Opening the Door to Otherwise Inadmissible Evidence

The U.S. Supreme Court today took up a New York case presenting the question of when a defendant “opens the door” to evidence that would otherwise violate the Confrontation Clause of the Sixth Amendment.

During a fight on a Bronx street 15 years ago, someone fired a 9 millimeter handgun that missed the intended target and killed a child in a passing car. The key question is whether that shot was fired by Nicholas Morris, who was originally charged with the crime, or Darrell Hemphill, who was eventually convicted of it.

One evidentiary fact in this dispute is what caliber of gun Morris possessed, 9 mm or .357 (inches). Nine millimeters equals .354 inches: close, but not close enough to make their ammunition interchangeable.

At his trial, Hemphill introduced evidence that the police had found a 9 mm cartridge in Morris’s apartment the day of the shooting. (They had also found .357 ammunition.) The state rebutted this with various evidence, including Morris’s plea allocution in which he pleaded guilty to possessing a firearm.

The intermediate appellate court (called the Supreme Court Appellate Division in New York’s unique nomenclature) affirmed. On this point the court held:

The court properly permitted the People to introduce portions of Morris’s plea allocution, in which he pleaded guilty to weapon possession and admitted that at the time and place of the murder, he possessed a .357 caliber handgun. Morris did not testify at defendant’s trial and his plea allocution would normally be inadmissible as testimonial hearsay. However, the admission of portions of Morris’s plea allocution did not violate defendant’s right of confrontation because defendant opened the door to this evidence (see generally People v Reid, 19 NY3d 382, 387 [2012]). During the trial, defendant created a misleading impression that Morris possessed a 9 millimeter handgun, which was consistent with the type used in the murder, and introduction of the plea allocution was reasonably necessary to correct that misleading impression.

The state’s highest court, the Court of Appeals, affirmed in a brief memorandum noting other issues but not this one explicitly. “The trial court’s other evidentiary rulings were similarly within the court’s discretion ….”

The state’s brief in opposition to the certiorari petition addresses mainly why the U.S. Supreme Court should not take the case rather than defending the decision on the merits. The state makes three arguments. The defendant failed to properly raise the federal question in the state courts, a jurisdictional limitation of the kind the high court is particularly careful about. There isn’t enough of a conflict in lower courts to warrant the high court’s attention. And anyway it’s harmless error, if error at all, given the other evidence.

By granting certiorari, the Supreme Court does not seem to have bought those arguments, so it’s on to the merits. The case is Hemphill v. New York, No. 20-637.

In other action this week, on Tuesday the high court hears argument in two cases involving “plain error” review in federal criminal cases. Decisions in cases argued earlier in the term are expected Thursday.