The Sixth Amendment guarantees criminal defendants the right “to be confronted with the witnesses against” them.  That “confrontation right” includes the defendant’s right to cross-examine all witnesses who give testimony against them.  Since the drafting of the amendment, the Supreme Court has recognized only two exceptions to this confrontation requirement.  Despite the Court’s insistence that exceptions to the confrontation right be strictly limited, a New York court allowed the prosecution to introduce a testimonial statement from a witness who was not present at Petitioner Darrell Hemphill’s trial and therefore could not be “confronted.”  The jury subsequently convicted Hemphill, and he remains incarcerated on a 25-year sentence.

On appeal, the New York Supreme Court affirmed the conviction on the grounds that Hemphill “opened the door” for the prosecution to introduce a statement from the witness—who had been another suspect in the case.  While the court below acknowledged that Hemphill needed to reference the out-of-court witness to defend himself at trial, it concluded that Hemphill’s third-party defense created a “misleading impression” about the witness, which “opened the door” to the admission of the witness’s statement in violation of the Confrontation Clause.

Hemphill filed a petition for a writ of certiorari asking the Supreme Court to hear the case and consider the constitutionality of this “open the door” exception to the Confrontation Clause.  The Supreme Court granted the petition and CAC filed a friend-of-the-court brief in support of Hemphill, arguing that the “open the door” exception violates the Sixth Amendment’s Confrontation Clause.

Our brief made three key points. First, our brief showed that the Framers adopted the Confrontation Clause in order to enshrine specific common-law protections they viewed as fundamental.  In the sixteenth and seventeenth centuries, a number of high-profile treason trials led to the development in common law of the right of confrontation—the right to meet one’s accusers “face to face.”  Many of the procedural concerns that arose in those treason trials became rallying cries for colonists in America.  The Constitution’s framers drafted the Sixth Amendment to protect the most salient elements of the common-law jury trial, specifically the right of confrontation.

Second, our brief explained that in common-law and founding-era American courts, in-person testimony and cross examination was seen as the key to a fair trial.  These courts did not admit hearsay testimony, going so far as to exclude testimony that was given under oath if a defendant had not been able to cross-examine the person who made the statement.  For founding-era judges, cross-examination was, in the words of former Chief Justice John Marshall, “essential to the correct administration of justice.”

Reflecting the importance of in-person testimony, there were only two exceptions to the right of confrontation recognized at common-law, and our brief explains that neither of those exceptions supports the “open the door” rule adopted by the court below.  The first exception allowed the admission of “dying declarations,” which were admitted only when necessity demanded and after a court concluded that the individual making the statement knew they were dying.  The second exception, “forfeiture by wrongdoing,” applied when a defendant intentionally acted to make the witness unavailable to testify.  Courts did not allow defendants to game the system by preventing the admission of testimony that might otherwise incriminate them.  Both exceptions were narrowly construed and required trial courts to make specific findings before unconfronted testimony could be admitted.  Our brief concluded that the existence of these exceptions provides no support for the broad and nebulous “open the door” exception adopted by the court below.

On January 20, 2022, the Supreme Court ruled 8-1 in favor of Hemphill. Writing the opinion for the court, Justice Sotomayor explained that the Confrontation Clause requires that the reliability and veracity of the evidence against criminal defendants be tested by cross-examination, not determined by a trial court. Thus, the trial court’s decision to admit unconfronted testimonial hearsay over Hemphill’s objection on the view that it was reasonably necessary to correct a misleading argument by Hemphill violated that fundamental guarantee.