected by the rule. Any attempt to include testimony

within the coverage of this rule would open the door to

immediate cross-examination of a witness who refers during

testimony to any out-of-court statement by anyone. Rule 106

takes the position that there is no more reason to allow

immediate cross-examination of this testimony than any other

testimony by the witness which presumably could be made

more complete by cross-examination. Testimony is not likely

to have the impact of a written or recorded statement which,

when offered, may appear to be extremely trustworthy.