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Rule 106 and the Fourth Circuit: Procedural or Substantive Mechanism? 🤷‍♂️

Professor Miller of EvidenceProf Blog has written a fascinating blog post about the often forgotten and misunderstood rule of evidence: 106.

Rule 106 is the rule of completeness. It attempts to prevent an unfair portrayal of a piece of evidence when presenting the full piece of evidence would paint a clearer picture.



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 ought in fairness to be considered contemporaneously with it.

FRE Rule 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.


As Professor Miller explained, there is a split among courts about how to apply 106. Is it a procedural mechanism that merely applies to when a party can introduce the other half of the otherwise admissible evidence? Or is it a substantive mechanism that allows a party to introduce an otherwise inadmissible piece of evidence in order to be fair and paint the entire picture? It appears that the state of Delaware has gone with the latter.

I'm writing this post to address a couple of courts a little closer to home: the Supreme Court of South Carolina and the Fourth Circuit Court of Appeals. I believe both of these courts hold that 106 is procedural and applies to the timing of otherwise admissible evidence (but I'm not positive about the Fourth Circuit).

State v. Tennant, 394 S.C. 5, 15, 714 S.E.2d 297, 302 (2011)

State v. Cabrera-Pena, 361 S.C. 372, 379, 605 S.E.2d 522, 525 (2004)

It is clear that in South Carolina state courts 106 is a procedural mechanism. But what about federal South Carolina Courts? This is what the Fourth Circuit said in United States v. Hassan, 742 F.3d 104 (4th Cir. 2014):

The first statement says that 106 may let in "otherwise excluded testimony." The second statement says 106 does not render inadmissible hearsay admissible. Does this mean that 106 is a procedural mechanism for any incomplete hearsay statements but it is a substantive mechanism for other evidence (i.e., 403)?

The court cites Bollin which cites Wilkerson. In U.S. v. Wilkerson, the court held that "when the rule does apply, its purpose is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received." United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

What if the relevant portion of the excluded testimony is inadmissible hearsay? Which rule from Hassan applies?

Luckily for me I practice in state court, so if I ever find out the answer, I will post it.


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