The U.S. Supreme Court Rejects Bronx DA’s Attempted End-Run Around Confrontation Clause

In Hemphill v. New York, the U.S. Supreme Court held that the defendant “did not forfeit his confrontation right merely by making [a] plea allocution arguably relevant to his theory of defense.”1 The Court rejected the attempt by the Bronx District Attorney (DA) to circumvent the Confrontation Clause using a New York rule that allows prosecutors to respond to defense argument with otherwise inadmissible evidence.

The Case Against Darrell Hemphill

In 2006, following a street-side brawl in the Bronx, a two-year-old boy sitting in a nearby minivan was killed by a stray 9-millimeter bullet.  After obtaining an indictment against Nicholas Morris for the murder and for possession of a 9-millimeter handgun, the Bronx DA agreed to dismiss that indictment in exchange for Morris’s plea to a second indictment, this time for possession of a different weapon, a 357-magnum.

In 2013, the DA obtained an indictment against Darrell Hemphill for the murder.  At trial, Hemphill argued that Morris was the shooter.  Hemphill elicited testimony from police officers that they had found 9-millimeter and 357-magnum ammunition on Morris’s nightstand.  Morris was not available to testify, so the DA sought to admit Morris’s plea allocution into evidence to establish that Morris had possessed only a 357-magnum on the day of the murder and thus could not have been the shooter.

In New York, a party may “open the door” to otherwise inadmissible evidence “when in the presentation of argument, cross-examination of a witness, or other presentation of evidence the party has given an incomplete and misleading impression on an issue.”2 In People v. Reid, the New York Court of Appeals applied that principle to hold that the admission of testimonial hearsay evidence that is otherwise barred by the Confrontation Clause “may be proper if the defendant opened the door to its admission.”3 The Reid court made clear that “[w]hether a defendant opened the door to particular, otherwise inadmissible evidence presented to the jury must be decided on a case-by-case basis.”4

Despite commenting that Hemphill’s argument was “appropriate and under the circumstances of this case probably a necessary argument to make,” the trial judge applied Reid to admit Morris’s plea allocution.5 The trial judge reasoned that Hemphill had “opened the door” to the plea allocution by arguing that Morris had been the shooter.6  The jury convicted Hemphill and he was sentenced to 25 years to life.  The Appellate Division of the New York Supreme Court7 and the New York Court of Appeals8 affirmed Hemphill’s conviction.  Hemphill sought review in the U.S. Supreme Court, which granted review to address whether, or under what circumstances, a criminal defendant who opens the door to evidence also forfeits his right to exclude evidence otherwise barred by the Sixth Amendment’s Confrontation Clause.

The Supreme Court’s Decision

In an 8-1 decision, the Supreme Court reversed the judgment of the New York Court of Appeals.  It held that the trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection violated the Confrontation Clause’s “fundamental guarantee” of cross-examination.9

The DA argued that Reid set out a “procedural rule” that “treats the misleading door-opening actions of counsel as the equivalent of failing to object to the confrontation violation.”10 The Court had previously recognized that states may enact procedural rules, such as “contemporaneous objection requirements” or “notice-and-demand statutes,” that “govern the exercise of a defendant’s right to confrontation.”11  According to the DA, New York’s rule was no different.

Justice Sotomayor, writing for the majority, was having none of it.  The “opening the door” rule, she wrote, is “is not a member of this class of procedural rules.  Rather, it is a substantive principle of evidence that dictates what material is relevant and admissible in a case.”12 Permitting judges to assess whether a defendant’s arguments mislead the jury, thereby opening the door to excluded testimonial hearsay, would invite the sort of ad-hoc judicial assessments of reliability that the Court’s decision in Crawford v. Washington had “emphatically rejected.”13

The DA also argued that the Reid rule was necessary to prevent defendants from misleading the Court through the selective introduction of evidence.14 The DA relied on cases dealing with evidence that had been excluded under prophylactic rules, “deterrent sanction[s]” that are “designed to remedy ‘a violation that ha[s] already occurred.’”15

Considerations of fairness in trial proceedings had motivated the Court to allow prosecutors to use evidence excluded under prophylactic rules in certain situations, such as to impeach a testifying defendant.16 But where the admission of certain evidence itself would violate a Constitutional guarantee, the Court had applied a bright-line rule against admissibility.17 The Court held that the admission of unconfronted testimonial hearsay evidence — like Morris’s plea allocution — itself violates the Confrontation Clause, which “admits no exception” even where “the trial judge believes unconfronted testimonial hearsay might be reasonably necessary to correct a misleading impression.”18

Practical Takeaways

  • Defense counsel should be vigilant in objecting to the admission of testimonial hearsay even when it is admitted under the guise of a ‘procedural’ rule, particularly where that rule invites ad-hoc assessments of reliability by the trial judge.  In addition to objecting to the admission of testimonial hearsay at trial, counsel must clearly present their confrontation argument at every level on appeal.  Indeed, the Court reached the merits of the constitutional question only after it was satisfied that Hemphill’s counsel had argued that admission of Morris’s plea allocution violated Hemphill’s confrontation rights “[a]t every level of his proceedings in state court.”19
  • Defense counsel should also be wary of claims by prosecutors that hearsay evidence is not “testimonial” and therefore falls outside the scope of the Confrontation Clause.  As the DA did in Hemphill, prosecutors may try to use the Court’s ill-defined limitation of the confrontation right to only “testimonial” hearsay to recast evidence as non-testimonial and admissible, even where that evidence is clearly testimonial.20

1 Hemphill v. New York, 142 S. Ct. 681, 686 (2022).
2 GUIDE TO NEW YORK EVIDENCE § 4.08, available at https://nycourts.gov/judges/evidence/4-RELEVANCE/4.08_Open_Door.pdf; see also People v. Melendez, 434 N.E.2d 1324, 1327–28 (N.Y. 1982).
3 People v. Reid, 971 N.E.2d 353, 356 (N.Y. 2012).
4Id. at 357.
5Hemphill, 142 S. Ct. at 688 (quoting Joint App’x at 184–85).
6Id.
7See People v. Hemphill, 173 A.D.3d 471 (1st Dep’t 2019).
8See People v. Hemphill, 150 N.E.3d 690 (N.Y. 2020).
9Hemphill, 142 S. Ct. at 694.
10Id. at 690 (quoting Br. for Petitioner at 31).
11Id. at 691 (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327 (2009)) (internal quotation marks omitted).
12Id.
13Id.; see also Crawford v. Washington, 541 U.S. 36, 63–64 (2004) (discussing the “unpredictability” of the reliability-based approach and noting that “[w]hether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them”).
14Hemphill, 142 S. Ct. at 692.
15Id. (quoting Kansas v. Ventris, 556 U.S. 586, 591, 593 (2009)).
16Id.; see also Ventris, 556 U.S. at 591 (“The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise.  The Fourth Amendment, on the other hand, guarantees that no person shall be subjected to unreasonable searches or seizures, and says nothing about excluding their fruits from evidence; exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee. 
Inadmissibility has not been automatic, therefore, but we have instead applied an exclusionary-rule balancing test.” (internal citation omitted)).
17See New Jersey v. Portash, 440 U.S. 450, 457–58 (1979); Ventris, 556 U.S. at 591.
18Hemphill, 142 S. Ct. at 693.
19Id. at 689; but see id. at 696 (Thomas, J., dissenting) (arguing that the Court lacked jurisdiction to hear Hemphill’s appeal because he “did not raise his Sixth Amendment claim in the New York Court of Appeals”).
20Id. at 688 n.1 (noting the DA’s argument to the trial court that the “plea allocution was not testimonial because it did not ‘incriminate or point a finger at all against Mr. Hemphill’” but that “[b]efore this Court, the State does not dispute that the plea allocution was testimonial, and so the Court expresses no view on the matter” (internal citation omitted)).

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

Author(s)
Justin Lewis

Justin E. Lewis
Associate
Email | +1 212.897.3431

As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

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