Evidence Legal Topics Litigation Strategy Trial Strategy

How to Put Partial Evidence in Complete Context

When evidence presented during direct examination is distorted by being taken out of context, you can counteract that distortion by invoking the rule of completeness.

The “rule of completeness” provides that, when only part of an act, conversation, statement, or document comes into evidence, the opposing party may introduce other relevant parts of that act, conversation, statement, or document. Similarly, when an isolated act or document is introduced, other acts or writings “necessary to make it understood” may be introduced. Evid C §356.

Three things to know about the rule of completeness:

  1. It allows introduction of otherwise inadmissible evidence. The rule of completeness may be invoked to introduce otherwise inadmissible evidence if your opponent “opens the door” by introducing part of the picture that you now need to complete. If you have favorable but inadmissible evidence (a common example being a client’s prior self-serving statements), be alert for occasions to offer such evidence when your opponent introduces partial evidence out of context that unfairly misleads the jury about what actually happened.
  2. The remaining portion still has to be relevant. Section 356 “only makes admissible such parts of an act, declaration, conversation, or writing as are relevant to the part thereof previously given in evidence.” Comment to Evid C §356. It doesn’t necessarily follow that because a portion of a writing was introduced on direct examination, all the remaining portions can be read into the record on cross-examination. A portion omitted during direct examination should be excluded on cross-examination if it’s not necessary to put the direct examination in its true context.
  3. It can open the door to other evidence. Section 356 provides that the witness may be cross-examined on independent acts, declarations, conversations, or writings to clarify the act, declaration, conversation, or writing testified to on direct examination. But keep in mind that a court’s refusal “to admit statements from a conversation or interrogation to explain statements made in a previous distinct and separate conversation,” isn’t an abuse of discretion under Evid C §356. People v Johnson (2010) 183 CA4th 253, 287.

Here’s how the rule of completeness worked in one case: A police officer called by the plaintiff testified that the defendant had told him that he had gone through the intersection at 30 miles per hour while the light was red. Under former CCP §1854 (the predecessor of Evid C §356), it was held proper on cross-examination to elicit from the police officer that the defendant had also immediately stated that he had experienced a brake failure. By introducing evidence of part of what the defendant had told the officer as an admission against the defendant, the plaintiff opened the door to the defendant’s evidence of the remainder of his statement, even though the defendant’s use of that statement would ordinarily have been barred by the hearsay rule. Rosenberg v Wittenborn (1960) 178 CA2d 846.

Strategic consideration: If you’re the proponent of evidence of part of a statement or writing, anticipate context objections and consider blunting them by introducing the entire statement or writing, or other appropriate statements and writings, including both favorable and unfavorable evidence. You’ll avoid appearing unfair, and you’ll mitigate your opponent’s ability to highlight the unfavorable evidence.

Learn more about the rule of completeness and how to use it effectively in CEB’s Effective Introduction of Evidence in California, chap 46 and Jefferson’s California Evidence Benchbook, chap 20.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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