Next week, the Supreme Court’s October Term begins, with cases ranging from state water lines to state secrets. One of the cases, being argued on October 12, 2021, is Hemphill v. New York, which asks the Court to decide whether a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause. The Sixth Amendment question will have lasting effects. 

In April 2006, Ronnel Gilliam and a companion got in a fight with several other people on a street in the Bronx. Not long after, someone opened fire with a 9 millimeter handgun, killing a child in a passing car. Multiple eyewitnesses said that the gunman was wearing a blue top, and other eyewitnesses said that Gilliam’s companion was also wearing a blue top. Three eyewitnesses also identified the shooter as Nicholas Morris, Gilliam’s best friend. 

Within hours of the shooting, police searched Morris’s home and recovered a 9 millimeter cartridge, as well as ammunition for a .357 revolver. Morris was arrested the next day with bruises on his knuckles, consistent with fist fighting. 

Meanwhile, Gilliam traveled with his cousin, Darrell Hemphill, to North Carolina. Upon his return, Gilliam surrendered to police and confirmed that Morris was the shooter. However, Gilliam was later allowed to speak to Morris on the phone from jail, assuring him he would “make it right.” Gilliam then changed his story, telling police that it was actually his cousin, Hemphill, that had been the gunman. 

Investigators stuck with Morris and indicted him for the child’s murder and for possession of a 9 millimeter handgun. Yet the prosecution ended in a mistrial, and instead of trying him again, the State offered Morris a deal: if Morris pleaded guilty to possessing a firearm at the scene of the shooting, the State would request that the murder charge be dismissed without prejudice. Morris agreed, and the State, oddly, filed new charges, charging Morris with possession of a .357 revolver at the scene- a different caliber than the murder weapon. Because there was actually insufficient evidence that Morris had had a .357 revolver at the scene, Morris was forced to offer his own statement through an allocution. 

Several years after Morris’s mistrial, police determined that DNA on a blue sweater recovered during their original search of Gilliam’s apartment matched that of Hemphill. Although many of the eyewitnesses had identified the blue top as “short-sleeved” or even a “polo shirt”, and never a sweater, in 2013, the State charged Hemphill with the 2006 shooting. The State now maintains that Gilliam acted with two companions, and that Hemphill was the real gunman, pinning much of its theory on Gilliam’s testimony, who agreed to testify at Hemphill’s trial as part of a plea bargain of his own (saving himself at least twenty years in prison). 

At trial, as part of Hemphill’s defense, he elicited testimony explaining that police had recovered the 9 millimeter cartridge on Morris’s nightstand hours after the shooting. In response, the State moved to introduce Morris’s plea allocution, including his assertion that he possessed a .357 revolver at the time of the shooting. Hemphill objected, as admitting the allocution without calling him to the stand would violate his Sixth Amendment right to confront the witnesses against him. But the trial court overruled the objection and admitted the allocution, and Hemphill was found guilty, because Morris possessed the wrong gun at the crime scene. 

Under the Sixth Amendment, criminal defendants are guaranteed 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. There are two exceptions to the confrontation clause: dying declarations, when the declarant makes the statement while knowing they are dying, and “forfeiture by wrongdoing,” when the defendant intentionally acts to make the witness unavailable to testify. 

Neither exception exists in Hemphill’s case. However, the New York court allowed the prosecution to introduce testimonial statements from Morris without providing Hemphill an opportunity to cross-examine him. While the court acknowledged that Hemphill needed to reference Morris to defend himself at trial, it concluded that Hemphill’s third-party defense created a “misleading impression” about Morris, which “opened the door” to the admission of his statement in violation of the Confrontation Clause. 

This term, the Supreme Court will decide whether the prosecution’s introduction of Morris’s statements violated Hemphill’s Sixth Amendment right to confront the witnesses against him. The Confrontation Clause was designed in part to prevent witnesses from lying in order to protect themselves, and Hemphill’s argument, that Gilliam and Morris both lied to put the blame on him, suggests that the Court should reverse the New York decision.