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  • Brian Foley

Conroe Criminal Defense Lawyer - Rule of Evidence Series RULES 106 and 107

Today we are going to discuss rules 106 and 107 together because they are really very similar. Rule 107 is actually more familiar to lawyers as it is the codification of the common law’s “Rule of Optional Completeness.” Rule 106 is the Remainder of or Related Writings or Recorded Statements and along with 107 encompass the anti-cherry picking rules. These rules allow an opposing lawyer to call you out if you try to cherry pick a good quote from a document or recorded statement. The difference between the rules is the kind of evidence that was used to mislead the jury by opposing counsel and the timing with which you get to make him look like a fool. Under Rule 106 if you mislead the jury with incomplete evidence of writings and recorded statements, not only will the judge let opposing counsel call you out, the judge is instructed by the rule to stop you in your tracks hand over the reigns of the trial to opposing counsel, let them make you look stupid, and then give it back to you.

The two major principles that undergird the rule are:

· The danger of partial evidence being misleading; and

· The inadequacy of delayed repair.


This doesn’t mean that you get to admit the entire bible if someone quotes, “Judge not lest ye be judged.” But you might get to quote John 7:24 “Judge not according to the appearance, but judge righteous judgment.” If someone misleads the jury with the DWI SFST field manual you can enter in parts to correct the misleading evidence but you can’t enter the entire manual into evidence because of this.


This Rule works together with Rule 107 to cover acts, declarations, and conversations as well as writings and recorded statements. Under Rule 107 you have to wait your turn if the misleading evidence was an act, declaration, or conversation not memorialized in writing or by recording. Its still a good rule but the timing of the corrective evidence under Rule 106 is killer. This is one of the rules of evidence that is a real deterrent to lawyers who would seek to cherry pick from a document.


One famous example of cherry picking was by a scurrilous prosecutor in Reece v. State who offered the words, “I did kill Mr. Smith” when the defendant’s full statement was “I want to say that I do believe that I did not kill Mr. Smith . . . .” Reece v. State, 772 S.W.2d 198, 220 (Tex. App. – Houston [14th Dist.] 1989, no pet.) Crazier than this ridiculous malfeasance by the prosecutor was the fact that the defense didn’t bother to offer the remainder of the statement and this poor man’s conviction was upheld by the reviewing appellate court. Id.


The concurrence includes this gem of a quote, “Every rule of fundamental fairness and justice was violated and the court did nothing to correct it. The alteration of the confession was the most outrageous abuse of prosecutorial power I have ever seen. I cannot be a party to finding such behavior acceptable.” Id. at 205.





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 introduce, at that time, any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. “Writing or recorded statement” includes depositions.


Rule 107. Rule of Optional Completeness

If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. “Writing or recorded statement” includes a deposition.



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