Claudia V. Balli

Claudia V. Balli is a Board Member of TCDLEI, practicing State and Federal Criminal defense in Laredo, Texas while parenting. Claudia has eight years of experience in criminal defense, both at the trial and appellate levels.

Roberto Balli and Claudia V. Balli are married to one another and are law partners at Balli & Balli Law Firm, LLP, in Laredo, a firm dedicated to Federal and State criminal defense and criminal appeals. Roberto can be reached at or (956) 712-4999. Claudia can be reached at or (956) 712-4999.

Federal Corner: Saving the Confrontation Clause

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The Confrontation Clause

One of the greatest trial rights and protections owned by a criminal defendant is the Sixth Amendment right to confront and cross-examine witnesses at trial. The Sixth Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him;”

 – U.S. Const. amend. VI.

The Confrontation Clause and the rule against hearsay found in the rules of evidence protect similar interests.  However, in California v. Green, 339 U.S. 149 (1970), the United States Supreme Court held that the 6th Amendment’s right to confrontation and the hearsay rule in the rules of evidence are not the same.  In doing so, the Court stated the following: “While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.”

The distinction of the confrontation right and the hearsay rule is significant.  Constitutional protections carry more weight than evidentiary rules in trial courts and on appeal. Further, the hearsay rule’s many exceptions do not apply to the confrontation clause.  California v. Green, 339 U.S. 149 (1970); See Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas, 380 U.S. 400 (1965).  

Crawford v. Washington

In 2004, the United States Supreme Court issued an important opinion in confrontation litigation, Crawford v. Washington, 541 U.S. 36 (2004).  In Crawford, husband, Michael Crawford, and wife, Sylvia Crawford, were charged related to the stabbing of a man. Both Michael and Sylvia gave recorded statements to the police at the police station regarding the incident. Michael admitted to stabbing the man in self-defense, but Sylvia’s statement to the police was inconsistent with Michael’s defense. At Michael’s trial, the State could not compel Sylvia to testify against Michael due to the spousal privilege rule in Washington. Therefore, the State introduced Sylvia’s prior recorded statement under the “statement against interest” exception to the hearsay rule over the Defense’s objection that the recording violated the Confrontation Clause. The Supreme Court in Crawford held that the introduction of Sylvia’s statement at trial without Sylvia appearing to testify in court violated the Confrontation Clause and was inadmissible. The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.” 

Opening the Door Exception to Confrontation

In Hemphill v. New York, 2022 WL 174223 (2022), the Supreme Court had to decide whether the statutory exception to the Confrontation Clause violated the Sixth Amendment. The Confrontation Clause was under attack by New York, which had created an exception to the confrontation clause: “Opening the Door.”

Facts of the Case

A two-year old boy traveling in vehicle was killed by a stray 9-millimeter bullet shot by a person involved in a street fight. Police suspected that either Nicholas Morris or Darrel Hemphill was the shooter. A search of Morris’ apartment yielded 9-millimeter ammunition only and a .357-magnum handgun. Morris was initially charged with the murder of the child, but later was offered and agreed to plea to a charge related to possession of the .357-magnum handgun and dismissal of the murder charge.

Hemphill was then charged with the murder of the child. During Hemphill’s trial, Hemphill used a third-party culpability defense, blaming Morris for the murder.  During opening statement, Hemphill’s counsel told the jury that a search was conducted of Morris’s apartment hours after the shooting, and the police had recovered 9-millimeter ammunition, he ame aliber ammunition that had been used to shoot the boy. 

To controvert the Defense’s opening statement, the prosecution sought to introduce the plea colloquy transcript from Morris’ plea hearing in which Morris had pleaded guilty to possession of the .357-magnum handgun.  The State cited to the Reid Rule, as a judicially and legislatively created exception to the Confrontation Clause in New York that allowed the trial court to admit evidence at trial for the prosecution that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.  The Defense objected that the testimony sought by the prosecution (the plea transcript) violated the Confrontation Clause and Crawford v. Washington, because Morris was unavailable to testify and the defense had not had a previous opportunity to cross-examine him.

The trial court found that Hemphill’s attorney “opened the door” during opening statements by telling the jury about the 9-millimeter ammunition that was found in Morris’ apartment on the night of the murder. Therefore, the trial court allowed Morris’ plea colloquy transcript from the possession of the .357-magnum handgun charge into evidence to correct a “false impression” created by the defense.

Question Presented

Whether New York’s “opening the door” rule to the Confrontation Clause is a violation of the Confrontation Clause.   The rule allows the trial court to admit evidence for the prosecution at trial that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.

Background

The Court first analyzed some of the history of Confrontation Clause Jurisprudence. In 1980, the Supreme Court held in Ohio v. Roberts, 448 U.S. 56 (1980) that the Confrontation Clause did not bar the admission of statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”

However, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abrogated Ohio v. Roberts.  The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.”  

State’s Arguments on Appeal

In its arguments to the Court, the State conceded that Morris’ plea colloquy was testimonial, meaning the Confrontation Clause was implicated.  However, the State argued that New York’s “opening the door” rule was not an exception to the Confrontation Clause.  Instead, the State argued that the “opening the door” rule was a procedural rule, like failing to object to the confrontation clause violation, and thus there was no violation. 

The Court has approved procedural rules and allows the States and the Government to adopt procedural rules related to objections to testimonial evidence.  For example, in Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009), the Court approved “notice and demand” statutes.  These statutes require the State to give notice that it plans on introducing testimonial evidence (such as a lab report) without a sponsoring witness and the defense is given a deadline by which to object to the introduction of the evidence.  Failure to object is considered a waiver of the right to confront the witness. 

The Court’s Analysis – Procedural Rules

First, the Court emphasized that it approves of procedural rules that allow for admission of testimonial evidence.  The Court reiterated its approval of the “notice and demand” statutes discussed in Melendez-Dias.  The Court also approved the rule stated in Illinois v. Allen, 397 U.S. 337 (1970), which allows for removal of a criminal defendant from his trial when despite repeated warnings, he has become so disorderly, disruptive, and disrespectful in court that his trial cannot be cannot be carried on with him in the courtroom. 

The Court’s Analysis – Substantive Rules

However, the Court held that New York’s “opening the door” rule was not a procedural rule, but instead it was substantive.  In other words, the “opening the door” rule was a substantive rule like the one in Ohio v. Roberts, 448 U.S. 56 (1980) that allowed the testimonial statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”  However, Ohio v. Roberts was rejected in Crawford v. Washington, 541 U.S. 36 (2004).  In rejecting Ohio v. Roberts, Crawford stands for the principal that judges are barred “from substituting their own determinations of reliability for the method the Constitution guarantees.”  In other words, a judge should not substitute her wisdom about reliability for the reliability of cross-examination.

Similarly, the Court held that New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence. “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.”

The Holding

Because New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence, the rule violated the Confrontation Clause.  Judges are not allowed to weigh the reliability, credibility, or misleading nature of testimony as a substitute for cross-examination. 

The Authors’ Thoughts

  • The Court properly distinguished between procedural and substantive rules.  Procedural rules like Texas’ Article 38.41 (Certificate of Analysis) which allows the State to give notice that it intends to introduce a laboratory report without a sponsoring witness, are approved because the defense has an opportunity to object to the evidence.  However, rules like New York’s “opening the door” rule rely on judge’s weighing the credibility, reliability, or weight of evidence are substantive in nature, and thus violate the principles set out in Crawford
  • This case is a significant opinion because the Court did not take a step back from Crawford. This is and 8-1 opinion.  Crawford is still the rule of law and confrontation continues to be one of the most important and protected trial rights for a defendant.

Federal Corner: Seizures by Force

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After 25 years and 250 Voice articles, TCDLA legend Buck Files decided to retire or maybe just take a break from writing the Federal Corner. We don’t have Buck Files’ credentials or experience, but we are honored to present this article for the Federal Corner. Fortunately for us, and for you, the reader, on March 25, the United States Supreme Court slow-pitched a softball with its most recent decision in Torres v. Madrid, 141 S. Ct. 989 (2021).

This opinion answers the question of whether a seizure of a person for purposes of the Fourth Amendment occurs when an officer uses force against a person (in this case actually shooting Torres) with the intent to restrain the person even if the force does not succeed in subduing the person. Put simply, if an officer shoots a person in an attempt to detain the person and the person flees after being shot, is this a Fourth Amendment seizure? The answer is Yes.

Justice Roberts delivered the opinion joined by Breyer, Sotomayor, Kagan, and Kavanaugh. The opinion reads, in part, as follows.

The Facts of the Case

New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant on a white-collar criminal, who was also suspected of involvement in drug trafficking and violent crime including murder. Roxanne Torres was in the parking lot of the apartment complex with another person near a Toyota FJ Cruiser. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres got into the driver’s seat. The officers attempted to speak with Torres, but she did not notice their presence until one of them tried to open the door to her car. She thought that the officers were carjackers trying to steal her car, and she hit the gas to escape them. Officer Williamson and Officer Madrid fired thirteen shots at Torres striking her twice in the back and temporarily paralyzing her left arm.

Torres drove to a hospital 75 miles away. The hospital was able to airlift her to a hospital in Albuquerque, where the police arrested her the next day.

The Civil Lawsuit

Torres sought damages from Officers Madrid and Williamson under 42 U.S.C. § 1983, which provides for a cause of action for the deprivation of constitutional rights by a person acting under the color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary Judgment for Madrid and Williamson and the Tenth Circuit affirmed the ruling on the ground that a suspect’s continued flight after being shot by the police negates a Fourth Amendment excessive-force claim. Torres v. Madrid, 769 F. App’x 654, 657 (10th Cir. 2019). 

Question Presented

Whether the application of physical force to the body of the person with the intent to restrain is a seizure, even if the force does not succeed in subduing the person.

California v. Hodari D.

California v. Hodari D., 499 U.S. 621, (1991) interpreted the term “seizure” by consulting the common law of arrest. The common law distinguished the application of force from a show of authority, such as an order for a suspect to halt. The latter does not become an arrest unless and until the arrestee complies with the demand. Hodari D. articulated two pertinent principles.  First, common law arrests are Fourth Amendment seizures. Second, the common law considered the application of force to the body of a person with the intent to restrain to be an arrest, no matter whether the arrestee escaped.

English Common Law Arrests – Mere Touch Rule

The traditional rule persisted that all an arrest required was “corporal seising or touching the defendant’s body.” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (Blackstone). Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. See Wilson v. Arkansas, 514 U.S. 927, 933 (1995). Justice Baldwin, instructing a jury in his capacity as Circuit Justice, defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” United States v. Benner, 24 F.Cas. 1084, 1086–1087 (No. 14,568) (CC ED Pa. 1830).

Stated simply, the cases “abundantly shew that the slightest touch [was] an arrest in point of law.” Nicholl v. Darley, 2 Y. & J. 399, 404, 148 Eng. Rep. 974 (Exch. 1828). Indeed, it was not even required that the officer have, at the time of such an arrest, “the power of keeping the party so arrested under restraint.” Sandon v. Jervis, El. Bl. & El. 935, 940, 120 Eng. Rep. 758, 760 (Q. B. 1858). The consequences would be “pernicious,” an English judge worried, if the question of control “were perpetually to be submitted to a jury.” Ibid.; cf. 3 Blackstone 120 (describing how “[t]he least touching of another’s person” could satisfy the common law definition of force to commit battery, “for the law cannot draw the line between different degrees of violence”).

Countess of Rutland – The Use of a Mace

This case, of course, does not involve “laying hands,” Sheriff v. Godfrey, 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B. 1739), but instead a shooting. The closest-fitting decision seems to be Countess of Rutland’s Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605). In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.” Id., at 54a, 77 Eng. Rep., at 336. We think the case is best understood as an example of an arrest made by touching with an object, for the serjeants-at-mace announced the arrest at the time they touched the countess with the mace. See, e.g., Hodges, Cro. Jac., at 485, 79 Eng. Rep., at 414 (similar announcement upon laying of hands). Maybe the arrest could be viewed as a submission to a show of authority because a mace served not only as a weapon but also as an insignia of office. See Kelly, The Great Mace, and Other Corporation Insignia of the Borough of Leicester, 3 Transactions of the Royal Hist. Soc. 295, 296–301 (1874).

However, one reads Countess of Rutland, there is no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest. The required “corporal seising or touching the defendant’s body” can be as readily accomplished by a bullet as by the end of a finger. 3 Blackstone 288.

Objective Intent to Restrain Required

The application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. See County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend.

The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. See Nieves v. Bartlett, 587 U. S. ––––, ––––, (2019). Only an objective test “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988).  While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. See INS v. Delgado, 466 U.S. 210, 220, (1984); Jones v. Jones, 35 N.C., 448, 448–449 (1852).

Nor does the seizure depend on the subjective perceptions of the seized person. Here, for example, Torres claims to have perceived the officers’ actions as an attempted carjacking. But the conduct of the officers—ordering Torres to stop and then shooting to restrain her movement—satisfies the objective test for a seizure, regardless of whether Torres comprehended the governmental character of their actions.

Length of Seizure by Force

The rule is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.  That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U.S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. See, e.g.Utah v. Strieff, 579 U. S. ––––, ––––, 136 (2016). But brief seizures are seizures all the same.

Applying these principles to the facts, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. Therefore, the officers seized Torres for the instant that the bullets struck her.

There is a distinction between seizures by control and seizures by force. But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule.

Seizure by Control

Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Under the common law rules of arrest, actual control is a necessary element for this type of seizure. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 553 (1924). Such a seizure requires that “a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Brower, 489 U.S., at 599, 109 S.Ct. 1378. But that requirement of control or submission never extended to seizures by force.  See, e.g.Sandon, El. Bl. & El., at 940–941, 120 Eng. Rep., at 760.

As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. At the most basic level, it will often be unclear when an officer succeeds in gaining control over a struggling suspect. Courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, or only when he slaps on the cuffs. None of this squares with our recognition that “ ‘[a] seizure is a single act, and not a continuous fact.’ ” Hodari D., 499 U.S., at 625, 111 S.Ct. 1547 (quoting Thompson v. Whitman, 18 Wall. 457, 471, 21 L.Ed. 897 (1874)).

Our Thoughts

The Court distinguishes between two types of seizures of persons – seizure by control and seizure by force. It is therefore a good read, if not for any other reason, for that reason alone.

For criminal defense purposes, illegal seizures by control will generate suppression issues since, by their nature, the person at this point will have been detained, and the fruits of the illegal detention can be suppressed. 

The seizure by force doctrine can be used effectively by the fleeing client in a 1983 action, just as Torres did. There is not a clear rule for 1983 actions for the “fleeing subject.” However, the Court’s language that a “seizure by force—absent submission—lasts only as long as the application of force” is troubling for the criminal defense lawyer since it does not protect the fleeing client for purposes of suppressing flight or actions occurring during the flight. Presumably, items dropped by a person being illegally seized by force would be subject to suppression since this occurs during the “application of force.” I imagine a person dropping a cell phone or drugs while being assaulted by an officer. However, this author has difficulty imagining any other scenario in which the seizure by force doctrine could be used to suppress evidence.