Hemphill v. New York (20-637)

argument 20-637

Hemphill v. New York

Supreme Court of the United States 1h 10m 8 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the core issue the Court is addressing in Hemphill v. New York?

John G. Roberts 0:00

We'll hear argument next in Hempel versus New York.

John G. Roberts 0:10

Mr Fisher.

Samuel A. Fisher 0:13

Mr T justice, and may it please the court. A defendant cannot lose his right under the confrontation clause to exclude testimonial hearsay simply by making a legitimate defence based on admissible evidence. And that is true even if the hearsay the prosecution would like to introduce would supposedly contradict that defence. To the contrary, history and experience tell us that is when the clause's guarantee of cross examination is at its most urgent. The state never directly disputes the legal propositions I just advanced. Instead, in the state's red brief, it advances for the first time a new argument never before made in this case. According to the state's new theory, Mr Hemphill forfeited his confrontation rights because he made supposedly improper arguments uh at trial.

Samuel A. Fisher 1:01

And apart from this new theory's 11th hour appearance, there are two major problems. First, it finds no support in the record. Uh the joint appendix is crystal clear that the reason why the trial court admitted Morris's elocution was because Mr. Hemphill claimed Mr. Morris was the shooter. He advanced a third-party defense. And the state again and again asked to introduce Mr. Morris's allocution to refute that defense. And I'll turn the court to join appendix page one hundred eighty five, which is where at the top of that page the trial court summarizes its ruling. It says the defence's argument is in quote, in all respects is appropriate and under the circumstances of this case, probably a necessary argument to make.

Samuel A. Fisher 1:44

But then the trial court says nonetheless that argument opens the door to evidence offered by the state refuting the claim that Morris was in fact the shooter. The second problem with the state's new theory is that it finds no support in New York law either. New York's opening the door theory has no impropriety requirement. Instead, all it requires is the evidence the prosecution seeks to introduce to be in conflict or contradiction to the defence defense's own evidence or the defense's arguments. And that's why the state itself admitted at page four and five of its brief of opposition I'm sorry, this brief and opposition in this court, just like throughout the state courts, that the reason why Morris's allocation was admitted was because it contradicted the defense, not because of any supposed impropriety.

Samuel A. Fisher 2:29

So at the bottom, what you have in front of you today is a state law rule in a holding under Reed, the New York Court of Appeals decision, that says that a legitimate defense based on admissible evidence can forfeit the confrontation clause. That rule flouts the history, purpose, and experience of the confrontation clause. I'm happy to entertain the court's questions, but I will uh otherwise I'd turn first to history.

Clarence Thomas 2:54

Um a couple of quick questions, uh Mr Fisher. Um The E. Yeah, I mean you uh point to the State's eleventh hour change in arguments, um, but I think we you have some eleventh hour changes too, it appears. Uh did you focus on the constitutionality of Reed Uh it But below it seemed as though you were challenging the application of READ. and did not assume that that even if read were properly uh applied that you would have a confront confrontation clause problem.

Samuel A. Fisher 3:31

Justice Thomas, we made uh we made a Sixth Amendment argument all the way through the case, including challenging the state's argument that Reed dictated uh a forfeiture of the right here. And the place that it's most directly made is the pages 386 and 388 of the joint appendix. That's our brief to the New York Court of Appeals. And there we said, and this is on page 388, we said that If read is construed to mean that simply rendering testimonial evidence relevant because it would dispute the defense case, uh then read cannot be squared with the Sixth Amendment and that has to be wrong. And so we said quite directly to the New York Court of Appeals exactly what we're saying here is that a a rule of opening the door that depends on expanded relevance cannot be squared with a confrontation clause.