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On The Front Lines

Judges Cannot Create Exceptions to the Constitution: Supreme Court Upholds Sixth Amendment Right of Defendants to Cross-Examine Witnesses

WASHINGTON D.C. — The U.S. Supreme Court has upheld the Sixth Amendment right of criminal defendants to confront and cross-examine witnesses. The Rutherford Institute, along with the ACLU and the New York Civil Liberties Union, had filed an amicus brief in Hemphill v. New York, arguing that judge-made exceptions to the Sixth Amendment’s Confrontation Clause are unconstitutional. In its 8-1 decision, the Supreme Court agreed, concluding that 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.”

“As the Supreme Court has recognized, the right to confront and cross-examine witnesses is one of the bedrock constitutional protections afforded to criminal defendants,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “At its core, the Sixth Amendment acts as a restraint on the government’s power to unfairly punish citizens in criminal cases, putting safeguards in place to prevent the accused from being indiscriminately stripped of their life and liberty.”

The Sixth Amendment ensures that when people are accused of a crime, they know what they’re being charged with and are given the opportunity to have a fair, speedy and public trial, an impartial jury, the right to a lawyer, and the chance to confront and question their accusers. Historically, there have only been two recognized exceptions to the Sixth Amendment’s Confrontation Clause: forfeiture by wrongdoing (where a defendant attempts to prevent a witness from testifying), and dying declarations. In Hemphill v. New York, the Supreme Court was presented with a situation in which a trial court claimed that an accused’s defense in a murder trial had “opened the door” to allow the prosecution to present past statements from another person which undermined that defense without giving the accused the benefit of cross-examination. The case arose in 2006, when a two-year-old boy in a passing car was killed by a stray 9 mm bullet from a street fight in the Bronx involving Nicholas Morris, Ronnel Gilliam and his cousin Darrell Hemphill. When police searched Morris’ home, they found a 9 mm cartridge and some .357-caliber bullets. Morris was arrested for the child’s murder. Although Gilliam initially told police that Morris was the gunman, he later recanted and claimed that Hemphill was the shooter. Morris eventually agreed to a deal in which the murder charge would be dropped in exchange for him pleading guilty to possessing a .357 revolver, even though it was not the murder weapon. In 2011, police obtained DNA evidence suggesting that Hemphill was, in fact, the gunman. Hemphill was charged with the murder. Although Hemphill argued at trial that Morris was the shooter, the State introduced statements Morris had made during his plea hearing denying that he was the gunman because he possessed only a .357 revolver rather than a 9 mm handgun. However, Hemphill was never afforded his Sixth Amendment right to confront or cross-examine Morris. Hemphill was subsequently found guilty of murder. Although the New York appellate courts upheld Hemphill’s conviction, the U.S. Supreme Court reversed the ruling, rebutting the lower court’s attempt to recognize an “open door” exception to the Confrontation Clause.

Caitlin Halligan, Claire O’Brien, and Adam K. Hersh of Selendy & Gay PLLC helped to advance the arguments in the amicus brief in Hemphill v. New York.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

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