Hemphill v. New York: The Confrontation Clause

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Jason B. Freeman

Jason B. Freeman

Managing Member


Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

Does a criminal defendant’s introduction of evidence at trial “open the door” to the government’s admission of responsive evidence that would otherwise be barred by the Confrontation Clause?  That is the question pending before the Supreme Court in a case that may shape the scope of the Sixth Amendment’s Confrontation Clause.

The Supreme Court recently heard oral argument in a case implicating the rights of criminal defendants under the Sixth Amendment’s confrontation clause. In Hemphill v. New York, the Court will decide whether the confrontation clause requires cross-examination of testimonial hearsay where a defendant “opens the door” to the admission of such evidence.

Defendant Darrell Hemphill was accused of the murder of a two-year-old child struck by a stray bullet during an alleged altercation between Hemphill and two other men. Hemphill asserted his innocence and accused one of the other men at the scene, Nicholas Morris, of the crime.

Hemphill offered testimony from police regarding 9mm ammunition found in Morris’s home. In response, the prosecution introduced Morris’s plea allocution, in which Morris admitted that he possessed a .357 caliber gun rather than a 9mm gun.

Hemphill objected to the admission of Morris’s plea allocution on the grounds that it violated his rights under the Confrontation Clause by permitting Morris to give a statement against him without testifying and being subject to cross-examination.

The trial court disagreed and ruled that Hemphill had waived that right by giving the misleading impression that Morris had possessed a 9mm gun. The jury convicted Hemphill of second-degree murder and he was sentenced to a prison term of 25 years to life.

The Supreme Court is now set to decide whether Hemphill waived his right to confront Morris by “opening the door” for the prosecution to admit Morris’ plea allocution.

The first legal issue at play is whether the principle of “completeness” permits the admission of Morris’ plea allocution. This principle requires that a jury receive a complete record of evidence to avoid confusion.

Hemphill argued that, even if the rule of completeness applied, it cannot override the Confrontation Clause.