Does a criminal defendant’s introduction of evidence at trial “open the door” to the government’s admission of responsive evidence that would otherwise be barred by the Confrontation Clause?
This case asks the Supreme Court to balance state criminal evidence rules and Sixth Amendment rights. New York’s opening-the-door rule allows the admission of otherwise inadmissible evidence if a party has given an incomplete and misleading impression of the issue. Under this rule, if a criminal defendant “opens the door” to responsive evidence, the defendant also forfeits their right to exclude that evidence on the grounds that it is barred by the Confrontation Clause. Darrell Hemphill contends that New York violated his Sixth Amendment right to confront his accuser by ruling that the state’s opening-the-door rule superseded the Confrontation Clause. New York argues that the opening-the-door rule does not infringe on Hemphill’s constitutional rights. The outcome of this case has heavy implications for a defendant’s rights under the Sixth Amendment and the states’ trial procedures.
Questions as Framed for the Court by the Parties
Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
On April 6, 2006, Ronell Gilliam and a black man wearing a blue top got into a physical fight with others in the Bronx. People v. Hemphill at 472. Shortly after that fight, this other man pulled a gun and opened fire. Id. This shooting caused a stray 9mm bullet to enter a passing minivan, striking and killing a two-year-old child inside. Id. After interviewing several eyewitnesses, police searched Gilliam’s apartment and found a blue sweater. Id. The police suspected that Gilliam’s best friend, Nicholas Morris, had been the shooter who was with Gilliam at the scene. Id. Police searched Morris’s apartment, where they found guns and ammunition, including a 9mm cartridge consistent with the ammunition used in the shooting. Id. Morris was indicted and trial began, but once it was discovered that Morris’s DNA did not match that of the blue sweater found in Gilliam’s home, the prosecution agreed to declare a mistrial. Id. Morris, having already been incarcerated for two years, agreed to plead guilty to possessing a .357 caliber gun (as opposed to a 9mm) and was immediately released from prison as a result. Id.
In 2011, the police learned that the DNA on the blue sweater matched that of Gilliam’s cousin, Petitioner Darrell Hemphill. Id. at 473. In 2013, Hemphill was arrested and charged with the murder. Id. During his trial in 2015, the prosecution introduced a variety of evidence: the DNA match, ballistic reports, eyewitness testimony that the shooter, like Hemphill, had a tattoo on his arm , and a detective’s testimony that he had smelled gunpowder on the blue sweater. Id. Hemphill’s grandmother also testified that he was wearing a blue sweater on the date of the shooting. Id. Gilliam testified that, after the shooting, Hemphill told him to get rid of the blue sweater and the guns, and they had fled to North Carolina together. Id. at 474. Gilliam had also previously returned to New York after Morris was indicted and gave a statement first accusing Morris of being the shooter, then stating that was untrue and that Hemphill was the actual shooter. Id.
At trial, Hemphill asserted his innocence by accusing Morris of the crime, and he elicited testimony from police about the 9mm ammunition found in Morris’s home. Brief for Petitioner, Darrell Hemphill at 9. In response, the prosecution introduced Morris’s plea allocution, in which Morris admitted that he possessed a .357 caliber gun, as opposed to a 9mm like the one used in the shooting. Id. at 10. Hemphill objected to the admission of Morris’s plea allocution on the ground that it violated his rights under the Confrontation Clause by permitting Morris to give a statement against him without testifying or being subjected to cross-examination. Id. The trial court, however, ruled that Hemphill had waived his confrontation right by giving the misleading impression that Morris had possessed the 9mm gun, and thus had opened the door for the plea to be admitted to correct that misimpression. Id. at 11.
Hemphill was convicted and sentenced to 25 years to life following his trial. People v. Hemphill at 472. Hemphill appealed his conviction on the grounds that his rights were violated by the admission of the plea allocution. Id. at 477. The First Department of the Appellate Division affirmed his conviction in June 2019, and the Court of Appeals of New York affirmed again on June 25, 2020. Hemphill then petitioned for a writ of certiorari, which the Supreme Court of the United States granted on April 19, 2021.
SUPREMACY OF THE CONFRONTATION CLAUSE
Hemphill argues that a criminal defendant’s Sixth Amendment right to be confronted with adverse witnesses overrides New York’s opening-the-door rule. Brief for Petitioner, Darrell Hemphill at 15. According to Hemphill, the Confrontation Clause, which grants the defendant the right to cross-examine the witnesses brought against him, prevails over state rules of evidence. Id. at 15-16. Therefore, Hemphill contends that New York’s admission of Morris’s plea allocution violated the Sixth Amendment. Id. Hemphill asserts that, in applying the opening-the-door rule to out-of-court statements such as Morris’s, many historical cases that are now considered infamous violations of this right, such as the trial of Sir Walter Raleigh, would not be unconstitutional under New York’s rule. Id. at 18. Hemphill further argues that New York’s opening-the-door rule is incompatible with Supreme Court precedent, such as Lee v. Illinois and Crawford v. Washington, in which the Court held that introducing a statement, instead of live testimony, in response to a defense theory violated the defendant’s confrontation right. Id. at 20. Hemphill also contends that this rule would lead to practices that the Confrontation Clause was supposed to prevent by giving prosecutors an easy way to avoid having to put witnesses on the stand. Id. at 21.
The State of New York argues that the opening-the-door rule does not violate the Confrontation Clause. Brief for Respondent, State of New York at 23. According to New York, the confrontation right may be limited by state procedural rules to preserve the integrity of trials. Id. at 24. New York argues that the opening-the-door rule would not jeopardize defendants’ confrontation right because it only applies when the defense creates a substantial misleading impression that requires the introduction of the otherwise inadmissible statement to counter. Id. at 47. Thus, New York contends that because this rule is triggered by a defendant’s “persistent course of conduct” and only evidence necessary to correct the misleading picture created by defendant is permitted, this doctrine fully complies with defendant’s rights. Id. at 23.
EXCEPTION TO THE CONFRONTATION CLAUSE
Hemphill argues that the opening-the-door rule cannot be an exception to the Confrontation Clause. Brief for Petitioner at 25. Hemphill contends that the only traditionally recognized exception to the confrontation right under the doctrine of equitable forfeiture is where the defendant kills or otherwise keeps a witnesses away from court with the specific intent to stop them from testifying. Id. at 26. Hemphill further argues that New York’s rule could not fall under such a wrongdoing exception anyway because the defendant did nothing wrong or inconsistent with his right that would trigger the exception. Id. at 27-28. Moreover, Hemphill contends that invoking equitable principles here would undercut other constitutional rights, such as the right to jury trial or the right “to present a complete defense” under the Due Process Clause. Id. at 29.
Hemphill also argues that the opening-the-door rule cannot be justified by the existing evidentiary rule of completeness, which permits the admission of a hearsay statement after the defendant introduces a portion of that statement that is misleading alone. Brief for Petitioner at 34-35. Hemphill contends that the rule of completeness does not apply here because he has not introduced any statement by the witness that can trigger the rule of completeness under either the common law, New York law, or the Federal Rules of Evidence. Id. at 35–36. Hemphill alternatively argues that, even if the rule of completeness could apply in this case, it cannot override the Confrontation Clause. Id. at 36. Moreover, Hemphill contends that incorporating the rule of completeness in this way is unnecessary to prevent the admission of evidence that is substantially more misleading than probative given that multiple rules of criminal procedure and evidence already exist to prevent a defendant from misleading the jury in that way. Id. at 38.
The State of New York, on the other hand, argues that the opening-the-door rule is not an exception to the Confrontation Clause, but is merely a limitation. Brief for Respondent at 25, 30. According to New York, the opening-the-door rule is fully compatible with the confrontation right because the confrontation right is not absolute: it is a procedural right that can either be waived by a criminal defendant’s conduct at trial or limited by state rules and procedures. Id. at 23–24. Therefore, New York contends that the confrontation right must be balanced with the state’s interest in maintaining the integrity of the adversarial trial process. Id. at 28.
New York further argues that the opening-the-door rule is not an exception to the confrontation right because the admissibility of the statement is not dependent on its reliability under traditional evidence rules, but rather on “the course of conduct of the defendant or his counsel” throughout the trial. Id. at 31–32. As such, New York contends that the opening-the-door rule is in no way “purely evidentiary,” as Hemphill claims. Id. at 31. Rather, New York posits that the opening-the-door rule should be understood as a procedural rule designed to preserve the integrity of the trial and stop the manipulation of jurors. Id. at 31.
PRESERVATION OF SIXTH AMENDMENT CLAIM
Hemphill argues that his constitutional claim was properly preserved because he has argued throughout the case that the admission of Morris's testimonial hearsay would violate his rights under the Confrontation Clause. Reply Brief for Petitioner, Darrell Hemphill at 2. Hemphill contends that he first raised the issue in the trial court and again at both stages of appeal. Id. Hemphill further argues that the claim is preserved because the state’s highest court ruled on the issue indirectly when the New York Court of Appeals concluded that the admission of the evidence was proper. Id. at 4.
The State of New York argues that Hemphill failed to present his claim that the opening-the-door rule violated the Confrontation Clause to the state court. Brief for Respondent at 17. New York contends that Hemphill limited the issue for review at the Court of Appeals to whether his defense opened the door to the evidence at all, so the Court of Appeals never ruled on Hemphill's constitutional claim. Id. at 19. New York thus asserts that because Hemphill never presented the constitutionality of the opening-the-door rule to the state courts, it is not able to be reviewed by the Supreme Court now. Id. at 20.
Hemphill argues that the error of admitting the plea allocution was not harmless beyond a reasonable doubt. Reply of Petitioner at 6. Hemphill contends that the Court can find that Morris’s allocution played an important role for the guilty verdict. Id. According to Hemphill, several eyewitnesses identified Morris as the shooter in the original case; moreover, some physical evidence corroborated that conclusion. Id. Therefore, Hemphill asserts that it is quite probable that the jury relied on the plea allocution to reach the guilty verdict. Id. at 7.
The State of New York argues that, even if the trial court erred in admitting the allocution, the error was harmless beyond a reasonable doubt and thus the decision should be affirmed regardless. Brief for Respondent at 49. According to New York, there exists “substantial independent evidence” of Hemphill’s guilt, and the jury was aware of Morris’s motive for accepting the plea deal. Id. Therefore, New York argues that any prejudicial effect of the allocution was negated. Id. Alternatively, New York contends that the Supreme Court should remand the case to the lower court to make the determination on the issue of harmless error. Id.
PROTECTING CONSTITUTIONAL RIGHTS AT TRIAL
The National Association of Criminal Defense Lawyers (“NACDL”), in support of Hemphill, asserts that upholding broad state rules that require an unintentional waiver infringes upon defendants’ fundamental constitutional rights. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers, in support of Petitioners at 9. NACDL contends that allowing these rules to stand would force defendants to choose between the constitutional right to the right to confront witnesses, and the choice to present certain testimony or to take the stand. Id. at 10. A group of renowned Criminal Procedure and Evidence professors, in support of Hemphill, contend that while states are “traditionally accorded” a large degree of freedom in constructing and applying their evidentiary rules, whenever these rules are prohibited by any provision of the federal constitution, the rule must give way to the constitution’s supremacy. See Brief of Amici Curiae Evidence and Criminal Procedure Professors, in support of Petitioners at 26.
Several states including Utah, Arizona, and Florida (“the States”), in support of New York, contend that New York’s opening-the-door rule of evidence is reasonable, limited, and should be respected. See Brief of Amici Curiae Utah et al., in support of Respondent at 6. The States argue that the opening-the-door rule does not “chill” a defendant’s ability to present his defense. Id. at 17. Rather, the States contend that the opening-the-door rule only inhibits a defendant’s ability to present a picture of the evidence that is incomplete or misleading. Id. Thus, the States assert that the rule is sufficiently narrow. Id. Further, the States argue that the Confrontation Clause, while undoubtedly important, was not intended by the Framers to be honored at all costs. Id. at 6. The States contend that this is particularly true when trial courts rule that the admission of testimonial hearsay is “reasonably necessary” to correct a false impression of facts that the defendant may have intentionally caused. Id. Therefore, the States assert that New York’s opening-the-door rule promotes the right to fair trials guaranteed by the Sixth Amendment by maintaining fair and reasonable remedies for deception by the defense. Id.
PROTECTING THE INSTITUTION OF THE CRIMINAL TRIAL
NACDL, in support of Hemphill, argues that broad forfeiture rules such as New York’s undermine the entire institution of the criminal trial. See Brief of NACDL, in support of Petitioners at 11. NACDL contends that the function of a criminal trial is to facilitate due process and a just outcome, and that the rule used by New York disrupts that function. Id. at 12. In addition, the Innocence Project, in support of Hemphill, describes the “disturbing marriage of convenience” between the government and informants who take plea deals, which often result in wrongful convictions and other miscarriages of justice. Brief of Amicus Curiae the Innocence Project, in Support of Petitioner at 6–8. In a similar vein, NACDL worries about the effects of the New York rule on the roles of the judge, jury, and prosecutor by blurring the distinctions and authority between these vital roles. Id. at 12, 15.
On the other hand, the National District Attorneys Association along with the District Attorneys Association of the State of New York (“the DAs”), in support of New York, contend that New York’s opening-the-door rule promotes fair trials. See Brief of Amici Curiae District Attorneys Association of the State of New York and National District Attorneys Association, in support of Respondent at 6. The DAs argue that this evidentiary rule supports fair trials by imposing consequences for misleading the trier of fact while remaining reasonably limited. Id. The DAs contend that New York’s opening-the-door rule is reasonably limited because it is carefully tailored to the goal of correcting a false set of facts. Id. at 7. Further, the DAs explain that this limitation on the rule is strict, as the appellate courts of New York have repeatedly reprimanded trial courts that have interpreted and applied the opening-the-door rule to liberally. Id. at 8.
The authors would like to thank Professor John Blume for his insights into this case.
- Debra Cassens Weiss, Can Opening the Door Evidence Doctrine Violate the Confrontation Clause? SCOTUS Will Decide, ABA Journal (Apr. 19, 2021).
- Kaila Philo, Unchallenged Testimony Sends Trial Over Slain Child to Top Court, Courthouse News Service (Apr. 19, 2021).