The Supreme Court of Florida recently examined the rule of completeness and impeachment of hearsay declarants. While this was a criminal case, the holding as to the rule of completeness applies in a civil context as well.
In Nock v. State, 43 Fla. L. Weekly S540a (Fla. Nov. 1, 2018), the Supreme Court of Florida considered two issues: "(1) whether a defendant is permitted to require the State under section 90.108(1), Florida Statutes (2014) - the statutory rule of completeness - to introduce into evidence the entire video recording of the defendant's statement to police when the State has questioned a detective on direct examination concerning inculpatory statements of the defendant without introducing any portion of the recording of the defendant's statement and (2) whether the State is permitted to impeach a defendant under section 90.806(1), Florida Statutes (2014) - which authorizes attacking the credibility of a hearsay declarant - when the defendant elicits from the detective on cross-examination exculpatory portions of the defendant's statement to the police."
The Defendant in Nock v. State gave a videotaped statement to the police confessing to his role in the victim's death. Defendant moved in limine to have the State admit the entire video under the best evidence rule and the rule of completeness because it contained some exculpatory evidence. The trial court denied the motion because the State did not offer any part of the video into evidence. The State elicited Defendant's statement, not through the video, but through live testimony of the detective who obtained the statement. The Defendant was then given an opportunity to cross-examine the detective. He cross-examined the detective regarding the exculpatory portions of Defendant's statement, which supported his defense that the victim's death was an accident. Based on this cross-examination (i.e. exculpatory hearsay statements of the Defendant) the State was then allowed to use Defendant's prior convictions for impeachment under section 90.806(1). As such, the jury was informed of Defendant's nine prior convictions of felonies or crimes involving dishonesty.
Defendant argued on appeal that the rule of completeness under 90.108(1) applied, and that the trial court erred by allowing the State to impeach Defendant's credibility with evidence of prior felony convictions under section 90.806(1). The Supreme Court of Florida disagreed.
The Supreme Court of Florida examined the rule of completeness, which was codified in section 90.108(1) to prevent misleading impressions by taking statements out-of-context. It allows the opponent of a statement to require the entirety of the statement be placed in evidence to explain the out-of-context portion. Section 90.108(1) provides, "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section." The section applies only to writings or recordings, not conversations and oral statements. Trial courts allow portions of an oral conversation or statement, omitted on direct examination, to be brought out on cross-examination.
The Court agreed that the State was not required to play the entire video under the rule of completeness: "The statute was inapplicable because the State never introduced any portion of the recording into evidence." Further, the trial court correctly allowed the Defendant to cross-examine the detective concerning Defendant's statement.
The Court also held it was appropriate to allow the State to introduce impeachment evidence under section 90.806(1) because Defendant introduced his own exculpatory hearsay statements. That section provides: "When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked, and if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant's hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it." During cross-examination, Defendant had the detective testify as to their conversation, which included exculpatory statements from the Defendant. As such, credibility of the declarant (i.e., the Defendant) was properly attacked by evidence that would be admissible (i.e., prior felony convictions or convictions involving dishonesty) had the Defendant testified as a witness. The Supreme Court of Florida applied the rule "that a defendant is subject to impeachment when the defendant elicits his or her own exculpatory, hearsay statement through another witness at trial."
The Supreme Court of Florida held that (1) the rule of completeness under section 90.108(1) "does not apply unless a written or recorded statement is introduced into evidence[,]" and (2) "that a defendant is subject to impeachment under section 90.806(1) whenever the defendant introduces through cross-examination hearsay exculpatory statements of the defendant.
The first holding is especially applicable in the civil context. The statutory rule of completeness only applies to written or recorded statements. Thus, that statute is entirely inapplicable if a witness testifies about a statement in a conversation without introduction of an actual written or recorded statement. In that case, the opposing party may not invoke the rule of completeness to force the introduction of an otherwise inadmissible written or recorded statement. However, the opposing party may certainly cross-examine the witness as to the subject. Thus, if there is a written or recorded statement (that is partially beneficial to the defense and partially harmful to the defense) it is advisable to have the beneficial portions elicited through testimony, if possible, rather than through introduction of the statement. In the latter case, the opposing party has the right to force introduction of the entire statement. In the former, it does not.
If you have any questions about this case or would like to refer a matter, please contact our appellate attorneys.