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The Sixth Amendment’s Confrontation Clause is violated by admission of third party’s plea agreement

Hemphill v. New York (2022) 142 S.Ct. 681

Summary: The admission of a third party’s plea allocution, because it  was reasonably necessary to correct defendant’s misleading argument, violated defendant’s right to confront the witnesses against him.

Facts: In 2006, a stray 9-millimeter bullet killed a 2-year-old child after a street fight in the Bronx. Police officers determined Ronnell Gilliam was involved and that Nicholas Morris had been at the scene. Morris’ apartment was searched and  a 9-millimeter cartridge and three .357-caliber bullets were found.  Gilliam initially identified Morris as the shooter, but later said that Darrell Hemphill, Gilliam’s cousin, was the shooter. The  State charged Morris with the child’s murder and possession of a 9-millimeter handgun. In a plea deal, the State agreed to dismiss the murder charges against Morris if he pleaded guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, the State indicted Hemphill for the child’s murder based on  DNA evidence . At his trial, Hemphill elicited testimony from a prosecution witness that police had recovered 9-millimeter ammunition from Morris’ apartment, thus incriminating Morris. Morris was not available to testify at Hemphill’s trial because he was outside the United States. Despite the objection of Hemphill’s counsel, the trial court allowed the State to introduce parts of the transcript of Morris’ plea allocution to the .357 gun possession charge as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that  although Morris’ out-of-court statements had not been subjected to cross-examination, Hemphill’s arguments and evidence had “opened the door” and admission of the statements was necessary to correct the misleading impression Hemphill had created. The State, in its closing argument, cited Morris’ plea allocution and emphasized that possession of a .357 revolver, not murder, was the crime Morris committed. The jury found Hemphill guilty.

 The Confrontation Clause of the Sixth Amendment

A criminal defendant has right “to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the Court concluded that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure,” which allowed the “use of ex parte examinations as evidence against the accused.” Id., at 50, 124 S.Ct. 1354. The Crawford Court reasoned that because “the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts,” the confrontation guarantee was “most naturally read” to admit “only those exceptions established at the time of the founding.” Id., at 54, 124 S.Ct. 1354; see also Giles v. California, 554 U.S. 353, 377, 128 S.Ct. 2678, 171 L.Ed.2d 488. Because “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,” the Court rejected its previous “reliability approach” to the Sixth Amendment’s confrontation right described in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597, which had permitted the admission of statements of an unavailable witness so long as those statements had “adequate indicia of reliability.”

Allowing trial judges to weigh the reliability or credibility of testimonial hearsay evidence would negate Crawford’s emphatic rejection of the reliability-based approach to the Confrontation Clause guarantee. Here, it was not for the trial judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or  misleading in light of the State’s proffered, unconfronted plea evidence, nor whether this evidence was reasonably necessary to correct that misleading impression.

The State’s concern that a reversal will leave prosecutors without recourse to protect against abuses of the confrontation right is overstated. “[W]ell-established rules” of evidence “permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503. Morris’ plea allocution was not part of any statement that Hemphill introduced.

Role of trial judge under Confrontation Clause
Under the Confrontation Clause, the role of the trial judge is not to weigh the reliability or credibility of testimonial hearsay evidence but  to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed.

The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct. For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.

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