This week, the United States Supreme Court granted certiorari in Hemphill v. New York. Here is the issue presented:
Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
As the cert petition notes, there are currently three approaches:
Three jurisdictions hold that criminal defendants never “open the door” to the admission of evidence that is otherwise barred by the Confrontation Clause;
Five jurisdictions hold that defendants “open the door” to testimonial hearsay when they introduce a testimonial statement by the same declarant; and
Three jurisdictions hold that defendants “open the door” to testimonial hearsay whenever they create a “misleading” impression at trial.
In the Hemphill case specifically,
During Darrell Hemphill’s trial for killing a two-year-old boy with a stray bullet during a fight on Easter Sunday 2006, his attorney elicited testimony that police had found a 9-millimeter handgun, the kind of gun used in the crime, on an alternative suspect’s nightstand hours after the shooting. In response, the prosecution introduced that other suspect’s hearsay statement from a guilty plea allocution that he had a .357 revolver with him at the fight, not a 9-millimeter. The Sixth Amendment would normally require the prosecution to introduce such evidence through the live testimony of the other suspect so that defense counsel could cross-examine him. However, the trial judge let in the statement because the judge found that Hemphill had “opened the door” to this hearsay evidence by creating the impression that the other suspect had the 9-millimeter. New York’s highest court affirmed.