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.
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.
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.”
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.