ARGUMENT ANALYSIS

Justices probe both sides in clash between confrontation clause and evidentiary rules

Tuesday’s oral argument in Hemphill v. New York made apparent that a New York evidentiary rule, known as the “door opening” rule, implicates the Sixth Amendment’s confrontation clause. But by the end of the hour-long argument, it wasn’t clear how the justices are inclined to deal with the interaction of the two.

Under the New York rule, a defendant who introduces evidence may “open the door” to the government’s responsive evidence and thereby forfeit the right to exclude that evidence, even if the government’s evidence ordinarily would violate the confrontation clause. If the court rejects application of New York’s rule, clarity could be offered on the scope of confrontation beyond the testimonial distinction recognized in Crawford v. Washington. If New York’s rule survives, the ruling may define on when defense counsel’s behavior constitutes a proper waiver of cross-examination beyond the failure to object to the introduction of testimonial evidence at trial.

At issue in Hemphill is the trial court’s application of a door-opening theory, which in this case allowed prosecutors at the murder trial of Darrell Hemphill to introduce the uncross-examined plea allocution of a prior suspect in the crime, Nicholas Morris. Morris’ allocution contradicted the defense’s theory, which focused on Morris’ culpability. At trial,  Hemphill’s counsel argued that introduction of the allocution violated the confrontation clause. The trial judge found the defense counsel’s theory of the murder “in all respects … appropriate” and “under the circumstances of the case … a necessary argument to make.” Nonetheless, the defense counsel “opened the door” to New York’s evidence (the plea allocution). No dispute exists that the admitted statements were testimonial under Crawford and would be barred absent New York’s rule.

Representing Hemphill before the Supreme Court on Tuesday, Jeffrey Fisher argued against forfeiture of the confrontation clause when a defendant makes a legitimate argument based on admissible evidence. Fisher emphasized that the confrontation right is at its most urgent when the prosecution’s hearsay evidence contradicts the defense’s theory of a case. Justice Clarence Thomas interjected to ask whether Hemphill sufficiently preserved a Sixth Amendment argument. Fisher responded that objections based on the right of confrontation were made at trial after New York sought to introduce Morris’ plea allocution. Similar arguments were before state courts. Moreover, New York’s motivation for admitting Morris’ allocution was Hemphill’s third-party culpability defense. Since 1899, in Kirby v. United States, a co-defendant’s guilty plea has been deemed inadmissible against the defendant.

Chief Justice John Roberts sought to clarify whether Hemphill sufficiently waived or forfeited the right of confrontation. Fisher responded by theorizing that the confrontation clause would be forfeited in most cases if the facts of the present case amount to a waiver. Roberts and Justice Samuel Alito presented hypotheticals that Fisher argued highlighted the strictness of the forfeiture standard. Fisher also pointed out how New York’s rule does not contain a requirement of improper behavior, which Giles v. California deemed necessitates a finding of forfeiture. Hemphill did not cause Morris’ unavailability to testify. Nor did Hemphill’s defense counsel introduce or comment upon Morris’ statements.

Fisher ultimately suggested the court leave for another day the applicability of forfeiture when the defendant himself introduces part of the absent witness’s statements. Justice Elena Kagan questioned whether the door-opening rule constituted a rule of procedure, not substance outside the ambit of the confrontation clause. Hemphill cited New York’s own guide that refers to the door-opening rule as a rule of evidence and therefore substantive. Application of the rule, Fisher said, depends on the content of the defendant’s statement, which is distinct from procedural devices to manage a trial. Fisher emphasized defense counsel’s reference to actual evidence found in Morris’ apartment, which was substantive fact, not misleading suggestion.

Thomas and Justice Amy Coney Barrett highlighted the abuse-of-discretion standard in People v. Reid, the New York case that the trial judge relied on in allowing the introduction of Morris’ allocution. Fisher responded that abuse of discretion is insufficient against the right of confrontation and could potentially engulf the New York rule. Fisher also emphasized repeated arguments about a Sixth Amendment violation and the various alternatives to admission of testimonial statements. Thomas later questioned the testimonial nature of Morris’ statements, which were about Morris alone. Fisher suggested that post-Crawford jurisprudence does not limit the Sixth Amendment to accusatory statements but instead applies to all testimonial statements.

Justice Stephen Breyer expressed concern about the scope of Crawford and its potential to eradicate all hearsay exceptions. Fisher pointed out how the circumstances of the case fit Crawford’s prohibition against uncross-examined testimonial evidence. Breyer and Alito followed up with hypotheticals that Fisher maintained involved the “rule of completeness” — the principle that, if one side introduces part of a statement, the other side may introduce any other part to establish the full context — and other hearsay exceptions. (Curiously, Alito interjected to express confusion about the admissibility of much of the prosecution’s evidence.) Later Justices Neil Gorsuch and Brett Kavanaugh raised the rule of completeness as a possible rule of common law origin that survived the Sixth Amendment and questioned whether New York could defend door opening as an outgrowth of completeness. Barrett emphasized the similarity between the rules of door opening and completeness. Fisher responded that completeness requires that a defendant introduce an incomplete statement and is therefore not applicable here. Moreover, New York pointed to no common law origin for door opening.

Several justices pressed for clarification on the nature of the confrontation clause violation. Barrett hypothesized that the court could conclude the rule itself does not violate the clause, but that the New York courts’ application of the rule did constitute a violation. Fisher pointed out how introduction of the plea allocution violates the confrontation clause and that New York asserts door opening as a response to the violation. Gina Mignola, assistant district attorney for the Bronx argued that Hemphill questioned only the applicability of door opening and thus by statute New York courts could not have reviewed whether door opening on its face violated the Sixth Amendment.

Mignola asserted a legitimate purpose for door opening: a remedy for the state’s prohibition against misleading a jury. Kagan questioned whether the purpose of admission was to contradict Hemphill’s case. Roberts and Justice Sonia Sotomayor asked for specific evidence of misconduct. Mignola cited the defense counsel’s implication of the previous prosecution’s dissatisfaction with Morris’ case and how these statements misled Hemphill’s jury into believing prosecutors thought Morris was guilty of the murder. Mignola asserted that prosecutors simply changed their theory and that admission of Morris’ plea allocution was necessary to contradict Hemphill’s inference. Alito questioned whether there were other ways to contradict Hemphill’s alleged inference. Several justices pointed out that Hemphill’s jury did not hear content from Morris’ trial.

Barrett pressed Mignola on whether New York’s door-opening rule finds support in historical common law practice. Mignola agreed that the common rule of completeness does not apply in this case, but the door-opening rule relies on the same principle as completeness. She pointed out that the trial court found the plea allocution relevant and probative even if inadmissible. Although the defendant did not engage in misconduct or behave badly, Mignola argued, the potential for jury confusion necessitated a remedy that included admission of Morris’ plea allocution. Alito questioned the failure to bring in actual testimony about Morris’ case. Breyer and Sotomayor probed Mignola on the proportionality of the loss of the right of confrontation for a defendant who does not engage in misconduct.

Mignola argued the trial court’s exercise of discretion on the issue of admissibility did not implicate the Sixth Amendment’s confrontation clause given the narrow scope of admission to that which was reasonably necessary to cure Hemphill’s misleading suggestions. She compared application of the door-opening rule with other procedures that are judged by a discretionary standard. But upon questioning by several justices, Mignola also appeared to concede that part of the door-opening analysis balances the right of confrontation itself. Roberts, Beyer, and Barrett pointed out that the Sixth Amendment itself makes the judgment call and that New York’s procedure appears to be a substitute. Breyer also questioned the relevancy that a defendant opened the door if truth seeking and curing jury confusion outweighs the right to cross-examine adverse witnesses.