Sixth Amendment

Can opening-the-door evidence doctrine violate the confrontation clause? SCOTUS will decide

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The U.S. Supreme Court on Monday agreed to decide whether trial testimony for a criminal defendant can open the door to rebuttal evidence that would otherwise be barred by the confrontation clause.

The court agreed to decide the issue in the case of Darrell Hemphill, who was tried for murder in New York after another defendant was tried for the same crime, according to the cert petition.

Hemphill had contended that the other defendant was the perpetrator. SCOTUSblog previously covered the cert petition here.

The other defendant ended up pleading guilty to possession of a firearm after the murder prosecution against him ended in a mistrial. The charge stemmed from a shooting during a street fight in the Bronx that killed a child in a passing car. The child was killed with a shot from a 9 mm handgun.

The other defendant pleaded guilty to possession of a .357 revolver, although he was at first accused of possessing the 9 mm handgun. During a search of the other defendant’s apartment, police had found a 9 mm cartridge and ammunition for a .357 revolver.

At Hemphill’s trial, the defense introduced testimony about police finding the 9 mm cartridge on the nightstand of the other defendant. In response, the state sought to introduce the other defendant’s plea allocution asserting that he had possessed a .357 revolver at the scene of the shooting. A judge overruled a defense objection and allowed the evidence. Hemphill was found guilty of second-degree murder.

The judge in Hemphill’s case applied a New York Court of Appeals decision that allows admission of evidence otherwise barred by the confrontation clause when the defendant creates a “misleading impression,” and the evidence is needed to correct that impression. When Hemphill appealed, the New York Court of Appeals affirmed the conviction and turned down Hemphill’s confrontation clause claim.

According to the cert petition, it is agreed that a defendant can open the door to otherwise inadmissible evidence when it rebuts an issue the defendant has raised. When responsive evidence would otherwise be barred by the confrontation clause, however, courts have “openly split over whether, or under what circumstances, the opening-the-door concept renders the evidence admissible,” the cert petition said.

An amicus brief submitted by the National Association of Criminal Defense Lawyers argued that the opening-the-door doctrine can have “particularly pernicious consequences” for defendants when it limits their confrontation rights.

At his trial, Hemphill “advanced one of the most fundamental and persuasive arguments a criminal defendant can make: Someone else did it. But when his attorney pursued this defense, eliciting testimony about the murder weapon, the trial court held that he had opened the door to a plea allocution in which the alternative suspect admitted to possessing a different weapon at the scene of the crime,” the NACDL amicus brief said.

“Any competent defense attorney could have poked holes in this narrative by asking the alternative suspect whether he had also possessed the murder weapon or by exploring the motivations behind his plea. But petitioner’s attorney had no such opportunity because the trial court held that, by opening the door to the plea allocution, petitioner had forfeited his Sixth Amendment right to confront the declarant,” according to the amicus brief.

The case is Hemphill v. New York. The SCOTUSblog case page is here.

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