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.