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SCOTUS rejects “door opening” as Confrontation Clause exception

Hemphill v. New York,  USSC No. 20-637, 142 S.Ct. 681, 1/20/22 reversing and remanding People v. Hemphill, 150 N.E.3d 356; Scotusblog page (including links to briefs and commentary)

New York charged Hemphill with a homicide; a stray 9mm bullet fired after a fight in the street had killed a child. Hemphill’s defense was that another man, Morris, had fired the shot. Police had searched Morris’s room and found both 9mm and .357-magnum ammunition, and the state had, in fact, originally charged Morris with the murder. Hemphill was able to introduce evidence of Morris’s possession of the 9mm ammo by cross-examination of a state’s witness. In response the state sought to introduce portions of a transcript of Morris’s ultimate plea–in which he admitted to possessing a .357 revolver, rather than the 9mm pistol that had killed the child. Morris was out of the country and thus not available for cross-examination, but the New York courts ruled the transcripts were admissible under state law allowing such evidence where it is “reasonably necessary” to “correct” a “misleading impression.” The Supreme Court reverses, declaring in an 8-1 decision that “Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense.” (Slip op. at 2).

But first, it rejects New York’s argument that Hemphill hadn’t adequately presented his constitutional claim to the the state courts:

At every level of his proceedings in state court, Hemphill argued that the admission of Morris’ plea allocution violated his Sixth Amendment right to confrontation as interpreted by this Court in Crawford. Before the trial court, Hemphill timely objected that admission of the plea allocution would be “a Crawford violation.” Before the Appellate Division, he argued that the trial court “denied Mr. Hemphill his 6th Amendment right to confront the witnesses against him.” And before the Court of Appeals, he contended that “[t]he Appellate Division’s analysis,” which had affirmed the trial court’s admission of the plea allocution, “is absurd in the context of the Confrontation Clause, the purpose of which is to afford the accused the right to meaningfully test the prosecution’s proof.” “Once a federal claim is properly presented, a party can make any argument in support of that claim.” Yee v. Escondido, 503 U. S. 519, 534 (1992). The Court may therefore consider any argument Hemphill raises in support of his claim that he did not “forfei[t] his right to exclude evidence otherwise barred by the Confrontation Clause” by “open[ing] the door to responsive evidence.”

(Slip op. at 7 (citations to case documents omitted)).

Turning to the merits, the Court notes that the state’s position is not that “opening the door” is itself an exception to the Confrontation clause. Rather, the state argues that the door-opening rule followed in New York is a procedural doctrine analogous to forfeiture: that Hemphill’s introduction of evidence that Morris possessed a 9mm was “the equivalent of failing to object” to the state’s introduction of barred evidence that he possessed a .357. (Slip op at 9).

The Court doesn’t buy it. It allows that states are free to adopt reasonable procedural rules establishing what a defendant must do to claim the confrontation right: for example, lodge a contemporaneous objection to violations. But the Court views “opening the door” as a rule of evidence: it makes some otherwise-excludable evidence admissible regardless of confrontation violations. (Slip op at 10). Per the Court, permitting rules like New York’s

would negate Crawford’s emphatic rejection of the reliability-based approach of Ohio v. Roberts. If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees. The Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U. S., at 61…. [T]he role of the trial judge is not, for Confrontation Clause purposes, to weigh the reliability or credibility of testimonial hearsay evidence; it is to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed.

The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct. For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.

(Slip op. at 11-12).

The Court reserves the question of whether another evidentiary concept–the rule of completeness–might permit the state to introduce otherwise confrontation-barred evidence in a different case. Justice Alito, joined by Kavanaugh, concurs to say that it should: that a defendant who has introduced parts of a statement ought not be able to object if the prosecution wishes to introduce other parts of that same statement. Justice Thomas dissents, arguing that Hemphill didn’t adequately present his claim to the state court, and that the Supreme Court thus lacks jurisdiction.

As we’ve noted elsewhere, the state (of Wisconsin) has recently asked our own supreme court to hold that a defendant “opened the door” to admission of a DNA report from a non-testifying expert. This decision should shut that argument down (though there are other issues in the case).

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