OPINION ANALYSIS

Justices affirm Crawford’s application of Sixth Amendment confrontation clause to testimonial evidence

Thursday’s decision in Hemphill v. New York affirmed the requirement for cross-examination of testimonial statements offered at trial and stiff-armed a state-law exception to the rule. A jury convicted Darrell Hemphill of second-degree murder after a trial court admitted un-cross-examined testimonial statements from a third-party’s plea allocution. New York courts agreed the admission did not violate Crawford v. Washington, which interpreted the Sixth Amendment’s confrontation clause to require cross-examination of testimonial statements offered at trial. But in an 8-1 opinion written by Justice Sonia Sotomayor, the Supreme Court reversed the New York courts.

The case involves the murder of a two-year-old boy, David Pacheco Jr., in the Bronx on Easter Sunday in 2006. Ronnell Gilliam — and a companion, possibly Nicholas Morris — had engaged in a street fight earlier in the day. When Gilliam and others later returned to the scene of the fight, someone shot an unrecovered 9-millimeter, and a stray bullet killed Pacheco. Witnesses identified Morris as a known associate of Gilliam, placed Morris with Gilliam during the fight, and identified Gilliam as a suspect in the shooting. Witnesses also told law enforcement the gunman wore a light blue shirt or sweater. After law enforcement searched Morris’ home, they seized ammunition or cartridges from a .357-caliber and a 9-millimeter. When arresting Morris, law enforcement observed bruised knuckles. Three witnesses later identified Morris in a lineup.

New York indicted Morris for murder and possession of a 9-millimeter. The parties agreed to a mistrial, and New York recharged Morris with possession of a .357, to which Morris pleaded guilty. New York later brought murder charges against Hemphill after law enforcement discovered a blue sweater seized from Gilliam’s apartment that matched Hemphill’s DNA. Hemphill’s trial defense focused on Morris’ culpability for the murder and the evidence seized from Morris’ apartment. On multiple occasions, New York sought to introduce Morris’ plea allocution, in which he admitted to possession of a .357, not a 9- millimeter. Morris was unavailable to testify at trial, and his plea allocution had never been subjected to cross-examination. The trial court relied upon People v. Reid, a 2012 case from a New York appellate court, and found that Hemphill’s counsel had “opened the door” to Morris’ plea allocution despite the confrontation clause.

Writing for the eight-justice majority, Sotomayor first rejected New York’s argument that Hemphill insufficiently raised or preserved a Sixth Amendment claim. “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,” Sotomayor wrote. Because Hemphill sufficiently raised a Crawford violation at trial and in his state-court appeals, the Supreme Court was free to consider any argument in support of the claim that he did not forfeit his Sixth Amendment rights by “open[ing] the door to responsive evidence.”

Next, Sotomayor found admission of Morris’ plea allocution violated the confrontation clause. She identified confrontation as among those “bedrock constitutional protections afforded to criminal defendants” and remarked upon previous interpretations of the clause that reflected only a “preference for face-to-face confrontation at trial.” For example, in Ohio v. Roberts, a witness’ inability to be cross-examined was cured by testimonial hearsay that was reliable and trustworthy. Crawford charted “a different path” that proclaimed to be more reflective of the history of the confrontation right at common law. Crawford dictates “against the use of ex parte examinations [like Morris’ plea allocution] as evidence against the accused.” Moreover, “the Framers would not have allowed admission 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.”

Sotomayor spurned “door opening” as an exception to the confrontation clause. New York failed to dispute the testimonial nature of Morris’ un-cross-examined statements and that “door-opening” could be found despite the guarantees of the confrontation clause. Instead, New York labeled “door-opening” a “procedural rule” that limited “only the manner of asserting the confrontation right, not its substantive scope.” The court disagreed and cited to several New York rules and court guides that presented door-opening as “a substantive principle of evidence that dictates what material is relevant and admissible in a case.”

Sotomayor acknowledged states have flexibility to adopt reasonable procedures governing the right of confrontation. However, states cannot negate Crawford’s rejection of reliability as the basis of confrontation rights. Crawford affirmed the confrontation clause’s history, text, and purpose to prevent substitution of the method the Constitution guarantees for the assessment of testimonial evidence. In this case, the admission of unconfronted testimonial hearsay appeared to rely solely upon the trial judge’s determination that “Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence.” According to the court, it was not for the trial judge to decide whether “evidence was reasonably necessary to correct that misleading impression.” The exercise of such authority proved “antithetical” to the clarity with which the Sixth Amendment speaks on the right to confront adversarial testimonial evidence.

Of note is the court’s declination on the question of the common law “rule of completion.” Under that rule, if a defendant introduces part of a statement, the prosecution may introduce the remainder of the statement even if the defendant has no opportunity to cross-examine the person who made the statement. Justice Samuel Alito, in a concurrence joined by Justice Brett Kavanaugh, argued the rule of completeness would constitute a valid waiver of the confrontation right. Justice Clarence Thomas dissented but remained silent on the rule of completion. Instead, Thomas asserted that the court lacked jurisdiction because, in his view, Hemphill failed to raise his Sixth Amendment claim in the New York Court of Appeals.

It remains to be seen whether this decision strengthens arguments to apply confrontation rights beyond trial. As noted in my case preview, a federal district court recently rejected arguments that the confrontation clause applies at suppression hearings. In doing so, the court noted emerging scholarship (including one of my publications) advancing confrontation rights at criminal sentencing hearings.