Hemphill v. New York: Confrontation Clause bars testimonial hearsay even if necessary to correct misleading impression created by defense
Admission of an unavailable witness’ guilty plea transcript violated the defendant’s confrontation rights, even if the transcript corrected a “misleading impression” created by the defendant’s evidence, the U.S. Supreme Court held January 20 in Hemphill v. New York.
New York originally charged Nicholas Morris with a murder, but he later pleaded guilty to a lesser charge, which required him to admit possession of a .357-magnum revolver, not the 9-millimeter handgun actually used in the killing.
Years later, New York charged Darrell Hemphill with the murder. Hemphill claimed at his trial that Morris had committed the murder, and presented evidence that police had recovered 9-millimeter ammunition from Morris.
Morris was unavailable to testify because he was out of the country.
The trial court allowed the prosecution to introduce parts of Morris’ guilty plea transcript to rebut Hemphill’s theory that Morris committed the murder. The court ruled Hemphill had “opened the door” to these testimonial out-of-court statements because they were “reasonably necessary” to “correct” the “misleading impression” Hemphill had created.
Hemphill objected to admission of the plea transcript on grounds that it violated his Sixth Amendment right to confront and cross-examine witnesses.
New York appellate courts affirmed, under a state rule that allows otherwise inadmissible evidence under the Confrontation Clause if a defendant “opens the door” to such evidence, and the evidence is “reasonably necessary to correct a misleading impression.”
The Supreme Court reversed, in an 8-1 opinion.
The New York rule “negate[s]” Crawford v. Washington’s “emphatic rejection of the reliability-based approach” to confrontation, the Court said.
“If Crawford stands for anything, it is that the history, text and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees,” which is “testing in the crucible of cross-examination,” the Court said.
“The upshot is 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,” the Court said.
“The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct,” the Court said.
“For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading”, the Court said. “Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.”
Although a trial has a “truth-seeking function”, “the Court has not allowed such considerations to override the rights the Constitution confers upon criminal defendants,” the Court said.
“The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court,” the Court concluded.
Lastly, the Court added that it was not deciding the “the validity of the common-law rule of completeness as applied to testimonial hearsay.” Under that rule, a party against whom a partial statement has been admitted may present the remainder of the statement.
“The parties agree that the rule of completeness does not apply to this case, as Morris’ plea allocution was not part of any statement that Hemphill introduced,” the Court said.
“Whether and under what circumstances that rule might allow the admission of testimonial hearsay against a criminal defendant presents different issues that are not before this Court.”
Justice Alito, joined by Justice Kavanaugh, concurred.
Alito wrote separately to note that a defendant can impliedly waive his Sixth Amendment right to confrontation by failing to object to admission of evidence, or by engaging “in a course of conduct that is incompatible with a demand to confront adverse witnesses.”
A defendant can also waive confrontation rights under the rule of completeness, Alito said. “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.”
“The defendant’s decision to present the statement of an unavailable declarant is inconsistent with the simultaneous assertion of the Sixth Amendment right” to confrontation, Alito said.
Alito said the Court’s opinion “does not call into question the rule of completeness”.
Justice Thomas dissented on grounds that Hemphill had not properly presented his Sixth Amendment claim to New York courts. Thus, the Supreme Court lacked jurisdiction to hear the case, Thomas said.