This Report summarizes an opinion issued on January 20, 2022 (Part I); and cases granted review on January 14, 2022 (Part II).
Opinion: Hemphill v. New York, 20-637
Hemphill v. New York, 20-637. By an 8-1 vote, the Court declared unconstitutional a New York rule of criminal procedure establishing that a defendant could “ope[n] 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.’” In the aftermath of a street fight in the Bronx, someone fired a nine-millimeter handgun, killing a two-year-old child sitting in a nearby minivan. As part of its investigation into the murder, police searched Nicholas Morris’s apartment. There, in addition to three .357-caliber bullets, they found one nine-millimeter cartridge. In light of this and other evidence, including eyewitnesses identifying him as the shooter, Morris was arrested and charged with the child’s murder. After a first trial ended in a mistrial, the state reconsidered the prosecution and agreed to dismiss the murder charge if Morris pleaded guilty to criminal possession of a weapon. But rather than pleading to possession of a nine-millimeter handgun, the state filed a new charge alleging that Morris had possessed a .357-magnum revolver (a different weapon than the one used to kill the victim). Morris pled to that charge and was released. The state later discovered evidence implicating petitioner Darrell Hemphill in the murder. At his trial, Hemphill pursued a third-party culpability defense that blamed Morris for the murder. In particular, Hemphill introduced the evidence that the police had discovered a nine-millimeter cartridge in Morris’s apartment. Claiming that the introduction of the nine-millimeter cartridge was “misleading” given that Morris had pled guilty to possession of a .357 revolver, the state introduced, and the trial court admitted, Morris’s plea transcript. Although Morris was not available to testify at the trial, the state relied on a rule of criminal procedure set forth in People v. Reid, 971 N.E.2d 353 (N.Y. 2012) (the “Reid rule”), which allowed evidence otherwise inadmissible under the Confrontation Clause to be admitted if it was “’reasonably necessary to correct [a] misleading impression’” made by the defense’s “‘evidence or argument.’” The New York Court of Appeals affirmed Hemphill’s conviction. In an opinion by Justice Sotomayor, the Court reversed and remanded.
Finding that Hemphill had adequately raised his claim below, the Court concluded that the introduction of Morris’s plea transcript violated Hemphill’s Sixth Amendment right “to be confronted with the witnesses against him.” Expounding on the firm rule established in Crawford v. Washington, 541 U.S. 36 (2004), the Court first held that the Confrontation Clause, and its requirement that testimonial witnesses be available for cross-examination at trial, did not allow for any exception of the type embodied in the Reid rule. The Court then rejected New York’s argument that the Reid rule was not an exception to the Confrontation Clause but rather a “mere ‘procedural rule’ that ‘treats the misleading door-opening actions of counsel as the equivalent of failing to object to the confrontation violation.’” Although the Court reaffirmed that the “Sixth Amendment leaves States with flexibility to adopt reasonable procedural rules governing the exercise of a defendant’s right to confrontation,” the Reid rule was “not a member of this class of procedural rules.” Instead, the Court held, the Reid rule violated the Confrontation Clause because it was “a substantive principle of evidence that dictates what material is relevant and admissible in a case.” In particular, the Court criticized the Reid rule for placing the threshold determination—whether evidence or argument was “misleading”—in the hands of the trial court. The Court reaffirmed that the Confrontation Clause “’commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.’”
The Court also rejected the state’s argument that the Reid rule was necessary to “safeguard the truth-finding function of courts [by] prevent[ing] the selective and misleading introduction of evidence.” Although the Court “reaffirmed the vital truth-seeking function of a trial,” the Court held that “such considerations” do not “override the rights the Constitution confers upon criminal defendants.” In doing so, the Court distinguished cases, upon which the state relied, that allowed the prosecution to impeach a defendant using evidence that would ordinarily be barred from use at trial. The Court noted that these circumstances, such as the use for impeachment purposes of evidence obtained in violation of the Fourth Amendment, were different because they did not implicate a core constitutional right, but rather involved prophylactic rules designed to deter constitutional violations. The Court also reaffirmed the vitality of the common law rule of completeness as applied to testimonial hearsay (which, as the Court pointed out, would not have applied to the evidence at issue here anyway). Finally, the Court dismissed concerns that its ruling would allow defendants to abuse the confrontation right. The Court noted that if evidence rose to the level of being misleading or otherwise unreliable, trial courts possessed discretion, such as under Federal Rule of Evidence 403, to exclude such evidence.
In a concurring opinion, Justice Alito, joined by Justice Kavanaugh, wrote separately to address circumstances under which he believed a defendant would be deemed to have validly waived the right to confront adverse witnesses. Justice Alito noted that although a defendant could impliedly waive his confrontation rights through his own conduct, the application of the Reid rule was not such a waiver because it was “predicated on neither conduct nor evincing intent to relinquish the right of confrontation nor action inconsistent with the assertion of that right.” In other words, the mere introduction of evidence, even if misleading, was not inconsistent with the assertion of the right to confront witnesses that could potentially set the record straight. Echoing the majority, Justice Alito contrasted the Reid rule with the common law rule of completeness, concluding that the invocation of the latter does not implicate confrontation rights because, by making a tactical choice to introduce one part of a declarant’s statement, a defendant cannot complain that he is unable to cross-examine that declarant with respect to the remainder of that statement.
Justice Thomas dissented in an opinion that did not address the merits. Instead, Justice Thomas argued that the Court did not have jurisdiction to hear Hemphill’s appeal because he had failed to adequately raise his Sixth Amendment claim in the New York Court of Appeals. Although Hemphill had referenced his confrontation rights below, Justice Thomas believed that Hemphill’s complaints related only to how the trial court had applied the Reid rule (i.e., with respect to whether the evidence introduced regarding the nine-millimeter cartridge was in fact “misleading”), rather than its underlying lack of constitutionality. And although the majority had concluded that Hemphill had properly raised a federal question before the state court, Justice Thomas took the opportunity to stress that the requirement that a federal question must be raised in a state court proceeding was a jurisdictional prerequisite to the Court’s review of such a claim (rather than merely a prudential consideration).
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]