The Supreme Court Affirms Crawford v. Washington’s Application of the Confrontation Clause in Hemphill v. New York

Feb 28, 2022

Background

Justice Sotomayor, writing for the majority in Hemphill v. New York, opened with

In 2006, a stray 9-millimeter bullet killed a 2-year-old child in the Bronx. The State charged Nicholas Morris with the murder, but after trial commenced, it offered him a plea deal for a lesser charge [which] … required Morris to admit to a new charge of possession of a .357-magnum revolver [and] not the 9-millimeter handgun originally charged … and used in the killing. Years later, the State prosecuted … Darrell Hemphill for the same murder. At his trial, Hemphill blamed Morris, and he elicited undisputed testimony from a prosecution witness that police had recovered 9-millimeter ammunition from Morris’ nightstand. Morris was outside the United States and not available to testify. The trial court allowed the State to introduce parts of the transcript of Morris’ plea allocution as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that Hemphill’s arguments and evidence … open the door to the introduction of these testimonial out-of-court statements, not subjected to cross-examination, because they were reasonably necessary to correct the misleading impression Hemphill had created. People v. Reid, 19 N. Y. 3d 382, 388 (2012).*

* “In Reid, New York’s highest court held that a criminal defendant could open the door to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was reasonably necessary to correct a misleading impression made by the defense’s evidence or argument.”

Darrell Hemphill, right, with his lawyer at his 2016 jury trial. Photo courtesy of NY Daily News.

Procedural Background

At trial, Hemphill blamed Morris for the shooting. In his opening, Hemphill’s attorney noted that officers “recovered 9-millimeter ammunition from Morris’ nightstand hours after a 9-millimeter bullet killed the victim.” The prosecution did not object; it was only later that they “contended that Hemphill’s argument had been misleading because officers also had found .357-caliber bullets on the nightstand and because Morris ultimately pleaded guilty to possessing a .357 revolver.”

In support of their argument, the State “sought to introduce the transcript of Morris’ plea allocution to suggest that he had possessed only a .357 revolver.” Why? Without Morris’ testimony, the government could not rebut Hemphill’s defense. Hemphill’s attorney immediately objected to the State’s attempt, asserting that the introduction of the allocution deprived Hemphill the opportunity to cross-examine the witness.

The trial court deferred ruling on the objection but allowed the State to present testimony about the .357-caliber bullets. Both the government and Hemphill elicited undisputed testimony from police that both a 9-millimeter cartridge and .357-caliber bullets were found on Morris’ nightstand. The trial court then addressed the government’s request to admit Morris’ plea allocution. Again, defense counsel objected. Invoking Crawford v. Washington, Hemphill’s attorney argued that admitting the allocution constituted a Crawford violation because Hemphill couldn’t cross-examine Morris. The court rejected this argument, reasoning that under Reid, “a criminal defendant could open the door to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was reasonably necessary to correct a misleading impression made by the defense’s evidence or argument.” The government then presented portions of Morris’ admission to possessing a .357 revolver “without corroborating evidence.”

At closing, the government stressed that Morris pleaded guilty to possession of a .357 revolver and not murder. Shortly after, the jury found Hemphill guilty of the murder. Hemphill then appealed, but both the Appellate Division and New York Court of Appeals affirmed his conviction. The Supreme Court then granted certiorari.

The Supreme Court’s Holding

The Court began their analysis with the Confrontation Clause of the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Citing Crawford v. Washington, the Hemphill Court explained “that the principal evil at which the Confrontation Clause was directed was the … use of ex parte examinations as evidence against the accused.” In Crawford, Justice Scalia, writing for the majority, explained, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he rule was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”* Said another way, admitting a witness’s testimonial statement when the defendant does not have the opportunity to cross-examine the witness violates the Confrontation Clause.

* In a footnote, the Court explained that the “Crawford Court defined testimony as a solemn declaration or affirmation made for the purpose of establishing or proving some fact. At a minimum … this includes prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.” Subsequent decisions have expounded on this definition.

After broadly addressing the Confrontation Clause’s purpose, the Court went on to the State’s use of Reid. The government argued that Reid is “a mere procedural rule that treats the misleading door-opening actions of counsel as the equivalent of failing to object to the confrontation violation.” According to the government, “the Reid rule limits only the manner of asserting the confrontation right, not its substantive scope.” The Court soundly rejected this argument, reasoning that the “door-opening principle incorporated in Reid …. dictates what material is relevant and admissible.” Applying Reid thus potentially permits the admission of evidence in violation of the Sixth Amendment.

Photo by Adam Szuscik on Unsplash

Further, the government’s approach contradicted the Court’s 2004 decision in Crawford v. Washington. There, the Court held that courts couldn’t substitute their own determination of the evidence’s reliability because the “Clause commands … that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The Confrontation Clause thus “reflects a judgment, not only about the desirability of reliable evidence … but about how reliability can best be determined. A mere judicial determination regarding the reliability of evidence is no substitute for the constitutionally prescribed method of assessing reliability.”

The Supreme Court found that the Hemphill trial court “violated this principle by admitting unconfronted, testimonial hearsay … simply because the judge deemed his presentation to have created a misleading impression” such that “testimonial hearsay was reasonably necessary to correct.” This admission, “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.” Similarly, under the Clause, it was not “the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.”

The Court also rejected the State’s argument “that the Reid rule is necessary to safeguard the truth-finding function of courts because it prevents the selective and misleading introduction of evidence.” Again, while such considerations are important, they do not overcome the Confrontation Clause’s robust protections.

Conclusion

The Supreme Court’s holding in Hemphill reflects the longstanding constitutional principle that testimonial evidence’s reliability and veracity must be tested by cross-examination and no other means. Thus, the Hemphill trial court erred by admitting unconfronted testimonial hearsay in violation of Hemphill’s constitutional right to cross-examine witnesses. The Court reversed and remanded the case for further proceedings.

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