Amicus Curiae Brief — Darrell Hemphill, Petitioner v. New York

No. 20-637

IN THE

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_______________

DARRELL HEMPHILL,

Petitioner,

v.

STATE OF NEW YORK,

Respondent.

_______________

On Writ of Certiorari

to the Court of Appeals of New York

_______________

BRIEF OF THE BRONX DEFENDERS,

NEIGHBORHOOD DEFENDER SERVICE OF

HARLEM, BROOKLYN DEFENDER SERVICES,

QUEENS DEFENDERS, AND NEW YORK COUNTY

DEFENDER SERVICE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

_______________

AIMEE CARLISLE

ILONA COLEMAN

DEFNE OZGEDIZ

SAUL ZIPKIN

THE BRONX DEFENDERS

360 East 161st Street

Bronx, NY 10451

DAVID DEBOLD

Counsel of Record

MATTHEW GUICE AIKEN

TESSA GELLERSON*

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

ddebold@gibsondunn.com

JOEL M. COHEN

NINA MEYER

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

[Additional Counsel Listed on Inside Cover]

ELIZABETH FISCHER

ALICE FONTIER

NEIGHBORHOOD DEFENDER SERVICE

OF HARLEM

317 Lenox Ave

New York, NY 10027

LISA SCHREIBERSDORF

BROOKLYN DEFENDER SERVICES

177 Livingston Street,

7th Floor

Brooklyn, NY 11201

HETTIE POWELL

QUEENS DEFENDERS

118-21 Queens Blvd

Suite 212

Forest Hills, NY 11375

SERGIO DE LA PAVA

NEW YORK COUNTY DEFENDER

SERVICE

100 William St

New York, NY 10038

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ...............................................................4

I.

New York’s Forfeiture Rule Undermines

The Confrontation Clause. ...............................4

II. New York’s Forfeiture Rule Prevents The

Accused From Presenting A Valid Defense. ..17

III. New York’s Forfeiture Rule Permits

Unreliable Statements To Be Admitted

Without Cross-Examination. .........................22

CONCLUSION ..........................................................29

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Brookhart v. Janis,

384 U.S. 1 (1966) ......................................................... 7

California v. Green,

399 U.S. 149 (1970) ............................................. 27, 29

Carson v. Peters,

42 F.3d 384 (7th Cir. 1994) ....................................... 21

Crawford v. Washington,

541 U.S. 36 (2004) ................................................... 4, 7

Davis v. Alaska,

415 U.S. 308 (1974) ..................................................... 3

Douglas v. Alabama,

380 U.S. 415 (1965) ................................................... 27

Giles v. California,

554 U.S. 353 (2008) ............................................. 27, 28

Kirby v. United States,

174 U.S. 47 (1899) ....................................................... 7

Lee v. Illinois,

476 U.S. 530 (1986) ................................................... 27

Lilly v. Virginia,

527 U.S. 116 (1999) ....................................... 20, 26, 28

Maryland v. Craig,

497 U.S. 836 (1990) ............................................. 22, 29

iii

Mattox v. United States,

156 U.S. 237 (1895) ................................................... 27

Napue v. People of State of Ill.,

360 U.S. 264 (1959) ................................................... 18

Ohio v. Clark,

576 U.S. 237 (2015) ................................................... 28

People v. Hemphill,

103 N.Y.S.3d 64 (N.Y. App. Div. 2019) ................. 6, 12

People v. Reid,

971 N.E.2d 353 (NY 2012) ........................ 5, 13, 14, 15

Roberts v. Russell,

392 U.S. 293 (1968) ..................................................... 7

Sinkfield v. Brigano,

487 F.3d 1013 (6th Cir. 2007) ................................... 20

United States v. Taylor,

848 F.3d 476 (1st Cir. 2017) ...................................... 21

Williamson v. United States,

512 U.S. 594 (1994) ................................................... 27

OTHER AUTHORITIES

Accomplice Testimony Under Contingent Plea

Agreements, 72 Cornell L. Rev. 800 .......................... 20

Hakeem Ishola, Of Confrontation: The Right Not

to be Convicted on the Hearsay Declarations of an

Accomplice, 1990 Utah L. Rev. 855 (1990) ............... 20

iv

Scott C. Pugh, Checkbook Journalism, Free

Speech, and Fair Trials, 143 U. Pa. L. Rev. 1739

(1995) ......................................................................... 23

Yvette A. Beeman, Accomplice Testimony Under

Contingent Plea Agreements, 72 Cornell L. Rev.

800 (1987) .................................................................. 19

TREATISES

21A Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure Evidence § 5072.1

(2d ed. 2020) .............................................................. 16

1

INTEREST OF AMICI CURIAE 1

Amicus The Bronx Defenders (“BxD”) is a nonprofit provider of innovative, holistic, client-centered

criminal defense, family defense, civil legal services,

and social work support to indigent people in the

Bronx. Each year, BxD’s advocates defend thousands

of low-income Bronx residents in criminal, civil,

family, and immigration cases and reach hundreds

more through outreach programs and community

legal education.

Amicus Neighborhood Defender Service of Harlem

(“NDS”) is a community-based public defender

office. Since 1990, NDS has sought to improve the

quality and depth of criminal, family, and civil defense

for those in Harlem and Northern Manhattan who

cannot afford an attorney. NDS accomplishes this by

providing holistic, cross-practice representation to our

clients.

Amicus Brooklyn Defender Services (“BDS”) is a

full-service public defender organization that provides

multi-disciplinary and client-centered criminal

defense, family defense, immigration, and civil legal

1

Pursuant to this Court’s Rule 37.6, amici states that this

brief was not authored in whole or in part by counsel for any

party, and that no person or entity other than amici, its

members, or its counsel made a monetary contribution intended

to fund the preparation or submission of this brief. The parties

have consented to the filing of our amici curiae brief in accord

with Supreme Court Rule 37.3.

2

services for nearly 30,000 people in Brooklyn every

year. In addition to zealous legal defense, BDS

provides a wide range of additional services to meet

peoples’ unique needs, including social work support,

help with housing, benefits, education and

employment, and advocacy targeting systems and

laws that implicate their rights. BDS’s Criminal

Defense Practice of approximately 140 criminal

defense attorneys and 120 social workers,

investigators, paralegals, and other non-attorney staff

currently represents over 20,000 people facing

criminal prosecution in the criminal courts in

Brooklyn.

Amicus Queens Defenders represents low-income

people accused of crimes in Queens, New York who

cannot otherwise afford an attorney. Since 1996,

Queens Defenders has represented over 450,000

individuals accused of crimes, including serious

offenses such as homicides, youths charged with

crimes, and individuals facing collateral consequences

throughout the borough of Queens. Queens Defenders

provides client-centered services that include and

exceed direct representation in the criminal case, such

as advising clients regarding program-based support,

treatment courts, and other alternatives to

incarceration, as well as educating adults and youths

throughout the Queens community regarding their

rights in criminal, civil, immigration, and other

proceedings. Queens Defenders also aims to reduce

3

the numbers of people entangled in the criminal legal

system and reduce the impact of the system on the

Queens community by providing those in Queens with

additional support regarding public housing,

employment, education, and public benefit resources.

Amicus New York County Defender Services is a

trial-level public defender office in New York City.

Since 1997, the office has conducted thousands of

criminal jury trials in State court.

Amici submit this brief because the issue

presented in the case—whether, and under what

circumstances, “opening the door” to responsive

evidence also forfeits an accused’s right to exclude

evidence otherwise barred by the Confrontation

Clause—significant affects Amici’s representation

and other advocacy on behalf of indigent individuals.

SUMMARY OF ARGUMENT

This Court has held that “[c]ross-examination is

the principal means by which the believability of a

witness and the truthfulness of his testimony are

tested” and “reveal[s] possible biases, prejudices, or

ulterior motives of the witness as they may relate

directly to issues or personalities in the case at hand.”

Davis v. Alaska, 415 U.S. 308, 316 (1974). New York’s

forfeiture-by-opening-the-door rule violates the

Confrontation Clause because it precludes this

testing, through cross-examination, of vital

testimonial statements.

It also undermines, in

4

multiple ways, the accused’s ability to present a valid

defense. This includes forcing the accused to decide

whether to forego even suggesting a basis for acquittal

lest it lead to the prosecution putting forward

testimonial statements from persons who will not be

witnesses at the trial.

Co-defendant and accomplice statements are

fraught with indicia of unreliability, yet New York’s

forfeiture-by-opening-the-door rule permits prosecutors to introduce those statements without giving the

accused the opportunity to subject them to adversarial

examination. As a result, New York’s rule deprives

juries of sufficient means to assess the credibility of

evidence on material issues, and it allows prosecutors

to present the exact type of proof the Confrontation

Clause was designed to prevent: testimonial witness

statements that have not been tested by crossexamination.

ARGUMENT

I.

New York’s Forfeiture Rule

Undermines The Confrontation

Clause.

This Court has made clear that the Confrontation

clause “commands, not that evidence be reliable, but

that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination.”

Crawford v. Washington, 541 U.S. 36, 61 (2004). New

York’s forfeiture-by-opening-the-door rule guts that

5

promise. It lets in testimonial evidence that would

otherwise be inadmissible when, in a judge’s

estimation, its exclusion is “unfair[]” to the

prosecution. People v. Reid, 971 N.E.2d 353, 357 (NY

2012). That overly broad formulation forces the

accused to choose between presenting an effective

defense and ensuring that the prosecution presents

only testimonial statements that have been tested by

cross-examination. In doing so, New York’s rule

imposes an unjustified risk of significant harm to the

accused’s ability to present a compelling defense and

opens the floodgates to precisely the types of

unreliable evidence the Confrontation Clause was

designed to exclude.

New York’s forfeiture-by-opening-the-door rule,

with its assumption that the prosecution’s evidence is

reliable, flips the principles undergirding the

Confrontation Clause on their head. Under New

York’s rule, judges ask (1) “whether, and to what

extent, the evidence or argument said to open the door

is incomplete and misleading,” and (2) “what if any

otherwise inadmissible evidence is reasonably

necessary to correct the misleading impression.”

Reid, 971 N.E.2d at 356 (citation omitted). The

baseline assumption of this inquiry is that an

underlying “truth” has been obscured or undermined,

and the inquiry’s very formulation has the

prosecution on the side of presenting the truth while

casting the defense as an enemy of the truth. This

6

ignores an animating principle underlying the

Confrontation Clause—deep-seated mistrust of

government—and the core premise that testimonial

statements are not reliable if untested through crossexamination.

This case illustrates the problems that flow from

New York’s distortion of the Confrontation Clause.

Petitioner introduced at trial government-procured

evidence: shortly after the shooting, the police

recovered a 9 millimeter cartridge on Nicholas

Morris’s nightstand. Yet the court viewed Petitioner’s

presentation of this evidence as “misleading” because

it contradicted the prosecution’s chosen narrative at

Petitioner’s trial that Morris was not the shooter.

Even though it was unquestionably accurate that

police found a 9 millimeter cartridge on the

nightstand in Morris’s room, the court held that the

defense’s decision to share the police’s discovery with

the jury opened the door to the introduction of

Morris’s plea allocution “to correct th[e] misleading

impression.” People v. Hemphill, 103 N.Y.S.3d 64, 71

(N.Y. App. Div. 2019). What supposedly made the

presentation of this evidence misleading was that

Morris had been unwilling to admit he possessed a

weapon that could fire the ammunition. But the

evidence is only misleading if one starts, as the court

erroneously did, with the assumption that Petitioner

is guilty and Morris is not.

7

What is more, Morris’s plea allocution—which the

court had to assume was accurate, complete, and

truthful if the idea was to “correct” a “misleading

impression” by introducing it—is precisely the kind of

evidence the Confrontation Clause was designed to

exclude because its reliability is untested. See Kirby

v. United States, 174 U.S. 47, 54–56 (1899)

(Confrontation Clause bars admission of accomplices’

guilty pleas); cf. Roberts v. Russell, 392 U.S. 293, 293–

95 (1968) (codefendant’s confession); Brookhart v.

Janis, 384 U.S. 1, 4 (1966) (same). A plea allocution,

especially (as here) on a detail that does not qualify as

a statement against interest, is an extrajudicial

testimonial statement with none of the traditional

hallmarks of reliability.

Endorsing New York’s rule would have farreaching implications. Under this rule, any attempt

to demonstrate one’s innocence, including by simply

holding the prosecution to its burden of proving guilt

beyond a reasonable doubt, could be seen as “contrary”

to the evidence of guilt that a prosecutor seeks to

admit. To take a famous example from the 1603 trial

of Sir Walter Raleigh, New York would view Raleigh’s

protestations of innocence as “contrary” to Lord

Cobham’s extrajudicial confession thereby allowing

for the admission of Lord Cobham’s statements. See

Crawford, 541 U.S. at 44–45 (detailing the events of

Raleigh’s trial).

8

Three hypotheticals, based upon the experience of

amici, illustrate the breadth and unfairness of New

York’s rule.

Hypothetical 1: A, B, and C are charged with

selling drugs. According to the prosecution, a police

informant involved in a sting operation (a “buy and

bust”) approached A and B, who were sitting on a park

bench. The informant says he asked where he could

find heroin; that A pointed to C, who was standing

nearby, and said “he can help you out”; that B walked

the informant over to C; and that C sold the informant

a packet of heroin. Police officers moved in after

seeing C and B exchange money and drugs, and they

arrested A, B, and C.

B and C plead guilty to a lesser charge of

attempted criminal sale of a controlled substance,

admitting in their allocutions that they acted in

concert with each other and with A to sell a controlled

substance. A goes to trial. The informant testifies,

but B and C do not. A’s defense is that, although he

was sitting on the bench with B when the informant

approached, A did not speak with the informant, nor

did A point to C. Rather, only B interacted with the

informant. After a police officer testifies that he saw

A speak with the informant and point to C, defense

counsel confronts the officer with his police report,

which states that B spoke with the informant and B

pointed to C. The officer further admits that his

9

report makes no mention of A saying or doing

anything.

Under the New York rule, a court could permit the

prosecution to elicit from the same officer on redirect

that B and C, in their later allocutions, both stated

that A participated in the sale. The basis for

admitting this testimony would be that A opened the

door by eliciting from the government’s own witness

accurate information that was inconsistent with the

admissions of B and C that they acted in concert with

A. The defense would be deemed “misleading” in that

it challenged the government’s chosen version of

events. Under New York law, B’s and C’s testimonial

statements could be admitted without A being able to

confront B and C with their motivations to lie and

implicate A. The same result would hold if, instead,

A had called to the stand a different witness who

testified that he watched the interaction and did not

see A say or do anything.

Hypothetical 2: D and E are charged with armed

robbery. The prosecution alleges that E pointed a gun

at the victim while D forcibly took her purse on the

street at night. Police, who were a block away,

responded immediately upon hearing the victim

yelling for help. The police quickly apprehended E,

who was running alone from the scene with a BB gun

in his hand. The victim identified E to the police

within two minutes of the incident, and the police

immediately took E into custody. D, however, was

10

arrested only several weeks later, after the victim

passed him on the street and called the police, saying

she recognized him as the person who had taken her

purse on the night of the robbery. Nothing else links

D to the crime.

E faced a minimum of 5 years in prison if

convicted of first degree robbery. One year after E

was detained on that charge, the prosecution makes a

plea offer of robbery in the third degree with a

sentence of one year, but requires that E implicate his

claimed accomplice. E remembers having seen D in

the neighborhood before the robbery. E also knows

that D has been charged based on the victim’s

identification. E tells the prosecution in his plea

allocution that D was the accomplice. E claims, for

the first time ever, that they met a month before the

robbery and planned it together. By pleading guilty

and implicating D, E secures his immediate release

from jail.

D goes to trial with a defense of mis-identification,

maintaining that he was not the person who

participated in the robbery with E. D testifies that he

was not present when the victim was robbed and that

he does not even know E. Because this was contrary

to E’s allocution, the court rules that D’s testimony

was misleading and opened the door to admitting E’s

allocution stating that E and D knew each other and

planned the robbery together. The evidence comes in

11

without D being able to confront E with his strong

motive to falsely implicate D.

Hypothetical 3: The State charges F and G,

roommates, with felony murder after G shoots a

robbery victim, killing her. The charge carries a

minimum sentence of 15 years, and a maximum of life.

When the police interrogate F, she admits to

participating in the robbery plan but denies knowing

that G had a gun and does not know where G got it.

G offers to plead guilty to first degree

manslaughter if the sentence will not exceed 12 years.

G’s lawyer tells the prosecution that F and G had

discussed the robbery plan, that F told G he needed to

bring a gun, and that F encouraged G to use it after

the victim resisted. The prosecution agrees to the

manslaughter plea if G will include that version of

events in his allocution. G’s plea guarantees him

three years less than the minimum he faced had he

been convicted after trial.

F goes to trial and the prosecution introduces her

police statement in evidence against her. Consistent

with the statement, A asserts a statutory affirmative

defense: F did not aid in the commission of the

murder because F did not have a gun; did not know

that G was armed or where G got the gun; and the

plan was only to rob the victim. The court then allows

the prosecution to counter F’s defense by admitting

G’s plea allocution, even though that testimonial

12

statement is untested through cross-examination.

Under New York law, F forfeits her Confrontation

Clause rights by adopting the government’s evidence

to support her affirmative defense.

The outcome in each hypothetical inverts both the

presumption of innocence that undergirds our judicial

system and the presumption of unreliability of

untested testimonial statements that animates the

Confrontation Clause.

To make matters worse, New York’s forfeiture-byopening-the-door rule stamps the imprimatur of the

judiciary on this topsy-turvy state of affairs,

compounding the very mistrust of government that

the Confrontation Clause was designed to combat.

And this rule asks judges to make not one, but two

fact-laden decisions. The first is to referee whether a

valid defense is somehow misleading, and the second

is to assess the “reasonabl[e] necess[ity]” of

introducing otherwise inadmissible evidence to

combat that “misleading impression.” Hemphill, 103

N.Y.S. 3d at 71. As this case illustrates, in making

this assessment, judges will often query mid-trial

whether an accused’s challenging of the prosecution’s

case is “unfair” to the prosecution. Each step of this

analysis, and any ultimate assessment of fairness, is

ripe for reasonable disagreement (at best) and

infiltration of more pernicious biases (at worst).

These value-steeped decisions tend to erode both

predictability and the public’s trust in the judiciary

13

because of the inconsistencies that flow from

application of a test that lacks clear guideposts. New

York’s forfeiture-by-opening-the-door rule distorts the

fundamental precepts of the criminal trial by allowing

the prosecution to design the universe of facts and

then present that selectively chosen narrative to the

jury. The judiciary then holds this version of events

to be presumptively true and protects the government

when the defense attempts to challenge this

narrative.

This distortion of the fundamental precepts of the

criminal trial is laid bare by People v. Reid, 971

N.E.2d 353 (NY 2012), the case relied upon by the

lower court in finding that Petitioner had forfeited his

right of confrontation because his defense created a

“misleading impression.” Reid makes clear that to

find a “misleading impression” the court accepts, in

the midst of a trial, that the prosecution’s narrative is

accurate and finds any evidence that contradicts that

narrative misleading.

The result is that the

prosecution may put forward its own unreliable

evidence, without subjecting the correction of the

supposedly misleading impression to crossexamination.

In Reid, a murder case, defense counsel sought to

show that the police investigation had been

inadequate and that another individual (McFarland)

had actually committed the murder. 971 N.E.2d at

356. Reid’s counsel elicited testimony from a witness

14

for the prosecution who stated Reid had told the

witness that McFarland and another individual

(Joseph) were with him at the time of the murder. Id.

at 354. This witness also testified that he had told the

police about McFarland but McFarland had not been

arrested. Id. at 355. Reid’s counsel then called a

federal agent to the stand who had been involved in

the investigation, yet whom the prosecution declined

to call as its own witness. The federal agent testified

that during the course of his investigation he learned

that McFarland was involved in the shooting. Id.

Reid’s counsel questioned the federal agent about the

source of that information, including whether there

had been multiple sources. Id.

During cross-examination by the prosecution, the

federal agent testified that the source was the first

witness for the prosecution who had heard about the

shooting second-hand but had not witnessed it. Id.

The federal agent then testified that he had also

received direct eyewitness testimony about the

shooting from someone who stated McFarland was not

there. Id. The eyewitness in question was Joseph—

who was unavailable and was therefore not crossexamined. Reid’s counsel objected to the admission of

Joseph’s testimonial statement through the federal

agent, but the County Court overruled the objection,

noting that the door had been opened. Id.

The Court of Appeals affirmed, reasoning that “by

eliciting . . . information that McFarland was involved

15

in the shooting, by suggesting that more than one

source indicated that McFarland was at the scene,

and by persistently presenting the argument that the

police investigation was incompetent,” the accused

“opened the door to the admission of the testimonial

evidence, from his nontestifying codefendant” in order

to “correct defense counsel’s misleading questioning

and argument.” Id. at 357.

The problem is that both courts relied on nothing

other than an unspoken and unwavering belief in the

prosecution’s unproven narrative to conclude that

defense counsel misled the jury. There was no

inherent reason to credit Joseph’s statement as true.

Yet the court did so, emphasizing that “an eyewitness

to the shooting, who knew exactly who was there, had

told the police that McFarland was not present” and

that the prosecution had to “prevent the jury from

reaching the false conclusion that McFarland had

been present at the murder,” because “a person with

immediate

knowledge

of

the

situation—an

eyewitness” had told the police a different version of

the facts. 971 N.E.2d at 357.

The Court of Appeal’s stated reasoning ignored

the fact that the prosecution did not present all of its

own evidence for strategic reasons: it was internally

inconsistent and inconsistent with the prosecution’s

chosen theory of the case. Nevertheless, the defense

could not rely on government-sourced evidence

without running the risk of “misleading” the jury. The

16

court reasoned that, by challenging the government’s

theory, the defense “misled[]” the jury, even though

the validity of that theory was the precise question the

jury was supposed to answer. Id. The court then

compounded its error by allowing the government to

“correct” this alleged misimpression with evidence

that was never tested via the “principal means” our

system recognizes for assessing truth:

crossexamination. Id.

This is backwards. By the plain terms of the

Confrontation Clause, it was Joseph’s statement—

untested by cross-examination—that was unreliable.

Yet under New York’s rule defense counsel must

weigh the value of their own admissible evidence

against the risk of opening the door to the

government’s inadmissible evidence.

The resulting paradox under New York’s rule is

that it is easier for the government to introduce

unreliable statements than for the defense to

introduce reliable evidence—even when the reliable

evidence originated with the government.

The “open the door” doctrine, a familiar fixture of

evidence law, see 21A Charles Alan Wright & Arthur

R. Miller, Federal Practice & Procedure Evidence

§ 5072.1 (2d ed. 2020), has its place in other

situations, such as where a party introduces only the

helpful parts of a single statement. But its application

in this context introduces the very types of evidence

17

the Confrontation Clause was created to exclude in

that the evidence’s reliability is untested. This Court

should reject New York’s version of the doctrine.

II.

New York’s Forfeiture Rule Prevents

The Accused From Presenting A Valid

Defense.

New York’s forfeiture-by-opening-the-door rule

limits the presentation of a valid defense in multiple

specific and overlapping ways. At its core, it forces the

accused to choose between (a) putting forward a valid

defense—oftentimes the sole available defense—only

to have the prosecution respond with testimonial

statements that cannot be confronted, or (b) forfeiting

that defense.

First, the forfeiture-by-opening-the-door rule

deters defense counsel from eliciting helpful,

probative testimony for fear that doing so will

unintentionally open the door. That is because

defense counsel, by presenting relevant evidence,

could invite a ruling allowing the government to

present an accomplice’s statement without the

opportunity to fully explore the accomplice’s bias and

motivation in making it or to test that person’s

memory or observations. New York’s forfeiture-byopening-the-door rule forces the accused to choose

between the right to present a defense and the right

to subject adversarial testimonial statements to crossexamination. And, as here, that means potentially

18

foregoing the right to present the government’s own

evidence, evidence that could exculpate the accused.

As a practical matter, New York’s approach creates a

minefield for counsel in which the only way for the

accused safely to vindicate Confrontation Clause

rights is to remain mute and forego those rights

entirely, nearly ensuring a conviction.

Second, in cases where the defense takes its

chances and opens the door under New York’s version

of that doctrine, the inability to cross-examine those

individuals whose statements are introduced against

the accused prevents juries from assessing the

credibility of important sources of evidence. As this

Court has recognized, many times, the ability to

confront a witness with the witness’s own biases is the

difference between conviction and acquittal. See e.g.,

Napue v. People of State of Ill., 360 U.S. 264, 269

(1959) (“The jury’s estimate of the truthfulness and

reliability of a given witness may well be

determinative of guilt or innocence, and it is upon

such subtle factors as the possible interest of the

witness in testifying falsely that a defendant’s life or

liberty may depend.”).

For example, cross-examination can establish

that a witness is lying, is mistaken, is making

unacknowledged assumptions, neglected to consider

something crucial, is biased, has an ulterior motive for

providing their testimony, or is otherwise unreliable.

Without cross-examination, juries are deprived of the

19

information they need to accurately weigh and assess

the credibility of witnesses, especially those who have

made statements pursuant to plea agreements that

provide significant benefits, including dismissed

charges and reduced sentences. In not giving defense

counsel an opportunity to cross-examine persons who

made testimonial statements of this nature, the New

York rule prevents challenges to their reliability,

which itself presents the jury with a highly

“misleading impression” of the relevant facts. The

lack of effective cross-examination under New York’s

forfeiture-by-opening-the-door rule exposes the jury to

testimony that is often “impure, dubious and tainted

beyond redemption.” Yvette A. Beeman, Accomplice

Testimony Under Contingent Plea Agreements, 72

Cornell L. Rev. 800, 822 (1987) (quotation marks and

citation omitted).

The Confrontation Clause is one of an accused’s

most important tools for challenging the government’s

weighty allegations. It is the primary tool for avoiding

prejudicial error by subjecting witnesses to searching

cross-examination intended to develop fully any

evidence of bias or motive on the witness’s part, or

improper conduct by the prosecution.

Crossexamination allows the accused to lay before the jury

every fact that might in some way influence the

truthfulness and credibility of the witness’s

testimony, facts that the government often chooses to

hide or minimize because they weaken the

20

government’s narrative.

The intent of the

Confrontation Clause was to allow the finder of fact to

resolve inconsistencies and conflicts in the evidence,

as well as to weigh the testimony and determine

witness credibility. However, New York’s forfeitureby-opening-the-door rule removes these safeguards by

preventing the jury from receiving a complete picture

of the credibility and/or bias of the person who made

a testimonial statement.

Third, the forfeiture-by-opening-the-door rule

limits the accused’s ability to challenge perjury by

witnesses or deter prosecutorial abuses. This Court

in Lilly v. Virginia recognized the inherent

unreliability of unchallenged witness statements

noting that “we have over the years ‘spoken with one

voice in declaring presumptively unreliable

accomplices’

confessions

that

incriminate

defendants.’” 527 U.S. 116, 131 (1999) (citation

omitted). And it is well known that statements made

in connection with entering into plea agreements tend

to be unreliable because of the incentive for the

pleading party to shift blame to a co-defendant or

other alleged co-conspirators.

See Accomplice

Testimony Under Contingent Plea Agreements, 72

Cornell L. Rev. 800; Hakeem Ishola, Of Confrontation:

The Right Not to be Convicted on the Hearsay

Declarations of an Accomplice, 1990 Utah L. Rev. 855,

864 (1990) (“an analysis of Supreme Court precedents

on the right to confrontation in cases involving a co-

21

defendant’s or accomplice’s confession must begin

with the presumption that a hearsay statement is

admissible only if its reliability and trustworthiness

are demonstrated”); see also Sinkfield v. Brigano, 487

F.3d 1013, 1017 (6th Cir. 2007) (many “statements

inculpating the declarant and another party are not

always truly self-inculpatory because the statements

are instead intended to shift blame or curry favor”);

United States v. Taylor, 848 F.3d 476, 487 (1st Cir.

2017) (“[t]he fear that inculpatory statements are

unreliable stems largely from the presumption that

such statements are self-serving, offered only to shift

the blame from the declarant to another” (alteration

in original; citation omitted)); Carson v. Peters, 42

F.3d 384, 386 (7th Cir. 1994) (“[p]ortions of

inculpatory statements that pose no risk to the

declarants are not particularly reliable; they are just

garden variety hearsay”). Admitting statements such

as Morris’s allocution, untested by cross-examination,

obscures a witness’s strong incentive to lie or

embellish.

Fourth, the inherent and unmanageable

uncertainty in applying New York’s rule produces

inconsistent outcomes, which further chills

establishment of a valid defense. Whether the

presentation of a defense has created a “misleading

impression” is a highly subjective inquiry for which

courts are afforded substantial discretion. In making

that inquiry, courts frequently accept the

22

government’s chosen trial narrative as true, with little

probing, even when the defense challenges that

narrative with the government’s evidence. This gives

the prosecution the unfair advantage of responding to

admissible evidence—including admissible testimony

elicited from the prosecution’s own witnesses—with

evidence that is inadmissible under not just rules of

evidence but the Constitution as well. Without clear

guideposts for what qualifies as a “misleading” line of

defense, a vindication of the accused’s constitutional

rights turns more on the courtroom to which the case

is assigned than anything else.

III.

New York’s Forfeiture Rule Permits

Unreliable Statements To Be Admitted

Without Cross-Examination.

New York’s forfeiture-by-opening-the-door rule

allows the admission of untested statements that are

often unreliable. The rule frustrates the accused’s

ability to defend themselves against potentially

untruthful or incomplete statements in direct

contravention of the Confrontation Clause’s purpose

of “ensur[ing] the reliability of the evidence against a

criminal defendant” and undermines the truthseeking function of the courts. Maryland v. Craig, 497

U.S. 836, 845 (1990).

The unenviable choice Petitioner faced here—

abandon a valid and effective defense or risk opening

the door to unreliable, untested information—is

23

common in New York. One way the accused often

seeks to establish that the government failed to prove

guilt beyond a reasonable doubt is by eliciting

evidence that the offense was committed by, or

responsibility is otherwise attributable instead to,

another person. That other person is often a codefendant or someone previously accused of

involvement in the same crime. When putting forth a

defense that the government is trying the wrong

person, counsel necessarily elicits evidence, including

through questioning of prosecution witnesses, that

tends to connect another person to the crime or

demonstrate that law enforcement failed to

investigate that avenue adequately.

Often the

prosecution has obtained statements by co-defendants

or other individuals who were involved in committing

the crime. These persons, who often do not expect to

testify at trial, have strong incentives to tell

prosecutors what prosecutors want to hear, especially

when doing so minimizes their own involvement and

the punishment for that involvement. Under New

York’s forfeiture-by-opening-the-door rule, those who

wish to mount an effective defense—or any defense at

all—risk exposing the jury to these potentially false

statements without the opportunity to test their

reliability. See Scott C. Pugh, Checkbook Journalism,

Free Speech, and Fair Trials, 143 U. Pa. L. Rev. 1739,

1770 (1995) (noting that “[c]ross-examination …

minimizes the risk that juries will rely on evidence

24

tainted by the incentives to lie or exaggerate inherent

in plea-bargaining.”).

The facts of this case demonstrate the

unreliability of such statements and the critical need

to exclude them under the Confrontation Clause.

Petitioner’s main defense at trial was that another

individual, Morris, was responsible for the crime. The

undisputed fact that the government itself had

previously accused Morris of committing it, and had

even tried him for the offense, see Pet. App. 16a-17a,

made this a compelling defense, one that counsel no

doubt would have been second-guessed for passing up.

To effectively support this defense, defense counsel

elicited testimony that hours after the shooting the

police had recovered a live cartridge from Morris’s

home that matched the caliber of the purported

murder weapon—a 9 millimeter handgun. See Id.

The government claimed that its own evidence

created a misleading impression because Morris had

pleaded guilty to possessing a different-caliber

handgun. Even though the government did not—and

could not—dispute that the police had recovered a 9

millimeter cartridge from Morris’s home, the

government was allowed to introduce Morris’s plea

allocution, in which he admitted to possessing a .357

revolver at the scene of the shooting, and made no

mention of a 9 millimeter handgun. Id.

New York’s rule stripped Petitioner of his right to

confront Morris with a number of facts. It was in

25

Morris’s interest not to be associated with a 9

millimeter handgun—the murder weapon. And by

pleading guilty to possessing the .357 revolver, Morris

secured his immediate release from prison and a

dismissal of murder charges against him.

These problems are common. The facts of this

case demonstrate that a person who pleads guilty is

highly motivated to say what the government wants

to hear in order to secure a good plea deal—whether

or not this admission presents the entire picture of the

person’s involvement. In fact, in plea allocutions for

cases in New York City that involve multiple accused

individuals, the prosecution not only requires the

person pleading guilty to admit to his or her own

conduct, but also to admit to acting in concert with

others when that is an element of the crime. A person

who pleads guilty knows from the charging documents

that the government thinks particular persons were

also involved. It is all too easy—and sometimes the

only viable option—for someone pleading guilty to

implicate those other co-defendants consistent with

the government’s theory.

After all, these plea

allocutions allow the person entering the guilty plea

to avoid conviction on other more serious charges and

to receive a reduced sentence.

This allocution requirement, memorialized in a

standard manner by many New York criminal courts,

generates inculpatory evidence against co-defendants

in virtually every multi-defendant case that includes

26

at least one guilty plea. However, because the

allocutions are not subjected to adversarial testing,

the underlying motivations and biases behind these

testimonial statements remain latent.

Denying

Confrontation Clause rights in these circumstances

motivates prosecutors to require even more specific

information during allocutions, safe in the knowledge

that the information could be admitted, without being

tested through cross-examination, at the trial of a codefendant who challenges the government’s evidence.

Due to its unreliability, this evidence is exactly

what the Confrontation Clause was designed to

exclude. This Court has acknowledged the inherent

unreliability of co-defendant or co-conspirator

statements that shift or spread blame, and the Court

has found it “highly unlikely” that the presumption of

unreliability can be rebutted for such statements

where, as here, “the government is involved in the

statements’ production, and when the statements

describe past events and have not been subjected to

adversarial testing.” Lilly, 527 U.S. at 137.2 The

Court has repeatedly held, in the context of

accomplice confessions, that “presumptively suspect”

2

Lilly involved a co-defendant’s statement during

interrogation.

Statements made in connection with plea

allocutions are equally, if not more, problematic because

individuals who have chosen to plead guilty often do so with a

favorable outcome at their fingertips, one that can be taken away

at any moment if they fail to comply with the government’s

requests.

27

statements, such as the plea allocution here, “must be

subjected to the scrutiny of cross-examination” to

comply with the Confrontation Clause’s requirements.

Lee v. Illinois, 476 U.S. 530, 541 (1986); Douglas v.

Alabama, 380 U.S. 415, 419 (1965). Moreover, this

Court has also acknowledged the unreliability of

hybrid statements like Morris’s plea allocution:

partially inculpatory and partially seeking to shift the

blame to others. As this Court has explained, “[o]ne

of the most effective ways to lie is to mix falsehood

with truth, especially truth that seems particularly

persuasive because of its self-inculpatory nature.”

Williamson v. United States, 512 U.S. 594, 599–600

(1994) (analyzing reliability of statements to

determine admissibility under Federal Rule of

Evidence 804(b)(3)).

History

further

demonstrates

that

the

Confrontation Clause took aim at these very types of

statements.

The primary evil was ex parte

statements “being used against the prisoner in lieu of

a personal examination and cross-examination of the

witness.” Mattox v. United States, 156 U.S. 237, 242

(1895); see also California v. Green, 399 U.S. 149, 156

(1970) (“It is sufficient to note that the particular vice

that gave impetus to the confrontation claim was the

practice of trying defendants on ‘evidence’ which

consisted solely of ex parte affidavits or deposition

secured by the examining magistrates.”).

The

Confrontation Clause—like the evidentiary hearsay

28

rules—is grounded in the need for reliability. Giles v.

California, 554 U.S. 353, 365 (2008) (The

“Confrontation Clause and the evidentiary hearsay

rule[s] stem from the same roots.” (citation omitted)).

The primary way to ensure reliability is to have the

declarant testify in an adversary proceeding, which is

the basis for the Confrontation Clause’s requirement

that the witness be subjected to cross-examination.

Carveouts to the right of confrontation are

narrowly tailored to types of evidence historically

admitted at common law, such as dying declarations,

Giles, 554 U.S. at 358, and statements by children, see

Ohio v. Clark, 576 U.S. 237, 247–48 (2015). The

circumstances surrounding statements that fall

within these carveouts make them inherently reliable.

See, e.g., id. at 247 (finding that “[s]tatements by very

young children will rarely, if ever, implicate the

Confrontation Clause” because young children “have

little understanding of prosecution”). The exact

opposite is true for the statements of an alleged coconspirator: the circumstances surrounding their

creation make them inherently unreliable.

The constitutional right to confront a codefendant is especially critical both to presenting a

viable defense and demonstrating the unreliability of

co-defendant statements to the jury. New York’s

forfeiture-by-opening-the-door rule frustrates both

goals. By allowing these statements to go untested

through cross-examination, New York’s rule

29

undermines the accused’s ability to present a defense,

in violation of the Sixth Amendment. See, e.g., Lilly,

527 U.S. at 137 (finding that admission of coconspirator’s confession violated the Confrontation

Clause because the statement was not sufficiently

reliable without allowing cross-examination). This

rule also makes it more likely that juries—left to rely

on untested, unreliable statements made by

interested parties without hearing the declarant’s

motive to alter the truth—will get it wrong because

they have been misled.

This undermines the

Confrontation Clause’s purpose:

“to ensure the

reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the

context of an adversary proceeding before the trier of

fact.” Craig, 497 U.S. at 845. And it does so by

shielding from cross-examination—the “greatest legal

engine ever invented for the discovery of truth”—a

category of statements whose reliability is heavily

tainted by a strong motive to fabricate. Green, 399

U.S. at 158 (citation omitted).

CONCLUSION

For the reasons stated above and in Petitioner’s

brief, the judgment of the Court of Appeals of New

York should be reversed.

30

Respectfully submitted.

AIMEE CARLISLE

ILONA COLEMAN

DEFNE OZGEDIZ

SAUL ZIPKIN

THE BRONX DEFENDERS

360 East 161st Street

Bronx, NY 10451

ELIZABETH FISCHER

ALICE FONTIER

NEIGHBORHOOD DEFENDER

SERVICE OF HARLEM

317 Lenox Ave

New York, NY 10027

HETTIE POWELL

QUEENS DEFENDERS

118-21 Queens Blvd

Suite 212

Forest Hills, NY 11375

DAVID DEBOLD

Counsel of Record

MATTHEW GUICE AIKEN

TESSA GELLERSON*

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

ddebold@gibsondunn.com

JOEL M. COHEN

NINA MEYER

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

LISA SCHREIBERSDORF

BROOKLYN DEFENDER SERVICES

177 Livingston Street,

7th Floor

Brooklyn, NY 11201

SERGIO DE LA PAVA

NEW YORK COUNTY DEFENDER

SERVICE

100 William St

New York, NY 10038

Counsel for Amicus Curiae

* Admitted only in New York; practicing under the supervision

of Principals of the Firm.

June 29, 2021