The Rule of Optional Completeness

How many times have you made the following objection in the middle of your opponent’s examination of a witness:  “Your honor, under the rule of optional completeness, may I read the remaining portion of that sentence?”  By making this objection, you are requesting permission to complete the record contemporaneously without having to wait until your turn to examine the witness.

It’s a common enough request that occurs in civil courtrooms every day.  After all, everyone knows that’s what the rule of optional completeness provides.  Right?  Wrong.

Texas Rules of Evidence 107, the Rule of Optional Completeness, provides:

“When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence…”

Contrary to popular belief and practice, nothing in Rule 107, the rule of optional completeness, provides for a right to have the additional statement placed into evidence immediately.  It simply provides that such evidence is admissible.  And, while most judges would liberally permit a contemporaneous offer of the additional statement, it would not be error for a judge to require that such evidence be placed into evidence when the objecting party cross-examines or re-directs the witness, as with any other piece of additional evidence. 

But, wait!  Can this be right?  Isn’t there a rule allowing evidence to be admitted contemporaneously? 

Yes, there is such a rule, but it’s not found in Rule 107, the rule of optional completeness.  The rule which permits contemporaneous admission of evidence is Rule 106, Remainder of or Related Writings or Recorded Statements.  It provides:

“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it… “

So, even though the rule of optional completeness does not contemplate a contemporaneous offer, the evidence may be admissible contemporaneously under Rule 106.  But beware — even under Rule 106, there is no guaranteed right to have every sentence read to completion, or any deposition answer fully read contemporaneously with an initial offer. 

Rule 106 provides for contemporaneous admission of evidence only when, in fairness, it ought to be considered contemporaneously with the portion previously admitted.  In other words, contemporaneous admission operates only to prevent unfairness.  Whether fairness necessitates a contemporaneous offer under the circumstances is a factual determination to be made by the trial court and reviewed under an abuse of discretion standard. 

Furthermore, case law suggests that even when fairness predominates in favor of a contemporaneous offer, Rule 106 does not actually mandate it.  Because Rule 106 was not written in mandatory terms, it would not be error for a court to require (as with Rule 107) that such evidence be placed into evidence at the time when opposing counsel is directing the witness.  Gilmore v. State, 744 S.W.2d 630 (Tex. App. — Dallas 1987).   (“Rule 106 is a narrow modification of the doctrine of optional completeness, controlling the time an adversary can introduce certain kinds of remainder evidence, [but] the language of the rule is a permissive grant and not a requirement.” Id. at 631.)

So the next time you want to have the remainder of a written document admitted contemporaneously after a partial offer has been made, forget the rule of optional completeness.  Instead, focus on the rule of remainder of writings.  A proper request should include a brief statement as to why the remainder of the statement ought, in fairness, be considered contemporaneously with the previous statement, tracking the language of the rule.  

Finally, don’t feel bad that you’ve been misstating the rule for years.  You’re in good company.  At least one frequently-cited appellate decision has confused the two.  Jones v. Colley, 820 S.W.2d 863 (Tex. App. — Texarkana 1992) (“Rule of optional completeness is that if one party introduces part of statement or doctrine, opposing party may contemporaneously introduce as much of the balance as is necessary to explain the first part,” citing Travelers Insurance Co. v Creyke, 446 S.W.2d 954 [Tex. App. -- Houston {14th} 1969].  Travelers, however, makes no mention of contemporaneousness in its explanation of the rule.)

And the next time your opponent interrupts your examination of a witness, demanding a contemporaneous reading of the remainder of a document under the rule of optional completeness, feel free to respond, “Your honor, counsel’s request is improper.  Rule 107, the Rule of Optional Completeness, does not require a contemporaneous introduction of evidence.”

If you want to be so kind as to clue your opponent in that the provisions of Rule 106 might apply, that’s your call.  Or you might decide to let your opponents read the rules for themselves.

-Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas

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4 Responses to The Rule of Optional Completeness

  1. What happens when parts of a conversation are entered as evidence but the remaining parts are unavailable? i.e. a facebook conversation that spans an entire month.

  2. John says:

    Thanks for the succinct explanation! It was just what was needed on the eve of trial.

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