Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Hemphill v. New York, No. 20–637 (2022), the accused was charged with murder.  The victim was killed by a 9-millimeter bullet. Initially, the police had charged Nicholas Morris with the murder, but the State subsequently accepted a plea of guilty to a lesser charge.

At the accused’s trial, the accused pursued “a third-party culpability defense” claiming that Morris had committed the murder. In support, he elicited evidence that the police had recovered 9-millimeter ammunition from Morris’ nightstand during their investigation.

The state sought to introduce parts of the transcript of Morris’ plea allocution as evidence to rebut the accused’s defence.  At the time, Morris was outside the United States and not available to testify.  The trial judge allowed the State to introduce the evidence, holding that the accused’s position had “open[ed] the door” to the introduction of the transcript.  The trial judge held that though Morris could not be subjected to cross-examination, the evidence was admissible because it was “reasonably necessary” to “correct” the “misleading impression” created by the accused.    

The accused was convicted.  His appeal to the New York Court of Appeals was dismissed.  The accused appealed to the Supreme Court of the United States.  The Supreme Court described the question raised by the appeal as being the following:

The question 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 concluded “that it did. Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense”. The conviction was overturned.

The Supreme Court’s Ruling:

The Supreme Court noted that “[o]ne of the bedrock constitutional protections afforded to criminal defendants is the Confrontation Clause of the Sixth Amendment, which states: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him’”.  The Court indicted that the “the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees. The Clause ‘commands’, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination”.

As a result, the Supreme Court concluded that the trial judge erred “by admitting unconfronted, testimonial hearsay against Hemphill”:

The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct. 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.

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. The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee.  The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.