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§ 901.07, Completeness Doctrine — Trumping Hearsay Rule

State v. Gordon R. Anderson, Jr., 230 Wis.2d 121, 600 N.W.2d 913 (Ct. App. 1999)
For Anderson: Craig M. Kuhary

Issue: Whether the trial court erred, under the doctrine of completeness, in refusing to admit certain portions of Anderson’s statement to a detective.

Holding: The completeness doctrine trumps the hearsay rule, and the trial court erred in excluding one portion of the statement (though the error was harmless); but did not err in excluding other portions.

Anderson didn’t testify. He sought to admit portions of a statement he gave to a detective, to rebut other portions introduced by the state. The jury heard Anderson’s admission that he helped his co-actor (Moore) carry the victim to a river, but didn’t hear that portion containing Anderson’s assertion that it was Moore who struck the victim and threw her over a bridge; nor Anderson’s “assumption that they were going to put her back in the back of the truck.” Admissibility is controlled by the rule of completeness, as explicated in State v. Eugenio, 219 Wis. 2d 391, 579 N.W.2d 642 (1998). The threshold question is whether the partially admitted statement creates a distorted view of the statement as a whole. The state’s argument – that the court may allow a distortion because the declarant isn’t subject to cross-examination – is rejected. Instead, the completeness doctrine serves to trump the hearsay rule:

We hold that when a defendant in a criminal case objects to testimony of his out-of-court statement as incomplete, or attempts to cross-examine the witness on additional portions of the defendant’s out-of-court statement and the State objects, the court should make the two-part discretionary determination required by Eugenio without regard to whether the defendant intends to testify. Once the court has determined that any additional portion of the statement is necessary under the Eugenio standard, it must permit the presentation of that additional portion, although the timing of that presentation is discretionary: it may occur during the State’s case or when the defense recalls the witness during its case. Fairness to the State does not require that the additional portion necessary under the completeness rule be excluded unless the defendant testifies, because the Eugenio test is sufficiently narrow to insure that only the additional portion necessary to avoid distortion is admissible. On the other hand, it would be unfair to the defendant to force him or her to choose between giving up the constitutional right not to testify and correcting a distorted impression of his or her prior statement presented by the State.

Leaving out that portion of the statement containing Anderson’s assumption that the victim would be taken back to the truck distorted the evidence. But leaving out the parts asserting that Moore struck her and threw her into the river caused no distortion; the prosecutor asked the detective only what Anderson told him about the third time the victim was thrown into the river, and Anderson was entitled only “to have his statement on that point fairly and completely presented.” The error was harmless, for fact-specific reasons.


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