Supreme Court Decides Confrontation Clause Issue: Hemphill vs. New York

Facts:  Shooting Death, Fingers Pointed, Transcripts Used

In the Bronx there was a fight and then later a shooting.  A stray bullet shot from a 9-millimeter handgun (this is important) struck a two-year old kid.  A witness said that Morris was the shooter.  The witness came back to the station and said that Hemphill was the shooter.  

Morris was charged with the murder with the allegation of it being the 9-millimeter.  But Morriss was later offered a plea deal for a lesser charge.  The plea deal that he took required him to plead guilty to possession of a .357, which is different from what was used in the shooting death.  Morris received time served.  

Later, Hemphill was arrested and indicted for the murder.  During the trial Hemphill’s lawyers said that the police had found 9-millimeter bullets on the nightstand of Morris’ bedroom.  The prosecutors later said that the defense attorney was being misleading because there were also .357 bullets in the nightstand and Morris pleaded guilty to possessing a .357 revolver.

Morris was unavailable for trial so the state tried to introduce the transcript of Morris’ plea allocution.  This was to suggest that Morris had possessed only a .357 revolver.  Hemphill’s counsel objected stating that this was a violation of the confrontation clause and that it was clearly hearsay.  Counsel argued that Hemphill was being “deprived of an opportunity [for] cross-examination.”

The New York state court cited People vs. Reid, 19 N. Y. 3d 382, 971 N. E. 2d 353, which indicated that a criminal “defendant could ‘ope[n] 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 state court judge indicated that because the defense made the argument that because Hemphill made the allegation that Morris was the shooter, the court determined that Hemphill had opened the door to evidence offered by the state to refute that claim.  This meant that the government got to bring forth the transcript where Morris pled guilty to the .357 even though Morris wasn’t available.

Hemphill closed by saying that Morris was the shooter.  The government cited Morris’ plea and stated that he was found guilty of possession of a .357 but not murder.  The jury found Hemphill guilty of Murder of the two-year-old and sentneced him to 25 years to life in prison.  

What is the Confrontation Clause?  

The confrontation clause states that “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

In Crawford vs. Washington, 541 U. S. 36, the Supreme Court stated that “the principal evil at which the Confron- tation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused…the Framers would not have allowed ad- mission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 

Issue:  The State of New York’s opinion in People vs. Reid about “opening the door” violates the confrontation clause.  

Reasoning:  The Government here argued that Reid was not a confrontation clause exception, but rather a “procedural rule” that “treats the misleading door-opening actions of counsel as the equiv- alent of failing to object to the confrontation violation.”

However the court disagreed:  

“The door-opening principle incorporated in Reid, however, is…a substantive principle of evidence that dictates what material is relevant and admissible in a case…the principle requires a trial court to determine whether one party’s evidence and arguments, in the context of the full record, have created a ‘misleading impression’ that requires correction with additional material from the other side.”  

The Court also noted that the text of Crawford indicated that Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination…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.”

The government also indicated that reversal here would leave prosecutors without the ability to correct abuses to the right of confrontation.  But the court also determined that those were overstated:

“Even for otherwise admissible evidence, ‘well-established rules,’ such as Federal Rule of Evidence 403, ‘permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.”

The Supreme Court REVERSED the decision and indicated that the rule in the district court violated the confrontation clause.  

What does the Hemphill case mean?

As long as there are rules that help accused persons there are going to be judges that try to carve out exceptions and prosecutors that are going to test the fences like velociraptors in Jurassic Park (the first one). If you went to trial and there was a witness that did not testify but their testimony got in somehow, you may have a confrontation clause issue.  Please reach out to us to explain more and see if we can help you at [email protected]