You Complete Me

In Hemphill v. New York, 142 S. Ct. 681 (2022), the U.S. Supreme Court penned the latest chapter in what might be called "The Chronicles of Crawford [v. Washington, 541 U.S. 36 (2004)]."

Hemphill addressed the question: Does the confrontation clause prohibit a prosecutor from using hearsay to correct the misleading impression caused by a defendant's introduction of evidence?

The following hypotheticals are helpful to understanding what Hemphill held and did not hold.

Hypo No. 1: Danny is charged with bank robbery and the murder of a bank guard. Danny introduces the statement of Rusty, one of Danny's cohorts, made during a police interview, "I drove to the bank, and brought a gun with me." In response, the prosecutor seeks to call Rusty's wife as a witness to testify that, when Rusty got home on the day of the robbery, he told her, "I drove Danny to the bank, but then he went and shot people inside!"

Hypo No. 2: Same as Hypo No. 1, except that the prosecutor -- instead of calling Rusty's wife -- seeks to introduce Rusty's statement, made during the same police interview, "I drove Danny, and then gave him my gun as he got out at the bank."

In both hypotheticals, Danny's introduction of Rusty's statement, "I drove to the bank, and brought a gun with me," is misleading because it makes it appear as if Rusty was the more involved party.

If Danny objects, is the prosecutor allowed to correct the misleading impression of relative culpability in both Hypos?

Hemphill tells us that the answer is "no" for Hypo No. 1, and left for another day the answer for Hypo No. 2.

Hemphill literally started with a rumble in the Bronx. A fistfight led to a shooting, and a stray 9-millimeter bullet hit and killed a toddler in a passing car. Prosecutors initially charged Morris with the killing, but eventually dismissed the murder charge and proceeded instead against Hemphill. At his trial, Hemphill tried to pin the shooting on Morris by introducing evidence that the police found 9-millimeter ammunition on Morris' nightstand. In response, the prosecutor sought to introduce evidence that the police also found .357 ammunition on the nightstand and sought to introduce a portion of Morris' plea colloquy where Morris, in pleading guilty to being a felon in possession of a firearm (the .357), stated that the only gun Morris possessed was a .357 revolver. While recognizing that Morris' statement during his plea colloquy constituted hearsay, the trial court nevertheless admitted the statement after finding it "reasonably necessary to correct [a] misleading impression" created by Hemphill's introduction of evidence that only 9-millimeter ammunition was found on the nightstand.

Hemphill held that the trial court's ruling violated the confrontation clause. Drawing upon Crawford's language that the clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination," Hemphill held that "the history, text, and purpose of the ... Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees." Specifically, Hemphill ruled that the trial judge's attempt to enhance the accuracy of the jury's verdict by admitting hearsay evidence "reasonably necessary to correct [the] misleading impression" created by the defendant was "antithetical to the Confrontation Clause." Hemphill thus rejected the notion that criminal defendants forfeit their right to make a Crawford objection as to hearsay the prosecutor seeks to introduce in response to defense evidence, even if that defense evidence is misleading; a litigant's conduct in "opening the door," Hemphill ruled, may forfeit some evidentiary objections -- but it does not forfeit a confrontation clause objection. 142 S. Ct. at 691-93.

But Hemphill did not definitively slam the door on all door-opening doctrines. Instead, Hemphill explicitly left open the possibility, exemplified in Hypo No. 2, that the rule of completeness "might allow the admission of testimonial hearsay against a criminal defendant." Id. at 693.

This raises the questions: What is the rule of completeness, and how broad is its potential exception to Crawford?

The federal and California rules of completeness are designed to "prevent omissions that render matters in evidence misleading." United States v. Williams, 930 F.3d 44, 58 (9th Cir. 2019); People v. Pearson, 56 Cal. 4th 393, 460 (2013). But they differ in scope.

The federal rule is housed partly in Federal Rule of Evidence 106. FRE 106 permits a party, once an adverse party has "introduce[d] all or part of a writing or recorded statement," to introduce "any other part" "or any other writing or recorded statement" "that in fairness ought to be considered at the same time." Although FRE 106 reaches only "writing[s] and recorded statement[s]" (and not unrecorded oral conversations), a federal court common rule of completeness also exists and seems to reach oral conversations as well. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988); Williams, at 59. The federal courts are split over whether their rule of completeness allows the introduction of evidence over a hearsay objection, compare United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (hearsay trumps rule of completeness) with United States v. Sutton, 801 F.2d 1346, 1368-69 (D.C. Cir. 1986) (rule of completeness trumps hearsay), but a currently pending amendment to FRE 106 would make clear that the rule trumps "a hearsay objection." Proposed Amendments to the Federal Rules of Evidence (Aug. 2021).

California's rule is housed in Evidence Code Section 356. Section 356 permits a party, once an adverse party has introduced "part of an act, declaration, conversation, or writing" to "inquire[] into" "the whole on the same subject." Although California's rule reaches unrecorded, oral conversations, it is limited to responsive statements on the "same subject," yet the California courts "do not draw narrow lines around the exact subject of inquiry." People v. Johnson, 12 Cal. 5th 544, 604 (2022).

Neither rule is especially broad. At their core, both are limited to the admission of statements by a person when other statements of that same person were previously introduced in a way that, if considered in isolation, is misleading to the trier of fact. That is why Morris' colloquy statements in Hemphill fell outside the federal rule of completeness: They were introduced in response to other evidence regarding Morris' possible guilt -- and not in response to the introduction of other statements by Morris. Hemphill, 142 S. Ct. at 693.

What might the U.S. Supreme Court do when it returns to the question left unresolved in Hemphill?

The court could conclude that a defendant may not raise a Crawford objection to the admission of statements of a declarant that, under the rule of completeness, are necessary to correct the misleading impression created by other statements of the same declarant that the defendant already introduced. That is the conclusion many California courts have reached, based on the notion that the defendant in such a situation has effectively consented to the introduction of all of the declarant's statements by introducing a misleading subset of it. People v. Parrish, 152 Cal. App. 4th 263, 272-73 (2007); People v. Banos, 178 Cal. App. 4th 483, 499 n.7 (2009).

Alternatively, the court could conclude that a defendant may raise a Crawford objection and thus keep out any misimpression-correcting hearsay that a trial court does not exclude as more confusing than probative. Is such a rule consistent with Crawford? As Hemphill noted, Crawford is focused on confrontation -- not reliability; indeed, this is why the court has recognized that Crawford's rule may result in the admission of more "unreliable out-of-court statements," even though this may decrease the accuracy of jury verdicts. Whorton v. Bockting, 549 U.S. 406, 420 (2007).

Crawford usually operates as a "shield" to protect the defendant from un-confronted testimony.

But can it also be a sword?

By holding that a defendant may invoke Crawford to exclude a deceased declarant's out-of-court statements even if the defendant killed the declarant -- so long as the defendant did so for any reason other than preventing the in-court testimony -- the court in Giles v. California, 554 U.S. 353 (2008) effectively allowed Crawford to be invoked as a sword to secure the omission of potentially accurate evidence.

Can Crawford also be invoked to empower a defendant to affirmatively introduce misleading (and hence inaccurate) evidence and simultaneously to exclude the rebuttal evidence that would put that evidence into proper context?

That is the question whose answer Hemphill left, well, incomplete. 