The Supreme Court, the Constitution and ‘Misleading’ Arguments
12.2.2021
Note: This is an updated version of an article originally published in the News Center on Aug. 20, 2021.
In 2016, Darrell Hemphill was convicted of second-degree murder in the 2006 shooting death of a child, who had been riding in a van that happened upon a street brawl in the Bronx. The Court of Appeals upheld his conviction. Now, 15 years after the killing, this conviction has reached the U.S. Supreme Court. The outcome could become a landmark ruling involving the constitutional right of defendants to be confronted by the witnesses against them.
At Hemphill’s trial, his defense attorney introduced evidence that police had found a 9-millimeter cartridge in the apartment of Nicholas Morris – the same type of bullet that killed the child. But the prosecution then introduced Morris’ guilty plea to possession of a .357 caliber revolver at the shooting scene – even though Morris was unavailable and could not be cross-examined by Hemphill’s lawyer. The trial court agreed to allow the prosecution’s exhibit on the ground that New York law allows such evidence when it is necessary to correct a misleading impression.
The Significance of the Court’s Decision
Most obviously, the Supreme Court’s decision will determine whether some out-of-court statements are admissible at trial to contradict a criminal defendant. Presumably, prosecutors would argue that admitting such evidence is necessary to reveal the truth, while defense attorneys would assert that doing so undermines a defendant’s constitutional rights.
Some defense attorneys have gone further, writing to the Supreme Court that a decision for the state would prevent innocent defendants from testifying on their own behalf or even from pleading not guilty.[1] To understand these attorneys’ concerns, one must understand the nature of guilty pleas. In New York, as throughout the United States, the overwhelming majority of criminal defendants plead guilty.[2] In most criminal cases, then, there is likely to be a plea statement that could be used against a defendant.
There are many reasons that guilty pleas are so prevalent,[3] of which Hemphill itself provides an example. “In May 2008, after having served two years in prison, Morris pleaded guilty, against his counsel’s advice, to possessing a .357 caliber gun on the day of the shooting, in exchange for his immediate release from prison.”[4] An unfortunate consequence of such pressures is that guilty pleas, which are often written by the prosecution, may be incorrect.[5] A small but significant minority, estimated at 2–8%, are completely false.[6] It isn’t clear how many others contain inaccuracies that could harm innocent defendants.
This case may again provide an example. According to counsel for Hemphill, there was no evidence that Morris ever possessed a .357 caliber firearm.[7] According to the state, however, law enforcement had recovered three .357 caliber bullets from Morris’ apartment.[8]
The Law on Testimonial Hearsay
The Supreme Court established its current understanding of the confrontation clause in Crawford v. Washington.[9] The court held that testimonial hearsay – which it did not define – may not be introduced against a criminal defendant, unless the speaker is unavailable and the defendant had a previous opportunity to cross-examine that speaker.[10] The only exceptions to this rule are common-law exceptions that were “established at the time of the founding.”[11]
There is no national agreement as to whether, when, or why a defendant “opens the door” to statements that would otherwise be inadmissible under the confrontation clause. New York’s doctrine was established in People v. Reid.[12] In Reid, the defense tried to pin the blame on a third party, demonstrating that the police had received information of this party’s involvement. The prosecution then introduced a federal agent’s testimony that an eyewitness to the murder (implied to be a codefendant) had told the agent that said third party was not present at the murder.[13]
The Court of Appeals unanimously reversed the Third Department’s grant of a new trial, holding that testimonial hearsay became admissible when reasonably necessary to correct misleading evidence or argument. The Court of Appeals reasoned that doing otherwise would allow a defendant to misrepresent testimonial statements by reading out only the favorable parts. It also considered its decisions necessary “to preserve the truth-seeking goals of our courts.” The court was not clear about when a defendant opened the door, establishing instead a case-by-case inquiry, but held that admission of the testimony was permissible given the facts at issue.[14]
The Trial
In 2013, Darrell Hemphill was charged with murder. At least three witnesses had previously informed the police that the shooter was Nicholas Morris. A police search of Morris’ apartment also revealed a 9-millimeter cartridge. The shooting was carried out using a 9-millimeter gun.[15] At his own trial for the murder, Morris argued that the cartridge found at his apartment was not the same brand as the bullets used in the shooting.[16] After a mistrial and imprisonment for two years, Morris pleaded guilty to possessing a .357 caliber firearm.
At Hemphill’s trial, the state introduced testimony that Morris had possessed a .357 caliber gun, because the 9-millimeter gun was Hemphill’s.[17] This testimony was, itself, the result of a plea agreement.[18] Hemphill argued that Morris was the real killer. Among the ways that he did so was by establishing, through cross-examination, that police had found the 9-millimeter cartridge at Morris’ apartment.
In response, the prosecution received permission to introduce Morris’ plea allocution.[19] The prosecution could not call Morris as a witness, because he was unable to return to the United States. Hemphill claims that the prosecution could have secured his presence by seeking a special visa from the federal government, but made no effort to do so.[20] The state claims that Hemphill conceded unavailability at trial and that the federal government was unwilling to grant the visa.[21]
The jury found Hemphill guilty.
The Decisions on Appeal
From the decisions below, the confrontation issue doesn’t seem to have been particularly controversial. The First Department devoted only a paragraph to the issue, with its reasoning limited to the following:
“[T]he admission of portions of Morris’s plea allocution did not violate defendant’s right of confrontation because defendant opened the door to this evidence. During the trial, defendant created a misleading impression that Morris possessed a 9-millimeter handgun, which was consistent with the type used in the murder, and introduction of the plea allocution was reasonably necessary to correct that misleading impression.”[22]
Justice Manzanet-Daniels, focusing primarily on the denial of a separate request to introduce a trial witness’ prior testimony, dissented and granted leave to appeal.[23]
The Court of Appeals devoted even less attention to the issue. After ordering letter briefs under Rule 500.11, it addressed the issue in a single sentence: “The trial court did not abuse its discretion by admitting evidence that the allegedly culpable third party pled guilty to possessing a firearm other than the murder weapon.”[24] The dissent, by Judge Fahey, again argued that the error was the denial of Hemphill’s request to introduce prior testimony of a witness.[25]
The Arguments to the Supreme Court
Under Crawford, testimonial hearsay may be introduced against the defendant only under two conditions. First, the author of that hearsay must be unavailable. Second, the defense must have had a previous opportunity to cross-examine that author.
Hemphill and his attorney certainly had no opportunity to cross-examine Morris. The Supreme Court has strongly indicated that a plea allocution would qualify as testimonial,[26] although Justice Breyer seemed concerned about the limits of testimonial hearsay.[27] Justice Thomas seemed doubtful that this testimony was even against the defendant.[28]
New York asserts that the Supreme Court needn’t reach whether Reid is permissible under the confrontation clause. It argues that the issue is not before the court, because Hemphill failed to present the constitutional issue to the Court of Appeals, and that any error is rendered harmless by other evidence showing Morris to have possessed a .357 caliber firearm.[29] Hemphill disputes these arguments.[30] At oral argument, Justices Thomas and Alito seemed particularly concerned that Hemphill had not preserved the issue.[31] Justice Sotomayor, by contrast, pointed out that the Court of Appeals had ruled on the same issue only a few year earlier.[32]
Main Arguments
Reciting the historical analysis in the Supreme Court’s decisions on the confrontation clause, Hemphill argues that there was no common-law exception based on opening the door.[33] Several professors of evidence and criminal procedure set forth this argument at greater length.[34] Hemphill also argues that such a doctrine would have changed the outcome in many (perhaps most) of the Supreme Court’s previous decisions.[35]
New York contends that opening the door is not an exception to the confrontation clause. Citing the Supreme Court’s decision in Melendez-Diaz v. Massachusetts,[36] it asserts that defendants may relinquish their rights under the confrontation clause. According to the state and its amici, opening the door is simply one way a defendant can do so.[37]
In many other cases, the Supreme Court has found defendants’ conduct to sacrifice their constitutional protections. Hemphill argues that the only comparable cases are those in which the court permitted the introduction of evidence. Hemphill asserts that these cases are not applicable, because they address rules developed by judges to enforce constitutional mandates, rather than rights established directly by the Constitution.[38] Hemphill also argues that those cases are inapposite because Hemphill did not introduce any testimony by the declarant.[39] New York cites a broader range of cases, arguing that a defendant may waive constitutional rights by undermining the trial.[40]
The state also argues that an opening-the-door exception is necessary to the pursuit of truth.[41] This reasoning is difficult to reconcile with Justice Scalia’s statement that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”[42] The Chief Justice raised this issue at oral argument.[43]
Can Defendants Open the Door Without Introducing Statements by the Same Declarant?
Arguably, there was no conflict between defense counsel’s argument and the testimony at issue. Defense counsel argued that Morris possessed a 9-millimeter gun; the testimony showed that Morris had pleaded guilty to possessing a .357 caliber firearm. It is entirely possible that Morris possessed a 9-millimeter firearm but, to secure his release from prison, agreed to issue the prosecutor’s preferred statement of facts.
Hemphill did not attempt to introduce any other statement by Morris. Hemphill argues that, even if he had, the “rule of completeness” could never undermine the confrontation clause.[44] Some of the amici supporting his position disagree.[45] Seemingly, so do Justices Alito and Barrett.[46] Regardless, Hemphill further argues (with agreement from his amici) that the rule of completeness applies only when the defendant has introduced other statements by the same speaker or writer.[47] Merely presenting evidence that contradicts the declarant’s statements is not sufficient. This difference was discussed extensively at oral argument.
New York responds that presenting such evidence would not be “misleading” under New York law. According to the state, the evidence that Morris possessed a 9-millimeter weapon was not what opened the door. Rather, what was “misleading” was defense counsel’s persistent implication – despite repeated admonition by the trial court – that the government believed Morris to be the killer. It asserts that the trial court admitted the plea allocution to demonstrate that the prosecution believed Morris was innocent of the killing.[48] Many justices questioned this interpretation.[49]
Hemphill objects that, by allowing judges to decide what evidence is “misleading,” the New York rule enables judges to withdraw rights because they consider a defendant guilty.[50] These arguments are likely directed to similar concerns previously expressed by the court.[51] Justice Barrett raised this issue at oral argument.[52] Justice Gorsuch similarly asked about the subjectivity of what is misleading.[53] Practically, however, a greater concern is that the Reid doctrine potentially nullifies the confrontation clause on rebuttal. According to the professors supporting Hemphill, the common law enforced the same standards for rebuttal as for the prosecution’s case-in-chief.[54]
Are Less Severe Penalties Available?
Assuming that Hemphill’s conduct was misleading, does it follow that admission of unconfronted testimonial hearsay is necessary? Could this misleading conduct have been prevented? If not, would a lesser sanction cure any harm?
A related issue is whether declarants must be unavailable to permit introduction of their statements. Fourteen states have argued that they must be, or the prosecution could correct any falsehoods by calling them to testify.[55] A declarant is considered unavailable only if the prosecution makes a good faith effort to secure the declarant’s attendance.[56] Throughout their briefs, the parties dispute whether Morris was unavailable, on which the trial court did not rule.[57]
Morris’ availability, and the significance thereof, was not addressed at oral argument. The issue of alternative remedies, however, was discussed at length. Hemphill argued that the trial court could prevent the worst abuses from arising.[58] Justices Sotomayor and Alito seemed to agree, although they recognized that there would be important exceptions.[59] Justice Alito suggested that other remedies would often be available, such as testimony about what happened during the prosecution of Morris.[60]
Conclusion
Hemphill does not present a simple, yes-or-no question. There are a number of different ways that the Supreme Court may resolve the case. How it does so, however, will have an enormous impact on criminal trials. From oral argument, it is difficult to anticipate how the court will rule. Criminal law attorneys should pay close attention to the court’s decision when issued.
Jonathan Knowles is an associate at Burnham & Gorokhov, a firm that represents criminal defendants in federal court around the country. He is licensed to practice in New York, including the U.S. courts for the Southern and Eastern Districts. Knowles is a member of NYSBA and a graduate of Columbia Law School.
[1] National Association of Criminal Defense Lawyers Amicus Br. at 4–12.
[2] People v. Tiger, 32 N.Y.3d 91, 114 (2018) (Wilson, J., dissenting) (“In New York State in 2016, less than three percent of nearly 50,000 criminal dispositions went to trial.”); Missouri v. Frye, 566 U.S. 134, 143 (2012) (“Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”).
[3] See generally Tiger, 32 N.Y.3d at 115–16 (Wilson, J., dissenting).
[4] People v. Hemphill, 173 A.D.3d 471, 472 (1st Dep’t 2019).
[5] Tiger, 32 N.Y.3d at 114, 116–18 (Wilson, J., dissenting); Innocence Project and Innocence Network Amicus Br. at 14–18.
[6] Jed Rakoff, Why Innocent People Plead Guilty, The N.Y. Review of Books (Nov. 20, 2014).
[7] Hemphill Br. at 8.
[8] New York Br. at 11–12.
[9] 541 U.S. 36 (2004).
[10] Id. at 57–59.
[11] Giles v. California, 554 U.S. 353, 358 (2008) (quoting Crawford, 541 U.S. at 54).
[12] 19 N.Y.3d 382 (2012).
[13] Id. at 385–86.
[14] Id. at 388–89.
[15] People v. Hemphill, 173 A.D.3d 471, 472 (1st Dep’t 2019).
[16] New York Br. at 9.
[17] Hemphill, 173 A.D.3d at 474; Hemphill Br. at 9.
[18] People v. Hemphill, 35 N.Y.3d 1035, 1037 (2020) (Fahey, J., dissenting); Hemphill Br. at 9; New York Br. at 10.
[19] Hemphill Br. at 10–11.
[20] Id. at 10.
[21] New York Br. at 43.
[22] People v. Hemphill, 173 A.D.3d 471, 477 (1st Dep’t 2019).
[23] Id. at 480–84 (Manzanet-Daniels, J., dissenting); People v. Hemphill, 34 N.Y.3d 985 (2019) (granting leave to appeal).
[24] People v. Hemphill, 35 N.Y.3d 1035, 1036 (2020).
[25] Id. at 1037–40.
[26] See Crawford v. Washington, 541 U.S. 36, 52–53 (2004) (describing “confessions” as testimonial); id. at 63–65 (criticizing previous decisions for admitting accomplice confessions, including plea allocutions); see also Bruton v. United States, 391 U.S. 123 (1968) (holding that admission of one defendant’s confession at a joint trial violated codefendants’ rights under the confrontation clause).
[27] Oral Argument Tr. at 8:21–10:1, 35:15–38:10.
[28] Id. at 31:24–35:12.
[29] New York Br. at 15–16, 17–23, 49.
[30] Reply Br. at 2–8.
[31] Oral Argument Tr. at 5:24–6:10, 24:20–31:23, 44:12–16.
[32] Id. at 53:13–24.
[33] Hemphill Br. at 18–20, 25–27.
[34] Professors of Evidence and Criminal Law Amicus Br. at 5–19 (“Professors’ Br.”).
[35] Hemphill Br. at 20–21; see also Professors’ Br. at 21–23, 26–27.
[36] 557 U.S. 305 (2009).
[37] New York Br. at 23–37; Utah et al. Amicus Br. at 4–16; District Attorneys Associations Amicus Br. at 3–6.
[38] Hemphill Br. at 28–29, 30–32; see also American Civil Liberties Union et al. Amicus Br. at 11–14.
[39] Hemphill Br. at 32–34.
[40] New York Br. at 24–29.
[41] Id. at 32–37.
[42] Crawford v. Washington, 541 U.S. 36, 68–69 (2004).
[43] Oral Argument Tr. at 67:7–12.
[44] Hemphill Br. at 36–40.
[45] See Association of Criminal Defense Lawyers of New Jersey Amicus Br. at 3, 18–21; Richard D. Friedman Amicus Br. at 17–21.
[46] See Oral Argument Tr. at 11:5–12:11, 19:17–20:10.
[47] Hemphill Br. at 35–36.
[48] New York Br. at 37–48; Oral Argument Tr. at 55:1–57:7.
[49] Oral Argument Tr. at 48:20–49:10, 51:20–54:25, 58:18–59:13, 61:19–62:25, 69:13–17.
[50] Hemphill Br. at 14, 29; see also American Civil Liberties Union et al. Amicus Br. at 18–20.
[51] See Giles v. California, 554 U.S. 353, 365 (2008).
[52] Oral Argument Tr. at 50:7–16.
[53] Id. at 72:18–74:8.
[54] Professors’ Br. at 17.
[55] Brief of Amici Curiae Utah et al. at 2, 5, 19–20.
[56] Barber v. Page, 390 U.S. 719, 724–25 (1968) (cited with approval in Crawford, 541 U.S. at 57).
[57] Reply Br. at 16 n.6.
[58] Oral Argument Tr. at 12:3–6, 17:3–9.
[59] Oral Argument Tr. at 12:7–11, 51:9–18, 64:2–5.
[60] Id. at 65:2–23.
