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Beech Aircraft Corp. v. Rainey |
BEECH AIRCRAFT CORPORATION
v.
RAINEY ET AL.
Certiorari to the United States Court of Appeals for
the Eleventh Circuit
No. 87-981
Argued October 4, 1988
Decided December 12, 1988
488 U.S. 153 (1988)
Respondents' spouses, a Navy flight instructor and
her student, were killed when, during training exercises, their Navy
aircraft banked sharply to avoid another plane, lost altitude, and
crashed. At the trial of respondents' product liability suit against
petitioners, the companies which manufactured and serviced the plane
in question, the only seriously disputed issue was whether the crash
was caused by pilot error or equipment malfunction. Having previously
determined that a Navy investigative report of the incident (the JAG
Report or Report) was sufficiently trustworthy to be admissible, the
District Court admitted, over respondents' objections, most of the
Report's "opinions," including a statement suggesting that pilot error
was the most probable cause of the accident. Moreover, after
respondent Rainey, who was himself a Navy flight instructor, admitted
on direct examination as an adverse witness that he had made certain
statements arguably supporting a pilot error theory in a detailed
letter in which he took issue with some of the JAG Report's findings,
his counsel attempted to ask him on cross-examination whether the
letter did not also say that the most probable primary cause of the
mishap was a loss of power due to equipment malfunction. However,
before Rainey could answer, the court sustained a defense objection on
the ground that the question asked for Rainey's opinion, and cut off
further questioning along this line. After the jury returned a verdict
for petitioners, the Court of Appeals reversed and remanded for a new
trial. The court held itself bound by Smith v. Ithaca
Corp., 612 F.2d 215 (CA5), such that Federal Rule of Evidence
803(8)(C) — which excepts from the hearsay rule "public records and
reports" setting forth "factual findings resulting from an
investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack of
trustworthiness" — did not encompass the JAG Report's evaluative
conclusions or opinions. The court also held that Federal Rule of
Evidence 106 forbade the trial court to prohibit cross-examination
about additional portions of Rainey's letter which would
have put in context the admissions
elicited from him on direct examination. On rehearing en banc the
Court of Appeals did not disturb the panel's judgment.
Held:
1. Statements in the form of opinions or conclusions
are not by that fact excluded from the scope of Rule 803(8)(C). The
Rule's language does not call for the distinction between "fact" and
"opinion" drawn by Smith, supra, and other proponents of a
narrow interpretation of the Rule's "factual findings" phrase, since
"finding of fact" is commonly defined to include conclusions by way of
reasonable inference from the evidence, and since in specifying the
kinds of reports that are admissible the Rule does not create a
distinction between "fact" and "opinion." Nor is any such distinction
required by the intent of the Rule's framers, as expressed in the
Advisory Committee's Notes on the Rule. This conclusion is
strengthened by the analytical difficulty of drawing such a
distinction. Rather than requiring that some inevitably arbitrary line
be drawn between the various shades of fact/opinion that invariably
will be present in investigatory reports, the Rule instructs courts —
as its plain language states — to admit "reports . . . setting forth .
. . factual findings." Appropriate limitations and safeguards lie in
the fact that the Rule's requirement that reports contain factual
findings bars the admission of statements not based on factual
investigation, and in the Rule's trustworthiness requirement. Thus, as
long as a conclusion satisfies the latter requirements, it should be
admissible along with other portions of the Report. Here, since the
District Court determined that certain of the JAG Report's conclusions
were trustworthy, it rightly admitted them into evidence. Pp. 161-170.
2. On the facts of this litigation, the District
Court abused its discretion in restricting the scope of
cross-examination of respondent Rainey by his counsel in regard to his
letter. Pp. 170-175.
(a) While the letter did
make the statements to which Rainey admitted on direct examination
which tended to support a pilot error theory, the letter's thrust was
to challenge that theory as inconsistent with the evidence and the
likely actions of the two pilots, and to expound at length on Rainey's
theory of equipment malfunction and demonstrate how the various pieces
of evidence supported that theory. Since it is plausible that the jury
would have concluded from Rainey's testimony that he did not believe
in his equipment malfunction theory when he wrote the letter but
developed it only later for litigation purposes, the jury was given a
distorted and prejudicial impression of the letter, which Rainey's
counsel was unable to counteract due to the District Court's refusal
to allow him to present additional information on cross-examination.
The common-law "rule of completeness," which has been
partially codified in Rule 106 —
whereby, when a party has introduced part of a writing, an adverse
party may require the introduction of any other part which ought in
fairness to be considered contemporaneously — was designed to prevent
exactly this type of prejudice. However, although the concerns
underlying Rule 106 are clearly relevant to this litigation, it is
unnecessary to determine whether the Rule applies, since, where
misunderstanding or distortion can be averted only through
presentation of an additional portion of a document, the material
required for completeness is necessarily relevant and admissible. The
question posed by Rainey's counsel on cross-examination was not asked
for the purpose of eliciting Rainey's opinion as to the cause of the
accident, but rather inquired whether he had made a certain statement
in his letter, a question he was eminently qualified to answer.
Defense counsel's objection to that question as calling for an opinion
could not avail in view of the obvious purpose for which the statement
was offered.
(b) Petitioners'
contention that Rainey waived the right to pursue the
cross-examination testimony issue on appeal because he did not
properly raise it in the trial court is not persuasive. The nature of
Rainey's proposed testimony was abundantly apparent from the very
question put by his counsel, such that the offer-of-proof requirement
of Federal Rule of Evidence 103(a)(2) was satisfied. Moreover,
Rainey's counsel substantially satisfied the requirement of Federal
Rule of Civil Procedure 46 that he put the court on notice as to his
objection to the exclusion and the grounds therefore, when, in the
colloquy following the defense objection to his question, and before
he was cut off, he began to articulate his completeness argument.
827 F.2d 1498, affirmed in part, reversed in part,
and remanded.
BRENNAN, J., delivered the opinion of the Court, in
which WHITE, MARSHALL, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ.,
joined, and in Parts I and II of which REHNQUIST, C.J., and O'CONNOR,
J., joined. REHNQUIST, C.J., filed an opinion concurring in part and
dissenting in part, in which O'CONNOR, J., joined
Jos. W. Womack argued
the cause for petitioners in both cases and filed briefs for
petitioner Beech Aircraft Corp. W. H. F. Wiltshire filed
briefs for petitioner Beech Aerospace Services, Inc.
Dennis K. Larry argued
the cause for respondents in both cases. With him on the brief were
Edward R. Curtis and Donald H. Partington.
JUSTICE BRENNAN delivered the
opinion of the Court.
In this action we address a longstanding conflict
among the Federal Courts of Appeals over whether Federal Rule of
Evidence 803(8)(C), which provides an exception to the hearsay rule
for public investigatory reports containing "factual findings,"
extends to conclusions and opinions contained in such reports. We also
consider whether, on the facts of this litigation, the trial court
abused its discretion in refusing to admit, on cross-examination,
testimony intended to provide a more complete picture of a document
about which the witness had testified on direct.
I.
This litigation stems from the crash of a Navy
training aircraft at Middleton Field, Alabama, on July 13, 1982, which
took the lives of both pilots on board, Lieutenant Commander Barbara
Ann Rainey and Ensign Donald Bruce Knowlton. The accident took place
while Rainey, a Navy flight instructor, and Knowlton, her student,
were flying "touch-and-go" exercises in a T-34C Turbo-Mentor aircraft,
number 3E955. Their aircraft and several others flew in an oval
pattern, each plane making successive landing/takeoff maneuvers on the
runway. Following its fourth pass at the runway, 3E955 appeared to
make a left turn prematurely, cutting out the aircraft ahead of it in
the pattern and threatening a collision. After radio warnings from two
other pilots, the plane banked sharply to the right in order to avoid
the other aircraft. At that point it lost altitude rapidly, crashed,
and burned.
Because of the damage to the plane and the lack of
any survivors, the cause of the accident could not be determined with
certainty. The two pilots' surviving spouses brought a product
liability suit against petitioners Beech Aircraft Corporation, the
plane's manufacturer, and Beech Aerospace Services, which serviced the
plane under contract with the Navy.
The plaintiffs alleged that the crash had been
caused by a loss of engine power, known as "rollback,"
due to some defect in the aircraft's fuel control system. The
defendants, on the other hand, advanced the theory of pilot error,
suggesting that the plane had stalled during the abrupt avoidance
maneuver.
At trial, the only seriously disputed question was
whether pilot error or equipment malfunction had caused the crash.
Both sides relied primarily on expert testimony. One piece of evidence
presented by the defense was an investigative report prepared by
Lieutenant Commander William Morgan on order of the training
squadron's commanding officer and pursuant to authority granted in the
Manual of the Judge Advocate General. This "JAG Report," completed
during the six weeks following the accident, was organized into
sections labeled "finding of fact," "opinions," and "recommendations,"
and was supported by some 60 attachments. The "finding of fact"
included statements like the following:
"13. At approximately
1020, while turning crosswind without proper interval, 3E955 crashed,
immediately caught fire and burned. . . . . .
"27. At the time of
impact, the engine of 3E955 was operating but was operating at reduced
power." App. 10-12.
Among his "opinions" Lieutenant Commander Morgan
stated, in paragraph 5, that due to the deaths of the two pilots and
the destruction of the aircraft "it is almost impossible to determine
exactly what happened to Navy 3E955 from the time it left the runway
on its last touch and go until it impacted the ground." He nonetheless
continued with a detailed reconstruction of a possible set of events,
based on pilot error, that could have caused the accident.
The next two paragraphs stated a caveat and a conclusion:
"6.
Although the above sequence of events is the most likely to have
occurred, it does not change the possibility that a 'rollback' did
occur.
"7. The most probable
cause of the accident was the pilots [sic] failure to maintain
proper interval." Id., at 15.
The trial judge initially determined, at a pretrial
conference, that the JAG Report was sufficiently trustworthy to be
admissible, but that it "would be admissible only on its factual
findings and would not be admissible insofar as any
opinions or conclusions are concerned." Id., at 35. The day
before trial, however, the court reversed itself and ruled, over the
plaintiffs' objection, that certain of the conclusions would be
admitted. Id., at 40-41. Accordingly, the court admitted most
of the report's "opinions," including the first sentence of paragraph
5 about the impossibility of determining exactly what happened, and
paragraph 7, which opined about failure to maintain proper interval as
"[t]he most probable cause of the accident." Id., at 97. On the
other hand, the remainder of paragraph 5 was barred as "nothing but a
possible scenario," id., at 40, and paragraph 6, in which
investigator Morgan refused to rule out rollback, was deleted as well.
This action also concerns an evidentiary ruling as
to a second document. Five or six months after the accident, plaintiff
John Rainey, husband of the deceased pilot and himself a Navy flight
instructor, sent a detailed letter to Lieutenant Commander Morgan.
Based on Rainey's own investigation, the letter took issue with some
of the JAG Report's findings and outlined Rainey's theory that "[t]he
most probable primary cause factor of this aircraft mishap is a loss
of useful power (or rollback) caused by some form of pneumatic
sensing/fuel flow malfunction, probably in the fuel control unit."
Id., at 104, 111.
At trial Rainey did not testify during his side's
case in chief, but he was called by the defense as an adverse witness.
On direct examination he was asked about two statements contained in
his letter. The first was to the effect that his wife had
unsuccessfully attempted to cancel the ill-fated training flight
because of a variety of adverse factors including her student's
fatigue. The second question concerned a portion of Rainey's
hypothesized scenario of the accident:
"Didn't
you say, sir, that after Mrs. Rainey's airplane rolled wings level,
that Lieutenant Colonel Habermacher's plane came into view
unexpectedly at its closest point of approach, although sufficient
separation still existed between the aircraft. However, the unexpected
proximitely [sic] of Colonel Habermacher's plane caused one of
the aircrew in Mrs. Rainey's plane to react instinctively and abruptly
by initiating a hard right turn away from Colonel Habermacher's
airplane?" Id., at 75.
Rainey admitted having made both statements. On
cross-examination, Rainey's counsel asked the following question: "In
the same letter to which Mr. Toothman made reference to in his
questions, sir, did you also say that the most probably [sic]
primary cause of this mishap was rollback?" Id., at 77. Before
Rainey answered, the court sustained a defense objection on the ground
that the question asked for Rainey's opinion. Further questioning
along this line was cut off.
Following a 2-week trial, the jury returned a
verdict for petitioners. A panel of the Eleventh Circuit reversed and
remanded for a new trial. 784 F.2d 1523 (1986). Considering itself
bound by the Fifth Circuit precedent of Smith v. Ithaca
Corp., 612 F.2d 215 (1980),
the panel agreed with Rainey's argument that Federal Rule of Evidence
803(8)(C), which excepts investigatory reports from the hearsay rule,
did not encompass evaluative conclusions or opinions. Therefore, it
held, the "conclusions" contained in the JAG Report should have been
excluded. One member of the panel, concurring specially, urged however
that the Circuit reconsider its interpretation of Rule 803(8)(C),
suggesting that "Smith is an anomaly among the circuits." 784
F.2d, at 1530 (opinion of Johnson, J.). The panel also held, citing
Federal Rule of Evidence 106, that it was reversible error for the
trial court to have prohibited cross-examination about
additional portions of Rainey's letter which would have put in context
the admissions elicited from him on direct.
On rehearing en banc, the Court of Appeals divided
evenly on the question of Rule 803(8)(C). 827 F.2d 1498 (CA11 1987).
It therefore held that Smith was controlling and consequently
reinstated the panel judgment. On the Rule 106 question, the court
unanimously reaffirmed the panel's decision that Rule 106 (or
alternatively Rule 801(d)(1)(B)) required reversal. We granted
certiorari to consider both issues. 485 U.S. 903 (1988).
II.
Federal Rule of Evidence 803 provides that certain
types of hearsay statements are not made excludable by the hearsay
rule, whether or not the declarant is available to testify. Rule
803(8) defines the "public records and reports" which are not
excludable, as follows:
"Records, reports,
statements, or data compilations, in any form, of public offices or
agencies, setting forth (A) the activities of the office or agency, or
(B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, . . . or (C) in civil actions and
proceedings and against the Government in criminal cases, factual
findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness."
Controversy over what "public records and reports"
are made not excludable by Rule 803(8)(C) has divided the federal
courts from the beginning. In the present litigation, the Court of
Appeals followed the "narrow" interpretation of Smith v.
Ithaca Corp., supra, at 220-223, which held that the
term "factual findings" did not encompass "opinions"
or "conclusions." Courts of Appeals other than those of the Fifth and
Eleventh Circuits, however, have generally adopted a broader
interpretation. For example, the Court of Appeals for the Sixth
Circuit, in Baker v. Elcona Homes Corp., 588 F.2d
551, 557-558 (1978), cert. denied, 441 U.S. 933 (1979), held that
"factual findings admissible under Rule 803(8)(C) may be those which
are made by the preparer of the report from disputed evidence . . . ."
The other Courts of Appeals that have squarely confronted the issue
have also adopted the broader interpretation.
We agree and hold that factually based conclusions or opinions are not
on that account excluded from the scope of Rule 803(8)(C).
Because the Federal Rules of
Evidence are a legislative enactment, we turn to the "traditional
tools of statutory construction," INS v. Cardoza-Fonseca,
480 U.S. 421, 446 (1987), in order to
construe their provisions. We begin with the language of the Rule
itself. Proponents of the narrow view have generally relied heavily on
a perceived dichotomy between "fact" and "opinion" in arguing for the
limited scope of the phrase "factual findings." Smith v.
Ithaca Corp. contrasted the term "factual findings" in Rule
803(8) (C) with the language of Rule 803(6) (records of regularly
conducted activity), which expressly refers to "opinions" and
"diagnoses." "Factual findings," the court opined, must be something
other than opinions. 612 F.2d, at 221-222.
For several reasons, we do not agree. In the first
place, it is not apparent that the term "factual findings" should be
read to mean simply "facts" (as
opposed to "opinions" or "conclusions"). A common definition of
"finding of fact" is, for example, "[a] conclusion by way of
reasonable inference from the evidence." Black's Law Dictionary 569
(5th ed. 1979). To say the least, the language of the Rule does not
compel us to reject the interpretation that "factual findings"
includes conclusions or opinions that flow from a factual
investigation. Second, we note that, contrary to what is often
assumed, the language of the Rule does not state that "factual
findings" are admissible, but that "reports . . . setting forth
. . . factual findings" (emphasis added) are admissible. On this
reading, the language of the Rule does not create a distinction
between "fact" and "opinion" contained in such reports.
Turning next to the legislative history of Rule
803(8)(C), we find no clear answer to the question of how the Rule's
language should be interpreted. Indeed, in this litigation the
legislative history may well be at the origin of the dispute. Rather
than the more usual situation where a court must attempt to glean
meaning from ambiguous comments of legislators who did not focus
directly on the problem at hand, here the Committees in both Houses of
Congress clearly recognized and expressed their opinions on the
precise question at issue. Unfortunately, however, they took
diametrically opposite positions. Moreover, the two Houses made no
effort to reconcile their views, either through changes in the Rule's
language or through a statement in the Report of the Conference
Committee.
The House Judiciary Committee, which dealt first
with the proposed rules after they had been transmitted to Congress by
this Court, included in its Report but one brief paragraph on Rule
803(8):
"The Committee approved
Rule 803(8) without substantive change from the form in which it was
submitted by the Court. The Committee intends that the phrase 'factual
findings' be strictly construed and that evaluations or opinions
contained in public reports shall not be
admissible under this Rule." H.R. Rep. No. 93-650, p.
14 (1973).
The Senate Committee responded at somewhat greater
length, but equally emphatically:
"The House Judiciary
Committee report contained a statement of intent that 'the phrase
"factual findings" in subdivision (c) be strictly construed and that
evaluations or opinions contained in public reports shall not be
admissible under this rule.' The committee takes strong exception to
this limiting understanding of the application of the rule. We do not
think it reflects an understanding of the intended operation of the
rule as explained in the Advisory Committee notes to this subsection.
. . . We think the restrictive interpretation of the House overlooks
the fact that while the Advisory Committee assumes admissibility in
the first instance of evaluative reports, they are not admissible if,
as the rule states, 'the sources of information or other circumstances
indicate lack of trustworthiness.' . . . . .
"The committee concludes
that the language of the rule together with the explanation provided
by the Advisory Committee furnish sufficient guidance on the
admissibility of evaluative reports." S. Rep. No. 93-1277, p. 18
(1974).
Clearly this legislative history reveals a
difference of view between the Senate and the House that affords no
definitive guide to the congressional understanding. It seems clear
however that the Senate understanding is more in accord with the
wording of the Rule and with the comments of the Advisory Committee.
The Advisory Committee's comments
are notable, first, in that they contain no mention of any dichotomy
between statements of "fact" and "opinions" or "conclusions." What was
on the Committee's mind was simply whether what it called "evaluative
reports" should be admissible. Illustrating the previous division
among the courts on this subject, the Committee cited numerous cases
in which the admissibility of such reports had been both sustained and
denied. It also took note of various federal statutes that made
certain kinds of evaluative reports admissible in evidence. What is
striking about all of these examples is that these were reports
that stated conclusions. E.g., Moran v. Pittsburgh-Des
Moines Steel Co., 183 F.2d 467,
472-473 (CA3 1950) (report of Bureau of Mines concerning the cause of
a gas tank explosion admissible); Franklin v. Skelly Oil
Co., 141 F.2d 568, 571-572 (CA10 1944) (report of state fire
marshal on the cause of a gas explosion inadmissible); 42 U.S.C. §
269(b) (bill of health by appropriate official admissible as prima
facie evidence of vessel's sanitary history and condition). The
Committee's concern was clearly whether reports of this kind should be
admissible. Nowhere in its comments is there the slightest indication
that it even considered the solution of admitting only "factual"
statements from such reports.
Rather, the Committee referred
throughout to "reports," without any such differentiation regarding
the statements they contained. What the Committee referred to in the
Rule's language as "reports . . . setting forth . . . factual
findings" is surely nothing more or less than what in its commentary
it called "evaluative reports." Its solution as to their admissibility
is clearly stated in the final paragraph of its report on this Rule.
That solution consists of two principles: First, "the rule . . .
assumes admissibility in the first instance . . . ." Second, it
provides "ample provision for escape if sufficient negative factors
are present."
That "provision for escape" is contained in the
final clause of the Rule: evaluative reports are admissible "unless
the sources of information or other circumstances indicate lack of
trustworthiness." This trustworthiness inquiry — and not an arbitrary
distinction between "fact" and "opinion" — was the Committee's primary
safeguard against the admission of unreliable evidence, and it is
important to note that it applies to all elements of the report. Thus,
a trial judge has the discretion, and indeed the obligation, to
exclude an entire report or portions thereof — whether narrow
"factual" statements or broader "conclusions" — that she determines to
be untrustworthy.
Moreover, safeguards built into other portions of
the Federal Rules, such as those
dealing with relevance and prejudice, provide the court with
additional means of scrutinizing and, where appropriate, excluding
evaluative reports or portions of them. And of course it goes without
saying that the admission of a report containing "conclusions" is
subject to the ultimate safeguard — the opponent's right to present
evidence tending to contradict or diminish the weight of those
conclusions.
Our conclusion that neither the language of the Rule
nor the intent of its framers calls for a distinction between "fact"
and "opinion" is strengthened by the analytical difficulty of drawing
such a line. It has frequently been remarked that the distinction
between statements of fact and opinion is, at best, one of degree:
"All statements in
language are statements of opinion, i. e., statements of mental
processes or perceptions. So-called 'statements of fact' are only more
specific statements of opinion. What the judge means to say, when he
asks the witness to state the facts, is: 'The nature of this case
requires that you be more specific, if you can, in your description of
what you saw.'" W. King & D. Pillinger, Opinion Evidence in Illinois 4
(1942) (footnote omitted), quoted in 3 J. Weinstein & M. Berger,
Weinstein's Evidence ¶ 701[01], p. 701-6 (1988).
See also E. Cleary, McCormick on Evidence 27 (3d ed.
1984) ("There is no conceivable statement however specific, detailed
and 'factual,' that is not in some measure the product of inference
and reflection as well as observation and memory"); R. Lempert & S.
Saltzburg, A Modern Approach to Evidence 449 (2d ed. 1982) ("A factual
finding, unless it is a simple report of something observed, is an
opinion as to what more basic facts imply"). Thus, the traditional
requirement that lay witnesses give statements of fact rather than
opinion may be considered,
"[l]ike the hearsay and original documents rules . . . a 'best
evidence' rule." McCormick, Opinion Evidence in Iowa, 19 Drake L. Rev.
245, 246 (1970).
In the present action, the trial court had no
difficulty in admitting as a factual finding the statement in the JAG
Report that "[a]t the time of impact, the engine of 3E955 was
operating but was operating at reduced power." Surely this "factual
finding" could also be characterized as an opinion, which the
investigator presumably arrived at on the basis of clues contained in
the airplane wreckage. Rather than requiring that we draw some
inevitably arbitrary line between the various shades of fact/opinion
that invariably will be present in investigatory reports, we believe
the Rule instructs us — as its plain language states — to admit
"reports . . . setting forth . . . factual findings." The Rule's
limitations and safeguards lie elsewhere: First, the requirement that
reports contain factual findings bars the admission of statements not
based on factual investigation. Second, the trustworthiness provision
requires the court to make a determination as to whether the report,
or any portion thereof, is sufficiently trustworthy to be admitted.
A broad approach to admissibility under Rule
803(8)(C), as we have outlined it, is also consistent with the Federal
Rules' general approach of relaxing the traditional barriers to
"opinion" testimony. Rules 702-705 permit experts to testify in the
form of an opinion, and without any exclusion of opinions on "ultimate
issues." And Rule 701 permits even a lay witness to testify in the
form of opinions or inferences drawn from her observations when
testimony in that form will be helpful to the trier of fact. We see no
reason to strain to reach an interpretation of Rule 803(8)(C) that is
contrary to the liberal thrust of the Federal Rules.
We hold, therefore, that portions of
investigatory reports otherwise admissible under Rule 803(8)(C) are
not inadmissible merely because they state a conclusion or opinion. As
long as the conclusion is based on a factual investigation and
satisfies the Rule's trustworthiness requirement, it should be
admissible along with other portions of the report.
As the trial judge in this action determined that certain of the JAG
Report's conclusions were trustworthy, he rightly allowed them to be
admitted into evidence. We therefore reverse the judgment of the Court
of Appeals in respect of the Rule 803(8)(C) issue.
III
Respondents also contended on appeal that reversal
was required because the District Court improperly restricted the
cross-examination of plaintiff Rainey by his own counsel in regard to
the letter Rainey had addressed to Lieutenant Commander Morgan. We
agree with the unanimous holding of the Court of Appeals en banc that
the District Court erred in refusing to permit Rainey to present a
more complete picture of what he had written to Morgan.
We have no doubt that the jury was given a distorted
and prejudicial impression of Rainey's letter. The theory of Rainey's
case was that the accident was the result of a power failure, and,
read in its entirety, his letter to Morgan was fully consistent with
that theory. While Rainey did discuss problems his wife had
encountered the morning of the accident which led her to attempt to
cancel the flight, and also agreed that her airplane had violated
pattern integrity in turning left prematurely, the thrust of his
letter was to challenge Morgan's
theory that the crash had been caused by a stall that took place when
the pilots turned sharply right and pitched up in attempting to avoid
the other plane. Thus Rainey argued that Morgan's hypothesis was
inconsistent with the observations of eyewitnesses, the physical
findings in the wreckage, and the likely actions of the two pilots. He
explained at length his theory of power failure and attempted to
demonstrate how the various pieces of evidence supported it. What the
jury was told, however, through the defendants' direct examination of
Rainey as an adverse witness, was that Rainey had written six months
after the accident (1) that his wife had attempted to cancel the
flight, partly because her student was tired and emotionally drained,
and that "unnecessary pressure" was placed on them to proceed with it;
and (2) that she or her student had abruptly initiated a hard right
turn when the other aircraft unexpectedly came into view. It is
plausible that a jury would have concluded from this information that
Rainey did not believe in his theory of power failure and had
developed it only later for purposes of litigation. Because the court
sustained defense counsel's objection, Rainey's counsel was unable to
counteract this prejudicial impression by presenting additional
information about the letter on cross-examination.
The common-law "rule of completeness," which
underlies Federal Rule of Evidence 106, was designed to prevent
exactly the type of prejudice of which Rainey complains. In its aspect
relevant to this litigation, the rule of completeness was stated
succinctly by Wigmore: "[T]he opponent, against whom a part of an
utterance has been put in, may in his turn complement it by putting in
the remainder, in order to secure for the tribunal a complete
understanding of the total tenor and effect of the utterance." 7 J.
Wigmore, Evidence in Trials at Common Law § 2113, p. 653 (J. Chadbourn
rev. 1978).
The Federal Rules of Evidence
have partially codified the doctrine of completeness in Rule 106:
"When a writing or
recorded statement or part thereof is introduced by a party, an
adverse party may require the introduction at that time of any other
part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it."
In proposing Rule 106, the Advisory Committee
stressed that it "does not in any way circumscribe the right of the
adversary to develop the matter on cross-examination or as part of his
own case." Advisory Committee's Notes on Fed. Rule Evid. 106, 28 U.S.C.
App., p. 682. We take this to be a reaffirmation of the obvious: that
when one party has made use of a portion of a document, such that
misunderstanding or distortion can be averted only through
presentation of another portion, the material required for
completeness is ipso facto relevant and therefore
admissible under Rules 401 and 402. See 1 J. Weinstein & M. Berger,
Weinstein's Evidence ¶ 106[02], p. 106-20 (1986). The District Court's
refusal to admit the proffered completion evidence was a clear abuse
of discretion.
While much of the controversy in this suit has
centered on whether Rule 106 applies, we find it unnecessary to
address that issue. Clearly the concerns underlying Rule 106 are
relevant here, but, as the general rules of relevancy permit a ready
resolution to this litigation, we need go no further in exploring the
scope and meaning of Rule 106.
Unfortunately for the clarity of the proceedings,
the defendants' objection to the question put by Rainey's counsel was
couched not in terms of relevance but rather as calling
for an opinion.
While the question put to Rainey indeed inquired about an opinion
Rainey had earlier expressed, it should have been obvious from the
context that the purpose of the question was not to elicit Rainey's
opinion on the cause of the accident. Rather, Rainey was asked, in
effect, whether he had made a certain statement in his letter. That
was a question he was eminently qualified to answer.
Counsel's objection that Rainey was not entitled to give opinion
evidence could not avail in view of the obvious purpose for which the
statement was offered.
Petitioners have also objected that
Rainey waived the right to pursue this issue on appeal because he did
not properly raise it in the trial court. We disagree. Rule 103(a)(2)
requires, in the first place, that to preserve an argument that
evidence was wrongly excluded the proponent must make known the
substance of the evidence sought to be admitted by an offer of proof
unless it "was apparent from the context within which questions were
asked."
Here the nature of the proposed testimony was abundantly apparent from
the very question put by Rainey's counsel. The proponent must also
comply with Federal Rule of Civil Procedure 46, which requires that a
party seeking to preserve an objection to the court's ruling must
"mak[e] known to the court the action which the party desires the
court to take or the party's objection to the action of the court and
the grounds therefor." Although, as is frequently the case in the heat
of a trial, counsel did not explain the evidentiary basis of his
argument as thoroughly as might ideally be desired, we are satisfied
that he substantially satisfied the requirement of putting the court
on notice as to his concern. In the colloquy following the defense
objection to his question,
and before he was cut off first by defense counsel and then by the
judge, Rainey's counsel began to articulate the argument that his
question should be allowed because the defense had been able to
question Rainey concerning his letter. Moreover, the judge's response
suggests that he perceived the completeness argument. We cannot say
that the point was not sufficiently made.
Rainey therefore was not barred from pursuing this issue on appeal.
IV
We hold, first, that statements in the form of
opinions or conclusions are not by that fact excluded from the scope
of Federal Rule of Evidence 803(8)(C). We therefore reverse the
judgment of the Court of Appeals in that respect. Second, we hold that
on the facts of this litigation the District Court abused its
discretion in restricting the scope of cross-examination of respondent
Rainey by his counsel, and to that extent we affirm the Court of
Appeals' judgment. The case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom
JUSTICE O'CONNOR joins, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion, but
dissent from Part III. I do not believe the District Court abused its
discretion in refusing to admit this particular testimony. The Court
concedes that "counsel did not explain the evidentiary basis of his
argument as thoroughly as might ideally be desired . . ." ante,
at 174, but I would go further and say that counsel's brief
presentation to the District Court was ambiguous at best.
Rainey's attorney was faced with an objection to
testimony he wished to elicit from his client based on opposing
counsel's perception that it would be nonexpert opinion.
He responded by saying "[o]n the basis that this letter constitutes an
admission by Commander Rainey, he has been asked to answer every
single question [opposing counsel] had respecting —." App. 77. At that
point the court cut in with an explanation of why that answer was
insufficient. The judge explained:
"I don't recall going into
anything except the matter about the right turn and so forth, and
that's all he went into. He did express that opinion and that came in
as an admission against him, I suppose, but that doesn't mean you
can['t] qualify him for the questions you are now asking. The
objection is sustained." Id., at 78.
Rainey's lawyer seems to have been arguing that,
because no one objected to Rainey's answers to defendant's questions
about the letter as nonexpert opinion, Rainey should be able to answer
similar questions put by his own attorney without that objection. The
argument looks more like one based on fairness or
waiver (often known as "opening the door")
than one based specifically on completeness. That is how the judge
understood it. He explained his ruling sustaining the objection by
noting that although the defense questioning had elicited some
opinion, it was admissible on other grounds and then suggested that
Rainey's lawyer qualify Rainey as an expert. Here the trial judge
ruled on the basis of a reasonable understanding of respondents'
stated reasons for allowing the evidence to be admitted, and the trial
judge made this understanding clear to respondents' counsel. The
evidence was not admissible under this view, and counsel made no
attempt to clarify his position.
Today, the Court offers sound reasons for the
admission of the testimony in question, but they are reasons which it
has adduced from briefs and careful research, not the reasons
expressed by counsel at trial.
"If counsel specifies a
purpose for which the proposed evidence is inadmissible and the judge
excludes, counsel cannot complain of the ruling on appeal though it
could have been rightly admitted for another purpose." E. Cleary,
McCormick on Evidence § 51, p. 125 (3d ed. 1984).
Trial judges do not have the luxury of briefs or
research when making a typical evidentiary ruling, and for this reason
we have traditionally required the proponent of evidence to defend it
against objection by showing why it should be admissible. Federal Rule
of Evidence 103(a)(2) requires an "offer of proof" in order to
preserve for review a perceived error excluding evidence.
Most courts and treatises have interpreted the need
for an "offer of proof" as requiring a specific and timely defense of
the evidence. See 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶
103[03], pp. 103-36 to 103-38 (1988); 21 C. Wright & K. Graham,
Federal Practice and Procedure § 5040, pp. 209-211 (1977); United
States v. Peters, 732 F.2d 1004 (CA1 1984); United
States v. Grapp, 653 F.2d 189, 194 (CA5 1981); Huff
v. White Motor Corp., 609 F.2d 286 (CA7 1979). The need for a
showing of evidence is the same, whether it is an essential part of
the "offer of proof," or, as the Court agrees, required by Federal
Rule of Civil Procedure 46.
The disagreement in these cases is not about
applicable Rules of Evidence, but how a trial judge should fairly have
understood an offer of proof under these circumstances. This Court,
far removed from the factual context and on the basis of a cold
record, is in no position to say that the trial court's ruling in this
situation was an abuse of discretion. Cf. Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985).
