It's been quite a while since I've posted anything on this blog, for no particular good reason. I will try to pick up the pace.
For now, I'll note that top-side briefs have recently been filed in Hemphill v. New York, No. 20-637, on which the Supreme Court granted cert in April. An easy way to get access to all the documents in the case is through the Supreme Court's docket sheet for the case, which you can find here. The decisions below are part of the appendix to the petition for certiorari. Petitioner's brief (Jeff Fisher as lead counsel) was filed June 22, and a bunch of top-side amicus briefs, including one by me, were filed June 29.
Briefly, Hemphill was accused of murder. He contended that another person, Morris, had fired the fatal shot, and highlighted evidence that police had found a 9-mm cartridge, the type used in the shooting, by Morris's bedside. On the theory that this gave the jury a misleading impression, the trial court then allowed the prosecution to introduce a statement made by Morris at an allocution hearing in which Morris asserted that he had brought a .357-caliber handgun to the scene. Hemphill never had an opportunity to be confronted by Morris. Hemphill was convicted and the New York courts affirmed.
I'm sure I'll have more to say later, but for now I'll just say this: I believe Hemphill's confrontation rights were clearly violated. If Hemphill had introduced part of a statement by Morris, then the prosecution could be allowed to introduce another part of the statement that in fairness should be considered alongside the first part. But that does not represent the facts of the case. The doctrine emerging from New York is that if the trial court believes that the defense has made a misleading presentation of fact then the prosecution is relieved from the Confrontation Clause in presenting rebuttal evidence. And that's just plain wrong.
