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

No. 20-637

In the

Supreme Court of the United States

DARRELL HEMPHILL,

Petitioner,

v.

NEW YORK,

Respondent.

On Writ of Certiorari to the

Court of A ppeals of New York

BRIEF OF ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS OF NEW JERSEY AS

AMICUS CURIAE FOR THE PETITIONER

Gary S. Stein

Counsel of Record

Lisa M. Buckley

Pashman Stein Walder

Hayden P.C.

Court Plaza South, East Wing

21 Main Street, Suite 200

Hackensack, NJ 07601

(201) 488-8200

gstein@pashmanstein.com

Attorneys for Amicus Curiae

305593

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . 4

PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Berger v. California,

393 U.S. 314 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Brookhart v. Janis,

384 U.S. 1 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bullcoming v. New Mexico,

564 U.S. 647 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Chambers v. Mississippi,

410 U.S. 284 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Crawford v. Washington,

541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . passim

Freeman v. State,

765 S.E.2d 631 (Ga. Ct. App. 2014) . . . . . . . . . . . . . . 18

Johnson v. Zerbst,

304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . 13, 17

Lee v. Illinois,

476 U.S. 530 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15

Malloy v. Hogan,

378 U.S 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mattox v. United States,

156 U.S. 237 (1895) . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

iii

Cited Authorities

Page

Mattox v. United States,

156 U.S. 237 (1895) . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Michigan v. Bryant,

562 U.S. 344 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ohio v. Clark,

567 U.S. 237 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ohio v. Roberts,

448 U.S. 56 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Fisher,

154 P.3d 455 (Kan. 2007) . . . . . . . . . . . . . . . . . . . . . . 19

People v. Hardy,

418 P.3d 309 (Cal. 2018) . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Reid,

19 N.Y.3d 382 (2012) . . . . . . . . . . . . . . . . . . . . . 9, 16, 18

People v. Rogers,

317 P.3d 1280 (Colo. App. 2012) . . . . . . . . . . . . . . . . . 19

People v. Vines,

251 P.3d 943 (Cal. 2011), as modified (Aug. 10,

2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

Cited Authorities

Page

Pointer v. Texas,

380 U.S. 400 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Prasertphong,

114 P.3d 828 (Ariz. 2005) . . . . . . . . . . . . . . . . . . 18, 19

State v. Selalla,

744 N.W.2d 802 (S.D. 2008) . . . . . . . . . . . . . . . . . 18, 20

State v. White,

920 A.2d 1216 (N.H. 2007) . . . . . . . . . . . . . . . . . . . . . 18

U.S. v. Acosta,

475 F.3d 677 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 18

U.S. v. Cromer,

389 F.3d 662 (6th Cir. 2004) . . . . . . . . . . . . . . . . . 17, 18

U.S. v. Holmes,

620 F.3d 836 (8th Cir. 2010) . . . . . . . . . . . . . . . . . 17, 19

U.S. v. Moussaoui,

382 F.3d 453 (4th 2004) . . . . . . . . . . . . . . . . . . . . . . . . 18

U.S. v. Pugh,

405 F.3d 390 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . 17-18

Statutes and Other Authorities

U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . 10

v

Cited Authorities

Page

Fed. R. Evid. 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

J. Stephen, History of the Criminal Law of England

326 (1883) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1

INTEREST OF AMICUS CURIAE

Proposed amicus curiae Association of Criminal

Defense Lawyers of New Jersey (ACDL-NJ) is a nonprofit corporation organized under the laws of New Jersey

to, among other purposes, “protect and insure by rule

of law, those individual rights guaranteed by the New

Jersey and United States Constitutions; to encourage

cooperation among lawyers engaged in the furtherance of

such objectives through educational programs and other

assistance; and through such cooperation, education and

assistance, to promote justice and the common good.”1

Founded in 1985, ACDL-NJ has more than 500 members

across New Jersey.

ACDL-NJ files numerous amicus briefs each year in

the federal and state courts, seeking to provide amicus

assistance in cases that present issues of broad importance

to criminal defendants, criminal defense lawyers, and the

criminal justice system as a whole. New Jersey’s Supreme

Court has found that ACDL-NJ has the special interest

and expertise to serve as an amicus curiae in numerous

cases throughout the years.

ACDL-NJ submits this brief in support of Petitioner

because the issue presented in this case—whether a

criminal defendant “opens the door” to the admission of

testimonial hearsay by allegedly creating a misleading

1. Petitioner filed a blanket consent to the filing of amicus

briefs and Respondent consented to ACDL-NJ’s filing of an amicus

brief. No counsel for any party has authored this brief in whole or in

part, and no person or entity, other than amicus and their counsel,

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

impression-- is of critical importance to criminal defense

attorneys and their clients.

Thus, ACDL-NJ has the requisite interest to

participate as amicus curiae and believes that its

participation will be helpful to the Court.

SUMMARY OF ARGUMENT

The New York Court of Appeals’ decision that Petitioner

opened the door to the admission of testimonial hearsay

to correct a misleading impression he created violates

this Court’s edict in Crawford v. Washington: “Where

testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is

confrontation.” 541 U.S. 36, 68-69 (2004). Petitioner had

no opportunity to cross examine his accuser, and the trial

court’s admission of the accuser’s plea allocution at trial

robbed Petitioner of his fundamental constitutional right

under the Confrontation Clause of the Sixth Amendment.

The Sixth Amendment right of a defendant to confront

witnesses against her is not absolute. A defendant may

waive her constitutional rights, but “opening the door”

by creating a misleading impression does not constitute

a waiver. It is not based upon knowing and intentional

conduct by the defendant, but upon the perception of a

trial court.

Moreover, the dual inquiries whether a defendant

created a misleading impression, and what testimonial

hearsay is necessary to correct it, are intolerably subjective,

and therefore unpredictable. The “unpardonable vice” of

New York’s test, however, is “its demonstrated capacity to

3

admit core testimonial statements that the Confrontation

Clause plainly meant to exclude.” Id. at 63. The truthfinding function of the Confrontation Clause “is uniquely

threatened when an accomplice’s confession is sought to

be introduced against a criminal defendant without the

benefit of cross-examination.” Lee v. Illinois, 476 U.S.

530, 530 (1986).

To resolve the split in the Federal Circuit Courts, 2

amicus respectfully urges this Court to adopt a rule

that, under the Sixth Amendment, testimonial hearsay is

admissible only where defendant waives her constitutional

right by introducing a portion of a testimonial hearsay

statement as a strategy or tactic. The prosecutor then

may admit the full statement of the same declarant on

the same topic.

In that context, the waiver analysis is not subjective.

The court need not determine whether a defendant created

a misleading impression, or what testimonial hearsay is

necessary to correct it. The waiver of a constitutional

right must be intentional and knowing, yet a defendant

can create a “misleading impression” without intending

to. Further, one court may conclude that the defendant

created a misleading impression, while another court may

not. To avoid the unpredictability inherent in a subjective

analysis, a waiver should require an intentional act by

the defendant based upon a strategic trial decision to

introduce only part of a testimonial hearsay statement.

In response, the prosecution may admit the rest of the

declarant’s statement on the same topic.

2. See, infra, note 8.

4

Moreover, public policy supports the approach

advocated by amicus insofar as it balances the sanctity of

a defendant’s confrontation right against the legitimate

concern about the fairness of permitting a defendant to use

only that testimonial hearsay she likes, while prohibiting

the prosecution from admitting the rest of the declarant’s

statement. It is also fair to defendants because they

cannot fall into the open-the-door trap. A waiver requires

intentional conduct by the defendant, and is not based upon

a court’s impression.

FACTUAL BACKGROUND

On Easter Sunday, in April 2006, Ronnell Gilliam

(Gilliam) and a companion were involved in a street fight

with a group of several people. 3 Pet. App. 8a-9a. After

the fight broke up, a man believed to be associated with

Gilliam drove by and opened fire, killing a 2-year old

child in a passing minivan. Ibid. Eyewitnesses identified

Gilliam as one of the men involved in the fight. Id. at 9a.

Eyewitnesses identified Gilliam’s companion as a thin

black man wearing a blue shirt or sweater. Id. at 3a. The

murder weapon was a 9 mm handgun. Id. at 23.

The police suspected that it was Gilliam’s best friend,

Nicholas Morris (Morris), who was the shooter. Id. at 3a.

Within hours of the shooting, police searched Morris’s

home and found a 9 mm cartridge, the type of ammunition

used in the shooting, and ammunition for a .357 revolver.

Id. at 9a. Morris was arrested and taken into custody.

3. The facts are based upon the parties’ filings with this

Court because the case file is not available from the New York

courts.

5

Ibid. When police searched Gilliam’s apartment that night

they found a blue sweater in a plastic bag. Id. at 10a-11a.

The officer who opened the bag said it smelled of burnt

gunpowder residue. Id. at 11a.

Gilliam knew that night that the police were looking for

him, and not wanting to be found, Gilliam and his cousin,

defendant Darrell Hemphill (Hemphill or Petitioner),

decided to flee together to North Carolina. Id. at 12a.

While on the run, Mr. Hemphill told Gilliam that Morris

went on television and pointed to Gilliam as the shooter.

Ibid. Mr. Hemphill urged Gilliam to go back to New York

and tell police that Morris was the shooter. Ibid. Within

days of the murder, Gilliam surrendered to the police in

New York, and in an interview with detectives, fingered

Morris as the shooter. Ibid. Gilliam told detectives that

he disposed of the murder weapon, at which point he was

arrested and charged with hindering prosecution and

tampering with evidence. Ibid. Gilliam pled guilty to the

charges.

The detectives allowed Gilliam to speak with Morris

from jail. Morris denied identifying Gilliam as the shooter.

Pet. App. 4a (Fahey, J., dissenting); J.A. 175. Apparently,

Gilliam believed Morris because, in a second interview

with detectives, Gilliam recanted his statement against

Morris and told police that Mr. Hemphill was the shooter.

Pet. App. 12a. Gilliam told detectives that after the

shooting, he met up with Morris and Mr. Hemphill at his

apartment, where Mr. Hemphill took off the blue sweater.

Id. at 11a. Gilliam said that Mr. Hemphill told him to get

rid of the sweater and the guns-- a .357 caliber revolver

that Gilliam said belonged to Morris, and a 9 mm handgun

that he said belonged to Mr. Hemphill. Ibid. Gilliam got

6

rid of the guns, but he forgot about the blue sweater. Id.

at 12a.

The investigators did not act on Gilliam’s new

statement. Relying on what they considered the strength

of their evidence against him, the state indicted Morris

for the child’s murder and possession of a 9 mm handgun.

Id. at 9a, J.A. 5-17. During Morris’s trial, the results of a

DNA analysis of the blue sweater came in and Morris was

not a match. Ibid. The trial judge declared a mistrial. Ibid.

Rather than retry him, prosecutors offered Morris a

deal: if he agreed to plead guilty to possession of a firearm

at the scene of the shooting, the state would request that

the murder charge be dropped with prejudice, and that

Morris, who by then already had been incarcerated for

two years, immediately be released from prison. Id. at

9a, 16a. Morris agreed to take the plea. Id. at 9a. The

prosecutors then filed a new information charging Morris

with possession of a .357 revolver at the scene, as opposed

to a 9 mm handgun, as originally charged. Id. at 9a. In the

course of pleading guilty to the revised charge, Morris

admitted to possession of a .357 revolver at the scene and

was released from jail. Ibid.

Several years later in 2011, police determined that

the DNA on the blue sweater found in Gilliam’s apartment

matched Mr. Hemphill. Id. at 9a-10a. In 2013, Mr. Hemphill

was arrested and indicted. Id. at 10a. In 2015, he was tried

for second-degree murder. Ibid. The prosecution’s new

theory was that Gilliam had acted with two companions,

Morris and Mr. Hemphill, and that Mr. Hemphill was the

shooter. J.A. 356. Mr. Hemphill’s defense was that Gilliam

only had one companion, Morris, and that Morris was the

shooter. Pet. App. 16a-17a.

7

Mr. Hemphill did not testify at his trial. Gilliam

testified as part of his plea agreement. Id. at 4a. He

testified that the 9 mm handgun belonged to Mr. Hemphill.

Id. at 11a. During the trial, defense counsel elicited

testimony that on the night of the shooting, police found

a 9 mm cartridge on Morris’s nightstand. J.A. 132-34.

The prosecution then sought to rebut that testimony by

introducing Morris’s statement in his plea allocution that

he had only a .357 revolver at the scene of the shooting.

Id. at 138-41.

Morris did not testify at Mr. Hemphill’s trial and his

plea allocution is testimonial hearsay evidence.4 The trial

4. In Crawford v Washington, the Court discussed when a

statement is “testimonial,” but did not purport to identify every

possible scenario. 541 U.S. 36, 68 (2004). The Court readily concluded,

however, that a statement given to police in connection with a criminal

case undoubtedly is testimonial. In this case, Morris’s statements in

his plea allocution are testimonial. Id. at 53. A testimonial statement

is hearsay only where, as here, it is admitted for the truth of the

matter. See also, Ohio v. Clark, 567 U.S. 237, 246-49 (2015) (holding

that Confrontation Clause did not bar introduction of statements

child made to preschool teacher regarding abuse committed by

the defendant because it occurred in the context of an ongoing

emergency involving suspected child abuse); Bullcoming v. New

Mexico, 564 U.S. 647, 663 (2011) (concluding that Confrontation

Clause did not permit prosecution to introduce forensic laboratory

report containing a testimonial certification made to prove a fact at a

criminal trial through in-court testimony of analyst who did not sign

the certification or personally perform or observe the performance

of the test reported in certification); Michigan v. Bryant, 562 U.S.

344, 358 (2011) (ruling that, when “the primary purpose of an

interrogation is to respond to an ‘ongoing emergency,’ its purpose

is not to create a record for trial and thus is not within the scope of

the [Confrontation] Clause.”); Melendez-Diaz v. Massachusetts, 557

U.S. 305, 311 (2009) (holding that forensic laboratory certificates

8

court admitted Morris’s statement allegedly to correct

a misleading impression that defense counsel created by

suggesting that Morris was the shooter. Id. at 184-85. Mr.

Hemphill thus opened the door to the admission of Morris’s

allocution. The prosecution relied on Morris’s allocution

to argue that, because the murder weapon was a 9 mm

handgun and Morris had the .357 revolver, Morris could

not have been the shooter. Id. at 355-56.

Mr. Hemphill was convicted of second degree murder.

Pet. App. 1a.

PROCEDURAL BACKGROUND

On appeal, Mr. Hemphill argued that the trial court’s

admission of part of Morris’s plea allocution violated his

Sixth Amendment right to confront his accuser. Id. at

16a-17a. The Appellate Division rejected the argument.

It held that by eliciting testimony that on the night of

the shooting police found a 9 mm cartridge on Morris’s

nightstand, defense counsel “created a misleading

impression that Morris possessed a 9 millimeter handgun,

which was consistent with the type used in the murder,

and introduction of the plea allocution was reasonably

necessary to correct that misleading impression.” 5 Id.

at 17a.

asserting that substance found in defendant›s car was cocaine

were testimonial and could be admitted only through preparers

to avoid violating defendant›s rights under Confrontation Clause).

5. Justice Manzanet-Daniels dissented, but not on Sixth

Amendment grounds. She found the state’s evidence to be

insufficient to support his conviction.

9

In a short opinion issued on June 25, 2020, the New

York Court of Appeals summarily affirmed the Appellate

Division’s decision, concluding that the trial court did

not abuse its discretion by admitting evidence that the

allegedly culpable third party, Morris, pled guilty to

possessing a firearm other than the murder weapon. Pet.

App. 1a-3a.

The Appellate Division’s decision, on which the New

York Court of Appeals relied, based its ruling primarily

on People v. Reid, 19 N.Y.3d 382 (2012). Pet. App. 16a-17a.

That case held that the defendant opened the door to

the admission of testimonial hearsay and that that

evidence was reasonably necessary to correct defendant’s

misleading questioning. Reid, 19 N.Y3d at 388. Reid

involved a deadly shooting that occurred during a botched

robbery attempt. Id. at 385. The day after the murder,

Reid told an acquaintance that he had killed someone the

night before. Ibid. Reid identified Joseph and McFarland

as participating in the shooting. Ibid. Some time later, the

victim’s friend contacted police and identified Joseph as

a suspect. Ibid. Joseph’s confession to police implicated

Reid in the murder. Ibid.

The defense theory at trial was that the police

investigation of the murder was inadequate. Id. at 386.

Reid’s acquaintance, who testified for the state about Reid’s

confessed involvement, also implicated a third participant,

McFarland. Id. at 385-86. On cross examination, the

acquaintance agreed with defense counsel that, although

he had informed police about McFarland, McFarland was

never arrested Ibid. The defense also called as a witness a

federal agent who testified that he, too, had been informed

during his investigation that McFarland was involved.

10

Id. at 386. On cross examination of the federal agent,

the prosecutor was permitted to ask, over the defense’s

objection, if he, in fact, had heard eyewitness testimony

confirming that McFarland was not at the murder scene.

Ibid. The agent agreed. Ibid.

Reid was found guilty of second degree murder.

Id. at 387. On appeal, the Appellate Division reversed,

finding that defendant had been denied the right to

confront witnesses. Ibid. The Court of Appeals reversed

the Appellate Division, concluding that the defendant had

opened the door to the admission of the co-conspirator’s

confession by creating a misleading impression that

McFarland’s involvement was ignored by police. Id. at

387-89.

ARGUMENT

The Sixth A mendment’s Confrontation Clause

provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. The

Court has held that this “bedrock procedural guarantee,”

Crawford v. Washington, supra, 541 U.S. at 42, is “to

be enforced against the States under the Fourteenth

Amendment according to the same standards that protect

those personal rights against federal encroachment.”

Pointer v. Texas, 380 U.S. 400, 406 (1965) (quoting Malloy

v. Hogan, 378 U.S 1, 10 (1964)).

The Cour t def initively interpreted the Si xth

Amendment right to confrontation in Crawford, holding

that “[w]here testimonial statements are at issue, the only

indicium of reliability sufficient to satisfy constitutional

11

demands is the one the Constitution actually prescribes:

confrontation.” Id. at 68-69. The Court’s pronouncement

is unequivocal. It leaves no room for the admission of

testimonial hearsay because a defendant “opened the

door” by “creating a misleading impression.” Indeed,

“[l]eaving the regulation of out-of-court statements to the

law of evidence would render the Confrontation Clause

powerless to prevent even the most flagrant inquisitorial

practices.” Id. at 51. Crawford compels the reversal of the

New York Court of Appeals’ Decision.

In Crawford, defendant was tried for assault and

attempted murder. Id. at 40. His wife witnessed the attack,

but he prevented her from testifying at trial by invoking

the marital privilege. Id. at 39-40. The prosecution

sought to introduce the wife’s recorded statement made

during police interrogation as evidence that the attack

was not in self-defense. Id. at 40. Defendant objected

on Sixth Amendment grounds. Ibid. Relying on Ohio v.

Roberts, 448 U.S. 56 (1980), the trial court admitted the

wife’s testimonial statement because it bears “indicia of

reliability,” a hearsay exception, or bears “particularized

guarantees of trustworthiness.” Crawford, 541 U.S. at

40 (quoting Roberts, 448 U.S. at 66). The appellate court

ultimately upheld the conviction.

In Crawford, the Court examined the founders’ intent

in constitutionalizing the right to confront one’s accusers

and concluded that the Roberts test departed from

centuries-old principles by admitting testimonial hearsay

statements “upon a mere finding of reliability.” 541 U.S.

at 60. The Crawford Court reversed the defendant’s

conviction and overruled Roberts, in part, holding that the

admission of the wife’s testimonial hearsay violated the

12

Confrontation Clause because there was no opportunity

for cross examination. Id. at 68-69.

Justice Scalia painstakingly traced the root of

the concept of confronting one’s accusers back to Roman

times, but showed that the founders’ source was the

English common-law, which had a “tradition . . . of live

testimony in court subject to adversarial testing.” Id. at 43.

But England also had a civil-law practice that permitted

officials to examine suspects and witnesses before trial

and read the statements in court in lieu of live testimony-a practice which “occasioned frequent demands by the

prisoner to have his `accusers,’ i.e. the witnesses against

him, brought before him face to face.” Ibid. (quoting 1 J.

Stephen, History of the Criminal Law of England 326

(1883)). “[N]otorious instances of civil-law examination

occurred in the great political trials of the 16th and 17th

centuries.” Id. at 44.

Justice Scalia singled out the trial of Sir Walter

Raleigh for treason as one such notorious instance that

was at the forefront of the founders’ mind in ratifying the

Confrontation Clause. Ibid. Raleigh’s alleged accomplice,

Lord Cobham, implicated Raleigh in an examination

before the Crown’s Privy Council and a letter. Ibid. At

Raleigh’s trial, the examination and the letter were read

to the jury. Ibid. Raleigh demanded that the judges “[c]all

my accuser before my face,” but the judges refused to call

Cobham to appear. Ibid. (quoting Raleigh’s Case, 2 How.

St. Tr. 1, 15–16, 24 (1603)). Despite Raleigh’s protestations

that he was being tried “by the Spanish Inquisition,”

the jury convicted him, and Raleigh was sentenced to

death. Ibid. (citing 2 How. St. Tr., at 15). “It was these

practices that the Crown deployed in notorious treason

13

cases like Raleigh’s . . . that English law’s assertion of a

right to confrontation was meant to prohibit; and that the

founding-era rhetoric decried.” Id. at 50. Through a series

of statutory and judicial reforms, English law developed “a

right of confrontation that limited these abuses.” Id. at 44.

“Raleigh’s trial has long been thought a paradigmatic

confrontation violation.” Crawford, 541 U.S. at 52. In

Revolutionary times, a number of state declarations

of rights guaranteed a right of confrontation. Id. at 48

(citations omitted). The proposed Federal Constitution

did not, prompting passionate objections. Id. at 48-49. The

first Congress’ responded by including the Confrontation

Clause in the proposal that became the Sixth Amendment.

Id. at 49; See Johnson v. Zerbst, 304 U.S. 458, 462 (1938)

(“Omitted from the Constitution as originally adopted,

provisions of this and other Amendments were submitted

by the first Congress … as essential barriers against

arbitrary or unjust deprivation of human rights.”).

The Confrontation Clause envisions:

a personal examination and cross-examination

of the witness, in which the accused has an

opportunity, not only of testing the recollection

and sifting the conscience of the witness, but of

compelling him to stand face to face with the

jury in order that they may look at him, and

judge by his demeanor upon the stand and the

manner in which he gives his testimony whether

he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242 (1895).

14

Those means of testing the accuracy and credibility of

an accuser’s testimony are so important that the absence

of proper confrontation at trial “calls into question the

ultimate ‘integrity of the fact-finding process.’” Chambers

v. Mississippi, 410 U.S. 284, 295 (1973) (quoting Berger

v. California, 393 U.S. 314, 315 (1969)). Thus, “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.” Crawford,

541 U.S. at 53-54.

Criticizing Roberts’ “reliability” test, the Crawford

Court noted that “[w]here testimonial statements are

involved, we do not think the Framers meant to leave the

Sixth Amendment’s protection to the vagaries of the rules

of evidence, much less to amorphous notions of ‘reliability.’”

Id. at 61. The Confrontation Clause’s “ultimate goal is to

ensure reliability of evidence, but it is a procedural rather

than a substantive guarantee. It commands, not that

evidence be reliable, but that reliability be assessed in

a particular manner: by testing in the crucible of crossexamination.” Ibid.

The Crawford Court further found Roberts’ framework

to be unpredictable because “[w]hether a statement is

deemed reliable depends heavily on which factors the

judge considers and how much weight he accords each of

them.” Id. at 63. Moreover, “[r]eliability is an amorphous,

if not entirely subjective, concept.” Ibid. This “malleable

standard often fails to protect against paradigmatic

confrontation violations.” Id. at 60.

“The unpardonable vice of the Roberts test, however,

is not its unpredictability, but its demonstrated capacity to

15

admit core testimonial statements that the Confrontation

Clause plainly meant to exclude.” Id. at 63. So too here.

As the Court explained in Lee v. Illinois, supra, the

Court’s precedent is “premised on the basic understanding

that when one person accuses another of a crime under

circumstances in which the declarant stands to gain by

inculpating another, the accusation is presumptively

suspect and must be subjected to the scrutiny of crossexamination.” 476 U.S. at 541. The truth-finding function

of the Confrontation Clause “is uniquely threatened when

an accomplice’s confession is sought to be introduced

against a criminal defendant without the benefit of crossexamination.” Ibid.

The New York Court of Appeals’ decision is entirely at

odds with the Court’s dictate in Crawford. Morris’s plea

allocution admitted against Petitioner was not subject

to prior cross examination, and the “text of the Sixth

Amendment does not suggest any open-ended exceptions

from the confrontation requirement” other than “those

established at the time of the founding.” Id. at 54 (citing

Mattox v. United States,156 U.S. 237, 243 (1895)).6 Opening

the door to the admission of testimonial hearsay to correct

a “misleading impression” is a vague, amorphous and

unrecognized exception to the confrontation requirement.

The New York Court of Appeals’ decision undermines

the integrity of the fact-finding process and should be

reversed.

6. The Court previously acknowledged that two forms of

testimonial statements were admitted at common law even though

they were unconfronted, namely, dying declarations and forfeiture

by wrongdoing. Crawford, 541 U.S. at 56 n.6 (citing Mattox, supra,

156 U.S. at 243–244 (citation omitted).

16

Similar to the Roberts test, the New York Court

of Appeals test-- whether, and the extent to which a

defendant created a misleading impression, and if so,

what testimonial hearsay is necessary to correct it-- is

subjective and highly unpredictable. Petitioner’s counsel

asked a witness at trial whether it was true that, on the

night of the murder, police found a 9 mm cartridge on

Morris’s nightstand. The witness said it was true and in

fact it was true. By eliciting testimony that Morris had

possession of a 9 mm cartridge, defense counsel was not

offering evidence that Morris owned a 9mm handgun.

Therefore, Morris’s testimonial hearsay that he did not

own a 9 mm handgun clearly was inadmissible. There was

no “misleading impression” that required clarification.

Similarly, People v. Reid, supra, exemplifies the

subjectivity of the “misleading impression” analysis.

19 N.Y.3d at 388-39. There, defense counsel elicited

testimony that investigators “had received information”

that a third person was involved in the shooting, and that

he was never arrested. Id. at 386. The trial court found

that defense counsel created a “misleading impression”

about the third person’s participation, a completely

improper and subjective finding of fact encroaching on

the jury’s prerogative.

Concluding that defense counsel “opened the door

about McFarland being there,” however, the trial court

admitted testimonial hearsay from an eyewitness who

allegedly told a federal agent that the third person,

McFarland, was not there.7 Ibid. That highly irregular

7. The Court of Appeals’ opinion in Reid does not reveal

what defense counsel asked or said that created a misleading

impression.

17

and standardless determination by the trial court is

irreconcilable with the holding and rationale of Crawford,

which clearly rejected judicial determinations of reliability

as a substitute for the constitutional guarantee of

confrontation.

Like virtually every other constitutional right, a

defendant may waive her Sixth Amendment right to

confrontation. Yet, there is “a presumption against the

waiver of constitutional rights,” and for a waiver to be

effective, it must be clearly established that there was “an

intentional relinquishment or abandonment of a known

right or privilege.” Brookhart v. Janis, 384 U.S. 1, 4 (1966)

(holding that there is no waiver of Sixth Amendment

confrontation right where defendant’s counsel purported

to waive defendant’s right without defendant’s consent)

(quoting in part Johnson v. Zerbst, 304 U.S. 458, 464

(1938)).

A defendant does not waive her Sixth Amendment

right by opening the door to the admission of testimonial

hearsay by creating a “misleading impression” merely

because a court subjectively determines that defendant

created a misleading impression. See U.S. v. Holmes, 620

F.3d 836, 844 (8th Cir. 2010) (holding that defendant can

waive his right to confront witnesses if he opens the door,

but a waiver must be clear and intentional, and simply

asking questions on cross-examination does not constitute

a waiver); U.S. v. Cromer, 389 F.3d 662, 677-78, (6th

Cir. 2004) (finding that defendant opened door by asking

detective if an informant told her defendant’s nickname,

but admission of informant’s testimonial hearsay that

the man with the nickname had been involved with the

illegal drug activity, violated Sixth Amendment); U.S.

18

v. Pugh, 405 F.3d 390, 400 (6th Cir. 2010) (concluding

that defendant’s questions may have “opened the door,”

but “government overstepped constitutional bounds” by

admitting a witness’s positive identification of defendants

from crime scene pictures).

A majority of the courts that have considered the issue

have held that testimonial hearsay may be admitted only

where a defendant questions a witness about a portion

of a testimonial hearsay statement, in which case the

prosecutor may admit other portions of the statement

by the same declarant on the same topic. 8 Although the

8. Petitioner contends that federal and state courts are divided

into 3 camps on the issue whether, or under what circumstances,

criminal defendants open the door to the admission of evidence at

trial that otherwise would be barred by the Confrontation Clause.

According to Petitioner, three jurisdictions hold that a defendant

never forfeits the right of confrontation by presenting a defense at

trial. (Citing U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004); U.S. v.

Holmes, 620 F.3d 836 (8th Cir. 2010); Freeman v. State, 765 S.E.2d

631 (Ga. Ct. App. 2014)). Petitioner identifies five jurisdictions that

supposedly have adopted an intermediate position that when a

defendant introduces testimonial hearsay, he forfeits the right to

exclude other testimonial statements by the same declarant on the

same subject. (Citing U.S. v. Moussaoui, 382 F.3d 453 (4th 2004);

State v. Prasertphong, 114 P.3d 828 (Ariz. 2005); People v. Vines,

251 P.3d 943 (Cal. 2011), as modified (Aug. 10, 2011), overruled

by People v. Hardy, 418 P.3d 309 (Cal. 2018); State v. Selalla, 744

N.W.2d 802 (S.D. 2008)). Petitioner argues that three jurisdictions

hold that whenever a defendant creates a misleading impression at

trial, he forfeits the right to exclude responsive evidence otherwise

barred by the Confrontation Clause even if the defendant did not

introduce testimonial hearsay by the declarant whose statement the

prosecution seeks to introduce. (Citing U.S. v. Acosta, 475 F.3d 677

(5th Cir. 2007); People v. Reid, supra, 971 N.E.2d at 353; and State

v. White, 920 A.2d 1216 (N.H. 2007)).

19

“outcomes of the cases have been comparable, the same

cannot be said of [their] rationales.” Crawford, 541 U.S.

at 60.

Several of the courts that have addressed the issue

used a waiver analysis. See U.S. v. Holmes, supra, 620

F.3d at 842. See also People v. Rogers, 317 P.3d 1280,

1284 (Colo. App. 2012) (noting that defendant intentionally

opened the door to the Confrontation Clause violation

by her strategic trial decision to introduce the nontestifying driver’s hearsay statement); See also People

v. Fisher,154 P.3d 455, 482-83 (Kan. 2007) (observing

that discussion of defendant’s companion was first

initiated by defense counsel when questioning police

officer permitting prosecutor to introduce statement in

its entirety; defendant waives Sixth Amendment right to

confrontation when he opens an otherwise inadmissible

area of evidence; prosecution may then present evidence

in that “formerly forbidden sphere”).

Other courts have permitted the admission of

testimonial hearsay under the rule of completeness, an

evidentiary rule codified in Fed. R. Evid. 106, which

provides that “[i]f a party introduces all or part of a

writing or recorded statement, an adverse party may

require the introduction, at that time, of any other part--or

any other writing or recorded statement--that in fairness

ought to be considered at the same time.” See State v.

Prasertphong, 114 P.3d 828, 833 (Ariz. 2005) (holding that

under rule of completeness defendant had “forfeited his

Confrontation Clause right not to have [his codefendant’s]

entire statement admitted against him when he made the

tactical decision to introduce portions of the statement

that, standing alone, had the serious potential to mislead

20

the jury.”); State v. Selalla, 744 N.W.2d 802, 818 (S.D. 2008)

(concluding that defendant’s introduction of favorable

testimonial hearsay “would properly enable the state to

complete the picture by eliciting other evidence from the

rest of [the statement].”).

The language of Fed. R. Evid. 106 is broad. Where

a defendant makes the tactical decision to introduce

portions of a testimonial statement, on its face, Rule 106

does not limit an adverse party to introducing the entire

testimonial statement, but also permits the admission

of “any other writing or recorded statement.” What an

adverse party may introduce is bounded only by what a

court decides “in fairness ought to be considered at the

time.” Fed. R. Evid. 106. That “fairness” determination is

just as subjective as the intolerably subjective “misleading

impression” standard and, therefore, it should not apply in

the context of the Sixth Amendment. In other words, the

waiver standard advocated by amicus is narrower than

what Rule 106 may allow.

A m ic u s r e sp e c t f u l ly u r g e s t h at t he C ou r t

constitutionalize the standard that a defendant shall be

deemed to have waived her right to confront her accusers

at trial only where she makes the tactical decision to

introduce portions of a testimonial statement, but the

waiver should be limited to permit the adverse party to

admit only other portions, or the entirety, of the same

statement of the same declarant that relate to the same

topic. That test balances the sanctity of a defendant’s

confrontation right against the legitimate concern about

the fairness of permitting a defendant to use only that

testimonial hearsay she likes, while prohibiting the

prosecution from admitting the rest of the statement by

21

the declarant on the same topic. See Reid, 971 N.E.2d at

388 (expressing concern that defendants can use the Sixth

Amendment as a sword and a shield “revealing only those

details of a testimonial statement that are helpful to the

defense, while concealing from the jury other details that

would tend to explain the portions introduced and place

them in context.”).

CONCLUSION

Because his Sixth Amendment right of confrontation

was violated, Mr. Hemphill’s conviction should be reversed

and the matter remanded for a new trial.

Respectfully submitted,

Gary S. Stein

Counsel of Record

Lisa M. Buckley

Pashman Stein Walder

Hayden P.C.

Court Plaza South, East Wing

21 Main Street, Suite 200

Hackensack, NJ 07601

(201) 488-8200

gstein@pashmanstein.com

Attorneys for Amicus Curiae

Dated: June 29, 2021