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

Pashman Stein Walder Hayden P.C. represented amicus curiae Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) in a U.S. Supreme Court decision which held that a trial court violated the defendant’s Sixth Amendment right to confront witnesses against him when it allowed another suspect’s plea allocution to be admitted despite objections by the defense. In Hemphill, defendant Darrell Hemphill was accused of killing a 2-year-old child with a 9mm handgun in a drive-by shooting. During the trial, defense counsel elicited testimony from a prosecution witness that police had found a 9mm cartridge on the nightstand of another individual, Nicholas Morris, whom defendant Hemphill alleged was the shooter. The prosecution successfully sought to rebut that testimony by introducing a statement contained in Morris’ plea allocution that he had only a .357 revolver at the scene of the shooting. Although Morris was not at Hemphill’s trial, the trial court reasoned that the defense’s arguments and evidence had “opened the door” under New York law and that the admission of statements in Morris’s plea allocution was reasonably necessary to correct the misleading impression Hemphill created. The New York Appellate Division and the Court of Appeals both affirmed Hemphill’s conviction.

Our Center filed an amicus curiae brief on behalf of ACDL-NJ with the U.S. Supreme Court in Hemphill, authored by Justice Gary S. Stein (Ret.), arguing that the trial court’s admission of Morris’ plea allocution robbed Hemphill of his fundamental constitutional right to cross examine his accuser under the Confrontation Clause of the Sixth Amendment. Our brief argued that testimonial hearsay is only admissible where the defendant knowingly and intentionally waives his constitutional right by introducing a portion of a testimonial hearsay statement as a strategy or tactic. It further reasoned that “opening the door” by creating a misleading impression does not constitute the defendant’s waiver of Sixth Amendment rights, as it is not based on knowing and intentional conduct by the defendant, but upon the perception of the trial court.

In reversing and remanding, the majority opinion written by Justice Sonia Sotomayor stated, “The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court. The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee.“

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