Apologies for being silent so long.
The Supreme Court decided Hemphill v. New York this
week. The Court held that the Confrontation
Clause does not tolerate the admissibility of an out-of-court testimonial statement
on the basis of a judicial determination that doing so is necessary to correct
what the court deems to be a misleading contention by the defense. On this point, the Court stood 8-0. Justice Thomas dissented alone, and on other
grounds; he believed that the defense had not properly preserved the issue.
Briefly, Hemphill was accused of murder, but there was
substantial evidence that another man, Morris, had committed the crime. Indeed, Morris had originally been charged
with the murder, but then was allowed to plead guilty to a much lower-level
weapons charge. Hemphill’s attorney
referred to the fact that police had found cartridges from a 9 mm. handgun, the
type of weapon used in the killing, by Morris’s bedside. The trial court then allowed the prosecution
to prove that at his plea hearing Morris had said he brought another type of
weapon, a .357 magnum revolver, to the scene of the crime; Morris was
unavailable at the time of Hemphill’s trial and Hemphill had never had an
opportunity to be confronted by him, but the court thought this was necessary
to dispel a misleading inference created by Hemphill’s contention. The intermediate appellate court and the Court
of Appeals agreed, but the U.S. Supreme Court did not.
The case should have been regarded as an easy one on the
merits, and the Court treated it as such.
Justice Sotomayor’s opinion for the Court declared:
For Confrontation Clause purposes,
it was not for the judge to determine whether Hemphill’s theory that Morris was
the shooter was unreliable, incredible or otherwise misleading in light of the
State’s proffered, unconfronted plea evidence.
Nor, under the Clause, was it the judge’s role to decide that this evidence
was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the
Confrontation Clause.
Exactly right. On the
whole, Hemphill is a welcome development, because of the result, because
of the lack of any dissent on the confrontation point, and because it is an
unqualified endorsement and application of Crawford. In contrast, say, to Justice Sotomayor’s
majority opinion in Michigan v. Bryant, there is nothing in her opinion
for the Court here that suggests buyer’s remorse about Crawford. On the
contrary, it speaks approvingly of “Crawford’s emphatic rejection of the
reliability-based approach of Ohio v. Roberts,” and underlines the point
by saying:
If Crawford stands for
anything, it is that the history, text, and purpose of the Confrontation Clause
bar judges from substituting their own determinations of reliability for the
method the Constitution guarantees.
(I wish the Court would stop talking about reliability in
this context; even cross-examined eyewitness testimony is not reliable. Speaking of accuracy would be an
improvement. But oh well, old habits die
hard.)
The Court made clear that it was not holding invalid the
traditional rule of completeness as applied to portions of testimonial statements that
would otherwise be inadmissible under the Confrontation Clause. Rather, it reserved the issue. In my view, such an application poses no
problem under the Clause; it would be absurd if an accused were allowed to
introduce the portion of a statement up to but not including “But . . . “ and
then object to the latter part on the basis that he did not have an opportunity
to be confronted by the maker of the statement. Justice Alito, joined by Justice Kavanaugh, wrote
a separate concurred to endorse this position, but they joined the majority opinion
as well.
One aspect of the case is somewhere between rankling and
troubling. Although the statement at issue was made in a
plea hearing, the State contended below that it was not testimonial because it
did not “incriminate or point a finger at all against Mr. Hemphill.” Before the Supreme Court, the State did not
deny that the statement was testimonial, and in a footnote Justice Sotomayor
wrote that the Court “expresses no view on the matter.” Justice Alito’s concurrence makes clear in its
first sentence that its conclusion that admission of the statement violated the
Confrontation Clause is drawn “assuming Morris’s statement was testimonial.” So
this point-a-finger idea is a clear reference to Justice Alito’s suggestion in Williams
v. Illinois that a statement is not testimonial if it is not aimed at a “targeted
individual.” Though Justice Alito’s Williams
opinion spoke for four justices and was on the prevailing side, that point was
explicitly rejected by five justices, so I am disappointed to see that he is
keeping it alive and that the Court evidently felt that to achieve virtual
unanimity it was necessary to keep the point alive. Apparently, Justice Alito wants to be able to
contend in the future that if in a similar case Morris was sworn before a grand
jury investigating the incident and asserted that he was at the scene with a
.357 and not a 9 mm gun, that would not be testimonial, and neither would a sworn
statement by another observer describing the scene of the incident and saying that
the shooter appeared to take deliberate aim and was a young male wearing a blue
sweater. (By the way, I think the lab
report was in fact targeted at a given individual – the person who had the DNA
profile described; there is presumably only one person with that profile, but
many, many young men may wear blue sweaters.)
I hope that if the issue is again presented, a majority of the Court
will again slap the theory down. It’s
unfortunate that it still has breath.
But on the whole, Hemphill is good news.
