Hemphill v. NY: Statement’s Reliability Must be Tested by Cross-Examination, Not by Judicial Determination

By Megan E. Coleman

In Hemphill v. New York, Justice Sotomayor authored the Court’s 8-1 opinion holding that the trial court’s admission of a plea transcript containing testimonial statements by a non-testifying declarant, violated Hemphill’s Sixth Amendment right to confront this witness, notwithstanding the fact that the defense “opened the door” by presenting misleading information to the jury.

In its opinion, the Court reminded that since Crawford v. Washington, 541 U.S. 36 (2004), it is no longer sufficient that the testimonial evidence appears reliable on its face. Rather, the Confrontation Clause “commands…that reliability be assessed in a particular manner; by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. Thus, the constitutional right of an accused in a criminal prosecution to confront witnesses trumps any countervailing need to correct misimpressions in the record by the defense, no matter how reliable the testimonial evidence may be that the State possesses.

The Hemphill Court covers ground in three distinct areas: first, explaining the bare minimum that is necessary to preserve for appeal a federal constitutional claim in state court; second, reminding everyone of the principles set forth in Crawford; and third, discussing the rule of completeness and under what circumstance a prosecutor may be able to introduce an unconfronted testimonial statement at trial.

The case involves a street fight in the Bronx, which tragically killed a 2-year-old child who was struck by a stray 9-millimeter bullet. Police first developed a suspect named Morris, who was identified by three eyewitnesses as the shooter, and a search of his apartment uncovered a 9-millimeter cartridge along with three .357-caliber bullets. Morris was charged with the child’s murder and went to trial, but a mistrial was declared after opening statements. The State thereafter dismissed the murder charge against Morris in exchange for his guilty plea to possession of a .357-magnum revolver, a different type of firearm than the one used to kill the child.

Years later, the State learned that Hemphill was a match for DNA obtained from a blue sweater recovered shortly after the crime, which the shooter was purportedly wearing. Hemphill was indicted for the murder of the child. At trial, Hemphill’s defense blamed Morris for the shooting. Defense counsel presented non-hearsay evidence that officers recovered 9-millimeter ammunition from Morris’ nightstand hours after a 9-millimeter bullet killed the victim. The State did not object, but later argued that this was misleading because officers also found .357-caliber bullets on the nightstand, and because Morris only pleaded guilty to possessing a .357-magnum revolver.

Morris was unavailable to testify at Hemphill’s trial. Thus, the State sought to introduce the transcript of Morris’ plea allocution to suggest that he had possessed only a .357-magnum revolver and not a 9-millimeter handgun. Hemphill’s counsel objected to the hearsay nature of the plea allocution arguing that Hemphill would be “deprived of an opportunity [for] cross-examination” and that this would be a “Crawford violation.”  

The trial court allowed the State to introduce Morris’ plea allocution relying upon the holding in People v. Reid, 971 N.E. 2d 353, 357 (N.Y. 2012) that a criminal defendant could open the door to the admission of 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 trial court determined that a significant aspect of Hemphill’s defense was that Morris, who was originally prosecuted for this homicide, was the actual shooter; but, that evidence to the contrary was necessary to refute this claim. The jury convicted Hemphill of the child’s murder.

The New York appellate courts affirmed Hemphill’s conviction and the Supreme Court granted certiorari to decide whether the admission of the plea allocution under New York’s rule in People v. Reid violated Hemphill’s Sixth Amendment right to confront the witnesses against him.

Preservation of a Federal Constitutional Claim in State Court

As a threshold matter, the State claimed that Hemphill failed to present his federal constitutional claim adequately to the state courts. The Supreme Court determined that no particular form of words or phrases are required for satisfying the presentation requirement, so long as the claim is brought to the attention of the state court with fair precision and in due time. The Court determined that Hemphill satisfied this requirement because at every level of the proceedings in state court, Hemphill argued that the admission of Morris’ plea allocution violated his Sixth Amendment right to confrontation as interpreted in Crawford.

Justice Thomas dissented in Hemphill. He would have held that Hemphill did not raise a Sixth Amendment claim in the New York Court of Appeals, and therefore, that the Supreme Court lacked jurisdiction to review that court’s decision. Justice Thomas wrote that merely asserting that there is a violation of a federal constitutional right is insufficient for raising a federal question. Instead, a litigant must develop the federal claim in the state briefing to give the state court a “fair opportunity” to assess the claim.

The Impenetrable Confrontation Clause and the Continued Vitality of Crawford

The Hemphill Court recognized that the Confrontation Clause provides a “bedrock constitutional protection[]”to criminal defendants. Thus, as the Crawford Court previously declared, “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.” Crawford, 541 U.S at 53-54.

The State did not dispute that Morris’ plea allocution was testimonial, meaning that it implicated Hemphill’s rights under the Confrontation Clause. Rather, the State’s primary contention was that the Reid rule was a mere “procedural rule” that limited only the manner of asserting the confrontation right, not its substantive scope. The Supreme Court has previously given the States latitude to adopt reasonable procedural rules governing the exercise of a defendant’s right to confrontation, but the Hemphill Court determined that the door-opening principle incorporated in Reid is a substantive principle of evidence, not a procedural rule. It dictates what material is relevant and admissible in a case, requiring the trial court to determine whether one party’s evidence and arguments have created a “misleading impression” that requires correction. This was exactly the type of reliability-based approach set forth in Ohio v. Roberts, 448 U.S. 56 (1980), that was emphatically rejected in Crawford. Crawford stands for the principle that the Confrontation Clause bars judges from substituting their own determinations of reliability for the method the Constitution guarantees.

The Hemphill Court reminded that “the role of the trial judge is not, for Confrontation Clause purposes, to weigh the reliability or credibility of testimonial hearsay evidence; it is to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed.” In this case, the trial court violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed the defense presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct.

Opening the Door & The Rule of Completeness

The State insisted that the Reid rule was necessary to safeguard the truth-finding function of trial because it prevents the selective and misleading introduction of evidence. But the Hemphill Court found that other functions of a trial cannot “override the rights the Constitution confers upon criminal defendants.” As a remedy, the Court suggested that if evidence is admitted before it becomes apparent that it is misleading or unfairly prejudicial, courts have the ability to withdraw or strike the misleading evidence.

The Court emphasized that it was not deciding in this opinion the validity of the common-law rule of completeness as applied to testimonial hearsay. Under that rule, a party against whom part of an utterance has been admitted, may in his turn complement it by putting in the remainder. The rule of completeness did not apply in this case as Morris’ plea allocution was not part of any statement that Hemphill introduced.

However, the concurring opinion, authored by Justice Alito and joined by Justice Kavanaugh, suggests that there may be circumstances where a defendant’s introduction of evidence will be regarded as an implicit waiver of the right to confrontation. For example, under the traditional rule of completeness, if a party introduces all or part of a declarant’s statement, the opposing party is entitled to introduce the remainder of that statement, or another related statement by the same declarant, regardless of whether the statement is testimonial or whether there was a prior opportunity to confront the declarant. They expressed that the rule of completeness fits within the concept of implied waiver, that is, by introducing part or all of a statement made by an unavailable declarant, a defendant has made a knowing and voluntary decision to permit that declarant to appear as an unconfronted witness. Accordingly, the defendant in that situation would not be able to reasonably claim his right to confrontation has been violated should the State seek to introduce other statements by the unavailable declarant.

“Misleading Impressions” through the Eyes of a Defense Attorney

The State in this case cried foul about the “misleading impression” created by Hemphill’s defense – that Morris was the shooter because he possessed 9-millimeter ammunition.

In reading this Opinion I couldn’t help but react to the hypocrisy of this claim. After all, a search pursuant to a warrant of Morris’ apartment yielded 9-millimeter ammunition in the hours after the child was struck by a 9-millimeter bullet. The State relied on this very evidence to secure an indictment against Morris for murder of the child, and the State went so far as to pick a jury and give an opening statement at Morris’ trial for murder. If Morris was not involved in the murder, what business did the State have securing an indictment and going to trial without doing its due diligence?

But the 9-millimeter ammunition was not the only evidence the State had against Morris. Rather, the State was also in possession of three eyewitness identifications identifying Morris as the shooter. Yet the State did not present this evidence in Hemphill’s trial.

The “misleading impression,” if there ever was one, was that “the [only] crime [Morris] actually committed” (State’s words), was possession of a .357-magnum revolver because that was the crime he pleaded guilty to. What the State failed to disclose to the Hemphill jury was that the State “agreed that there was insufficientevidence of Morris’ possession of a.357-magnum revolver to obtain an indictment absent Morris’ willingness to admit to the allegations,” and that Morris only admitted guilt in order to secure a sentence of time-served.

The facts in Hemphill demonstrate why it would be a slippery slope to allow unconfronted testimonial hearsay in a criminal trial. The facts also underscore why reliability cannot be established by the mere formality of a plea proceeding where defendants often admit to crimes solely to get the benefit of the agreed-upon sentence.

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