Nebraska Revised Statute 27-106
Chapter 27 Section 106
Rule 106. Remainder of or related writings or recorded statements; action of judge.
(1) When 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 other. When a letter is read, all other letters on the same subject between the same parties may be given. When a detached act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.
(2) The judge may in his discretion either require the party thus introducing part of a total communication to introduce at that time such other parts as ought in fairness to be considered contemporaneously with it, or may permit another party to do so at that time.
- Laws 1975, LB 279, § 6.
When prior testimony of a witness is introduced out of context and leaves a false impression, additional evidence, even if otherwise inadmissible, may be introduced to qualify and explain the previous testimony. Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000).
Because this section is concerned with the danger of admitting a statement out of context, additional evidence is admissible only if it qualifies or explains the previous testimony. Under this section, when defense counsel leaves a false impression, the trial court may allow the use of otherwise inadmissible evidence to clarify or complete an issue opened up by defense counsel. Under this section, the trial court must determine whether the additional evidence which the proponent seeks to admit is relevant to the issues in the case and the trial court need admit only that part of the evidence which qualifies or explains the evidence offered by the opponent. In applying this section, once relevance of the additional evidence has been established, the trial court must address the second half of the test for admissibility, and should do so by asking: (1) Does it explain the admitted evidence? (2) Does it place the admitted evidence in context? (3) Will admitting it avoid misleading the trier of fact? (4) Will admitting it ensure a fair and impartial understanding of all the evidence? State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993).
Under this section the admission of evidence is not a matter of right, but rests with the sound discretion of the court. State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).
Generally, the rule of completeness is concerned with the danger of admitting a statement out of context. When this danger is not present, it is not an abuse of discretion to fail to require the production of the remainder or, if it cannot be produced, to fail to exclude the evidence. Chirnside v. Lincoln Tel. & Tel. Co., 224 Neb. 784, 401 N.W.2d 489 (1987).
The general rule regarding admissibility of tape recordings is that they are admissible as evidence of such conversations and in corroboration of oral testimony, provided proper foundation is laid. The rule of completeness is concerned with danger of admitting a statement out of context. Where this danger is not present it is not an abuse of discretion to fail to require production of the entire statement. State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).