Will the Court recognize New York’s “door-opening rule” as an exception to the Confrontation Clause in the Sixth Modification?
By Shaakirrah Sanders
on October 4, 2021
at 6:30 p.m.
The Supreme Court will argue on Tuesday in an important case on the rights of defendants under the confrontation clause of the Sixth Amendment. In particular, in the Hemphill v New York case, the court will determine whether the confrontation clause requires cross-examination of testimony even if a defendant “opens the door” to that hearsay. Darrell Hemphill argues that the admission of portions of a third party’s complaint containing testimony to his trial violated the Sixth Amendment. A jury convicted Hemphill of second degree murder and was sentenced to 25 years in prison.
One of the tragic circumstances of this case is 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 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 pistol and accidentally killed Pacheco. Witnesses told law enforcement that the shooter 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 Gilliam employee. Police eventually searched Morris’s home and confiscated ammunition for a .357 caliber weapon, an 8-millimeter starter pistol and a 9-millimeter live bullet. Law enforcement observed bruised knuckles that coincided with fistfighting when Morris was arrested. Three witnesses identified Morris on a statement.
New York charged Morris with the murder of Pacheco and possession of a 9-millimeter suspected murder weapon. A few days after Morris was arrested, Gilliam surrendered to law enforcement, admitted his involvement, and named Morris as the shooter. At one point, Gilliam spoke to Morris, promising to “do it right” and claiming that Hemphill shot Pacheco. Gilliam also claimed that Hemphill disposed of the never-found murder weapon. The police found a light blue sweater in Gilliam’s apartment. At Morris’ trial, New York argued that Gilliam traded with Morris and that Morris killed Pacheco. The parties agreed on malpractice after Morris presented exculpatory evidence during the opening statements. New York incriminated Morris with possession of a .357 caliber weapon of which Morris pleaded guilty. New York also agreed that Morris had served enough time to enable his release.
New York brought murder charges against Hemphill five years after the unsuccessful charges against Morris and seven years after Pacheco’s murder. At Hemphill’s trial, New York argued that Gilliam had dealt with Morris and Hemphill. Gilliam testified against Hemphill for a five-year prison term under a settlement agreement. Gilliam’s maximum exposure was 25 years. Gilliam testified to the presence of two guns, although up to that point he had only mentioned one. According to Gilliam, Morris carried a .357 firearm and Hemphill carried a 9-millimeter gun. Gilliam said Hemphill disposed of both guns. Gilliam also testified that Hemphill disposed of other evidence, with the exception of the blue sweater found in Gilliam’s apartment. The blood found on the sweater matched Hemphill’s DNA.
Hemphill’s trial defense focused on the guilt of a third party – namely, Morris’s guilt. At the trial, Hemphill’s attorney found that the murder weapon was a 9-millimeter firearm and that the police had found a 9-millimeter bullet at Morris’s home. In response, prosecutors attempted to introduce Morris’ lawsuit, according to which Morris admitted possession of a .357 firearm at the time of the murder. Typically, this extrajudicial testimony would have been inadmissible under the Sixth Amendment, which generally gives defendants the right to cross-examine opposing witnesses. However, the court allowed the prosecution to introduce the charge based on the New York “door-opening rule”. Under this rule, a defendant who presents evidence on a specific subject may “open the door” for the government to introduce such evidence and lose the right to disqualify that responding evidence under the confrontation clause. The court found that Hemphill had “opened the door” to Morris’ statement of defense, and the New York appeals courts upheld the decision.
Neither party denies that the Sixth Amendment required prosecutors to show Morris without New York’s doctrine of opening doors for cross-examination in Hemphill’s trial. Under People v. Reid, a 2012 New York case, governs a two-part investigation into when the door “opens” to witness evidence: (1) “Whether and to what extent the evidence or argument intended to open the door is incomplete or misleading” “And (2)” What if otherwise admissible evidence is reasonably necessary to correct the misleading impression. “The court found that Hemphill had abandoned his right to cross-examination because his defense counsel extracted evidence or made inappropriate and misleading arguments in relation to Morris and the 9-millimeter.
Crawford v Washington, a landmark 2004 decision, triggers the confrontation clause against testimony in the trial in which the defendant had no prior opportunity to cross-examine the declarer. Before Crawford, the Supreme Court interpreted a “peaceful coexistence” between the right to confront adversarial evidence and hearsay procedural rules. Crawford established the hearsay rules that departed “too far” from the “original meaning” of the confrontation. According to the court, the designers intended with the confrontation clause to prohibit ex parte interrogations as evidence against the accused. The framers also intended to exclude testimony from absent witnesses without proof of unavailability and prior opportunity to cross-examine. Crawford limited the application of the confrontation clause to “testimony” for purposes other than ascertaining the truth of the alleged matter and “witnesses against the accused” who “testify”.
This case could be one of the few, according to Crawford, that goes beyond the distinction between testimonials and non-testimonials. No Crawford jurisdiction provides a yardstick by which to judge the waiver of the right of the confrontation clause. Of particular concern, as Morris’ testimony is taken from his plea, an ex parte trial that provides a formal opportunity to assess the circumstances of the crime and other factors to be considered in the conviction, such as a defendant’s repentance, to explain. Morris’ defense statement may have included questioning by the court, but there is no cross-examination of even other interested parties such as co-defendants or co-defendants. This case could depend on how and whether the court evaluates common law practice at formation and whether door-opening and other similar state procedural rules comply with the common law standard.
What New York argues as a matter of procedure, leveling the playing field by curing improper strategy, the court might view as a substance that directly implies the confrontation clause. Constitutional regulations generally take precedence over government regulations, and cross-examination may be required even if a defendant has “opened the door” to testify. There appears to be little support for a “fairness” exception for Crawford, and no historical treatise appears to recognize perpetual exceptions. Hemphill’s lack of opportunity to cross-examine Morris may be particularly pronounced due to New York’s strong incentive to distance Morris from the Pacheco murder. Whether the court will consider whether Hemphill’s right to produce a full defense had a deterrent effect remains to be seen, but third party fault is “one of the most widely used and most important forms of defense.” It could be that the New York Court is demanding that Hemphill’s behavior caused the unavailability. The court was also able to conclude that under the common law rule of completeness, Hemphill was required to bring one of Morris’ statements to court, which it did not appear to be.
Justices Clarence Thomas and Stephen Breyer are the only remaining members of the Crawford Court. But all nine judges may have been informed of the (popular) opinion that Crawford’s distinction between testimony and non-testimony is incomplete and questionably incoherent. All may seek to provide guidance on procedures or rules that affect confrontation rights and may be inclined to require more than the New York City standard of “reasonable need” to “correct an incomplete or misleading impression.” It could be significant that the trial court had other options, such as giving the jury another restrictive order, making statements from the transcript, or explaining that the trial was free of prejudice. Finally, members of the court may have taken note of arguments in favor of applying the law of confrontation beyond the trial. A federal district court recently dismissed a confrontation at repression hearings, but found that a number of questions remained regarding the scope and applicability of the Confrontation Clause of the Sixth Amendment. This case could answer one of the most important of the remaining questions.