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Will the court recognize New York’s “door opening” rule as an exception to the Sixth Amendment’s confrontation clause?

The Supreme Court will hear argument on Tuesday in an important case on the rights of criminal defendants under the Sixth Amendment’s confrontation clause. Specifically, the court will determine in Hemphill v. New York whether the confrontation clause requires cross-examination of testimonial hearsay even when a defendant “opens the door” to that hearsay. Darrell Hemphill argues that the admission at his trial of portions of a third party’s plea allocution that contained testimonial hearsay violated the Sixth Amendment. A jury convicted Hemphill of second-degree murder, and he was sentenced to a prison term of 25 years to life.

The tragic circumstances of this case involve the murder of David Pacheco Jr., a two-year-old who was killed on Easter Sunday, April 16, 2006. At the time of his death, Pacheco was a passenger in his mother’s minivan on Tremont Avenue in the Bronx. Ronnell Gilliam and a companion lost a street fight earlier on the day of the murder. Gilliam fled but later returned with the same or a different companion. Someone opened fire with a 9-millimeter handgun and inadvertently killed Pacheco. Witnesses told law enforcement the gunman wore a light blue shirt or sweater and placed Nicholas Morris with Gilliam during the fight. Witnesses also identified Gilliam as a suspect in the shooting and Morris as a known associate of Gilliam. Law enforcement ultimately searched Morris’ home and seized ammunition for a .357-caliber weapon, an 8-millimeter starter pistol, and a live 9-millimeter bullet cartridge. Law enforcement observed bruised knuckles consistent with fist-fighting when Morris was arrested. Three witnesses identified Morris in a lineup.

New York indicted Morris for Pacheco’s murder and possession of a 9-millimeter that was suspected of being the murder weapon. Several days after Morris’ arrest, Gilliam surrendered to law enforcement, confessed his involvement, and named Morris as the shooter. At some point, Gilliam spoke with Morris, promised “to make it right,” and claimed Hemphill shot Pacheco. Gilliam also claimed Hemphill disposed of the never-recovered murder weapon. Law enforcement did recover a light blue sweater at Gilliam’s apartment. At Morris’ trial, New York argued that Gilliam acted with Morris and that Morris killed Pacheco. The parties agreed to a mistrial after Morris outlined exculpatory evidence during opening statements. New York recharged Morris with possession of a .357-caliber weapon, to which Morris pleaded guilty. New York also agreed that Morris had served sufficient time, enabling his release.

New York brought murder charges against Hemphill five years after unsuccessfully prosecuting Morris and seven years after Pacheco’s murder. At Hemphill’s trial, New York argued Gilliam acted with Morris and Hemphill. Gilliam testified against Hemphill pursuant to a plea agreement for a five-year sentence. Gilliam’s maximum exposure was 25 years. Gilliam testified to the presence of two guns, despite having mentioned only one gun up to that point. According to Gilliam, Morris carried a .357 firearm and Hemphill carried a 9-millimeter. Gilliam said that Hemphill disposed of both weapons. Gilliam also testified that Hemphill disposed of other evidence, except the blue sweater found in Gilliam’s apartment. The blood found on the sweater matched Hemphill’s DNA.

Hemphill’s trial defense focused on third-party culpability — namely Morris’ culpability. At trial, Hemphill’s counsel noted that the murder weapon was a 9-millimeter firearm and that law enforcement had found a 9-millimeter bullet at Morris’ home. In response, the prosecution sought to introduce Morris’ plea allocution whereby Morris admitted to possession of a .357 firearm at the time of the murder. Typically, this out-of-court statement would have been inadmissible under the Sixth Amendment, which generally gives defendants the right to cross-examine adverse witnesses. The trial court, however, allowed the prosecution to introduce the allocution based on New York’s “door opening” rule. Under that rule, a defendant who introduces evidence on a given subject may “open the door” to the government’s introduction of responsive evidence and thus forfeit the right to exclude that responsive evidence under the confrontation clause. The trial court found Hemphill had “opened the door” to Morris’ plea allocution, and New York’s appellate courts affirmed that decision.

No party disputes that the Sixth Amendment would have required the prosecution to produce Morris for cross-examination at Hemphill’s trial absent New York’s door-opening doctrine. Under People v. Reid, a 2012 New York case, a two-part inquiry governs when the door “opens” to testimonial evidence: (1) “whether and to what extent the evidence or argument said to open the door is incomplete or misleading” and (2) “what if any otherwise admissible evidence is reasonably necessary to correct the misleading impression.” The trial court found Hemphill relinquished his right to cross-examination because his defense counsel elicited evidence or made improper and misleading arguments with regards to Morris and the 9-millimeter.

Crawford v. Washington a landmark decision from 2004, triggers the confrontation clause against testimonial hearsay at trial where the defendant had no prior opportunity to cross-examine the declarant. Prior to Crawford, the Supreme Court interpreted a “peaceful coexistence” between the right to confront adversarial evidence and due process-based hearsay rules. Crawford reasoned hearsay rules strayed “too far” from confrontation’s “original meaning.” According to the court, the framers intended the confrontation clause to prohibit ex-parte examinations as evidence against the accused. The framers also intended to exclude testimonial statements of absent witnesses without a showing of unavailability and a prior opportunity for cross-examination. Crawford limited the confrontation clause’s application to “testimonial statements” that are for purposes other than establishing the truth of the matter asserted and “witnesses against the accused” who “bear testimony.”

This case could be one of the few post-Crawford to move beyond the testimonial/nontestimonial distinction. No post-Crawford jurisprudence provides a standard to judge the relinquishment of the confrontation clause right. Of particular importance may be how Morris’ testimonial statements originate from his plea allocution, an ex parte proceeding that offers a formal opportunity to explain the circumstances of the offense and other factors to be considered at sentencing, like a defendant’s remorse. Morris’ plea allocution may have involved questioning by the court, but no cross-examination occurs even from other interested parties like joint or co-defendants. This case could hinge on how and whether the court evaluates common law practice at the founding and whether “door-opening” and other similar state procedural rules meet the common law standard.

What New York argues as an issue of procedure that evens the playing field by curing an improper strategy, the court could see as one of substance that directly implicates the confrontation clause. Constitutional rules generally prevail over state rules, and cross-examination may be required even where a defendant has “opened the door” to testimonial statements. Little support appears to exist for a “fairness” exception to Crawford, and no historical treatise appears to recognize open-ended exceptions. Hemphill’s lack of an opportunity to cross-examine Morris could be particularly pronounced because of New York’s strong incentive to distance Morris from the Pacheco murder. Whether the court will consider whether there was a chilling effect on Hemphill’s right to present a complete defense remains to be seen, but third-party culpability is “one of the most regularly deployed and vital forms of defense advocacy.” It could be the court requires New York to show Hemphill’s behavior caused unavailability. The court could also conclude the common law rule of completeness required Hemphill to introduce one of Morris’ statements at trial, which apparently did not happen.

Justices Clarence Thomas and Stephen Breyer are the only remaining members of the Crawford court. But all nine justices perhaps have been informed of the (popular) opinion that Crawford’s testimonial/nontestimonial distinction is incomplete and arguable incoherent. All may be eager to provide guidance for procedures or rules that impact confrontation rights and could be inclined to require more than New York’s standard of “reasonable necessity” to “correct an incomplete or misleading impression.” It could be significant that other options were available to the trial court, like giving the jury another limiting instruction, striking statements from the record, or declaring a mistrial without prejudice. Finally, members of the court may have taken note of arguments to apply confrontation rights beyond trial. A federal district court recently rejected confrontation at suppression hearings but noted a number of questions remained surrounding the scope and applicability of the Sixth Amendment confrontation clause. This case could answer one of the most vital of those remaining questions.

Recommended Citation: Shaakirrah Sanders, Will the court recognize New York’s “door opening” rule as an exception to the Sixth Amendment’s confrontation clause?, SCOTUSblog (Oct. 4, 2021, 6:30 PM),