Law360: Justices To Decide If Defendants Can Invite Barred Evidence

April 19, 2021

The US Supreme Court will weigh in on a case that hinges on defendants’ Sixth Amendment right to cross-examine a plaintiff’s witness, Law360 reported.

The case in question concerns Darrell Hemphill, who was convicted of murder in part due to a lower court’s decision to allow incriminating statements from a “non-testifying witness.” Justices will decide how SCOTUS views the amendment’s confrontation clause: that it is “absolute,” signaling a defendant’s right to cross-examination; that “prosecutors [can] introduce additional parts of a non-testifying witness’ statements if a defendant cites part of them”; or that “defendants forfeit their right to confront witnesses when they create any ‘misleading impression’ that testimonial evidence is ‘reasonably necessary to correct.’”

New York, the state in which Hemphill was convicted, recognizes the final, more “sweeping” interpretation. “Under New York's rule, defendants must constantly worry that a judge will deem one of their arguments or evidentiary submissions to be in sufficient tension with otherwise inadmissible testimonial evidence to trigger the state's forfeiture rule,” lawyers for the defendant, including O’Melveny special counsel Jeffrey Fisher, argued.

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