As usual, I’d be interested in Judge Mathews the Greatest’s take on this.  As for me, I’m with NMCCA on Foisy.

PFC Foisy wrote a statement for NCIS.  Two months later, he signed off on a second statement to NCIS about the same incident.  That second statement refers to the first one.  How is the second statement, with its reference to the first statement, to be understood and placed in its proper context unless the first statement is also introduced?  It’s not, rules NMCCA.

PFC Foisy was charged with an orders violation and aggravated sexual assault.  NMCCA’s decision concerns that second charge.  PFC Foisy’s first statement, handwritten less than two days after the alleged sexual assault, described a consensual sexual encounter between him and the alleged victim.  The second statement was executed about two months later when NCIS reinterrogated him.

At trial, the military judge admitted the second statement into evidence at the prosecution’s request.  During its case-in-chief, the defense attempted to introduce the first statement.  The prosecution objected.  The trial defense counsel argued that it should be admitted under the rule of completeness.  The military judge sustained the prosecution’s objection.

NMCCA provides this helpful synopsis of the source of the rule of completeness:  “There are two distinct rules of completeness: Mil. R. Evid. 106 and 304(h)(2).  Both rules require an initial determination that a party has introduced an incomplete item.  Id. at 342.  If the item is incomplete, then the opposing party may invoke Mil. R. Evid. 106. The accused may also invoke Mil. R. Evid. 304(h)(2) when the document at issue involves an admission or confession.  Id.”  Foisy, slip op. at 4.

NMCCA analyzed CAAF’s decision in United States v. Rodriguez, 56 M.J. 336, 339 (C.A.A.F. 2002), and identified six factors that affect a rule of completeness analysis:

(1) Has the prosecution attempted to “pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages”?  (2) Is the appellant’s subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action?  (3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons?  (4) Was the second statement made at the specific request of the appellant or the Government?  (5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination?  (6) Did the appellant engage in a “pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay”? 

Foisy, slip op. at 5-6.

NMCCA observed that while the first statement provided information that suggested a consensual sexual encounter, “[t]he admitted statement literally drops the reader into the middle of the interaction at the point of alleged criminality, taking the appellant’s admissions so out of context as to be completely misleading.”  Id., slip op. at 7.

NMCCA reasoned:  “It is ‘manifestly unfair’ to require the appellant to face his inculpatory admissions while simultaneously barring him from introducing the very statement his inculpatory remarks specifically supplemented by reference, especially when, as in this case, the appellant’s story did not change.”  Id., slip op. at 8.

The court held that “where the Government links two statements by constructing them as a statement and a ‘supplement’ to that statement, the Government may not deconstruct those statements for purposes of trial where admission of the second statement standing alone would create a misimpression on the part of the fact finder as to an accused’s actual admissions.  The rule of completeness is neither a sword with which an accused might introduce evidence to avoid the crucible of cross-examination, nor a shield behind which the true nature of an accused’s admissions may be hidden.”  Id., slip op. at 9.

NMCCA concluded that the error was prejudicial and set aside the finding of guilty to aggravated sexual assault and the sentence, while authorizing a retrial.

20 Responses to “Foisy”

  1. Phil Cave says:

    And don’t forget that 304(h)(2) applies to oral as well as written statements. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002); United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002).

  2. Anon says:

    In this case MJ and TC should have erred on the side of caution b/c this looks like a no brainer, even w/ the break in time b/w statements. Wonder how this would have played out if the Defense had called the accused to the stand after the MJ excluded his first statement? Would it have mooted the issue? Or would the fact the accused exposed himself to CX due to an erroneous ruling given rise to relief even if he did testify as to the “rest of the story.”

  3. Anon says:

    Once again, the government created error on the record which resulted in reversal on appeal. When will young TC learn that criminal justice is not a game in which you have to win all the points?

  4. Bill C says:

    Realize that by now the kid is out of jail, the TC have either moved on or out, and everyone has pretty much moved on with their lives, except for the accused who was placed on the SO registry. Anon 1935 is right. TC have to get past the “win at all costs” mentality and analyze cases in the big picture. While we only get the snapshot from the NMCCA opinion this does not sound like an issue that should have been raised in the first place.

  5. RY says:

    While I generally agree that the problem is a “win at all costs” mentality, I don’t think that is completely the fault of young/inexperience trial counsel. Certainly they share blame, but I think the mentality is often fostered by SJAs, who set the stage and often assist in trial strategy.

  6. Bill C says:

    No doubt. In many of these cases, I see TC telling me they don’t think the case is worth pursuing. Worse yet, I see their legal NCO’s, the ones usually with the most experience, telling them the same things, but the SJA’s insist on pursuing it, and then you get results like this.

  7. John O'Connor says:

    Agree with Anon 0735 to the extent that he/she is arguing that a TC needs to weigh the benefit from a favorable evidentiary ruling against the appellate risk associated with obtaining that favorable ruling. Asking the MJ for a ruling that is error (or where it’s iffy if the ruling would be error but you don’t really need the evidentiary result you seek) doesn;t serve the Government’s interests.

    No idea what the calculus was in this case, just agreeing with Anon 0735’s broader philosophical point.

  8. Brian the Dog says:

    Not sure this decision was as clear a call as other commentators make it out to be. Consider the following language from CAAF in Rodriguez (56 MJ 336) “Although the latter statements may rebut, explain, or modify the content of his earlier statements, they are not admissible under the rule of completeness because they were not part of the same transaction or course of action.”

    The issue here is not whether a panel should get to hear all of the accused’s statements under some vague idea of fairness. The accused is always free to take the stand and explain his statements, or offer new ones.

    Rather, the issue is whether one statement can only be understood in the context of a previous statement. The Government IS free to cherry pick the statements it likes, so long as the statements all stand on their own.

    To me, the Navy court too easilly relies on the talismanic title that the second statement was labled “supplemental.” How the statement is described does not determine whether it can be understood independantly. (If NCIS started labeling every statement as “independant of all other previous statements” that, similarly, would not magically make the statements independant. It is the context that counts.)

    Here the Court declares that “The two statements are manifestly related.” Well, of course they are, but that hardly matters. They are both about the alleged crime, and, surprise, surprise, both take by NCIS. But that doesn’t answer the mail. Rather then a “relation” test, the test is: can you understand what the accused was saying in the second statement, without reading the first.

    If the panel can fairly undestand what the accused was saying in statement #2, then statement #1 does not come in. Here, the court spends much time making the self-evident arguement that the panel didn’t hear about X from statement #1, because, well, they never heard statement #1. What they barely discuss is whether you can understant the admissions by the accused in statement #2, without statement #1.

    Not having read the statements, I can’t say whether they were ultimately right or wrong. But the court’s bald (well, nearly bald) assertions are not terribly convincing. They go on and on about how the second statement leaves out the exculpatory statements of the accused, but that is not the standard articulated by CAAF or the President.

    We could have a rule, that when the government admits statements of the accused, the defense is free to admit any other statement of the accused. But that is not the rule we have (and thank goodness, since it would lead to much mischief).

    In Rodriguez, the accused made seven statements, all about the disapearance and death of his wife. The Government admitted four of the statemetns, and prevented the defense from admitting the other three as hearsay. Even though some of the statements were all made to same investigatory agency, and even though they were all about the same crime, CAAF ruled that the statements stood on their own. Speciffically they said:

    “Each of these statements was made during a discrete, complete event. Appellant has not shown, with respect to any of these communications, that he was somehow precluded from completing the content of his statements. …The rule of completeness is an evidentiary rule designed to promote fairness by precluding unfair omissions, not a rule intended to allow an accused to avoid the “crucible of cross-examination.”

    In other words, just because the Government uses a statement you don’t like, doesn’t mean you get to introduce the statements you do like, and avoid cross.

    (And as an aside, they also disposed of the foundation issue rather tritely in a footnote – essentially, there is no valid foundation issue, because, well, everyone agrees on appeal that the document is genuine. Does this mean you can’t make the other side lay a foundation unless you believe the document is not genuine, or, just that there is no appellate issue if the document turns out to be, after all, genuine).

  9. Dwight Sullivan says:

    Brian le Chien (hey, that kind of rhymes),

    We know that the second statement said, “This is a supplementary statement to add to the previous statement I gave to NCIS investigators.” I don’t think the members can understand the second statement, which bills itself as an addition, without knowing what it added to.

    The second statement was a sequel. It was billed to its audience (the members) as a sequel. And, gosh darn it, you just can’t understand the Matrix Reloaded without having seen the Matrix. (Okay, that’s probably a bad example. One can’t understand the Matrix Reloaded period.)

  10. Anonymous says:

    The whole idea of the rule for completeness is fairness. And it isn’t about all of the accused’s statements, it is about one.

    When the statement is clearly labeled and treated as an extension (“supplement”) of a previous statement by the investigator taking the statement, I think it strains credulity to argue we really shouldn’t consider it as such.

    The government can cherry pick statements, what they can’t do is cherry pick within a statement. Which is what ended up happening here. The blame is not on the court but on the investigator for being too cute for his own good.

    There aren’t two statements here. There is one statement. That’s what the Court ruled because that is how the investigator treated and labeled the statement.

    On a side note, I think a rule that says the accused may introduce any sworn statements not introduced by the government would not “lead to much mischief.” But I am in the minority on that for sure.

    Here is the difference from Rodriquez and it is in the first sentence you quote:

    “Each of these statements was made during a discrete, complete event.”

    You can’t have something called a “supplement” to a prior statement and call either a “discrete, complete event.” It wasn’t, the prior statement was supplemented to make one completed statement.

    The lesson will be learned by investigators not to play cute with “supplemental statements.”

  11. Anonymous says:

    AI bad, humans good.

  12. BCG says:

    I work nowhere near NMCCA, but this six-factor test strikes me as incredibly unhelpful. Factors 1, 5, and 6 seem eye-of-the-beholder subjective, 5 begs for a sideshow on character for truthfulness or lie detector testimony, and 1-6 invite appellate reconstruction of the motives behind counsel strategy. Factors 2 and 3 overlap in analysis and provide two votes where only one’s needed. Factor 4 seems objective and measurable (unless there’s, e.g., an entrapment or “Christian burial” provocation defense); but I’m not sure which way it cuts. Do we assume because the accused is interrogated he’s less truthful than if he voluntarily provides information? Or is it fairer to include both statements when he’s being interrogated vs. volunteering info? This test doesn’t provide much help to this tired trial JAG on inclusion vs. exclusion. Fairness here is not about second-guessing motives or deception; it’s about whether the trier of fact is getting an incomplete picture, regardless of motive.

    Foisy reads as if the key factor is that the second statement was labeled as supplemental, and the court built the boat around that. If it weren’t labeled supplemental, my hunch is NMCCA comes out opposite. (And if so, that’s an open invitation to investigators to “get cute” on re-interviews to try and avoid this result).

    Here’s my suggested rule of completeness factors: 1) How contemporaneous were the statements in time, place, subject, and circumstance? (More = Admit, factfinder should have complete story); 2) Was the statement offered to a law enforcement agent? (Yes = Admit, lessens likelihood of coercively planting the cherries picked); 3) Was the statement subject to additional scrutiny or follow-up with the maker after it was offered? (Yes = Admit, less concerned about hearsay if earlier challenged); 4) [Hard fact-law call] Does the statement contradict or provide essential information or context about the particular statement previously introduced, without which that statement cannot fairly be understood?

    2, and 3 slant towards inclusion for police interrogations, but 1 and 4 acknowledge the holding in Rodriguez: The prosecution may properly choose specific admissions for trial and the hearsay rules allow some cherry-picking. I think it’s more measurable, and balances more underlying concerns, than NMCCA’s, but welcome critiques.

    Dwight, I can’t untangle Foisy’s messy analysis from the real facts (cited or not), but it seems to suggest all re-interviews open the door to all prior statements. As Brian astutely envisions, as soon as TDC asks the government’s foundational witness “Why did you re-interview?” and starts to draw connections, Foisy’s supplement rule is tethered and invoked. I don’t think that jives with Rodriguez or the rules’ intent, and so disagree NMCCA gets there cleanly. But if I were a TDC, I’d be scrutinizing MRE 304(d) submissions and drafting my Foisy cross-exams right now in any case with multiple statements.

  13. Brian le Chien says:

    I agree that you can’t (or would seriously suffer comprehension issues) if you watched Matrix II without Matrix I. Fot THAT movie, the movies are inexorably intertwined. But that is ONLY because you looked at the content of the movies. Surely we cannot say that ALL sequals requrie you to have seen the first movies. Most sequals are stand alone movies. (While seeing the first movie may provide color, the movie was made so that it could be enjoyed on its own).

    Accordingly, I think your Matrix analogy holds for statements. Sometimes (Matrix) the panel can only understand what the accused was saying in statement 2, by also viewing statement 1. Many times, the accused’s statement 2 can stand on its own without losing its meaning (e.g. Spiderman).

    The point is, you can’t just look at the label (sequal / “supplemental statement”). You need to look into the statements.

    One thing I would want to know, (which I don’t think we have), is whether the accused was given statement 1 when he was writing statement 2. (Given the 2 month time lapse, without the 1st statement, it is highly unlikely that he was incorporating the first statement by memory).

    What the court should have told me, in reaching their findings, is that you cannot understand what the accused was trying to say in his second statement without referencing the first. Not, that the first statement provides additional information, nor that the accused ‘meant’ for them to be read together. (And to the extent that the statements contradict eachother, that goes AGAINST admitting the first statement because it indicates that they are stand alone documents).

    Au bientot and a tout à l’heure,


  14. Phil Cave says:

    Why can’t we just have an (almost) all or nothing rule?

  15. JWS says:

    OK, I see the technical minutia. But there is an over-arching constitutional principle: the government may not deny the accused the right to offer exculpatory evidence. Since the evidence did tend to exculpate the accused, why do we need all this technical wrangling?

    And what concept of lawyer ethics or military honor allows TC to seek to deny the accused a fundamental constitutional right?

    And if TC did not recognize the applicability of the right, why is he or she TC?

    And if this position was taken by TC at the order of an SJA, how would that order be lawful?

    Can TC request mast?

  16. Brian le Chien says:

    Also, how did you know it wasn’t “Brian la Chien” ?!?

  17. Brian le Chien says:

    It is not a constitutional right. The Government may deny the accused the opportunity to offer exculpatory evidence often, and rightfully – that is the specific goal of the hearsay rule. There is not constitutional right for an accused to offer his prior statements generally. This case concerns an exception, when he is allowed to offer his statement.

    (If an accused could simply write a statement, and have it admitted, he could always tell his side of the story, but without having to take the stand and be subject to cross examination).

  18. Anonymous says:

    Brian, first of all, love that you can talk.

    Second, I think they examined the docs and determined exactly what you said they should determine, which was that the two were linked.

    It isn’t as simple as saying well if you can understand what is being said then only that statement comes in, in these type of situations.

    That’s a pretty low threshold.

    By that argument, you could have an accused do up a statement, then bring them in later and say, I just want to supplement the first statement, you shot him right? Yes? Just write down I shot him. I just wanted to clarify that and supplement that from the first statement you made.

    Ignoring that in your prior statement you’d said I shot him because he was attacking me, or I shot him because he was attacking someone else, or I shot him because I dropped the gun and it went off.

  19. Anonymous says:

    why does it have to be, write a statement and have it admitted as if he drafted it up in his room?

    Why not a rule that says, if you introduce one statement to police under oath, you have to introduce them all, or the defense is allowed to introduce other similiar statements under oath?

    Does anyone truly believe that accused will now stop confessing every five seconds but will instead now perfectly craft their statement so to make them appear innocent because all of their statements to police now have to be admitted?

    Cuz they sure as heck don’t do that now.

    And even if they learn later that they could go in and try to make a second exculpatory statement, CID ain’t likely to take another statement after they have what they need to close the file.

  20. Christopher Mathews says:

    As usual, I’d be interested in Judge Mathews the Greatest’s take on this.

    How can I resist an invitation like that?

    Like most of the commenters here, I think the CCA got this one right. FN 3 pretty much encapsulates my thinking: the investigator in effect incorporated the prior statement into the second. Ludicrous though the first statement appears to me, it should have been presented to the members.