Will the court recognize New York’s “open the doors” rule as an exception to the Sixth Amendment confrontation clause?




The Supreme Court will hear arguments on Tuesday in an important case over the rights of defendants under the Sixth Amendment confrontation clause. More specifically, the court will determine in Hemphill v. new York whether the confrontation clause requires a hearsay cross-examination even when a defendant “opens the door” to that hearsay. Darrell Hemphill argues that admitting portions of a third party’s speech containing hearsay evidence at trial violated the Sixth Amendment. A jury found Hemphill guilty of second degree murder and he was sentenced to 25 years in life.

The tragic circumstances of this case involve 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 van on Tremont Avenue in the Bronx. Ronnell Gilliam and a companion lost a street fight earlier on the day of the murder. Gilliam ran away but later returned with the same or another companion. Someone opened fire with a 9mm handgun and inadvertently killed Pacheco. Witnesses told law enforcement that the gunman was wearing 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 associate of Gilliam. Law enforcement eventually raided Morris’ home and seized ammunition for a .357 caliber weapon, an 8mm starter pistol and a 9mm live ammunition cartridge. Law enforcement observed bruises on the knuckles consistent with punches when Morris was arrested. Three witnesses identified Morris in a queue.

New York indicted Morris for the murder of Pacheco and possession of a 9 millimeter which was suspected to be the murder weapon. Several days after Morris’s arrest, Gilliam surrendered to law enforcement, confessed to his involvement, and appointed Morris as a gunman. At one point, Gilliam spoke to Morris, vowed to “do it right” and claimed that Hemphill shot Pacheco. Gilliam also claimed that Hemphill got rid of the never-recovered murder weapon. The police recovered a light blue sweater from Gilliam’s apartment. At Morris’ trial, New York argued that Gilliam had acted with Morris and that Morris had killed Pacheco. The parties agreed to cancel the trial after Morris presented exculpatory evidence during opening statements. New York reloaded Morris with possession of a .357 caliber gun, to which Morris pleaded guilty. New York also agreed that Morris had served sufficient time, allowing his release.

New York brought murder charges against Hemphill five years after its unsuccessful prosecution of Morris and seven years after Pacheco’s murder. At Hemphill’s trial, New York argued that Gilliam had acted with Morris and Hemphill. Gilliam testified against Hemphill under a plea agreement for a five-year sentence. Gilliam’s maximum exposure was 25 years. Gilliam testified to the presence of two guns, although he has only mentioned one so far. According to Gilliam, Morris carried a .357 gun and Hemphill a 9 millimeter. Gilliam said Hemphill got rid of both guns. Gilliam also said Hemphill eliminated other evidence except for the blue sweater found in Gilliam’s apartment. The blood found on the sweater matches Hemphill’s DNA.

Hemphill’s defense at trial focused on the guilt of a third party, namely Morris’s guilt. At trial, Hemphill’s attorney noted that the murder weapon was a 9mm gun and law enforcement found a 9mm bullet at Morris’s home. In response, the prosecution sought to introduce Morris’s plea that Morris admitted to being in possession of a .357 firearm at the time of the murder. Typically, this out-of-court statement would have been inadmissible under the Sixth Amendment, which generally gives defendants the right to cross-examine opposing witnesses. The trial court, however, allowed the prosecution to bring the speech based on New York’s “open the doors” rule. Under this rule, a defendant who presents evidence on a given topic can “open the door” to the government’s introduction of sensitive evidence and thus waive the right to exclude such sensitive evidence under the confrontation clause. . The trial court found that Hemphill had “opened the door” to awarding Morris’ plea, and the New York courts of appeals upheld that ruling.

No party disputes that the Sixth Amendment would have required the prosecution to produce Morris for cross-examination at Hemphill’s trial in the absence of the New York Doors Doctrine. Under People c. Reid, a 2012 New York case, a two-part inquiry governs when the door “opens” to testimonial evidence: (1) “whether and to what extent the evidence or argument that is supposed to open the door is incomplete or misleading ”and (2)“ What if otherwise admissible evidence is reasonably necessary to correct the misleading impression? The trial court found that Hemphill waived his right to cross-examination because his defense attorney obtained evidence or made inappropriate and misleading arguments about Morris and the 9mm.

Crawford v. Washington a landmark 2004 ruling, triggers the confrontation clause against testimonial hearsay at trial where the defendant was denied the opportunity to cross-examine the declarant. Prior to Crawford, the Supreme Court interpreted a “peaceful coexistence” between the right to confront contradictory evidence and the rules of hearsay based on due process. Crawford the reasoned hearsay rules deviated “too much” from the “original meaning” of the confrontation. According to the court, the drafters wanted the confrontation clause to prohibit ex parte questioning as evidence against the accused. The editors also intended to exclude the testimony of absent witnesses without proof of unavailability and without prior possibility of cross-examination. Crawford limited the application of the confrontation clause to “statements of testimony” which have the purpose other than to establish the veracity of the invoked case and to “witnesses against the accused” who “testify”.

This case could be one of the few post-Crawford go beyond the testimony / non-testimony distinction. No article-Crawford case law provides a standard for judging the right to waive the confrontation clause. How Morris’s testimony comes from his plea, an ex parte process that provides a formal opportunity to explain the circumstances of the offense and other factors to be considered in sentencing, such as a defendant’s remorse, can be particularly significant. Morris’s plea address may have involved questioning by the court, but no cross-examination takes place, even from other interested parties such as the co-defendants or co-defendants. This case might depend on how and whether the court assesses the common law practice at the time of founding and whether “the opening of the door” and other similar state procedural rules satisfy the common law standard.

What New York argues as a procedural issue that levels the playing field by remedying an inappropriate strategy, the court could view as a substantive issue that directly involves the confrontation clause. Constitutional rules generally prevail over state rules, and cross-examination may be required even when a defendant has “opened the door” to testimony. There appears to be little support for an ‘fairness’ exception to Crawford, and no historic treaty seems to recognize unlimited exceptions. The lack of opportunity for Hemphill to cross-examine Morris could be particularly pronounced given New York’s strong push to keep Morris away from the Pacheco murder. It remains to be seen whether the court will consider whether there was a chilling effect on Hemphill’s right to make a full defense, but third-party guilt is “one of the most regularly deployed and most vital ”. It could be that the court asks New York to show that Hemphill’s behavior caused the downtime. The court could also find that the common law rule of completeness required Hemphill to present one of Morris’s statements at trial, which apparently did not happen.

Judges Clarence Thomas and Stephen Breyer are the only remaining members of the Crawford to research. But the nine judges may have been made aware of the (popular) opinion that CrawfordThe testimony / non-testimony distinction of s is incomplete and inconsistent. All may be eager to provide advice on procedures or rules that impact confrontational rights and might be inclined to demand more than the New York standard of “reasonable necessity” to “correct an incomplete or misleading impression” . It might be significant that there were other options open to the trial court, such as giving the jury another limiting instruction, striking out statements from the record, or declaring a trial quashed without prejudice. Finally, members of the tribunal may have taken note of the arguments for applying the rights of confrontation beyond the trial. A federal district court recently dismissed the confrontation in suppression hearings, but noted that a number of questions remained regarding the scope and applicability of the Sixth Amendment’s confrontation clause. This case could answer one of the most vital questions.


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