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

No. 20-637

In the

Supreme Court of the United States

DARRELL HEMPHILL,

Petitioner,

v.

STATE OF NEW YORK,

Respondent.

On Writ of Certiorari to the

Court of A ppeals of New York

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,

THE NEW YORK CIVIL LIBERTIES UNION, AND THE

RUTHERFORD INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

David D. Cole

A merican Civil Liberties

Union Foundation

915 15th Street NW

Washington, DC 20005

(202) 457-0800

Attorney for Amicus Curiae

the American Civil Liberties

Union

Cecillia Wang

Ezekiel Edwards

Jennesa Calvo-Friedman

A merican Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

Attorneys for Amicus Curiae

the American Civil Liberties

Union

Caitlin Halligan*

Claire O’Brien

A dam K. Hersh

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, NY 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

John W. Whitehead

Douglas M. McKusick

The Rutherford Institute

109 Deerwood Road

Charlottesville, VA 22906

(434) 978-3888

Attorneys for Amicus Curiae

The Rutherford Institute

* Counsel of Record

(For Continuation of Appearances See Inside Cover)

June 29, 2021

305134

Christopher Dunn

Daniel R. Lambright

New York Civil Liberties

Union Foundation

125 Broad Street, 19th Floor

New York, NY 10004

(212) 607-3300

Attorneys for Amicus Curiae

New York Civil Liberties Union

QUESTION PRESENTED

Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also

forfeits his right to exclude evidence otherwise barred

by the Confrontation Clause.

i

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES ....................................... iv

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

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

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

I.

Courts Have No Authority to Devise

Equitable Exceptions to Textually

Mandated Constitutional Trial Rights......... 4

A.

Constitutional Provisions Mandating

Specific Trial Rights Must Be

Enforced as Written ...................................... 6

B.

Only Judge-Made Rules, Not

Mandated by the Constitution, May

Be Subject to Judge-Made Equitable

Exceptions Not Grounded in Text or

Original Meaning ........................................ 11

II. New York’s Judge-Made Equitable

Exception to the Confrontation

Clause Is Unconstitutional ........................... 14

A.

The “Opening the Door” Exception to

the Confrontation Clause Lacks Any

Grounding in the Founding Era ................. 14

ii

B.

The “Opening the Door” Exception to

the Confrontation Clause

Contravenes the Text and Purpose of

the Clause ................................................... 16

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Barker v. Wingo,

407 U.S. 514 (1972) ........................................... 11

California v. Green,

399 U.S. 149 (1970) ..................................... 16, 19

Coy v. Iowa,

487 U.S. 1012 (1988) ................................... 16, 18

Crawford v. Washington,

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

Davis v. Alaska,

415 U.S. 308 (1974) ........................................... 22

Dickerson v. United States,

530 U.S. 428 (2000) ........................................... 12

Giles v. California,

554 U.S. 353 (2008) ................................... passim

Illinois v. Allen,

397 U.S. 337 (1970) ........................................... 10

James v. Illinois,

493 U.S. 307 (1990) ..................................... 12, 13

Kansas v. Ventris,

556 U.S. 586 (2009) ................................. 9, 12, 13

Kentucky v. Stincer,

482 U.S. 730 (1987) ........................................... 18

iv

Maryland v. Craig,

497 U.S. 836 (1990) ......................... 10, 11, 16, 19

Mattox v. United States,

156 U.S. 237 (1895) ........................................... 19

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ........................................... 10

Michigan v. Harvey,

494 U.S. 344 (1990) ..................................... 13, 14

Michigan v. Tucker,

417 U.S. 433 (1974) ........................................... 14

Mincey v. Arizona,

437 U.S. 385 (1978) ............................................. 9

Miranda v. Arizona,

384 U.S. 436 (1966) ........................................... 12

Montejo v. Louisiana,

556 U.S. 778 (2009) ........................................... 13

New Jersey v. Portash,

440 U.S. 450 (1979) ............................................. 9

Oregon v. Hass,

420 U.S. 714 (1975) ........................................... 13

People v. Reid,

19 N.Y.3d 382 (2012) ................................. passim

People v. Richardson,

95 A.D.3d 1039 (2d Dep’t 2012) ........................ 20

v

Powell v. Alabama,

287 U.S. 45 (1939) ............................................... 9

Schriro v. Summerlin,

542 U.S. 348 (2004) ............................................. 8

Taylor v. Illinois,

484 U.S. 400 (1988) ........................................... 10

United States v. Acosta,

475 F.3d 677 (5th Cir. 2007) ............................. 16

United States v. Cruz-Diaz,

550 F.3d 169 (1st Cir. 2008) .............................. 16

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ................................... passim

United States v. Holmes,

620 F.3d 836 (8th Cir. 2010) ............................. 16

United States v. Leon,

468 U.S. 897 (1984) ........................................... 13

United States v. Lopez-Medina,

596 F.3d 716 (10th Cir. 2010) ........................... 16

United States v. Stratton,

649 F.2d 1066 (5th Cir. Unit A July

1981)..................................................................... 8

Consitutional Provisions

U.S. Const. amend. VI .................................... passim

U.S. Const. art. III, § 2, cl. 3..................................... 8

vi

Rules & Regulations

Fed. R. Crim. P. 21 ................................................... 8

Other Authorities

Webster, An American Dictionary of the

English Language (2d ed. 1828) ....................... 16

vii

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union

(ACLU) is a nationwide, nonprofit, nonpartisan organization with nearly two million members and supporters dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civilrights laws. Since its founding more than 100 years

ago, the ACLU has appeared before this Court in numerous cases, both as direct counsel and as amicus curiae.

The New York Civil Liberties Union

(NYCLU) is a statewide affiliate of the national

ACLU.

The Rutherford Institute is an international

nonprofit organization headquartered in Charlottesville, Virginia. Founded in 1982 by its President,

John W. Whitehead, the Institute specializes in

providing legal representation without charge to individuals whose civil liberties are threatened or infringed and in educating the public about constitutional and human rights issues. The Rutherford Institute works tirelessly to resist tyranny and threats to

freedom, ensuring that the government abides by the

rule of law and is held accountable when it infringes

on the rights guaranteed to persons by the Constitution and laws of the United States.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole or

in part, and no person or entity other than amici curiae or their

counsel made a monetary contribution to this brief’s preparation

or submission. All parties have consented to the filing of this

brief.

SUMMARY OF ARGUMENT

The Constitution requires that defendants be

afforded certain specific trial procedures—including

the right to be confronted with witnesses against

them—and courts may not dilute these guarantees or

deviate from prescribed procedures on a case-by-case

basis because they deem their application unfair or unnecessary. The New York Court of Appeals, however,

has developed a doctrine that permits just that. Under

the rule created in People v. Reid, 19 N.Y.3d 382

(2012), and applied in this case, a trial court may determine that a criminal defendant has “opened the

door” to the admission of evidence otherwise barred by

the Confrontation Clause if the court determines, in its

discretion, that such evidence is “reasonably necessary

to correct” an “incomplete and misleading” impression

created by the defendant’s evidence or argument. Id.

at 388 (internal quotation marks and citation omitted).

This exception, which is grounded only in subjective

judicial notions of fairness, is supported by neither the

text of the Confrontation Clause nor the scope of the

confrontation right at the time of the founding. Id.

Such an open-ended, discretionary standard, based on

the judge’s own assessment of the facts, violates the

core purpose of the Confrontation Clause, and risks penalizing defendants simply for contradicting the prosecution’s case.

Where the Constitution requires a trial to proceed in a particular manner, “[i]t is not the role of

courts to extrapolate from the words of the [Constitution] to the values behind it, and then to enforce its

guarantees only to the extent they serve (in the courts’

views) those underlying values.” Giles v. California,

554 U.S. 353, 376 (2008). Instead, courts must apply

2

the Constitution as written. New York’s “opening the

door” rule fails to do so. It conflates two very different

classes of criminal trial rights: those required by the

Constitution’s text on the one hand, and those created

by judges as prophylactic or remedial measures on the

other. Only the latter class of judge-made trial rights

may, in certain circumstances, be subjected to judgemade equitable exceptions.

This Court has recognized only two narrow exceptions to the otherwise categorical right of confrontation: dying declarations and forfeiture when the defendant engages in conduct designed to prevent the

witness from testifying. Both exceptions existed at the

time of the founding, and thus are part of the right as

originally understood, rather than being founded on

judges’ subjective sense of equity. New York’s judgemade rule falls into neither of these categories. It permits judges to override the Confrontation Clause

whenever they believe doing so is “reasonably necessary” to correct a misleading defense presentation.

Reid, 19 N.Y.3d at 387. As such, it strikes at the heart

of the Confrontation Clause, replacing a predictable,

specific procedure for assessing reliability through

cross-examination and jury factfinding with ad hoc

and standardless judicial determinations of “fairness.” Id. at 388. Accordingly, the Reid rule is unconstitutional, and the Court should reverse the decision

below.

3

ARGUMENT

I.

Courts Have No Authority to Devise Equitable Exceptions to Textually Mandated

Constitutional Trial Rights

When the Constitution’s text guarantees a particular trial right, courts lack authority to create

judge-made equitable exceptions, ungrounded in text

or history, simply because they deem the resulting

trial “unfair” or “misleading.” The Confrontation

Clause guarantees a defendant the right to be confronted with the witnesses against him, and leaves no

room for courts to limit that right based on their own

sense of equity. Yet New York’s approach effectively

rewrites the constitutional guarantee, making it subject to atextual and open-ended judicial discretion.

The court below employed a judge-made equitable doctrine to override Petitioner Darrell Hemphill’s

Confrontation Clause right. On trial for murder, Mr.

Hemphill sought to introduce evidence implicating another individual, Nicholas Morris, as the true perpetrator. J.A. 90, 132–34. The trial court responded by

permitting the State to introduce that suspect’s plea

allocution, in which he purported—as part of a plea

deal in which he received a sentence of time served—

to admit to facts inconsistent with his own guilt, and

implicating Mr. Hemphill, even though the suspect did

not testify at trial. Id. at 184. The court justified its

ruling only by saying that “a significant aspect of the

defense in this case is that Morris, who [was] originally

prosecuted for this homicide, was, in fact, the actual

shooter,” and Mr. Morris’s allocution was “evidence

contrary to the [defense’s] argument . . . that Hemphill

may have possessed a different firearm than Morris

4

and that Morris’ firearm cannot be connected to this

shooting.” Id. The Appellate Division affirmed, acknowledging that Mr. Morris’s testimonial statement

“would normally be inadmissible” under the Confrontation Clause, but holding that it could be admitted in

this case based on the equitable exception created by

the New York Court of Appeals in People v. Reid. Pet.

App. 16a–17a.

Reid held that “a defendant can open the door to

testimony that would otherwise violate his Confrontation Clause rights” by putting on a defense that creates

a “misleading impression,” including through “defense

counsel’s questioning of witnesses” or arguments to

the jury. 19 N.Y.3d at 387–88. Such an open-ended

invitation for judges to set aside a textually guaranteed constitutional trial right when they conclude it

would be unfair to honor the right is contrary to the

text and purpose of the Confrontation Clause.

Trial rights expressly required by the text of the

Constitution are not subject to free-floating equitable

exceptions. Several provisions of the Constitution

command “not that a trial be fair, but that a particular

guarantee of fairness be provided.” United States v.

Gonzalez-Lopez, 548 U.S. 140, 146 (2006); see also

Giles, 554 U.S. at 375 (The Constitution “seeks fairness . . . through very specific means . . . that were the

trial rights of Englishmen.”). Thus, the Confrontation

Clause guarantees 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. Confrontation is a “categorical” right, which “commands” that the reliability of testimonial evidence be

assessed through the cross-examination of witnesses.

5

Crawford v. Washington, 541 U.S. 36, 61, 67 (2004).

Such explicit trial “rights can[not] be disregarded,”

even if “the trial is, on the whole, fair.” GonzalezLopez, 548 U.S. at 145. Yet that is precisely what the

New York Court of Appeals has done, determining that

it will not enforce the confrontation right when it

deems doing so unfair or “misleading.”

In contrast, rules of criminal procedure that

judges have devised as prophylactic or remedial rules

to protect constitutional rights, but that are not themselves expressly guaranteed by the text of the Constitution—such as the exclusion from trial of a defendant’s statements to law enforcement without Miranda

warnings—are subject to judicial exceptions that are

tailored to the purposes of those rules. Courts can create exceptions to rules that they have created. But

courts cannot flout express constitutional guarantees

by devising “equitable” exceptions.

A.

Constitutional Provisions Mandating Specific Trial Rights Must Be

Enforced as Written

The New York Court of Appeals has created a

novel exception to the Confrontation Clause based on

its own assessment that applying the Clause as written would result in “unfairness” and frustrate “truthseeking goals.” Reid, 19 N.Y.3d at 388. The rule

adopted in Reid, and applied in this case, allows trial

courts to admit testimonial evidence that otherwise violates the Confrontation Clause if the court deems its

admission “reasonably necessary” to “correct” a “misleading” or “incomplete” impression created by other

evidence adduced at trial, or even by defense counsel’s

argument. Id.

6

Such open-ended second-guessing of textually

mandated constitutional rights is impermissible. This

Court has long recognized that where the Constitution

requires certain trial rights, judges may not deviate

from them based on their own notions of fairness.

Courts may not “extrapolate from the words of the

[Constitution] to the values behind it, and then . . . enforce its guarantees only to the extent they serve (in

the courts’ views) those underlying values.” Giles, 554

U.S. at 375. Rather, a court must apply the Constitution’s basic trial guarantees as written.

Nowhere is this principle clearer than with respect to the Confrontation Clause. Because the Constitution’s text “prescribes a procedure for determining

the reliability of testimony in criminal trials,” federal

courts, “no less than the state courts, lack authority to

replace it with one of [their] own devising.” Crawford,

541 U.S. at 67. Consequently, in Giles v. California,

the Court rejected a judicially devised exception to the

Confrontation Clause. Giles invalidated a California

rule of evidence that permitted admission of hearsay

describing the infliction or threat of physical injury on

a declarant. 554 U.S. at 357. After concluding that

the rule was not based on the exceptions to the confrontation right recognized at the founding, id. at 366,

the Court struck it down, explaining that “the guarantee of confrontation is no guarantee at all if it is subject

to whatever exceptions courts from time to time consider ‘fair,’” id. at 375.

Other textually guaranteed trial rights are similarly immune from judicially crafted equitable exceptions. For example, the Sixth Amendment protects a

defendant’s right to a jury trial. There are doubtless

7

cases where the technical nature of the evidence might

render a jury trial unfavorable to the prosecution. See

Schriro v. Summerlin, 542 U.S. 348, 356 (2004) (noting

“juries’ tendency to become confused over legal standards and to be influenced by emotion or philosophical

predisposition”). But a defendant could not be denied

a jury trial because the defense he presented was unduly complicated.

Likewise, courts may not invent equitable exceptions to the defendant’s Sixth Amendment right to

a trial in “the State and district wherein the crime

shall have been committed.” U.S. Const. amend. VI;

see also U.S. Const. art. III, § 2, cl. 3. A court could not

move a criminal trial to another State or district on the

ground that the jury pool was too favorable to the defendant or confused about the case. See United States

v. Stratton, 649 F.2d 1066, 1077 (5th Cir. Unit A July

1981) (rejecting judge’s transfer of trial over defendant’s objection on ground that different venue was the

“fairest place” for trial). Indeed, the Federal Rules of

Criminal Procedure do not permit the Government to

seek such an exception. See Fed. R. Crim. P. 21 advisory committee note (1944) (“The rule provides for a

change of venue only on defendant’s motion and does

not extend the same right to the prosecution, since the

defendant has a constitutional right to a trial in the

district where the offense was committed.”).

The same is true for the Sixth Amendment right

to counsel. Like the Confrontation Clause, the Sixth

Amendment’s guarantee that a defendant “shall enjoy

the right . . . to have the Assistance of Counsel for his

defence” requires that “a particular guarantee of fairness be provided.” Gonzalez-Lopez, 548 U.S. at 144,

8

146 (quoting U.S. Const. amend. VI). A court could not

refuse to allow a defendant to have the assistance of

counsel at trial, no matter how “fair” the court deemed

the resulting trial to be. See Powell v. Alabama, 287

U.S. 45, 69 (1939).

Similarly, the Fifth Amendment’s prescription

that no person “shall be compelled in any criminal case

to be a witness against himself” prohibits “any criminal trial use against a defendant of his involuntary

statement.” Mincey v. Arizona, 437 U.S. 385, 398

(1978) (emphasis in original); see also New Jersey v.

Portash, 440 U.S. 450, 459 (1979) (“[A] defendant’s

compelled statements, as opposed to statements taken

in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial.”).

A court could not apply the equivalent of the Reid rule

and allow the State to introduce a defendant’s compelled statement, or force the defendant to take the

stand, because the court found the defendant’s case

misleading or incomplete. Because the right against

self-incrimination is express in the Constitution’s text,

“[b]alancing” the need to protect a defendant’s rights

with fairness to the State or a trial’s truth-seeking

function “is not simply unnecessary. It is impermissible.” Portash, 440 U.S. at 459; see also Kansas v. Ventris, 556 U.S. 586, 590 (2009) (“The Fifth Amendment

guarantees that no person shall be compelled to give

evidence against himself, and so is violated whenever

a truly coerced confession is introduced at trial,

whether by way of impeachment or otherwise.”).

These express textual rights are not meant to

create equipoise between the prosecution and defendant. They “seek[] fairness indeed—but seek[] it

9

through very specific means (one of which is confrontation) that were the trial rights of Englishmen.”

Giles, 554 U.S. at 375. Efforts to “create the exceptions

that [a court] thinks consistent with the policies underlying the . . . guarantee, regardless of how that

guarantee was historically understood,” therefore, are

contrary to the constitutional text, its original meaning, and its purpose. Id. at 374. Accordingly, the

Court has rejected “a line of reasoning that ‘abstracts

from the right to its purposes, and then eliminates the

right.’” Gonzalez-Lopez, 548 U.S. at 145 (quoting Maryland v. Craig, 497 U.S. 836, 862 (Scalia, J., dissenting)). It has instead required that courts apply the

rule spelled out in the Constitution’s text.

To be sure, a defendant must invoke these constitutional guarantees consistent with the trial’s procedural rules. See Melendez-Diaz v. Massachusetts,

557 U.S. 305, 327 (2009). Accordingly, courts can require decorum in the courtroom, and can remove a defendant who “insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the

court that his trial cannot be carried on with him in

the courtroom.” Illinois v. Allen, 397 U.S. 337, 343

(1970). Likewise, although the Sixth Amendment’s

Compulsory Process Clause protects a defendant’s

right to call defense witnesses, courts can require the

defendant to identify those witnesses before trial. Taylor v. Illinois, 484 U.S. 400, 411 (1988) (“The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses’ testimony.”). But while “[i]t is true enough

that the necessities of trial and the adversary process

limit the manner in which Sixth Amendment rights

10

may be exercised, and limit the scope of Sixth Amendment guarantees to the extent that scope is textually

indeterminate,” those prudential considerations “cannot alter the constitutional text.” Craig, 497 U.S. at

863–64 (Scalia, J., dissenting) (internal quotation

marks and citation omitted) (emphasis in original).2

Rather than setting out predictable limits on exercising a constitutional trial right, New York’s Reid

rule strikes at the heart of the confrontation right itself, and permits courts to circumvent the Confrontation Clause altogether based entirely on judicial assessments of the facts of a defendant’s case.

B.

Only Judge-Made Rules, Not Mandated by the Constitution, May Be

Subject to Judge-Made Equitable

Exceptions Not Grounded in Text or

Original Meaning

In creating the “opening the door” exception to

the Confrontation Clause, Reid improperly relied on

case law relating to judge-made prophylactic or remedial rules not mandated by constitutional text. Reid

analogized its rule to “precedent that statements

2 The textual clarity of the Confrontation Clause and the other

rights discussed supra distinguish them from, for example, the

Sixth Amendment’s guarantee of a “speedy” trial, an indeterminate term that can be applied only through “a difficult and sensitive balancing process.” Barker v. Wingo, 407 U.S. 514, 533

(1972); see also id. at 521–22 (“[T]he right to speedy trial is a more

vague concept than other procedural rights. It is, for example,

impossible to determine with precision when the right has been

denied. . . . [A]ny inquiry into a speedy trial claim necessitates a

functional analysis of the right in the particular context of the

case.”).

11

taken in violation of Miranda v. Arizona, 384 U.S. 436

(1966), are admissible if a defendant opens the door by

presenting conflicting testimony.” 19 N.Y.3d at 388.

That analogy was flawed. Where judges have

created rules of criminal procedure to remedy out-ofcourt constitutional violations or as prophylactic

means of protecting constitutional rights, they may adjust those rules based on policy-driven considerations.

The development and application of such rules often

involves balancing multiple factors, including considerations of fairness and equity. “No court laying down

a general rule can possibly foresee the various circumstances in which counsel will seek to apply it,” and accordingly “the sort of modifications represented by

these cases are as much a normal part of constitutional

law as the original decision.” Dickerson v. United

States, 530 U.S. 428, 441 (2000). The Court has, however, carefully distinguished such rules from procedures compelled by the Constitution’s text, like the

confrontation right.

Take, for example, the exclusion of evidence obtained in violation of the Fourth Amendment. “The

Fourth Amendment . . . guarantees that no person

shall be subjected to unreasonable searches or seizures, and says nothing about excluding their fruits

from evidence; exclusion comes by way of deterrent

sanction rather than to avoid violation of the substantive guarantee.” Ventris, 556 U.S. at 590–91. Because

courts devised the exclusionary rule in the first place,

they may make exceptions as appropriate consistent

with the rule’s purposes. Thus, in James v. Illinois,

the Court held that illegally obtained evidence may be

used to impeach a defendant’s testimony, but not to

12

impeach the testimony of other defense witnesses. 493

U.S. 307, 319–20 (1990). The Court determined that

making an exception in the former case but not the latter struck an appropriate balance between the values

of fairness to the defendant, protection of the right to

privacy, the need to deter false testimony, and the

criminal trial’s truth-seeking function. Id. at 313–19

That sort of judicial policymaking is appropriate

where a trial procedure itself is judge-made. See

United States v. Leon, 468 U.S. 897, 906 (1984) (“The

[exclusionary] rule . . . operates as a judicially created

remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect, rather

than a personal constitutional right of the party aggrieved.” (internal quotation marks and citation omitted)). Because such rules are “policy driven” to begin

with, a court may decide “that policy is being adequately served through other means,” or that the costs

of applying the rule outweigh its benefits. Montejo v.

Louisiana, 556 U.S. 778, 795–96 (2009).

For the same reason, the Court has permitted

judges to develop equitable exceptions to the exclusion

of voluntary statements made by an arrestee who has

not received Miranda warnings, e.g., Oregon v. Hass,

420 U.S. 714, 722 (1975), and to the exclusion of statements drawn from the interrogation of a defendant

outside the presence of counsel, e.g., Ventris, 556 U.S.

at 592. A fundamental premise of these holdings, however, is that the procedural rules at issue “are ‘not

themselves rights protected by the Constitution,’ . . . but are instead measures designed to ensure

that constitutional rights are protected.” Michigan v.

13

Harvey, 494 U.S. 344, 351 (1990) (quoting Michigan v.

Tucker, 417 U.S. 433, 444 (1974)).

In stark contrast to these exclusionary rules,

the right of a defendant to be confronted with the witnesses against him at trial is not a judicially crafted

prophylactic rule; it is a textual mandate. Judges may

not weigh the pros and cons of admitting evidence that

violates the Confrontation Clause’s terms. Rather,

“[w]here testimonial evidence is at issue, . . . the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68.

II.

New York’s Judge-Made Equitable Exception to the Confrontation Clause Is Unconstitutional

A.

The “Opening the Door” Exception

to the Confrontation Clause Lacks

Any Grounding in the Founding Era

New York’s “opening the door” rule is impermissible because it is admittedly based on the Reid court’s

conception of equity, rather than the scope of the confrontation right at the time of the founding. Reid, 19

N.Y.3d at 388. This Court explained in Crawford that

the Sixth Amendment “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of

the founding.” 541 U.S. at 54 (emphasis added). Expanding on this holding in Giles, the Court held that

only “a founding-era exception to the confrontation

right” is permissible. 554 U.S. at 358. Applying that

principle, the Court rejected a rule permitting the in-

14

troduction of testimonial hearsay whenever a judge determined that a wrongful act by the defendant made

the witness unavailable to testify at trial. Id. at 377.

Such an exception, the Court concluded, lacked a “historical pedigree in the common law.” Id. at 367. The

same is true here.

The Court has recognized only “two forms of testimonial statements [that] were admitted at common

law even though they were unconfronted.” Id. at 358.

The first category is dying declarations—unconfronted

out-of-court statements that could be admitted if

“made by a speaker who was both on the brink of death

and aware that he was dying.” Id. The second category is statements “of a witness who was . . . kept

away by the . . . defendant,” “when the defendant engaged in conduct designed to prevent the witness from

testifying.” Id. at 358–59 (internal quotation marks

omitted) (emphasis in original).

The rule announced in Reid, by contrast, has no

basis in the text or the original understanding of the

Confrontation Clause. Rather, it is a free-floating exception, whereby “a defendant can open the door to testimony that would otherwise violate his Confrontation

Clause rights” by putting on a defense that creates, in

the judge’s view, a “misleading impression,” including

“by the defense counsel’s questioning of witnesses.”

Reid, 19 N.Y.3d at 387–88. The New York Court of

Appeals did not even purport to consider any foundingera sources in announcing its “opening the door” rule.

It asserted only that the rule was adopted “[t]o

avoid . . . unfairness and to preserve the truth-seeking

goals of our courts,” and cited only modern-day cases

from various federal circuit courts—most of which do

15

not even endorse a broad “opening the door” rule like

the one in Reid, and none of which includes any analysis of founding-era exceptions to the confrontation

right. Id. at 388 (citing United States v. Holmes, 620

F.3d 836, 843–44 (8th Cir. 2010); United States v.

Lopez-Medina, 596 F.3d 716, 733 (10th Cir. 2010);

United States v. Cruz-Diaz, 550 F.3d 169, 178 (1st Cir.

2008); United States v. Acosta, 475 F.3d 677, 683–84

(5th Cir. 2007)); see also Cert. Pet. at 16–17 & n.6.

B.

The “Opening the Door” Exception

to the Confrontation Clause Contravenes the Text and Purpose of the

Clause

New York’s “opening the door” rule is flatly inconsistent with the text and purpose of the Confrontation Clause. It subverts the “irreducible literal meaning of the Clause: ‘a right to meet face to face all those

who appear and give evidence at trial.’” Coy v. Iowa,

487 U.S. 1012, 1021 (1988) (emphasis in original) (quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J., concurring)); see also Crawford, 541 U.S. at 51

(determining that “‘witnesses’ against the accused” refers to “those who ‘bear testimony,’” with “‘testimony’”

referring to a “‘solemn declaration . . . made for the purpose of establishing or proving some fact’” (citing Webster, An American Dictionary of the English Language

(2d ed. 1828))); Green, 399 U.S. at 157 (“Our own decisions seem to have recognized at an early date that it is

this literal right to ‘confront’ the witness at the time of

trial that forms the core of the values furthered by the

Confrontation Clause.”); Craig, 497 U.S. at 864 (Scalia,

J., dissenting) (“‘[T]o confront’ plainly means to encounter face-to-face.”).

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This Court’s “cases have thus remained faithful

to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to

cross-examine.” Crawford, 541 U.S. at 59. But New

York’s rule permits exactly what the constitutional

text prohibits, by allowing the State to introduce outof-court testimonial statements that are not subjected

to cross-examination any time a judge deems such evidence necessary to correct a “misleading” impression

created by the defense’s case. Reid, 19 N.Y.3d at 387–

88.

New York’s rule flouts the Confrontation

Clause’s requirement “that reliability be assessed in a

particular manner: by testing in the crucible of crossexamination.” Crawford, 541 U.S. at 61. “The [Confrontation] Clause . . . reflects a judgment, not only

about the desirability of reliable evidence (a point on

which there could be little dissent), but about how reliability can best be determined.” Id. As the Court explained in Crawford, “[a]dmitting statements deemed

reliable by a judge is fundamentally at odds with the

right of confrontation.” Id. In fact, “[t]he text of the

Sixth Amendment does not suggest any open-ended

exceptions from the confrontation requirement to be

developed by the courts.” Id. at 54. The Sixth Amendment does not simply aim for reliability regardless of

the method for attaining it; it guarantees a specific

process by which a criminal defendant may ensure

that the jury assesses the reliability of evidence—

cross-examination. Id. at 61.

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The Court has emphasized this point repeatedly. “The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the fact-finding process” because “[c]ross-examination is the principal means by

which the believability of a witness and the truth of

his testimony are tested.” Kentucky v. Stincer, 482

U.S. 730, 736 (1987) (internal quotation marks omitted). “Indeed, the Court has recognized that cross-examination is the greatest legal engine ever invented

for the discovery of truth.” Id. (internal quotation

marks omitted); see also Coy, 487 U.S. at 1019–20

(“[T]he right to face-to-face confrontation serves much

the same purpose as . . . the right to cross-examine the

accuser; both ensure the integrity of the fact-finding

process.” (internal quotation marks, citation, and alterations omitted)).

For that reason, the Confrontation Clause specifically assigns the task of assessing credibility to the

jury:

The primary object of the [Clause] was to

prevent depositions or ex parte affidavits . . . [from] being used against the

prisoner in lieu of 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

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gives his testimony whether he is worthy

of belief.

Mattox v. United States, 156 U.S. 237, 242–43 (1895);

see also Green, 399 U.S. at 154 (“[The Clause] permits

the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.”).

Yet New York’s rule allows trial courts, not juries, to assess the credibility and veracity of testimony.

Under New York’s approach, courts must determine

“whether, and to what extent, the [defendant’s] evidence . . . is incomplete and misleading, and what if

any otherwise inadmissible evidence is reasonably

necessary to correct the misleading impression.” Reid,

19 N.Y.3d at 388 (internal quotation marks and citation omitted). If, after conducting its own assessment

of the evidence’s credibility and veracity, the trial

court determines that the defendant created an “incomplete and misleading” impression, it can admit

otherwise inadmissible evidence in violation of the

Confrontation Clause. Reid thus conditions the defendant’s confrontation right on the trial court’s assessment of the evidence, contravening the text of the

Constitution and undermining one of the Clause’s core

purposes. See Craig, 497 U.S. at 864 (Scalia, J., dissenting) (“The necessities of trial and the adversary

process are irrelevant [to the confrontation right],

since they cannot alter the constitutional text.” (internal quotation marks omitted)).

The Confrontation Clause was intended to constrain judicial discretion. Crawford, 541 U.S. at 67–

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69. The Framers were “loath to leave too much discretion in judicial hands,” id. at 67, knowing “that judges,

like other government officers, could not always be

trusted to safeguard the rights” of the accused, especially in “politically charged cases . . . where the impartiality of even those at the highest levels of the judiciary might not be so clear,” id. at 67–68. “[R]eplacing categorical constitutional guarantees with openended balancing tests” does “violence to [the Framers’]

design.” Id.

New York’s rule is exactly the type of “openended balancing test” this Court rejected in Crawford.

Both the determination that a defendant’s case has

created an “incomplete and misleading” impression

and the determination of what evidence is “reasonably

necessary” to correct that impression are subjective inquiries.

Unsurprisingly, New York courts have interpreted “incomplete and misleading” in sharply different ways, replicating the “unpredictable” and “amorphous, if not entirely subjective” standards that characterized the pre-Crawford regime. Crawford, 541

U.S. at 63. For example, in this case the New York

courts held that presenting a theory that a third party

committed the crime “opened the door” to out-of-court

testimonial statements by that other individual suggesting his innocence. Pet. App. 16a–17a. But in People v. Richardson, 95 A.D.3d 1039, 1040 (2d Dep’t

2012), another New York appellate court reached the

opposite conclusion, holding that presenting a theory

inconsistent with the State’s theory of the case was not

misleading and thus did not “open the door” to out-of-

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court testimonial evidence. Under the New York approach, trial courts have nearly boundless discretion

to determine the reliability of the defendant’s evidence, and to permit textually inadmissible evidence

on that basis.

This regime can chill defendants from presenting any defense at all, because doing so will create a

risk that the trial judge will deem any evidence adduced in defense misleading or incomplete. Indeed,

the Appellate Division held in this case that Mr.

Hemphill “opened the door” to the out-of-court testimonial evidence simply by contradicting the State’s case.

Pet. App. 16a–17a. Because Mr. Hemphill introduced

evidence that the police had found a 9-millimeter cartridge matching the murder weapon in the home of the

original suspect, Nicholas Morris, the trial court allowed the State to enter evidence of Mr. Morris’s plea

to possessing a .357 at the scene of the shooting, without calling Mr. Morris to testify and be subject to crossexamination. Id.

The trial court’s determination that Mr.

Hemphill’s effort to shift blame to Mr. Morris was misleading was necessarily predicated upon its belief that

Mr. Morris’s plea allocution was truthful, that Mr.

Morris could not have been the shooter, and that Mr.

Hemphill’s efforts to suggest otherwise would lead the

jury astray in an “unfair” manner. The court reached

that conclusion without giving Mr. Hemphill any ability to test Mr. Morris’s credibility or the truth of his

testimony through cross-examination. That likely

would have made a difference for the jury, as there was

persuasive material to impeach Mr. Morris’s credibil-

21

ity and truthfulness. Mr. Morris pleaded guilty to possessing a .357 handgun as part of a plea deal in which

he received a time-served sentence, and avoided prosecution for murder. J.A. 30–31.

These circumstances raise obvious questions

about Mr. Morris’s motive to lie, which went unexplored without an opportunity for cross-examination.

See Davis v. Alaska, 415 U.S. 308, 316–17 (1974)

(“[T]he exposure of a witness’ motivation in testifying

is a proper and important function of the constitutionally protected right of cross-examination.”). Mr.

Hemphill was also denied the opportunity to challenge

factual issues with Mr. Morris’s testimony, such as

whether Mr. Morris actually possessed a .357 and the

circumstances under which Mr. Morris came to possess the 9-millimeter cartridge that was recovered in

the search of his apartment—despite the fact that the

State acknowledged at the time of Mr. Morris’s allocution that it did not have enough evidence to indict him

for possessing the .357 unless he admitted to it. J.A.

30, 148–49. Instead, because the judge determined

Mr. Hemphill’s evidence was “misleading” and Mr.

Morris’s allocution was “necessary,” Mr. Hemphill’s

express constitutional rights fell by the wayside.

Neither the Framers’ understanding of the confrontation right nor this Court’s precedent interpreting the Confrontation Clause allows this result. The

Court should reaffirm that courts do not have a freefloating equitable authority to water down the Constitution’s textual guarantee of confrontation whenever

they think a defense is misleading or incomplete. The

New York rule fundamentally erodes the right to trial

by jury, and it should be struck down.

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CONCLUSION

For the foregoing reasons, the Court should reject the rule of People v. Reid and reverse the judgment

below.

Respectfully submitted,

CAITLIN HALLIGAN*

CLAIRE O’BRIEN

ADAM K. HERSH

SELENDY & GAY PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street NW

Washington, DC 20005

(202) 457-0800

Attorney for Amicus Curiae the

American Civil Liberties Union

CECILLIA WANG

EZEKIEL EDWARDS

JENNESA CALVO-FRIEDMAN

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

Attorneys for Amicus Curiae the American

Civil Liberties Union

23

CHRISTOPHER DUNN

DANIEL R. LAMBRIGHT

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 19th Floor

New York, New York

(212) 607-3300

Attorneys for Amicus Curiae

New York Civil Liberties Union

JOHN W. WHITEHEAD

DOUGLAS M. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia

(434) 978-3888

Attorneys for Amicus Curiae

The Rutherford Institute

June 29, 2021

* Counsel of Record

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