Friday, March 04, 2005

Opening the Door

Feb. 4, 2005:
A new decision from New York, People v. Ko, 2005 WL 248988 (N.Y.A.D. 1 Dept. Feb 3, 2005), holds that the defendant opened the door to a Crawford violation. After the defendant's old girlfriend was murdered, his new girlfriend told the police that a bloody shirt found at the scene was hers. The defense referred to this statement, which supported a theory that the new girlfriend had murdered the old. The trouble was that the new girlfriend had said at the same time that the defendant often wore the shirt, and that bloody pants found at the scene were his. The court therefore held that defendant opened the door to admission of the new girlfriend's full statement, which the court held properly to be testimonial (without, by the way, discussing whether it was in response to structured questioning by the police).

This strikes me as eminently sensible. As the court noted, "A contrary holding would allow a defendant to mislead the jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context. "

Ko stands in stark contrast to United States v. Cromer, 389 F.3d 662 (6th Cir. 2004), which essentially rejects the "opening the door" theory as a basis for admitting a statement that would otherwise violate the confrontation right. On the merits of the confrontation issue, Cromer is a wonderful opinion, and it is discussed in one of the first posts on this blog. But as noted in that post, I think the court went overboard on this issue (and in citing me in support of its conclusion on this point).

I have no settled views on this issue, and so I will pose two questions. First, what is the theoretical basis for determining that the defendant opened the door to admissibility of a statement that otherwise would violate the confrontation right? Is it forfeiture -- even though, as Cromer points out, the defendant has presumably done nothing wrong by making the purportedly door-opening argument? Is it waiver -- but if so should it be limited to circumstances in which the defense clearly was aware, perhaps by virtue of a warning, that his conduct was likely to lead to loss of the confrontation right? Is it something else?

Second, what should the standard be for determining whether the right is lost? In some circumstances, it seems to me, the defendant should not be forced to elect between making a given contention and insisting on the confrontation right. But in a case like Ko, it does seem that to allow him to do both would create an intolerably misleading situation.

Addendum, March 4, 2005:

Two new decisions on door-opening came down yesterday, March 3, holding in opposite directions on different facts, and both seem sensible to me. In Le v. State, 2005 WL 487443 (Miss. March 3, 2005), the defendant had offered statements made by another person to inmates, and the state was allowed to offer in rebuttal a statement, apparently conflicting, made by the same person to law enforcement agents, subject to a limiting instruction that this statement was introduced only as it bore on the credibility of the statements to inmates. Seems right to me -- all the more so given that the defense was warned about the consequences of introducing the statements made to inmates.

By contrast, in People v. Ryan, 2005 WL 486846 (N.Y.A.D. 3d Dept. March 3, 2005), the court rejected the prosecution argument that the accused had opened the door. This was a robbery case. An officer testifying on direct had said that a search was predicated on finding a gun, and that the defendant had denied the presence of a gun at the time of his arrest. On cross, the defendant sought to highlight the failure of the police to find a gun and asked whether any of the people arrested in connection with the crime had admitted to the use of a gun. The officer testified that the accused’s two confederates had expressed uncertainty as to whether there had been a gun. On redirect, in response to an open-ended question, the officer testified at length as to his conversations with the confederates. The court held that this was improper. The accused on cross had made only a limited inquiry into statements by others, and had not left a misleading impression. Moreover, the prosecution’s closing argument and the judge’s instructions had failed to limit the use of the prior statements. Again, this seems exactly right.


Paul Vinegrad said...

The basis for allowing the prosecutor in Ko to introduce the "rest of the story" is fairness.

Ko's attorney made a tactical decision (not an unreasonable one that might give rise to an IAC claim)that defense attorneys make all the time.

Under the common-law rule of completeness (partially codified in F.R.E. 106), the related statements are admissible in order to prevent the defendant from using selected parts of a conversation to create a misleading impression (i.e. that only Ko's new girlfriend was connected to the murder scene).

I don't think the concepts of forfeiture or waiver are involved.

Richard D. Friedman said...

I agree with Paul that this is a matter of the rule of completeness. I'm not sure that this is a full answer, though. Dale Nance has thoroughly analyzed the rule of completeness in a pair of articles, A Theory of Verbal Completeness, 80 Iowa L. Rev. 825 (1995), and Verbal Completeness and Exclusionary Rules Under the Federal Rules of Evidence, 75 Tex. L. Rev. 51 (1996). He shows that what he calls the "trumping" function -- that is, overcoming an otherwise valid evidentiary objection -- is the most important function of the rule, but it does not apply in every case. Sometimes the rule only means that the opponent can introduce the completing evidence now rather than later. So I think we still need to say something more than completeness to explain why the trumping function applies in this case.

Paul also speaks of fairness. I always wonder what that means in the context of criminal procedure, which is asymmetric in various ways. I think I would rather say that in a case like Ko it would create intolerable distortion to allow him to present one part of the statement without the other.

Richard D. Friedman said...
This comment has been removed by a blog administrator.
Fred Moss said...

In talking about "opening the door" to excluded evidence, one should not forget the line of Fourth Amendment and Miranda cases where otherwise admissible evidence previously excluded on constitutional grounds has been let in because the defendant "opened the door" to it. I'm thinking of Waldron, the dope case, and Havens, the case involving the t-shirt with the pockets cut out of it found in the dope trafficker's luggage. There is also Harris, where the defendant opened the door to his excluded un-Mirandized statement by contradicting it.

Those cases stand for the proposition that constitutional protections cannot be turned into a shield for perjury.


Chantelle said...


I was wondering if you had any more substantive thoughts on whether a defendant can open the door to otherwise inadmissible evidence barred by the Confrontation Clause. The Tenth Circuit disagreed with the Cromer decision in US v Lopez-Medina, 596 F3d 716 (2010).
A peculiar decision was handed down recently in People v Reid, 82 AD3d 1495 (3d Dept 2011) and from what I've heard, the New York high court has granted leave on the issue. An interesting interplay between Bruton and Crawford and whether a defendant can open the door to such evidence. Do you have any thoughts on this decision?

Richard D. Friedman said...

I haven't thought about this much in a while. Thanks for the question and for the cites. I'll try to look at the cases soon -- I'm on a quick vacation -- and offer something.

Simon said...

The Cromer decision doesn't make much sense in the opening the door context. Is the right of confrontation more fundamental than rights under the Fourth and Fifth amendments where the SC has allowed a defendant to open the door to such evidence? The Court has even held a defendant can open the door to statements taken in violation of his right to counsel. It seems as though Cromer is an anomoly on this front.

Chantelle said...

Have you had a chance to think about your position on this issue?