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SCOTUS Rejects ‘Opening the Door’ Rule to Correct ‘Misleading Impression’ as Exception to Confrontation Clause Allowing Admission of Unconfronted Testimonial Hearsay

by Richard Resch

In an 8-1 opinion written by Justice Sotomayor, the Supreme Court of the United States held that a trial court’s admission of unconfronted testimonial hearsay evidence because the trial court believed it was reasonably necessary to correct a misleading impression caused by the defendant’s presentation of his defense violated his Sixth Amendment right to confront the witnesses against him.

In 2006, a 2-year-old child was killed by a stray bullet. The police investigation led them to Nicholas Morris. Police searched his apartment and recovered a 9mm cartridge and three .357-caliber bullets. The State charged Morris with murder. After the trial had commenced, Morris entered into a plea agreement in which he pleaded guilty to possession of a .357-magnum revolver, a different type of gun than the one used in the killing.

Several years later, the State prosecuted Darrell Hemphill for the same murder. At trial, Hemphill put forth a third-party culpability defense, arguing Morris was responsible for the killing and provided undisputed testimony from a State witness that 9mm ammunition was recovered by police from Morris’ nightstand. The State didn’t object but would subsequently argue that Hemphill’s argument was misleading because police also recovered .357-caliber bullets from Morris’ nightstand, which he pleaded guilty to possessing.  

At the time of the trial, Morris was outside the U.S. and was not available to testify. As a result, the trial court allowed the evidence, reasoning that Hemphill had “open[ed] the door” to the admission of the out-of-court statements, which weren’t subject to cross-examination (hearsay), because introduction of portions of Morris’ plea allocution was “reasonably necessary” to “correct” the “misleading impression” created by Hemphill. People v. Reid, 971 N.E.2d 353 (N.Y. 2012) (holding a defendant could “ope[n] the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence is “reasonably necessary to correct [a] misleading impression” created by the defense).

The jury found Hemphill guilty, and the trial court sentenced him to 25 years to life in prison. Hemphill appealed, but the Supreme Court of New York, Appellate Division (the state’s intermediate appellate court), affirmed. He then appealed to the Court of Appeals of New York (the state’s highest court), which also affirmed. The Supreme Court of the United States granted certiorari.

The Court stated that the question before it “is whether the admission of the plea allocution under New York’s rule in People v. Reid violated Hemphill’s Sixth Amendment right to confront the witnesses against him.” The Court held that it did.

The Supreme Court began its discussion by observing the Sixth Amendment’s Confrontation Clause is a bedrock constitutional protection afforded to all criminal defendants. The Court explained that previously it took the position that the Confrontation Clause doesn’t prohibit the admission of statements by an unavailable witness as long as they have “adequate indicia of reliability,” i.e., they fall “within a firmly rooted hearsay exception” or otherwise bear “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56 (1980).

However, the Supreme Court firmly rejected its reliability-based approach in Roberts 24-years later in Crawford v. Washington, 541 U.S. 36 (2004). The Crawford Court declared that the primary evil that the Confrontation Clause protects against is “the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” It explained that the framers of the Constitution “would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. The Crawford Court further explained that the only exceptions to the Confrontation Clause are those that were “established at the time of the founding.” Id.; see also Giles v. California, 554 U.S. 353 (2008) (rejecting an exception to the Confrontation Clause “unheard of at the time of the founding or for 200 years thereafter”).

In the current case, the Court stated that Crawford stands for the principle that the Confrontation Clause prohibits “judges from substituting their own determinations of reliability for the method the Constitution guarantees,” viz., “by testing in the crucible of cross-examination.” Crawford. The Court instructed that “the role of the trial judge is not, for Confrontation Clause purposes, to weigh the reliability or credibility of testimonial hearsay evidence; it is to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed.”

The Court determined that the trial court violated Crawford by admitting Morris’ plea allocution based simply on the fact the trial court believed Hemphill’s presentation created a misleading impression and that it was reasonably necessary to correct it by admitting unconfronted, testimonial hearsay. The Court explained that it was not the trial court’s place to weigh in on the reliability of Hemphill’s theory, and similarly, it wasn’t the trial court’s role to decide that the hearsay evidence was reasonably necessary to correct what it inappropriately considered a misleading impression. The Court reiterated: “The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court.”

Thus, the Court held that the admission of the transcript of Morris’ plea allocution violated Hemphill’s Sixth Amendment right to confront the witnesses against him.

Accordingly, the Court reversed the judgment of the New York Court of Appeals and remanded the case for further proceedings consistent with its opinion. See: Hemphill v. New York, 142 S. Ct. 681 (2022). 

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Related legal cases

Hemphill v. New York

Giles v. California

554 U.S. 353; 128 S.Ct. 2678; 171 L.Ed.2d 488; 2008 U.S. LEXIS 5264


No. 07-6053

April 22, 2008, Argued

June 25, 2008, Decided

NOTICE: The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded.


At petitioner Giles' murder trial, the court allowed prosecutors to introduce statements that the murder victim had made to a police officer responding to a domestic violence call. Giles was convicted. While his appeal was pending, this Court held that the Sixth Amendment's Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U.S. 36, 53-54. The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim's testimony because it found Giles had committed the murder for which he was on trial--an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.

Held: The California Supreme Court's theory of forfeiture by wrongdoing is not [*2] an exception to the Sixth Amendment's confrontation requirement because it was not an exception established at the founding. Pp. 3-20; 22-24.

(a) Common-law courts allowed the introduction of statements by an absent witness who was "detained" or "kept away" by "means or procurement" of the defendant. Cases and treatises indicate that this rule applied only when the defendant engaged in conduct designed to prevent the witness from testifying. Pp. 4-7.

(b) The manner in which this forfeiture rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the separate common-law exception to the confrontation requirement for statements made by speakers who were both on the brink of death and aware that they were dying. Pp. 7-11.

(c) Not only was California's proposed exception to the confrontation right plainly not an "exceptio[n] established at the time of the founding," Crawford, supra, at 54; [*3] it is not established in American jurisprudence since the founding. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 804(b)(6), which "codifies the forfeiture doctrine," Davis v. Washington, 547 U.S. 813, 833. Pp. 11-14.

(d) The dissent's contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported by the cases. In any event, if the dissent's theory were true, it would not support a broader forfeiture exception but would eliminate the forfeiture exception entirely. Previously confronted testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68. Pp. 15-20.

(e) Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant's prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent [*4] of a defendant's subsequent act causing the witness's absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles' intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand. Pp. 23-24.

40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded.

JUDGES: SCALIA, J., delivered the opinion of the Court, except as to Part II-D-2. ROBERTS, C. J., and THOMAS and ALITO, JJ., joined that opinion in full, and SOUTER and GINSBURG, JJ., joined as to all but Part II-D-2. THOMAS, J., and ALITO, J., filed concurring opinions. SOUTER, J., filed an opinion concurring in part, in which GINSBURG, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS and KENNEDY, JJ., joined.


JUSTICE SCALIA delivered the opinion of the Court, except as to Part II-D-2.

We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.


On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, [*5] Brenda Avie, outside the garage of his grandmother's house. No witness saw the shooting, but Giles' niece heard what transpired from inside the house. She heard Giles and Avie speaking in conversational tones. Avie then yelled "Granny" several times and a series of gunshots sounded. Giles' niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie, who had not been carrying a weapon, had been shot six times. One wound was consistent with Avie's holding her hand up at the time she was shot, another was consistent with her having turned to her side, and a third was consistent with her having been shot while lying on the ground. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder.

At trial, Giles testified that he had acted in self-defense. Giles described Avie as jealous, and said he knew that she had once shot a man, that he had seen her threaten people with a knife, and that she had vandalized his home and car on prior occasions. He said that on the day of the shooting, Avie came to his grandmother's house and threatened to kill him and his new girlfriend, who had been at the house earlier. [*6] He said that Avie had also threatened to kill his new girlfriend when Giles and Avie spoke on the phone earlier that day. Giles testified that after Avie threatened him at the house, he went into the garage and retrieved a gun, took the safety off, and started walking toward the back door of the house. He said that Avie charged at him, and that he was afraid she had something in her hand. According to Giles, he closed his eyes and fired several shots, but did not intend to kill Avie.

Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles' objection, the trial court admitted these statements into [*7] evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. Cal. Evid. Code Ann. § 1370 (West Supp. 2008).

A jury convicted Giles of first-degree murder. He appealed. While his appeal was pending, this Court decided in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), that the Confrontation Clause requires that a defendant have the opportunity to confront the witnesses who give testimony against him, except in cases where an exception to the confrontation right was recognized at the time of the founding. The California Court of Appeal held that the admission of Avie's unconfronted statements at Giles' trial did not violate the Confrontation Clause as construed by Crawford because Crawford recognized a doctrine of forfeiture by wrongdoing. 19 Cal.Rptr. 3d 843, 847 (2004) (officially depublished). It concluded that Giles had forfeited his right to confront Avie because he had committed the murder for which he was on trial, and because his intentional criminal act made Avie unavailable [*8] to testify. The California Supreme Court affirmed on the same ground. 40 Cal. 4th 833, 837, 152 P. 3d 433, 435 (2007). We granted certiorari. 552 U.S. (2008).


The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S., at 68. The State does not dispute here, and we accept without deciding, that Avie's statements accusing Giles of assault were testimonial. But it maintains (as did the California Supreme Court) that the Sixth Amendment did not prohibit prosecutors from introducing the statements because an exception to the confrontation guarantee permits the use of a witness's unconfronted testimony if a judge finds, as the judge did in this case, that the defendant committed a wrongful act that rendered the witness unavailable to testify at trial. We held in Crawford [*9] that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." Id., at 54. We therefore ask whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding-era exception to the confrontation right.


We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. See id., at 56, n. 6, 62. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying. See, e.g., King v. Woodcock, 1 Leach 500, 501-504, 168 Eng. Rep. 352, 353-354 (1789); State v. Moody, 3 N. C. 31 (Super. L. & Eq. 1798); United States v. Veitch, 28 F. Cas. 367, 367-368 (No. 16,614) (CC DC 1803); King v. Commonwealth, 4 Va. 78, 80-81 (Gen. Ct. 1817). Avie did not make the unconfronted statements admitted at Giles' trial when she was dying, so her statements do not fall within this historic exception.

A second common-law doctrine, which we will refer to as forfeiture by wrongdoing, permitted the introduction of statements of a witness who [*10] was "detained" or "kept away" by the "means or procurement" of the defendant. See, e.g., Lord Morley's Case, 6 How. St. Tr. 769, 771 (H. L. 1666) ("detained"); Harrison's Case, 12 How. St. Tr. 833, 851 (H. L. 1692) ("made him keep away"); Queen v. Scaife, 117 Q. B. 238, 242, 117 Eng. Rep. 1271, 1273 (K. B. 1851) ("kept away"); see also 2 W. Hawkins, Pleas of the Crown 425 (4th ed. 1762) (hereinafter Hawkins) (same); T. Peake, Compendium of the Law of Evidence 62 (2d ed. 1804) ("sent" away); 1 G. Gilbert, Law of Evidence 214 (1791) ("detained and kept back from appearing by the means and procurement of the prisoner"). The doctrine has roots in the 1666 decision in Lord Morley's Case, at which judges concluded that a witness's having been "detained by the means or procurement of the prisoner," provided a basis to read testimony previously given at a coroner's inquest. 6 How. St. Tr., at 770-771. Courts and commentators also concluded that wrongful procurement of a witness's absence was among the grounds for admission of statements made at bail and committal hearings conducted under the Marian statutes, which directed justices of the peace to take the statements of felony suspects and [*11] the persons bringing the suspects before the magistrate, and to certify those statements to the court, Crawford, supra, at 43-44; J. Langbein, Prosecuting Crime in the Renaissance 10-12, 16-20 (1974). See 2 Hawkins 429. This class of confronted statements was also admissible if the witness who made them was dead or unable to travel. Ibid.

The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been "kept back" or "detained" by "means or procurement" of the defendant. Although there are definitions of "procure" and "procurement" that would merely require that a defendant have caused the witness's absence, other definitions would limit the causality to one that was designed to bring about the result "procured." See 2 N. Webster, An American Dictionary of the English Language (1828) (defining "procure" as "to contrive and effect" (emphasis added)); ibid. (defining "procure" as "to get; to gain; to obtain; as by request, loan, effort, labor or purchase"); 12 Oxford English Dictionary 559 (2d ed. 1989) (def. I(3)) (defining [*12] "procure" as "[t]o contrive or devise with care (an action or proceeding); to endeavour to cause or bring about (mostly something evil) to or for a person"). Similarly, while the term "means" could sweep in all cases in which a defendant caused a witness to fail to appear, it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent. See 9 id., at 516 ("[A] person who intercedes for another or uses influence in order to bring about a desired result"); N. Webster, An American Dictionary of the English Language 822 (1869) ("That through which, or by the help of which, an end is attained").

Cases and treatises of the time indicate that a purpose-based definition of these terms governed. A number of them said that prior testimony was admissible when a witness was kept away by the defendant's "means and contrivance." See 1 J. Chitty, A Practical Treatise on the Criminal Law 81 (1816) ("kept away by the means and contrivance of the prisoner"); S. Phillipps, A Treatise on the Law of Evidence 165 (1814) ("kept out of the way by the means and contrivance of the prisoner"); Drayton v. Wells, 10 S. C. L. 409, 411 (S. C. 1819) [*13] ("kept away by the contrivance of the opposite party"). This phrase requires that the defendant have schemed to bring about the absence from trial that he "contrived." Contrivance is commonly defined as the act of "inventing, devising or planning," 1 Webster, supra, at 47, "ingeniously endeavoring the accomplishment of anything," "the bringing to pass by planning, scheming, or stratagem," or "[a]daption of means to an end; design, intention," 3 Oxford English Dictionary, supra, at 850. 1


1 The dissent asserts that a defendant could have "contrived, i.e., devised or planned . . . to murder a victim" without the purpose of keeping the victim away from trial. See post, at 12 (opinion of BREYER, J.). But that would not be contriving to keep the witness away. The dissent further suggests that these authorities are irrelevant because "the relevant phrase" in Lord Morley's Case itself is "'by means or procurement'" of the defendant and means "may, or may not, refer to an absence that the defendant desired, as compared to an absence that the defendant caused." Post, at 12-13 (emphasis added). But the authorities we cited resolve this ambiguity in favor of purpose by substituting for the "means [*14] or procurement" of Lord Morley's Case either "contrivance" or "means and contrivance." (Emphasis added.)



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