When it comes to hearsay exceptions in California, litigators will instinctively (and appropriately) consider the code sections found in Division 10 of the Evidence Code (i.e., Section 1200 et seq.). Party admission? Declaration against interest? Spontaneous statement? In addition to knowing the enumerated exceptions, trial lawyers must know an as-important hearsay exception found outside this list: the rule of completeness. Evidence Code section 356 provides that “[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the adverse party[.]” Section 356 provides examples: “[W]hen a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” And while Section 356 says nothing about hearsay, courts have explained that “section 356 most often operates in the manner of a hearsay exception.”
Section 356 is a fairly simple rule but, as the cases below explain, there are a couple principles to keep in mind. First, Section 356 is a tool for the party opposing the introduction of an act, declaration, conversation or writing. Second, Section 356 is not a blank check. The evidence needs to be necessary to give the jury a full context of the communications—even if that means the introduction of self-serving hearsay.
The Whole May Be Inquired Into By The Adverse PartyThe rule of completeness is only available to the party against whom part of an act, declaration, conversation, or writing is offered. A party cannot introduce the relevant part of a conversation, for example, and then—citing Section 356—endeavor to introduce irrelevant hearsay. Instead, Section 356 states that “…when a … conversation … is given in evidence … the whole on the same subject may be inquired into by an adverse party….”
This limitation is illustrated in People v. Lawley, 27 Cal. 4th 102 (2002), California’s Supreme Court, the defendant Dennis Lawley was convicted of murder, conspiracy to commit murder, and solicitation to murder. Id. at 113. According to the prosecution’s evidence, Mr. Lawley had previously been robbed and beaten by a Kenneth Stewart. Id. at 116. Mr. Lawley “was ‘fuming’ over the robbery and said he would ‘do anything to have [Stewart] taken care of.’” Id. at 116 – 117. Brian Seabourn, listening to Mr. Lawley’s frustration, told Mr. Lawley “that they might ‘work something out.’” Id. at 117. Another prosecution witness testified that Mr. Seabourn—with the witness’ help—got Mr. Stewart into Mr. Seabourn’s car. Id. 115. The next day, Mr. Seabourn told the witness that he had killed Mr. Stewart and buried the murder weapon. Id.
On appeal, Mr. Lawley argued that the trial court erred when it excluded proffered evidence that Mr. Seaborn killed Mr. Stewart—not at Mr. Lawley’s request—but pursuant to a contract issued by the Aryan Brotherhood prison gang. Id. at 151. Mr. Lawley wished to call a David Mullins, and indicated that Mr. Mullins would testify to the following:
- That Mr. Seaborn told him that he (Mr. Seaborn) had killed someone;
- That an innocent person was incarcerated for the murder;
- That the Aryan Brotherhood had directed Mr. Seaborn to commit the crime; and
- That Mr. Seaborn had shown Mr. Mullin letters from the Aryan Brotherhood directing the murder.
Id. at 151 – 152.
Mr. Lawley argued that the above statements were admissible as declarations against interest (Cal. Evid. Code § 1230). The trial court ruled that Mr. Seaborn’s statements that he killed someone and was hired to do so were admissible (assuming it related to the Stewart killing and not some other killing). Id. at 152. However, the statements that he was hired by the Aryan Brotherhood was not admissible because who told him to do so was not against his penal interest. Id. Likewise the purported letter from the Aryan Brotherhood directing the murder was excluded because it was double hearsay not admissible under any exception. Id.
The Court affirmed the trial court’s rulings. In addition to the arguments related to Section 1230 (declaration against interest), Mr. Lawley argued that Mr. Mullin’s statements involving the Aryan Brotherhood should have been admitted pursuant to Section 356. The Court explained, however, that Mr. Lawley was the proponent of the evidence, and thus Section 356 did not govern his claim. Id. at 156 (Section 356 provides that “the whole may be inquired into by the adverse party….”).
Self-Serving Hearsay?
In People v. Armstrong, 6 Cal. 5th 735 (2019), the Court ruled that even self-serving hearsay statements are admissible if excluding such statements would give a false impression of the evidence. The case involved gruesome murder of a woman in which an Edward Armstrong was arrested and confessed. Id. at 744. Mr. Armstrong provided a taped statement to the police detectives that recounted the chronology of the crimes. Id. Among the details Mr. Armstrong shared were the initial moments when he and his friends encountered the victim. According to Mr. Armstrong, the victim screamed various racial epithets at the three men (all African American) from across the street. Id. at 785. The three men then crossed the street to confront the woman and, according to Mr. Armstrong, offered her $50 to perform various sex acts. Id. The woman said no, slapped Mr. Armstrong, and walked away. Id. After walking a short distance away, Mr. Armstrong said the woman yelled more racial insults and extended her middle fingers to the three men. Id.
Before trial, the prosecutor indicated she intended to introduce the defendant’s statement to detectives after his arrest. Id. at 785. She offered the statement as a party admission (Cal. Evid. Code § 1220) but sought to exclude the alleged racial slurs as “self-serving hearsay.” Id. The redaction resulted in a different narrative than what was provided by Mr. Armstrong. According to Mr. Armstrong, “the men were unaware of [the victim’s] presence and only approached her after she insulted them in a racially-charged manner.” Id. at 787. But what the jury heard suggested that “the men approached [the victim] because she was walking alone at night and began the encounter by asking her to engage in an act of prostitution.” Id.
The Court held that excluding these statements from Mr. Armstrong was erroneous. As an initial matter, the statements were not hearsay. The statements were not offered for their truth. Id. at 786. And even if they were self-serving hearsay, they were admissible under Evidence Code section 356. The Court explained that “[t]he rule reflects that ‘equitable notion that a party seeking introduction of one part of a statement cannot selectively object to introduction of other parts necessary to give context.'” Id., citing People v. Melendez, 2 Cal. 5 1, 26 (2016). “Although framed as an expansion of the concept of relevancy, Evidence Code section 356 most often operates in the manner of a hearsay exception.” Id., citing Simmons, Cal. Evid. Manual § 1.16, p. 21 (2018).
Conclusion
Section 356 is short, simple, and should never be overlooked. The moment an adverse party introduces evidence of communications, be on the lookout for evidence that is necessary to provide the full context and understanding of the evidence (that is also, perhaps, self-serving).
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
