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This case began with the tragic murder of a two-year-old child, who was struck by a stray nine-millimeter bullet after a street fight in the Bronx, New York. Eyewitnesses described the shooter as wearing a blue shirt or sweater.

The police subsequently searched an apartment belonging to Nicholas Morris, after Ronnell Gilliam, one of the participants in the fight, identified him as the shooter. That searched revealed a nine-millimeter cartridge and three .357-caliber bullets. After Gilliam changed his story and identified his cousin, Darrell Hemphill, as the shooter, the State entered into a plea deal with Morris wherein it agreed to dismiss the murder charges against him if he pleaded guilty to a new charge of possessing a .357 revolver — a weapon that had not killed the victim.

Several years later, the State indicted Hemphill for the child’s murder after discovering his DNA on a blue sweater found in Morris’ apartment during the earlier search. Hemphill’s primary defense strategy at trial was to point to Morris as the shooter, including the the discovery of nine-millimeter ammunition in his apartment — the same caliber bullet that killed the child.

The State had a serious problem, however: Morris was outside of the United States at the time of Hemphill’s trial and thus not available to testify to rebut Hemphill’s claims. The State attempted to solve this problem by introducing portions of the transcript from Morris’ plea allocution to the gun possession charge as evidence to rebut Hemphill’s defense. Citing to New York case law holding that a defendant could “open the door” to evidence otherwise inadmissible under the Confrontation Clause to “correct [a] misleading impression” made by the defense’s “evidence or argument,” the trial court held that Hemphill had “opened the door” to the admission of Morris’s plea allocution by arguing Morris possessed a nine-millimeter handgun. New York’s appellate courts subsequently affirmed this decision.

The United States Supreme Court disagreed by a vote of 8 to 1. Noting the right of confrontation is one of the “bedrock constitutional protections” afforded to criminal defendants under the Sixth Amendment, it held that it was not for the trial judge to determine whether Hemphill waived this protection by making Morris’ allocution relevant to his defense. Courts must “not overlook [the Sixth Amendment’s] command, no matter how noble the motive,” the Court held.

But, won’t this leave prosecutors at the mercy of defendants who abuse their right of confrontation to mislead the jury? Not so, said the Court, noting that the Federal Rules of Evidence, in particular FRE 403, allow trial courts to balance the admissibility of evidence with their prejudicial effects.

Justice Alito authored a concurring opinion, joined by Justice Kavanaugh, agreeing Hemphill had not relinquished his Confrontation Clause rights under the circumstances. He noted, however, that there are circumstances in which a defendant could relinquish his or her rights.

Justice Thomas was the lone dissenter. Arguing Hemphill had not preserved his Confrontation Clause arguments in the lower courts, he argued that the Court lacked jurisdiction to review the issue.

Hemphill represents a forceful defense of a defendant’s right to cross-examine witnesses offered by the Government. The criminal defense bar should read it carefully and use it as a tool to ensure justice for their clients.

The attorneys at Gess Mattingly & Atchison, P.S.C. have experience defending clients in both state and federal prosecutions. Please contact us today.

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