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.