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Hemphill v. New York

Court Type: U.S. Supreme Court
Status: Closed (Judgment)
Last Update: February 22, 2022

What's at Stake

Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Constitution’s Confrontation Clause.


The Constitution requires that defendants be afforded certain specific trial procedures—including the right to be confronted with witnesses against them—and courts may not dilute these guarantees or deviate from prescribed procedures on a case-by-case basis because they deem their application unfair or unnecessary. The New York Court of Appeals, however, has developed a doctrine that permits just that. Under its rule, a trial court may determine that a criminal defendant has “opened the door” to the admission of evidence otherwise barred by the Confrontation Clause if the court determines, in its discretion, that such evidence is “reasonably necessary to correct” an “incomplete and misleading” impression created by the defendant’s evidence or argument.

Amici—the ACLU, the New York Civil Liberties Union, and the Rutherford Institute—argue in this brief that New York’s judge-made exception to the Confrontation Clause is unconstitutional. The New York court’s rule replaces the Constitution’s predictable, specific procedure for assessing reliability through cross-examination and jury factfinding with ad hoc and standardless judicial determinations of “fairness,” permitting judges to override the Confrontation Clause whenever they believe doing so is “reasonably necessary” to correct a misleading defense presentation. It is unsupported by either the text of the Confrontation Clause or the scope of the confrontation right at the time of the founding. Moreover, such an open-ended, discretionary standard, based on the judge’s own assessment of the facts, violates the core purpose of the Confrontation Clause, and risks penalizing defendants simply for contradicting the prosecution’s case.

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