Reply Brief — Darrell Hemphill, Petitioner v. New York

No. 20-637

IN THE

DARRELL HEMPHILL,

Petitioner,

v.

STATE OF NEW YORK,

Respondent.

On Writ of Certiorari

to the Court of Appeals of New York

REPLY BRIEF FOR PETITIONER

Claudia Trupp

Matthew Bova

CENTER FOR

APPELLATE LITIGATION

120 Wall Street,

28th Floor

New York, NY 10005

Yaira Dubin

O’MELVENY & MYERS LLP

7 Times Square Tower

New York, NY 10036

Jeffrey L. Fisher

Counsel of Record

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

Kendall Turner

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

TABLE OF CONTENTS

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

REPLY BRIEF FOR PETITIONER ............................1

I.

The State’s arguments for avoiding the

question presented lack merit ..............................1

A. Petitioner’s federal claim is properly

presented ..........................................................1

B. The introduction of Morris’s allocution

was not harmless .............................................6

II. The admission of Morris’s allocution

violated the Confrontation Clause .......................8

A. Morris’s allocution was admitted

simply because petitioner’s defense

rendered it relevant .........................................9

B. The Confrontation Clause does not

allow the admission of testimonial

hearsay simply because it becomes

relevant ..........................................................15

1. Waiver / equitable forfeiture ..................15

2. Case law regarding prophylactic

rules .........................................................17

3. “Integrity of the adversarial

factfinding process” .................................18

CONCLUSION ...........................................................20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Robertson,

520 U.S. 83 (1997) .................................................. 5

Chapman v. California,

386 U.S. 18 (1967) .................................................. 6

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ................................................ 4

Crawford v. Washington,

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

Dutton v. Evans,

400 U.S. 74 (1970) ................................................ 18

First Eng. Evangelical Lutheran Church v. Los

Angeles Cnty.,

482 U.S. 304 (1987) ................................................ 5

Giles v. California,

554 U.S. 353 (2008) .................................. 16, 18, 20

Griffin v. California,

380 U.S. 609 (1965) .............................................. 17

Holmes v. South Carolina,

547 U.S. 319 (2006) ................................................ 5

Illinois v. Allen,

397 U.S. 337 (1970) .............................................. 16

Kansas v. Ventris,

556 U.S. 586 (2009) .............................................. 17

Lilly v. Virginia,

527 U.S. 116 (1999) ................................................ 6

Mattox v. United States,

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

iii

McDonnell v. United States,

136 S. Ct. 2355 (2016) ............................................ 6

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) .............................................. 15

Mitchell v. United States,

526 U.S. 314 (1999) .............................................. 17

Payton v. New York,

445 U.S. 573 (1980) ................................................ 4

People v. Abrams,

900 N.Y.S.2d 489 (App. Div. 2010) ...................... 10

People v. Blakeney,

671 N.E.2d 1269 (N.Y. 1996) ............................... 10

People v. Cole,

873 N.Y.S.2d 603 (App. Div. 2009) ...................... 10

People v. Fardan,

628 N.E.2d 41 (N.Y. 1993) ................................... 10

People v. Hodges,

654 N.Y.S.2d 279 (Sup. Ct. 1997), aff’d, 692

N.Y.S.2d 92 (App. Div. 1999) ............................... 17

People v. Massie,

809 N.E.2d 1102 (N.Y. 2004) ....................... 3, 9, 11

People v. Moses,

472 N.E.2d 4 (N.Y. 1984) ....................................... 6

People v. Reid,

971 N.E.2d 353 (N.Y. 2012) ............... 3, 4, 9, 13, 14

Pointer v. Texas,

380 U.S. 400 (1965) .............................................. 20

Raley v. Ohio,

360 U.S. 423 (1959) ................................................ 4

Riley v. California,

573 U.S. 373 (2014) ................................................ 5

iv

Tennessee v. Street,

471 U.S. 409 (1986) ........................................ 16, 18

United States v. Robinson,

485 U.S. 25 (1988) ................................................ 17

United States v. Young,

470 U.S. 1 (1985) .................................................. 17

Webb v. Webb,

451 U.S. 493 (1981) ................................................ 5

Constitutional Provisions

U.S. Const., amend VI, Confrontation

Clause ........................................................... passim

Other Authorities

Blackstone, William, Commentaries on

the Laws of England (1768) ................................. 19

Hale, Matthew, History and Analysis of

the Common Law of England (1713) .................. 19

New York State Unified Court System, Guide to

New York Evidence ................................................ 9

Wright, Charles Alan et al., Federal Practice and

Procedure (2d ed. 2021) ...............................1, 8, 10

REPLY BRIEF FOR PETITIONER

Try as it may, the State is unable to defend the

decision below. The procedural objections the State

raises were thoroughly aired at the certiorari stage

and have no more purchase now. The State’s merits

arguments, in turn, ignore the real reason why the

trial court admitted Morris’s allocution—not because

defense counsel engaged in any impropriety, but

because petitioner contended (quite plausibly) that

Morris “was, in fact, the actual shooter.” J.A. 184 (trial

court ruling). Simply put, the “opening the door”

principle the State invoked is a state evidentiary rule

of “expanded relevance.” 21 Charles Alan Wright et

al., Federal Practice and Procedure § 5039.1 & n.2 (2d

ed. 2021). Whatever the merit of that principle in other

contexts, it cannot override the Confrontation Clause’s

bar against introducing testimonial hearsay.

Indeed, arguing that someone else did it is as old

as criminal law itself. Yet the State freely admits that

the rule the state courts applied “falls completely

outside any discussion of historical exceptions, or

treatises relating to the Confrontation Clause’s

evidentiary scope as understood by the Framers.”

Resp. Br. 32. This is a telling admission. The

Confrontation Clause establishes indispensable

requirements for admitting testimonial evidence

against the accused: the declarant’s presence and an

opportunity for cross-examination. Neither the State

nor New York courts may second-guess the Clause’s

rule of exclusion when those requirements are not

met—least of all on the ground that “the adversarial

factfinding process,” id. 31, would supposedly be better

served by suspending the rule.

2

I.

The State’s arguments for avoiding the question

presented lack merit.

The State makes two attempts to divert the

Court’s attention from the question it granted

certiorari to resolve. Neither attempt succeeded at the

certiorari stage, and neither succeeds now.

A. Petitioner’s

presented.

federal

claim

is

properly

The State first reprises its contention that

petitioner’s Sixth Amendment claim is not properly

presented. Compare Resp. Br. 17-23 with BIO 8-15.

This contention fails for two independent reasons:

Petitioner clearly argued throughout the state courts

that admitting Morris’s allocution would violate the

Confrontation Clause, and the state courts

indisputably considered and rejected the claim.

1. In the trial court, petitioner objected that the

introduction of Morris’s allocution would be a

“Crawford violation” because petitioner would be

“deprived of the opportunity to examine Mr. Morris.”

J.A. 160. The court, however, “granted the People’s

application” to admit the statement, reasoning that

petitioner “had opened the door to the otherwise

inadmissible Crawford evidence by implicating Morris

as the shooter through his opening statement and

cross-examinations.” BIO 4; see J.A. 182-86.

At both stages of appeal, petitioner dedicated

large sections of his briefs to reprising his argument

that admitting Morris’s allocution violated the

Confrontation Clause. See BIO App. 107-13, 360-64

(Appellate Division briefing); J.A. 382-89, 403-06

(Court of Appeals briefing). Echoing the trial court’s

ruling, the State responded that “this case invites the

3

same result as [People v.] Reid, [971 N.E.2d 353 (N.Y.

2012)],” in which the New York Court of Appeals held

that the accused “opens the door” to the admission of

testimonial hearsay when he advances a defense at

trial that the hearsay would purportedly rebut. BIO

App. 427; see also id. 218-30, 422-30. Petitioner had no

obligation to preserve any particular reply to the

State’s response to his federal claim. Regardless,

petitioner directly disputed that a defendant, under

the circumstances here, can open the door to evidence

that

is

otherwise

inadmissible

under

the

Confrontation Clause. Specifically, petitioner argued

that a defendant cannot lose his right under Crawford

to exclude testimonial hearsay simply by “advancing

an argument that makes otherwise inadmissible

evidence relevant.” J.A. 386-88. That is precisely the

argument he makes now.

Nothing about New York procedure complicates

this straightforward analysis. The State suggests the

Court of Appeals lacked the power to consider in this

case whether it correctly held in Reid that defendants

may open the door to evidence otherwise barred by the

Confrontation Clause. Resp. Br. 22. But in the only

case the State cites for this procedural proposition, the

defendant never advanced any federal basis at all for

excluding the evidence at issue before the case reached

the New York Court of Appeals. See People v. Massie,

809 N.E.2d 1102, 1105 n.3 (N.Y. 2004). Here,

petitioner argued all along that admitting Morris’s

allocution violated the Confrontation Clause, and he

directly urged the New York Court of Appeals to

refrain from applying Reid. J.A. 385-88.

2. Even if there had been deficiencies in

petitioner’s argumentation below, it would not matter.

4

“There can be no question as to the proper

presentation of a federal claim when the highest state

court passes on it.” Raley v. Ohio, 360 U.S. 423, 436

(1959); see also, e.g., Cohen v. Cowles Media Co., 501

U.S. 663, 666-67 (1991); Payton v. New York, 445 U.S.

573, 582 n.19 (1980). Such is the case here.

As part of its terse decision, the New York Court

of Appeals held that the trial court did not err in

“admitting evidence that [Morris] pled guilty to

possessing a firearm other than the murder weapon.”

Pet. App. 2a. While this holding does not directly

reference the Sixth Amendment, petitioner’s only

argument for excluding the allocation was that its

introduction violated the Confrontation Clause.

Accordingly, there can be no doubt that the Court of

Appeals concluded—consistent with the Appellate

Division’s decision, see Pet. App. 16a-17a—that

admitting Morris’s testimonial plea allocution did not

violate the Confrontation Clause because petitioner

opened the door under Reid.

The State tries to distinguish the question

whether Reid controlled the outcome below from the

question whether Reid was correctly decided, insisting

that the state courts never considered the latter

question. Resp. Br. 17-18. This contention misses the

mark too. The state courts were able to reject

petitioner’s federal claim only by applying Reid to the

facts of this case. The decision below thus necessarily

rests on the premise that defendants can open the door

to the introduction of evidence that is otherwise barred

by the Confrontation Clause. It is that necessary legal

premise, as applied to this case, that petitioner

challenges here. There is no doubt, therefore, that the

New York Court of Appeals passed on the claim

5

petitioner advances here. See, e.g., Holmes v. South

Carolina, 547 U.S. 319 (2006); Resp. Br. 18-24, Holmes

v. South Carolina, 547 U.S. 319 (2006) (No. 04-1327)

(resolving question presented even though respondent

faulted petitioner for failing to challenge precedent the

state high court had applied); First Eng. Evangelical

Lutheran Church v. Los Angeles Cnty., 482 U.S. 304,

313 n.8 (1987) (resolving question presented in

parallel situation because the state court “considered

and decided the constitutional claim”).1

The State’s citation to Adams v. Robertson, 520

U.S. 83 (1997), does not suggest otherwise. In that

case, the state high court “did not expressly address

the question on which the Court granted certiorari.”

Id. at 86 (emphasis added). As just explained, the

converse is true here; the New York appellate courts

expressly rejected petitioner’s claim, grounded in the

Confrontation Clause, that the trial court erred in

admitting Morris’s allocution. The state courts thus

plainly had “occasion to consider” the federal question

presented here—which is the whole point of the

“pressed or passed upon” requirement. Id. at 90; see

also Webb v. Webb, 451 U.S. 493, 501 (1981).

1

Contrary to the State’s argument (Resp. Br. 21 n.7), Riley

v. California, 573 U.S. 373 (2014), is another case comparable to

this one. The defendant in that case argued in the California

Supreme Court only that that court’s recent decision allowing

warrantless searches of cell phones incident to arrest did not

apply—not that the recent decision itself was erroneous. See Pet.

for Rev. 19, People v. Riley, No. S209350 (Mar. 13, 2013). That

California in that case did not challenge the propriety of this

Court’s resolving the question presented, see Resp. Br. 21 n.7,

only underscores the weakness of the State’s argument here.

6

B. The introduction of Morris’s allocution was

not harmless.

The State also contends that “any error” in the

admission of Morris’s allocution was harmless. Resp.

Br. 49. Although this Court’s “general custom” is to

leave harmless-error analyses for lower courts to

conduct on remand, Lilly v. Virginia, 527 U.S. 116, 139

(1999), it has sometimes addressed such issues in the

first instance. See, e.g., McDonnell v. United States,

136 S. Ct. 2355, 2375 (2016). If the Court were to do so

here, it would readily find that Morris’s allocution so

obviously played a role in securing petitioner’s

conviction that it cannot have been harmless.

The key issue in petitioner’s trial was who fired

the shot that killed the victim. Several eyewitnesses

identified Morris (“who does not resemble

[petitioner]”) as the shooter, and certain physical

evidence supported that conclusion. Pet. App. 23a

(Manzanet-Daniels, J., dissenting); see also Petr. Br.

5-6; Resp. Br. 4-6. The accomplice, Ronnell Gilliam,

claimed at trial that petitioner was the shooter. But

this testimony constituted a change from his initial

account agreeing with the other eyewitnesses that the

perpetrator was actually Morris. Pet. App. 4a (Fahey,

J., dissenting). And even apart from that about-face,

the jury was required to consider his accomplice

testimony with a “suspicious eye”—all the more so

because it was given to “receive lenient treatment”

from the State. People v. Moses, 472 N.E.2d 4, 7 (N.Y.

1984); see also Tr. 1695-97 (jury instruction); Amicus

Br. of Innocence Project & Innocence Network 3-14.

Against this backdrop, the notion that Morris’s

allocution was “harmless beyond a reasonable doubt,”

Chapman v. California, 386 U.S. 18, 24 (1967), is

7

fanciful. The allocution was an ex parte statement

from the alternative suspect of the shooting

purporting to exonerate himself. Worse yet, it was

presented with a formalized imprimatur of truth, even

though there were very serious reasons to doubt its

veracity. See Petr. Br. 22-24. It is undoubtedly

possible—indeed, highly probable—that the jury

relied on the allocution to reach its verdict.

The State insists that there was “substantial

independent evidence of petitioner’s guilt.” Resp. Br.

49. Of course, that is not the standard for upholding a

conviction in the face of constitutional error. Even so,

the State’s contention is incorrect on its own terms.

The State focuses on the fact that a blue sweater found

in Gilliam’s apartment contained petitioner’s DNA. Id.

5-6. But Gilliam was petitioner’s cousin; there was

nothing inherently suspicious about the presence of

the sweater in his apartment. Nor did a single

eyewitness identify the sweater as the garment the

shooter wore. Pet. App. 24a & n.4 (Manzanet-Daniels,

J., dissenting). Neither did any forensic testing link

the sweater to the crime.2

Indeed, the State’s own theory of the sweater’s

centrality does not add up. The State points to

2

The State says that “[n]o testing [for gunpowder] was

conducted.” Resp. Br. 6 n.4. But the state laboratory performed

forensic tests of fibers and metal particles on the sweater to see

if it could be linked to a gun and found “no residue consistent with

the discharge of a firearm.” Tr. 1113; see also id. 1107, 1110-12.

Nor did an analyst’s “visual examination” of the sweater find any

gunpowder. Id. 1119-20. And if the reason for sending the sweater

for testing was really that the detective thought from the

beginning that it “smelled of burnt gunpowder,” Resp. Br. 6 & n.4,

the State never explains why it did not use, or later send the

sweater to, a lab that could perform all of the right tests.

8

eyewitness claims that the shooter had “a tattoo” on

his “forearm.” Resp. Br. 4; BIO 2. Yet petitioner’s only

tattoo is on his “upper right shoulder.” Tr. 988-89. And

if petitioner had been wearing the blue sweater, its

long sleeves would have covered up his tattoo, even if

they were rolled up around his elbows.

If ever the improper introduction of testimonial

hearsay might have affected a verdict, the admission

of Morris’s allocution did. The confrontation error here

entitles petitioner to a new trial.

II. The admission of Morris’s allocution violated

the Confrontation Clause.

The State’s arguments on the merits are no more

persuasive. The New York courts held that Morris’s

allocution was admissible because petitioner “opened

the door” to its introduction. Pet. App. 16a; see also

J.A. 184-85. As the opening brief noted (at 3), the

phrase “opening the door” is “notoriously imprecise”—

so much so that learned commentators have remarked

that “it would be no great loss if the phrase ‘opening

the door’ disappeared from the lexicon of evidence

law.” 21 Charles Alan Wright et al., Federal Practice

and Procedure §§ 5039, 5039.1 (2d ed. 2021); see also

Resp. Br. 37 (using the phrase indistinctly). Despite

this imprecision, it is clear that “opening the door,” as

employed in this case, is an evidentiary rule of

expanded relevance. That is, the rule allows a party to

introduce evidence, even if otherwise inadmissible, to

contradict a submission or argument the opponent has

advanced. Whatever the merit of applying that

principle to allow the introduction of evidence

otherwise inadmissible on hearsay or other

evidentiary grounds, it is not a legitimate basis for

superseding the constitutional right to confrontation.

9

A. Morris’s allocution was admitted simply

because petitioner’s defense rendered it

relevant.

According to the State, New York’s “opening the

door” rule is not necessarily an “evidentiary” rule at

all. Resp. Br. 31. As the State now puts it, the concept

is “better understood” in a case like this as a

“procedural rule” that provides a remedy for

presenting “inadmissible” evidence or for other

“improper” conduct at trial. Id. 15, 31, 46, 48. The

State’s argument mangles New York law and bears no

relation to what transpired below.

1. “Opening the door” is one of New York’s “rules

of evidence.” New York State Unified Court System,

Guide to New York Evidence 1.01; see also id. 4.08.3 To

determine whether a party has opened the door, courts

consider: “‘whether, and to what extent, the evidence

or argument said to open the door is incomplete and

misleading, and what if any otherwise inadmissible

evidence is reasonably necessary to correct the

misleading impression.’” People v. Reid, 971 N.E.2d

353, 357 (N.Y. 2012) (quoting People v. Massie, 809

N.E.2d 1102, 1105 (N.Y. 2004)).

Nothing about this two-part test turns on

introducing inadmissible evidence or making an

improper argument. To be sure, the opening-the-door

rule can be triggered by “misleading” evidence.

Massie, 809 N.E.2d at 1105. But New York courts use

the term “misleading” simply to mean that the

defendant’s evidentiary submission or argumentation

is “in conflict with the [otherwise] precluded evidence.”

3

The Guide is available at https://perma.cc/TJT8-G66H; see

also Petr. Br. 36 n.6.

10

People v. Fardan, 628 N.E.2d 41, 45 (N.Y. 1993)

(emphasis added); see also People v. Blakeney, 671

N.E.2d 1269, 1270 (N.Y. 1996); Petr. Br. 17.4

In other words, New York courts—like courts in

other jurisdictions—often use the term “opening the

door” to denote nothing more than “expanded

relevance.” 21 Wright, supra § 5039.1 & n.2. “[A]s the

parties offer relevant evidence to prove their cases,

each bit of evidence opens up new avenues of

refutation and confirmation . . . beyond those

consequential facts expressed in the pleadings.” Id.

The opening-the-door rule allows the introduction of

that newly relevant evidence to meet the other side’s

4

The State protests that New York courts do not deem

evidence “misleading” every time “the defense tries merely to

contradict the People’s theory of the case.” Resp. Br. 47. There

are, however, many New York cases where contradiction was

enough. See, e.g., People v. Abrams, 900 N.Y.S.2d 489, 492-93

(App. Div. 2010) (otherwise inadmissible evidence of defendant’s

gang affiliation admitted because defendant testified he

frequently changed his residence because he was threatened by

gang members); People v. Cole, 873 N.Y.S.2d 603, 604 (App. Div.

2009) (otherwise inadmissible pretrial identification admitted

because defendant introduced evidence that a different

eyewitness failed to identify him in photo array); Fardan, 628

N.E.2d at 44-45 (otherwise inadmissible prior conviction

admitted because defendant’s witness testified that he had been

“a nonviolent type of individual, by and large . . . throughout his

life”); see also Amicus Br. of Bronx Defenders et al. 8-12

(describing other scenarios based on experience of public

defenders in New York). Insofar as the State offers a couple of

counterexamples, Resp. Br. 47, they demonstrate only that the

opening-the-door principle is so impressionistic that it can be

applied erratically. Where the right to confrontation is at stake,

such unpredictability is a vice, not a virtue. See Crawford v.

Washington, 541 U.S. 36, 63 (2004); Amicus Br. of NACDL 7-9.

11

arguments, and in New York also cancels out

competing evidentiary bars.5

2. The New York courts admitted Morris’s

allocution under this concept of expanded relevance.

In its merits brief, the State asserts for the first time

that the trial court’s application of the opening-thedoor rule here was a remedy for introducing

“inadmissible” evidence or engaging in “improper”

argumentation. Resp. Br. 15, 23, 39-48. But this new

theory is belied by the record.

The State moved at trial to introduce Morris’s

allocution on the ground that petitioner’s third-party

defense (including his reliance on the 9-millimeter

bullet found in Morris’s apartment) made the

allocution “relevant [to] the issues that this jury will

confront.” J.A. 139 (emphasis added). The State

claimed that the allocution would “establish a fact that

is an issue before this trial jury, which is what weapon

was Nicholas Morris possessing on April 16, 2006 at

the time this murder was committed.” Id. 140-41.

Considering this relevance-based motion, the trial

court stressed that petitioner’s third-party defense

5

The State notes that the rule of completeness is “[a]nother

example” under New York law “of the door-opening principle.”

Resp. Br. 33; see also Massie, 809 N.E.2d at 1105 (“incomplete”

evidence can trigger rule). But as petitioner has already

explained, the rule of completeness applies only where a party

has introduced a fragment of an out-of-court statement. Petr. Br.

35-36. Petitioner never introduced any part of any statement by

Morris. Consequently, even if the rule of completeness could

sometimes allow the introduction of otherwise inadmissible

testimonial hearsay—perhaps on the theory that a defendant

who introduces part of a testimonial statement places that

witness’s testimony at issue, see Amicus Br. of Richard D.

Friedman 20—that would not matter here.

12

was “in all respects . . . appropriate” and “probably a

necessary argument to make.” J.A. 185; see also id.

120 (noting that petitioner’s defense was “in all

respects a[] fair argument”). But the court held that

the defense nevertheless opened the door to the

admission of the allocution. Here is the trial court’s

ruling in relevant part:

It’s apparent from the examination of

witnesses thus far and from the defense

counsel’s opening that a significant aspect of

the defense in this case is that Morris, who

[wa]s originally prosecuted for this homicide,

was, in fact, the actual shooter and that as

such, the defendant, Hemphill, was excluded

as the shooter. There is, however, evidence

contrary to the argument presented by the

defense in this case that Hemphill may have

possessed a different firearm than Morris and

that Morris’ firearm cannot be connected to

this shooting.

Morris’ allocution during his plea relates to

his possession of a .357. The weapon that

caused the death in the case was a nine

millimeter.

In my judgment, the defense’s argument,

which in all respects is appropriate and under

the circumstances of this case probably a

necessary argument to make, nonetheless,

opens the door to evidence offered by the state

refuting the claim that Morris was, in fact, the

shooter.

....

[T]he defense arguments in this case that

we heard and arguments I anticipate, open

13

the door to the admission of Morris’ allocution

or, at least a portion of Morris’ allocution, to

the extent that it acknowledges he was in

possession of a weapon but that that weapon

was a .357 magnum and not a nine

millimeter.

And finally, that under the analysis I have

made reference to . . . any Crawford

considerations would not give rise to error.

J.A. 184-86 (emphasis added); see also id. 120

(foreshadowing this ruling with same reasoning).

The proceedings in New York’s appellate courts

followed the same reasoning. In the Appellate

Division, the State explained that the trial court

admitted the allocution because petitioner, “through

his opening statement and cross-examination so far

implicating Morris as the shooter, had opened the door

to admitting otherwise inadmissible Crawford

evidence to refute that claim.” BIO App. 219. And the

State defended that ruling on grounds having nothing

to do with purportedly “improper” conduct. In the

State’s words:

During

[defense]

counsel’s

opening

statement

and

cross-examination

of

witnesses, he repeatedly suggested that since

Morris had .9mm ammunition on his bedside

table, he must have had access to a .9mm

firearm, the same type of weapon that killed

David Pacheco, Jr., and made it his trial

defense that Morris used a .9mm firearm to

murder David. This left the jury with

“incomplete and misleading” information that

Morris possessed the murder weapon on the

date and time of the crime (Reid, 19 NY3d at

14

388) when the available evidence established

that Morris had possessed a .357 firearm on

the day in question. Accordingly, admitting

this plea allocution was “necessary to correct

the misleading impression” (Reid, 19 NY3d at

382-83). . . . In sum, when defendant pursued

a third-party culpability defense stating

Morris possessed the same caliber weapon

that killed the victim, he opened the door for

the People to admit evidence that Morris

possessed a different caliber weapon to avoid

misleading the jury.

....

Put another way, simply because an

argument is “appropriate” and “necessary” in

a particular case, does not mean that it will

not open the door to rebuttal evidence.

BIO App. 226-27, 229. The Appellate Division accepted

this argument, reasoning, just like the trial court, that

the allocution was admissible because petitioner

suggested that “Morris possessed a 9 millimeter

handgun.” Pet. App. 17a.

The State advanced the same argument, almost

verbatim in all pertinent respects, in the New York

Court of Appeals. See BIO App. 427-29. That court

agreed with the State and the lower courts that the

allocution was admissible to show that Morris “pled

guilty to possessing a firearm other than the murder

weapon.” Pet. App. 2a. This allocution was not

admissible because petitioner did anything wrong. It

was because petitioner’s defense rendered Morris an

“allegedly culpable third party.” Id.

15

B. The Confrontation Clause does not allow the

admission of testimonial hearsay simply

because it becomes relevant.

The State never directly argues that the accused

can lose his right to confrontation simply by mounting

a defense that causes testimonial hearsay to become

relevant. Nor could the State sustain any such claim.

In most every scenario in which the prosecution would

like to introduce testimonial hearsay, the declaration

is relevant. Indeed, it is not uncommon for such a

declaration to directly contradict the defendant’s

contentions (particularly where, as here, it comes from

an alleged accomplice). Yet for centuries, courts have

barred the admission of such out-of-court statements

absent an opportunity for cross-examination. See Petr.

Br. 18-21; Amicus Br. of Evidence & Crim. Proc.

Professors 17-18. The State nevertheless references a

hodgepodge of doctrines and concepts in defense of the

judgment below. Each of these efforts fails.

1. Waiver / equitable forfeiture

The State first suggests that opening the door, as

applied here, is “the equivalent of failing to object to

the confrontation violation.” Resp. Br. 31; see also id.

at 30 (comparing this situation to “a failure to object

and preserve the issue for appeal”). This is a puzzling

contention. It is true that defendants can forfeit their

right to confrontation by failing to object in a timely

manner. See Melendez-Diaz v. Massachusetts, 557

U.S. 305, 314 n.3 (2009). But that axiom has no

bearing here. As noted above, petitioner expressly

objected from the beginning that introducing Morris’s

allocution would be “a Crawford violation.” J.A. 160.

That is the converse of “failing to object.”

16

Insofar as the State’s analogy to “waiver” is really

meant to invoke the concept of equitable forfeiture,

that contention falls flat as well. The “only”

historically recognized way to forfeit the right to

confrontation is to “engage[] in conduct designed to

prevent the witness from testifying.” Giles v.

California, 554 U.S. 353, 359 (2008). Petitioner did

nothing of the sort here. Nor did he do anything that

had even the effect of frustrating the State’s ability to

put Morris on the stand—or that was otherwise

inconsistent with asserting his right to confrontation.

Petr. Br. 27-30.6 And even if some other form of

misconduct could also forfeit the right, petitioner’s

third-party defense was “in all respects []

appropriate.” J.A. 185; see also supra at 11-14.

The State’s argument falters on still another level

too. Even if the purpose of admitting Morris’s

allocution had been to counter an “improper”

invitation by petitioner for the jury to “speculat[e]

about what had happened to Morris’s case,” Resp. Br.

39, 42, 46, any “remedy” for improper actions that

would otherwise violate a constitutional right must be

tailored to the problem it is intended to address, see

Illinois v. Allen, 397 U.S. 337, 344-46 (1970). That

means a court should consider “alternatives” before

allowing the introduction of otherwise inadmissible

testimonial evidence. Tennessee v. Street, 471 U.S.

409, 415-16 (1986).

6

The State contends that Morris was “unavailable” to

testify. Resp. Br. 43. The trial court made no such finding for

confrontation purposes because New York’s opening-the-door

rule does not require it. At any rate, petitioner had nothing to do

with the State’s failure to produce Morris as a witness.

17

Here, at least two alternatives to admitting

Morris’s allocution would have been readily available.

First, the trial court could have struck the purportedly

improper comments by petitioner’s counsel and

ordered the jury to disregard them. See, e.g., United

States v. Young, 470 U.S. 1, 13 (1985); People v.

Hodges, 654 N.Y.S.2d 279, 281 (Sup. Ct. 1997), aff’d,

692 N.Y.S.2d 92 (App. Div. 1999). Second, the trial

court could have allowed the jury to learn that the

State “ultimately dropped th[e murder] charge[]”

against Morris. Resp. Br. 45. Accordingly, even under

the State’s new (baseless) theory of misconduct, the

trial court would still have had no legitimate basis for

admitting Morris’s allocution.

2. Case law regarding prophylactic rules

Under Kansas v. Ventris, 556 U.S. 586 (2009),

prophylactic rules are subject to judicial balancing,

but constitutionally “mandate[d]” exclusionary rules

are not. Id. at 590-94. The State resists this dichotomy,

pointing to United States v. Robinson, 485 U.S. 25

(1988). Resp. Br. 25-26. But Robinson is fully

consistent with Ventris. Robinson involved the rule—

adopted in Griffin v. California, 380 U.S. 609 (1965)—

that prohibits the prosecution from arguing to the jury

that a defendant’s refusal to testify is “substantive

evidence of guilt.” Robinson, 485 U.S. at 34. Both

supporters and detractors of that rule agree it is a

“prophylactic rule” with no historical foundation. Id. at

41 (Marshall, J., dissenting); see also Mitchell v.

United States, 526 U.S. 314, 331-36 (1999) (Scalia, J.,

dissenting). Thus, the Griffin rule, unlike the

constitutionally mandated Crawford rule, is subject to

judicial balancing.

18

The State also questions whether the Sixth

Amendment truly “demands exclusion of all

unconfronted [testimonial] hearsay.” Resp. Br. 33.

This argument, however, runs headlong into history

and this Court’s precedent, which make clear that

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

Amendment demands what the common law required:

unavailability and a prior opportunity for crossexamination.” Crawford, 541 U.S. at 68; see also Giles,

554 U.S. at 376 n.7 (plurality opinion); Petr. Br. 32.

Absent such a showing, testimonial hearsay is

inadmissible, Crawford, 541 U.S. at 61-62—

particularly where, as here, the argument for

admissibility is nothing more than expanded

relevance.

3. “Integrity of the adversarial factfinding

process”

Finally, the State makes various appeals to the

“integrity of the adversarial factfinding process at

trial.” Resp. Br. 31; see also id. 32, 37. A group of states

as amici similarly urge the Court to “reject Petitioner’s

attempt to secure a rule that would allow defendants

to use the Confrontation Clause to manipulate the

evidentiary picture in a way that subverts a trial’s

truth-finding process.” Amicus Br. of Utah et al. 5.

These arguments are little more than pleas to

erase the right to confrontation from the Sixth

Amendment. The Confrontation Clause itself is

designed “to advance ‘the accuracy of the truthdetermining process in criminal trials.’” Street, 471

U.S. at 415 (quoting Dutton v. Evans, 400 U.S. 74, 89

(1970)). And it does so in a “particular manner”—by

insisting that prosecutorial testimony be subject to

“testing in the crucible of cross-examination.”

19

Crawford, 541 U.S. at 61. “The Clause thus reflects a

judgment, not only about the desirability of reliable

evidence (a point on which there could be little

dissent),” but also that an opportunity to crossexamine the prosecution’s witnesses is essential to the

“‘clearing up of truth.’” Id. at 61-62 (quoting 3 William

Blackstone, Commentaries on the Laws of England

*373 (1768)); see also id. at 62 (“adversarial testing

‘beats and bolts out the Truth much better’” (quoting

Matthew Hale, History and Analysis of the Common

Law of England 258 (1713))); Mattox v. United States,

156 U.S. 237, 242-43 (1895) (“The primary object” of

the Confrontation Clause is to ensure adequate means

to assess whether a witness’s testimony “is worthy of

belief”); Petr. Br. 22-24.

The State protests that the opening-the-door rule

does not depend on judicial assessments of the

“reliability” of the testimonial hearsay the prosecution

seeks to introduce. Resp. Br. 31-32. It is hard to

understand, however, how a trial court could

determine that testimonial hearsay is “required to

correct” a misimpression, id. 47, without first

concluding that the hearsay is so reliable that the jury

should consider it alongside whatever evidence the

defendant has introduced. See Amicus Br. of Bronx

Defenders et al. 5-7, 13-16. The trial court here, in fact,

expressly found that the allocution “reache[d] an

appropriate threshold of reliability” to justify

admission. J.A. 185 (emphasis added).

In any event, the State misses the point. The

Framers deemed testimonial hearsay inadmissible

unless the accused was previously able to crossexamine

the

unavailable

declarant.

That

constitutional determination forecloses “any open-

20

ended exceptions from the confrontation requirement

to be developed by the courts.” Crawford, 541 U.S. at

54. Indeed, the Confrontation Clause would be “no

guarantee at all if it [were] subject to whatever

exceptions courts from time to time consider ‘fair.’”

Giles, 554 U.S. at 375 (plurality opinion); see also

Amicus Br. of ACLU et al. 6-11; Amicus Br. of Const.

Accountability Ctr. 9-19.

The prosecution, of course, generally may respond

to defense submissions and arguments by introducing

admissible evidence of its own. Here, for instance, the

State was allowed to submit evidence that .357 bullets

were found in Morris’s apartment. See J.A. 115, 11821. The State was also able to present Gillam’s

(dubious) in-court testimony that Morris possessed a

.357 at the scene and that petitioner was the shooter.

Tr. 979-80. But what the prosecution may not do in

response to the accused’s reliance on admissible

evidence or a legitimate defense theory is introduce

otherwise inadmissible testimonial hearsay. That is a

classic violation of the Sixth Amendment right to

confrontation—a guarantee that is “essential and

fundamental” to “the kind of fair trial which is this

country’s constitutional goal,” Pointer v. Texas, 380

U.S. 400, 405 (1965).

CONCLUSION

For the foregoing reasons, the judgment of the

New York Court of Appeals should be reversed.

21

Respectfully submitted,

Claudia Trupp

Matthew Bova

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