L E G A L U P DAT E By: Luke P. Ihnen
Federal Defender Services of Eastern Tennessee, Inc.
HEMPHILL DECISION REAFFIRMS “BEDROCK CONSTITUTIONAL PROTECTION” In April 2006, a street fight in the Bronx led to gunfire and a stray bullet killed a two-year-old child. The bullet was fired from a 9-millimeter handgun. NYPD, aided by witnesses, identified Nicholas Morris in the shooting, and after executing a search of his apartment found a 9-millimeter cartridge and three .357-caliber bullets. The State charged Morris with the murder and with possession of a 9-millimeter handgun. Then the case took a turn: one of the witnesses recanted, instead identifying Darrell Hemphill as the shooter. Morris moved for a mistrial after opening statements, which the State did not oppose. Approximately six weeks later, the State agreed to dismiss the murder charges if Morris pleaded guilty to a lesser charge of criminal possession of a weapon. But instead of pleading to the existing indictment, the State filed a new charge alleging that Morris had possessed a .357-magnum revolver—a fact that the parties agreed there was insufficient evidence of absent Morris’s admission. In exchange for the plea, the State recommended a time-served sentence, which Morris accepted over his attorney’s advice. In 2011, the State discovered that Hemphill’s DNA matched to a sample from a blue sweater police recovered in a search shortly after the April 2006 shooting. Eyewitnesses to the shooting had described the shooter as wearing a blue shirt or sweater. In 2013, Hemphill was arrested and charged with the murder of the two-year-old child. At trial, Hemphill blamed Morris for the shooting, and his counsel explained that police recovered a 9-millimeter cartridge from Morris’s apartment after the murder. The State countered that police also recovered .357-caliber bullets from Morris’s apartment, and that Morris plead guilty to possessing a .357-magnum revolver. Because Morris was unable to testify at Hemphill’s trial, the State introduced, over objections, Morris’s plea allocution which suggested that he was not involved in the murder and guilty of only possessing the .357 revolver. The state court ruled that the hearsay testimony was admissible, despite Sixth Amendment concerns, because Hemphill “opened the door” and, under state precedent, it was “reasonably necessary to correct a misleading impression made by the defense’s evidence or argument.”1 The Confrontation Clause of the Sixth Amendment2 is a “bedrock constitutional protection afforded to criminal defendants.”3 In Crawford v. Washington, the United States Supreme Court held that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”4 Rather, the Confrontation Clause “commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not April 2022
only about the desirability of reliable evidence. . .but about how reliability can best be determined.”5 In other words, the Confrontation Clause is a procedural, not a substantive guarantee. At Hemphill’s trial, Morris was unavailable to testify because he was out of the country. So, the State sought to introduce his plea allocution based on a state court precedent. But Hemphill had not had a prior opportunity to cross-examine Morris. This was crucial, because the crossexamination would have been important since there was insufficient evidence for the charge Morris ultimately plead to: possessing a .357 magnum revolver. In Hemphill, the Court found that the precedent relied on by the trial court was not merely procedural, as the State insisted, but rather “a substantive principle of evidence that dictates what material is relevant and admissible in a case.”6 In doing so, the Court reaffirmed the Confrontation Clause’s procedural guarantee: “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.”7 The holding also reaffirmed the principle that juries, not trial judges, are in the best position to weigh testimonial evidence.8 Justice Sotomayor, writing for the majority, looked to the text of the Sixth Amendment for support: “[The Sixth Amendment] admits no exception for cases in which the trial judge believes unconfronted testimonial hearsay might be reasonably necessary to correct a misleading impression.”9 With its holding, Hemphill reinforces the precedent that 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.”10 The decision reaffirms an important protection for accused defendants: the right to confront the witnesses against them. In the end, Justice Sotomayor was able to convince seven of her colleagues that this precedent should live to fight another day.
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DICTA
Hemphill v. New York, 142 S. Ct. 681*, at *687–88 (Jan. 20, 2022) (citing People v. Reid, 971 N.E.2d 353 (N.Y. 2012)). “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Id. at *690. 541 U.S. 36, 53–54 (2004). Id. at 61. Id. at *691. Hemphill, 142 S. Ct. at *691–92. Id. at *692 (“[I]t was not for the judge to determine whether Hemphill’s theory. . . was unreliable, incredible, or otherwise misleading. . .[nor] was it the judge’s role to decide that the evidence was reasonably necessary to correct that misleading impression.”). Id. at *693. Id. at *694.
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