Hemphill v. New York

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HEMPHILL v. NEW YORK
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
No. 20–637. Argued October 5, 2021—Decided January 20, 2022
In April 2006, a stray 9-millimeter bullet killed a 2-year-old child after a
street fight in the Bronx. Eyewitnesses described the shooter as wear-
ing a blue shirt or sweater. Police officers determined Ronnell Gilliam
was involved and that Nicholas Morris had been at the scene. A search
of Morris’ apartment revealed a 9-millimeter cartridge and three .357-
caliber bullets. Gilliam initially identified Morris as the shooter, but
he subsequently said that Darrell Hemphill, Gilliam’s cousin, was the
shooter. Not crediting Gilliam’s recantation, the State charged Morris
with the child’s murder and possession of a 9-millimeter handgun. In
a subsequent plea deal, the State agreed to dismiss the murder charges
against Morris if he pleaded guilty to a new charge of possession of a
.357 revolver, a weapon that had not killed the victim. Years later, the
State indicted Hemphill for the child’s murder after learning that
Hemphill’s DNA matched a blue sweater found in Morris’ apartment
shortly after the murder. At his trial, Hemphill elicited undisputed
testimony from a prosecution witness that police had recovered 9-mil-
limeter ammunition from Morris’ apartment, thus pointing to Morris
as the culprit. Morris was not available to testify at Hemphill’s trial
because he was outside the United States. Relying on People v. Reid,
19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357, and over the objection of
Hemphill’s counsel, the trial court allowed the State to introduce parts
of the transcript of Morris’ plea allocution to the .357 gun possession
charge as evidence to rebut Hemphill’s theory that Morris committed
the murder. The court reasoned that although Morris’ out-of-court
statements had not been subjected to cross-examination, Hemphill’s
arguments and evidence had “opened the door” and admission of the
statements was reasonably necessary to correct the misleading im-
pression Hemphill had created. The State, in its closing argument,
cited Morris’ plea allocution and emphasized that possession of a .357
2 HEMPHILL v. NEW YORK
Syllabus
revolver, not murder, was the crime Morris committed. The jury found
Hemphill guilty. Both the New York Appellate Division and the Court
of Appeals affirmed Hemphill’s conviction.
Held: The trial court’s admission of the transcript of Morris’ plea allocu-
tion over Hemphill’s objection violated Hemphill’s Sixth Amendment
right to confront the witnesses against him. Pp. 6–15.
(a) The State’s threshold argument—that Hemphill’s failure to pre-
sent his claim adequately to the state courts should prevent the Court
from deciding his federal-law challenge to the state-court decision—is
rejected. Hemphill satisfied the presentation requirement in state
court. See Street v. New York, 394 U. S. 576, 584. At every level of his
proceedings in state court, Hemphill argued that the admission of Mor-
ris’ plea allocution violated his Sixth Amendment right to confronta-
tion as interpreted by this Court. And “[o]nce a federal claim is
properly presented, a party can make any argument in support of that
claim.” Yee v. Escondido, 503 U. S. 519, 534. Pp. 6–8.
(b) The Confrontation Clause of the Sixth Amendment provides a
criminal defendant the bedrock right “to be confronted with the wit-
nesses against him.” In Crawford v. Washington, 541 U. S. 36, the
Court examined the history of the confrontation right at common law
and concluded that “the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal procedure,”
which allowed the “use of ex parte examinations as evidence against
the accused.” Id., at 50. The Crawford Court reasoned that because
“the Sixth Amendment does not suggest any open-ended exceptions
from the confrontation requirement to be developed by the courts,” the
confrontation guarantee was “most naturally read” to admit “only
those exceptions established at the time of the founding.” Id., at 54;
see also Giles v. California, 554 U. S. 353, 377. Because “the Framers
would not have allowed admission of testimonial statements of a wit-
ness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination,”
the Court rejected its previous “reliability approach” to the Sixth
Amendment’s confrontation right described in Ohio v. Roberts, 448
U. S. 56, 66, which had permitted the admission of statements of an
unavailable witness so long as those statements had “adequate indicia
of reliability.” Pp. 8–9.
(c) The Court rejects the State’s contention that the “opening the
door” rule incorporated in People v. Reid and applied here is not a Con-
frontation Clause exception at all but merely a “procedural rule” lim-
iting only the manner of asserting the confrontation right, not its sub-
stantive scope. While the Court’s precedents do recognize that the
Sixth Amendment leaves States with flexibility to adopt reasonable
Cite as: 595 U. S. ____ (2022) 3
Syllabus
procedural rules that bear on the exercise of a defendant’s confronta-
tion right, see, e.g., Melendez-Diaz v. Massachusetts, 557 U. S. 305,
327, the door-opening principle discussed in Reid is not in the same
class of procedural rules. Reid’s door-opening principle is a substan-
tive principle of evidence that dictates what material is relevant and
admissible in a case. The State would have trial judges weigh the re-
liability or credibility of testimonial hearsay evidence, but that ap-
proach would negate Crawford’s emphatic rejection of the reliability-
based approach to the Confrontation Clause guarantee. Here, it was
not for the trial judge to determine whether Hemphill’s theory that
Morris was the shooter was unreliable, incredible, or otherwise mis-
leading in light of the State’s proffered, unconfronted plea evidence,
nor whether this evidence was reasonably necessary to correct that
misleading impression. Pp. 9–11.
(d) The Court also rejects the State’s insistence that the Reid rule is
necessary to safeguard the truth-finding function of courts because it
prevents the selective and misleading introduction of evidence. The
Court has not allowed such considerations to override the rights the
Constitution confers to criminal defendants. And none of the cases the
State relies upon for support—Kansas v. Ventris, 556 U. S. 586; Harris
v. New York, 401 U. S. 222; Walder v. United States, 347 U. S. 62—
involved exceptions to constitutional requirements. Pp. 11–13.
(e) The State’s concern that a reversal will leave prosecutors without
recourse to protect against abuses of the confrontation right is over-
stated. “[W]ell-established rules” of evidence “permit trial judges to
exclude evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or potential to
mislead the jury.” Holmes v. South Carolina, 547 U. S. 319, 326. Fi-
nally, the rule of completeness does not apply here, as Morris’ plea al-
locution was not part of any statement that Hemphill introduced. The
Court does not address whether and under what circumstances that
rule might allow the admission of testimonial hearsay against a crim-
inal defendant. Pp. 13–14.
35 N. Y. 3d 1035, 150 N. E. 3d 356, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, ALITO, KAGAN, GORSUCH, KAVANAUGH, and BARRETT,
JJ., joined. ALITO, J., filed a concurring opinion, in which KAVANAUGH,
J., joined. THOMAS, J., filed a dissenting opinion.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–637
_________________
DARRELL HEMPHILL, PETITIONER v. NEW YORK
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK
[January 20, 2022]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In 2006, a stray 9-millimeter bullet killed a 2-year-old
child in the Bronx. The State charged Nicholas Morris with
the murder, but after trial commenced, it offered him a plea
deal for a lesser charge. The State specifically required
Morris to admit to a new charge of possession of a .357-mag-
num revolver, not the 9-millimeter handgun originally
charged in the indictment and used in the killing.
Years later, the State prosecuted petitioner Darrell
Hemphill for the same murder. At his trial, Hemphill
blamed Morris, and he elicited undisputed testimony from
a prosecution witness that police had recovered 9-millime-
ter ammunition from Morris’ nightstand. Morris was out-
side the United States and not available to testify. The trial
court allowed the State to introduce parts of the transcript
of Morris’ plea allocution as evidence to rebut Hemphill’s
theory that Morris committed the murder. The court rea-
soned that Hemphill’s arguments and evidence had
“open[ed] the door” to the introduction of these testimonial
out-of-court statements, not subjected to cross-examina-
tion, because they were “ ‘reasonably necessary’ ” to “ ‘cor-
rect’ ” the “ ‘misleading impression’ ” Hemphill had created.
2 HEMPHILL v. NEW YORK
Opinion of the Court
People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357
(2012).
The question is whether the admission of the plea allocu-
tion under New York’s rule in People v. Reid violated
Hemphill’s Sixth Amendment right to confront the wit-
nesses against him. The Court holds that it did. Hemphill
did not forfeit his confrontation right merely by making the
plea allocution arguably relevant to his theory of defense.
I
A
In April 2006, Ronnell Gilliam and several other individ-
uals got into a physical fight near Tremont Avenue in the
Bronx. Shortly after the fight, someone fired a 9-millimeter
handgun. The bullet killed a 2-year-old child sitting in a
nearby minivan.
Police officers determined that Gilliam was involved and
that Nicholas Morris, Gilliam’s best friend, had been at the
scene. Officers searched Morris’ apartment. On Morris’
nightstand, the officers found a 9-millimeter cartridge and
three .357-caliber bullets. Three witnesses identified Mor-
ris as the shooter out of a police lineup.
The police arrested Morris the next day and observed
bruising on his knuckles consistent with fist fighting.
Gilliam then surrendered and identified Morris as the
shooter. Gilliam later returned to the police station and re-
canted, stating that Hemphill, Gilliam’s cousin, had in fact
been the shooter. Investigators initially did not credit
Gilliam’s recantation; instead, the State charged Morris
with the child’s murder and for possession of a 9-millimeter
handgun. After opening statements at Morris’ 2008 trial,
however, the State decided not to oppose Morris’ application
for a mistrial to allow the State to reconsider the charges
against him.
Approximately six weeks later, the State agreed to dis-
miss the murder charges against Morris if he pleaded guilty
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
to criminal possession of a weapon. But rather than having
Morris plead to the charge in the existing indictment for
possession of a 9-millimeter handgun, the State filed a new
charge alleging that Morris had possessed a .357-magnum
revolver, a different type of firearm than the one used to kill
the victim. In exchange for this plea, the prosecution rec-
ommended a sentence of time served. The State and Mor-
ris’ counsel agreed that there was insufficient evidence of
Morris’ possession of a .357-magnum revolver to obtain an
indictment absent Morris’ willingness to admit to the alle-
gations. Morris did so, against his attorney’s advice, to se-
cure his release that day.
In 2011, the State learned that Hemphill’s DNA matched
a sample from a blue sweater that police had recovered in a
search of Gilliam’s apartment shortly after the crime. Eye-
witnesses had described the shooter as wearing a blue shirt
or sweater. In 2013, Hemphill was arrested and indicted
for the murder.
B
At trial, Hemphill pursued a third-party culpability de-
fense by blaming Morris for the shooting. In his opening
statement, Hemphill’s counsel noted that officers had re-
covered 9-millimeter ammunition from Morris’ nightstand
hours after a 9-millimeter bullet killed the victim. The
State did not object, but later contended that Hemphill’s ar-
gument had been misleading because officers also had
found .357-caliber bullets on the nightstand and because
Morris ultimately pleaded guilty to possessing a .357 re-
volver.
Morris, however, was unavailable to testify at Hemphill’s
trial. As a result, the State sought to introduce the tran-
script of Morris’ plea allocution to suggest that he had pos-
sessed only a .357 revolver. Hemphill’s counsel objected,
arguing that the plea allocution was “clearly hearsay” and
that Hemphill was being “deprived of an opportunity [for]
4 HEMPHILL v. NEW YORK
Opinion of the Court
cross-examination.” App. 107. The trial court deferred rul-
ing and, in the meantime, allowed the State to put on testi-
mony regarding the .357-caliber bullets on Morris’
nightstand. Accordingly, both the State and Hemphill elic-
ited undisputed testimony from a law enforcement officer
that a 9-millimeter cartridge and .357-caliber bullets were
recovered from Morris’ nightstand.
The trial court then revisited the State’s application to
introduce Morris’ plea allocution. Hemphill’s counsel ob-
jected again, citing this Court’s decision in Crawford v.
Washington, 541 U. S. 36 (2004): “I think it is [a] Crawford
violation. I think the evidence is being offered to incrimi-
nate Mr. Hemphill. I’m being deprived of the opportunity
to examine Mr. Morris, and I don’t see how it would not be
a Crawford violation.” App. 160.1
A few days later, the trial court announced its ruling. The
court relied on People v. Reid, 19 N. Y. 3d 382, 971 N. E. 2d
353. In Reid, New York’s highest court held that a criminal
defendant could “ope[n] the door” to evidence that would
otherwise be inadmissible under the Confrontation Clause
if the evidence was “ ‘reasonably necessary to correct [a]
misleading impression’ ” made by the defense’s “ ‘evidence
or argument.’ ” Id., at 388, 971 N. E. 2d, at 357 (quoting
People v. Massie, 2 N. Y. 3d 179, 184, 809 N. E. 2d 1102,
1105 (2004)). The trial court applied Reid as follows:
“[A] significant aspect of the defense in this case is that
Morris, who [was] originally prosecuted for this homi-
cide, was, in fact, the actual shooter and that as such,
the defendant, Hemphill, was excluded as the shooter.
There is, however, evidence contrary to the argument
——————
1 The State responded that Morris’ plea allocution was not testimonial
because it did not “incriminate or point a finger at all against Mr.
Hemphill.” App. 160. Before this Court, the State does not dispute that
the plea allocution was testimonial, and so the Court expresses no view
on the matter.
Cite as: 595 U. S. ____ (2022) 5
Opinion of the Court
presented by the defense in this case . . . . In my judg-
ment, the defense’s argument, which in all respects is
appropriate and under the circumstances of this case
probably a necessary argument to make, nonetheless,
opens the door to evidence offered by the [S]tate refut-
ing the claim that Morris was, in fact, the shooter.”
App. 184, 185.
Based on this ruling, the State published to the jury the
portions of the transcript of Morris’ plea hearing containing
Morris’ admission to possessing a .357 revolver and his
counsel’s statements that he was doing so against counsel’s
advice, without corroborating evidence, in order to get out
of jail immediately.
Hemphill premised his closing argument, like the rest of
his defense, on the theory that Morris was the shooter. The
State, in its closing, cited Morris’ plea allocution and em-
phasized that possession of a .357 revolver, not murder, was
“the crime [Morris] actually committed.” Id., at 356. After
deliberations spanning multiple days, the jury found
Hemphill guilty, and the court sentenced him to 25 years to
life in prison.
C
Hemphill appealed. Before the Appellate Division, he ar-
gued, citing the State and Federal Constitutions, that “[t]he
court denied Mr. Hemphill his right to confront the witness
against him where it admitted Nicholas Morris’s guilty plea
statements . . . because the defense had opened the door to
this evidence even though counsel had scrupulously fol-
lowed the court’s in limine rulings.” Supp. App. to Brief in
Opposition SA107. He added, “the prosecution’s conduct
here represented the type of overreach the Confrontation
Clause was enacted to prevent: the production of evidence
procured by the government without affording the accused
the opportunity to question its reliability through cross-ex-
amination.” Id., at SA111.
6 HEMPHILL v. NEW YORK
Opinion of the Court
The Appellate Division affirmed. In relevant part, it rea-
soned that “[d]uring the trial, defendant created a mislead-
ing impression that Morris possessed a 9 millimeter hand-
gun, which was consistent with the type used in the
murder, and introduction of the plea allocution was reason-
ably necessary to correct that misleading impression.” 173
App. Div. 3d 471, 477, 103 N. Y. S. 3d 64, 71 (2019). Justice
Manzanet-Daniels dissented on other grounds, arguing in
part that the evidence was insufficient to support
Hemphill’s conviction.
Hemphill sought review from the New York Court of Ap-
peals, the State’s highest court. He contended:
“The Appellate Division’s analysis equates presenting
a valid, evidence-based third party defense with mis-
leading the jury, opening the door to testimonial hear-
say. . . . Such an approach is absurd in the context of
the Confrontation Clause, the purpose of which is to af-
ford the accused the right to meaningfully test the pros-
ecution’s proof.” App. 388.
The Court of Appeals affirmed. 35 N. Y. 3d 1035, 1036–
1037, 150 N. E. 3d 356, 357–358 (2020). This Court granted
certiorari. 593 U. S. ___ (2021).
II
Before proceeding to the merits, the Court must address
the State’s threshold argument that Hemphill failed to pre-
sent his claim adequately to the state courts.
This Court “has almost unfailingly refused to consider
any federal-law challenge to a state-court decision unless
the federal claim ‘was either addressed by or properly pre-
sented to the state court that rendered the decision we have
been asked to review.’ ” Howell v. Mississippi, 543 U. S.
440, 443 (2005) (per curiam) (quoting Adams v. Robertson,
520 U. S. 83, 86 (1997) (per curiam)). “ ‘No particular form
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
of words or phrases is essential’ ” for satisfying the presen-
tation requirement, so long as the claim is “ ‘brought to the
attention of the state court with fair precision and in due
time.’ ” Street v. New York, 394 U. S. 576, 584 (1969) (quot-
ing New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67
(1928)).
Hemphill has satisfied this requirement. At every level
of his proceedings in state court, Hemphill argued that the
admission of Morris’ plea allocution violated his Sixth
Amendment right to confrontation as interpreted by this
Court in Crawford. Before the trial court, Hemphill timely
objected that admission of the plea allocution would be “a
Crawford violation.” App. 160. Before the Appellate Divi-
sion, he argued that the trial court “denied Mr. Hemphill
his 6th Amendment right to confront the witnesses against
him.” Supp. App. to Brief in Opposition SA108. And before
the Court of Appeals, he contended that “[t]he Appellate Di-
vision’s analysis,” which had affirmed the trial court’s ad-
mission of the plea allocution, “is absurd in the context of
the Confrontation Clause, the purpose of which is to afford
the accused the right to meaningfully test the prosecution’s
proof.” App. 388. “Once a federal claim is properly pre-
sented, a party can make any argument in support of that
claim.” Yee v. Escondido, 503 U. S. 519, 534 (1992). The
Court may therefore consider any argument Hemphill
raises in support of his claim that he did not “forfei[t] his
right to exclude evidence otherwise barred by the Confron-
tation Clause” by “open[ing] the door to responsive evi-
dence.” Pet. for Cert. i.2
——————
2 According to the dissent, Hemphill did not present his constitutional
claim below because he “challenged only the misapplication of state law”
(i.e., the opening-the-door rule enunciated in People v. Reid, 19 N. Y. 3d
382, 971 N. E. 2d 353 (2012)) without developing his constitutional ob-
jection. Post, at 4 (opinion of THOMAS, J.). Not so. Hemphill argued
before the Court of Appeals that the Appellate Division’s interpretation
of Reid in his case “equates presenting a valid, evidence-based third
8 HEMPHILL v. NEW YORK
Opinion of the Court
Accordingly, the Court turns to the merits of that claim.
III
A
One of the bedrock constitutional protections afforded to
criminal defendants is the Confrontation Clause of the
Sixth Amendment, which states: “In all criminal prosecu-
tions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.”3
In Ohio v. Roberts, 448 U. S. 56, 66 (1980), this Court had
held that this confrontation right did not bar the admission
of statements of an unavailable witness so long as those
statements had “adequate ‘indicia of reliability,’ ” meaning
that they fell “within a firmly rooted hearsay exception” or
otherwise bore “particularized guarantees of trustworthi-
ness.” However, 24 years later, this Court rejected that re-
liability-based approach to the Confrontation Clause. See
Crawford, 541 U. S., at 61.
In charting a different path, the Crawford Court exam-
ined the history of the confrontation right at common law
and concluded that “the principal evil at which the Confron-
tation Clause was directed was the civil-law mode of crimi-
nal procedure, and particularly its use of ex parte examina-
tions as evidence against the accused.” Id., at 50. The
——————
party defense with misleading the jury, opening the door to testimonial
hearsay”—a rule that “unjustifiably undermines the right to Confronta-
tion” for reasons he proceeded to explain. App. 388. Thus, Hemphill
expressly raised a Confrontation Clause argument and, contrary to the
dissent’s contention, offered the Court of Appeals “ ‘the first opportunity’ ”
to construe Reid “ ‘in a way which saves [its] constitutionality.’ ” Post, at
9 (quoting Cardinale v. Louisiana, 394 U. S. 437, 439 (1969)). The dis-
sent also accuses this Court of “redefin[ing] Reid to be what Hemphill
said it was not.” Post, at 10. Far from it: This Court accepts the Court
of Appeals’ conclusive determination that Reid authorized the admission
of testimonial hearsay in this case.
3 The Clause binds the States through the Fourteenth Amendment.
Pointer v. Texas, 380 U. S. 400, 403 (1965).
Cite as: 595 U. S. ____ (2022) 9
Opinion of the Court
Court continued, “the Framers would not have allowed ad-
mission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examina-
tion.” Id., at 53–54.4 Because “[t]he text of the Sixth
Amendment does not suggest any open-ended exceptions
from the confrontation requirement to be developed by the
courts,” the requirement was “most naturally read” to ad-
mit “only those exceptions established at the time of the
founding.” Id., at 54; see also Giles v. California, 554 U. S.
353, 377 (2008) (“declin[ing] to approve an exception to the
Confrontation Clause unheard of at the time of the found-
ing or for 200 years thereafter”).
B
The State accepts all of the foregoing principles. It does
not dispute that Morris’ plea allocution was testimonial,
meaning that it implicated Hemphill’s rights under the
Confrontation Clause. Nor does the State argue that the
“opening the door” rule announced in People v. Reid and ap-
plied in Hemphill’s case was an exception to the right to
confrontation at common law.
The State’s primary contention is that the Reid rule “is
not an exception to the Confrontation Clause at all.” Brief
for Respondent 36. Instead, the State attempts to charac-
terize the Reid rule as a mere “procedural rule” that “treats
the misleading door-opening actions of counsel as the equiv-
alent of failing to object to the confrontation violation.”
Brief for Respondent 31. So construed, the argument goes,
——————
4 The Crawford Court defined “testimony” as a “solemn declaration or
affirmation made for the purpose of establishing or proving some fact.”
541 U. S., at 51 (internal quotation marks omitted). “[A]t a minimum,”
the Court explained, this includes “prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and . . . police
interrogations.” Id., at 68. Subsequent decisions have expounded on this
definition. See, e.g., Ohio v. Clark, 576 U. S. 237, 244–245 (2015).
10 HEMPHILL v. NEW YORK
Opinion of the Court
the Reid rule limits only the manner of asserting the con-
frontation right, not its substantive scope.
It is true that the Sixth Amendment leaves States with
flexibility to adopt reasonable procedural rules governing
the exercise of a defendant’s right to confrontation. For ex-
ample, “States are free to adopt procedural rules governing
objections,” including contemporaneous objection require-
ments and, in the context of forensic evidence, “notice-and-
demand statutes.” Melendez-Diaz v. Massachusetts, 557
U. S. 305, 327 (2009). In addition, the Confrontation Clause
will not bar a defendant’s removal from a courtroom if, de-
spite repeated warnings, he “insists on conducting himself
in a manner so disorderly, disruptive, and disrespectful of
the court that his trial cannot be carried on with him in the
courtroom.” Illinois v. Allen, 397 U. S. 337, 343 (1970).
The door-opening principle incorporated in Reid,
however, is not a member of this class of procedural rules.
Rather, it is a substantive principle of evidence that dic-
tates what material is relevant and admissible in a case.
See Massie, 2 N. Y. 3d, at 182–184, 809 N. E. 2d, at 1104–
1105 (citing People v. Melendez, 55 N. Y. 2d 445, 434 N. E.
2d 1324 (1982), a case about the admissibility of hearsay
testimony, as “[t]he leading case in this Court on ‘opening
the door’ ”); New York State Unified Court System, Guide to
New York Evidence Rule 4.08 (2021) (explaining the “open
the door” principle as a rule of evidence). As this case illus-
trates, the principle requires a trial court to determine
whether one party’s evidence and arguments, in the context
of the full record, have created a “misleading impression”
that requires correction with additional material from the
other side.
Moreover, the State’s argument would negate Crawford’s
emphatic rejection of the reliability-based approach of Ohio
v. Roberts. If Crawford stands for anything, it is that the
history, text, and purpose of the Confrontation Clause bar
Cite as: 595 U. S. ____ (2022) 11
Opinion of the Court
judges from substituting their own determinations of relia-
bility for the method the Constitution guarantees. 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.” Crawford, 541 U. S., at
61. It “thus reflects a judgment, not only about the desira-
bility of reliable evidence (a point on which there could be
little dissent), but about how reliability can best be deter-
mined.” Ibid. “[A] mere judicial determination” regarding
the reliability of evidence is no substitute for the “constitu-
tionally prescribed method of assessing reliability.” Id., at
62. The upshot is that the role of the trial judge is not, for
Confrontation Clause purposes, to weigh the reliability or
credibility of testimonial hearsay evidence; it is to ensure
that the Constitution’s procedures for testing the reliability
of that evidence are followed.
The trial court here violated this principle by admitting
unconfronted, testimonial hearsay against Hemphill
simply because the judge deemed his presentation to have
created a misleading impression that the testimonial hear-
say was reasonably necessary to correct. For Confrontation
Clause purposes, it was not for the judge to determine
whether Hemphill’s theory that Morris was the shooter was
unreliable, incredible, or otherwise misleading in light of
the State’s proffered, unconfronted plea evidence. Nor, un-
der the Clause, was it the judge’s role to decide that this
evidence was reasonably necessary to correct that mislead-
ing impression. Such inquiries are antithetical to the Con-
frontation Clause.
C
The State next insists that the Reid rule is necessary to
safeguard the truth-finding function of courts because it
prevents the selective and misleading introduction of evi-
dence. See Reid, 19 N. Y. 3d, at 388, 971 N. E. 2d, at 357.
The State relies on this Court’s precedents recognizing the
12 HEMPHILL v. NEW YORK
Opinion of the Court
need for sensitivity to “ ‘the legitimate demands of the ad-
versarial system.’ ” Taylor v. Illinois, 484 U. S. 400, 413
(1988) (quoting United States v. Nobles, 422 U. S. 225, 241
(1975); emphasis deleted). This argument falls short as
well. Even as it has recognized and reaffirmed the vital
truth-seeking function of a trial, the Court has not allowed
such considerations to override the rights the Constitution
confers upon criminal defendants.
The State cites a series of cases in which this Court per-
mitted a State to impeach a defendant using evidence that
would normally be barred from use at trial. Brief for Re-
spondent 32 (citing Kansas v. Ventris, 556 U. S. 586 (2009);
Harris v. New York, 401 U. S. 222 (1971); Walder v. United
States, 347 U. S. 62 (1954)). None of those cases, however,
involved exceptions to constitutional requirements. Ra-
ther, in each case, the Court considered the appropriate
scope of a prophylactic rule designed to remedy “a violation
that ha[d] already occurred.” Ventris, 556 U. S., at 593. For
example, the Court distinguished violations of the Fourth
Amendment’s guarantee against unreasonable searches or
seizures from the prophylactic rule designed to deter viola-
tions of that guarantee by excluding the fruits of such
searches or seizures from trial. Id., at 590–591. Because
the prophylactic exclusionary rule is a “deterrent sanction”
rather than a “substantive guarantee,” the Court applied a
balancing test to allow States to impeach defendants with
the fruits of prior Fourth Amendment violations, even
though the rule barred the admission of such fruits in the
State’s case-in-chief. Id., at 591 (citing Walder, 347 U. S.,
at 65).
In contrast, the Court has not held that defendants can
“open the door” to violations of constitutional requirements
merely by making evidence relevant to contradict their de-
fense. Thus, in New Jersey v. Portash, 440 U. S. 450, 458–
459 (1979), the Court rejected a State’s effort to impeach a
Cite as: 595 U. S. ____ (2022) 13
Opinion of the Court
defendant through the introduction of his own coerced tes-
timony. It did so despite the strong and obvious interest in
preventing perjury because the very introduction of the
coerced testimony would violate the Fifth Amendment’s
provision that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” In view of
that guarantee, balancing of interests was “not simply un-
necessary,” but “impermissible.” Portash, 440 U. S., at 459.
The Sixth Amendment speaks with equal clarity: “In all
criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” It admits
no exception for cases in which the trial judge believes un-
confronted testimonial hearsay might be reasonably neces-
sary to correct a misleading impression. Courts may not
overlook its command, no matter how noble the motive. See
United States v. Gonzalez-Lopez, 548 U. S. 140, 145 (2006)
(“It is true enough that the purpose of the rights set forth
in [the Sixth] Amendment is to ensure a fair trial; but it
does not follow that the rights can be disregarded so long as
the trial is, on the whole, fair”).
D
The State warns that a reversal will leave prosecutors
without recourse to protect against abuses of the confronta-
tion right. These concerns are overstated. State and fed-
eral hearsay rules generally preclude all parties from intro-
ducing unreliable, out-of-court statements for the truth of
the matter asserted. See, e.g., Fed. Rule Evid. 802. Even
for otherwise admissible evidence, “well-established rules,”
such as Federal Rule of Evidence 403, “permit trial judges
to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of
the issues, or potential to mislead the jury.” Holmes v.
South Carolina, 547 U. S. 319, 326 (2006). If a court admits
evidence before its misleading or unfairly prejudicial na-
ture becomes apparent, it generally retains the authority to
14 HEMPHILL v. NEW YORK
Opinion of the Court
withdraw it, strike it, or issue a limiting instruction as ap-
propriate. See, e.g., Fed. Rule Evid. 105; New York State
Unified Court System, Guide to New York Evidence Rule
1.13(1) (“Absent undue prejudice to a party, a judge may
revisit his or her own evidentiary rulings during trial”).
Finally, the Court does not decide today the validity of
the common-law rule of completeness as applied to testimo-
nial hearsay. Under that rule, a party “ ‘against whom a
part of an utterance has been put in, may in his turn com-
plement it by putting in the remainder.’ ” Beech Aircraft
Corp. v. Rainey, 488 U. S. 153, 171 (1988) (quoting 7 J. Wig-
more, Evidence §2113, p. 653 (J. Chadbourn rev. 1978)); see
also Fed. Rule Evid. 106. The parties agree that the rule of
completeness does not apply to the facts of this case, as Mor-
ris’ plea allocution was not part of any statement that
Hemphill introduced. Whether and under what circum-
stances that rule might allow the admission of testimonial
hearsay against a criminal defendant presents different is-
sues that are not before this Court.5
* * *
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. The trial court’s admission of unconfronted testimo-
nial hearsay over Hemphill’s objection, on the view that it
was reasonably necessary to correct Hemphill’s misleading
argument, violated that fundamental guarantee. The judg-
ment of the New York Court of Appeals is reversed, and the
——————
5 The State also asks this Court to hold the constitutional error in this
case harmless beyond a reasonable doubt, see Chapman v. California,
386 U. S. 18, 24 (1967), citing what it calls “substantial independent ev-
idence of [Hemphill’s] guilt,” Brief for Respondent 49. It offers no reason,
however, for the Court to depart from its “general custom of allowing
state courts initially to assess the effect of erroneously admitted evidence
in light of substantive state criminal law.” Lilly v. Virginia, 527 U. S.
116, 139 (1999).
Cite as: 595 U. S. ____ (2022) 15
Opinion of the Court
case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–637
_________________
DARRELL HEMPHILL, PETITIONER v. NEW YORK
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK
[January 20, 2022]
JUSTICE ALITO, with whom JUSTICE KAVANAUGH joins,
concurring.
I agree with the Court’s conclusion that—assuming Mor-
ris’s statement was testimonial—its admission violated the
Confrontation Clause of the Sixth Amendment. I write sep-
arately to address the conditions under which a defendant
can be deemed to have validly waived the right to confront
adverse witnesses.
“The question of a waiver of a federally guaranteed con-
stitutional right is, of course, a federal question controlled
by federal law.” Brookhart v. Janis, 384 U. S. 1, 4 (1966).
Waiver consists in the “intentional relinquishment or aban-
donment of a known right or privilege.” Johnson v. Zerbst,
304 U. S. 458, 464 (1938). But a valid waiver need not be
express. Implied waiver can be established through “ ‘a
course of conduct’ ” even “absent formal or express state-
ments of waiver.” Berghuis v. Thompkins, 560 U. S. 370,
383–384 (2010) (quoting North Carolina v. Butler, 441 U. S.
369, 373 (1979)). In the prototypical case of implied waiver,
the relevant course of conduct signals an intention to relin-
quish the right at issue. But “[a]s a general proposition, the
law can presume that an individual who, with a full under-
standing of his or her rights, acts in a manner inconsistent
with their exercise has made a deliberate choice to relin-
quish the protection those rights afford.” Berghuis, 560
U. S., at 385.
2 HEMPHILL v. NEW YORK
ALITO, J., concurring
Our precedents establish that a defendant can impliedly
waive the Sixth Amendment right to confront adverse wit-
nesses through conduct.* The cause of implied waiver can
be a “failure to object to the offending evidence” in accord-
ance with the procedural standards fixed by state law.
Melendez-Diaz v. Massachusetts, 557 U. S. 305, 314, n. 3
(2009). But implied waiver can also occur when a defendant
engages in a course of conduct that is incompatible with a
demand to confront adverse witnesses. In Illinois v. Allen,
397 U. S. 337 (1970), for instance, we held that a defendant
may relinquish his right to confront adverse witnesses by
“conducting himself in a manner so disorderly, disruptive,
and disrespectful of the court that his trial cannot be car-
ried on with him in the courtroom.” Id., at 343.
The problem with the New York rule at issue in this case
is that its application is predicated on neither conduct
evincing intent to relinquish the right of confrontation nor
action inconsistent with the assertion of that right. The in-
troduction of evidence that is misleading as to the real facts
does not, in itself, indicate a decision regarding whether
any given declarant should be subjected to cross-examina-
tion. Nor is that kind of maneuver inconsistent with the
assertion of the right to confront a declarant whose out-of-
court statements could potentially set the record straight.
There are other circumstances, however, under which a
defendant’s introduction of evidence may be regarded as an
implicit waiver of the right to object to the prosecution’s use
——————
* The conduct relevant to waiver may be the defendant’s or that of trial
counsel. As a rule, for decisions “pertaining to the conduct of the trial,
the defendant is ‘deemed bound by the acts of his lawyer-agent’ ” and
charged with the knowledge of trial counsel. New York v. Hill, 528 U. S.
110, 115 (2000) (quoting Link v. Wabash R. Co., 370 U. S. 626, 634
(1962)). The exceptions to this rule are few, and they do not encompass
decisions regarding what arguments to pursue at trial. See Hill, 528
U. S., at 115.
Cite as: 595 U. S. ____ (2022) 3
ALITO, J., concurring
of evidence that might otherwise be barred by the Confron-
tation Clause. Under the traditional rule of completeness,
if a party introduces all or part of a declarant’s statement,
the opposing party is entitled to introduce the remainder of
that statement or another related statement by the same
declarant, regardless of whether the statement is testimo-
nial or there was a prior opportunity to confront the declar-
ant. See, e.g., 1 B. Bergman, N. Hollander, & T. Duncan,
Wharton’s Criminal Evidence §4:10 (15th ed. 1997) (ex-
plaining rule of completeness and collecting cases); Fed.
Rule Evid. 106 (partially codifying rule of completeness
with respect to writings and recorded statements).
The rule of completeness fits comfortably within the con-
cept of implied waiver. By introducing part or all of a state-
ment made by an unavailable declarant, a defendant has
made a knowing and voluntary decision to permit that de-
clarant to appear as an unconfronted witness. As a result,
the defendant cannot consistently maintain that the re-
mainder of the declarant’s statement or the declarant’s
other statements on the same subject should not be admit-
ted due to the impossibility of cross-examining that declar-
ant. The defendant’s decision to present the statement of
an unavailable declarant is inconsistent with the simulta-
neous assertion of the Sixth Amendment right to subject
that declarant to cross-examination.
Analogous logic governs the Fifth Amendment privilege
against self-incrimination. As our precedent makes clear,
when an accused takes the stand, he implicitly “ ‘determines
the area of disclosure and therefore of inquiry’ ” and thus
“cannot reasonably claim that the Fifth Amendment gives
him . . . an immunity from cross-examination on the mat-
ters he has himself put into dispute.” Brown v. United
States, 356 U. S. 148, 155–156 (1958).
The Sixth Amendment right to confrontation should be
analyzed no differently. When a defendant introduces the
statement of an unavailable declarant on a given subject,
4 HEMPHILL v. NEW YORK
ALITO, J., concurring
he commits himself to the trier of fact’s examination of what
the declarant has to say on that subject. The remainder of
the declarant’s statement or statements—and any other
statements by the same declarant on the same subject—are
fair game. The defendant cannot reasonably claim other-
wise, given his tactical choice to put the declarant’s state-
ments on the relevant subject in contention despite his un-
availability for cross-examination. And that is true
regardless of whether the defendant attempts to “invoke”
his right to confront an unavailable declarant after intro-
ducing his out-of-court statements. Having made the choice
to introduce the statements of an unavailable declarant, a
defendant cannot be heard to complain that he cannot
cross-examine that declarant with respect to the remainder
of that statement or the declarant’s related statements on
the same subject.
* * *
The Court emphasizes that its decision does not call into
question the rule of completeness or other principles that
may support implied waiver of the confrontation right. On
this understanding, I join the opinion of the Court in full.
Cite as: 595 U. S. ____ (2022) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–637
_________________
DARRELL HEMPHILL, PETITIONER v. NEW YORK
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK
[January 20, 2022]
JUSTICE THOMAS, dissenting.
This Court may review “[f]inal judgments or decrees ren-
dered by the highest court of a State” only where, as rele-
vant here, a federal right “is specially set up or claimed” in
the state court. 28 U. S. C. §1257(a). Because Darrell
Hemphill did not raise his Sixth Amendment claim in the
New York Court of Appeals, we lack jurisdiction to review
that court’s decision. I respectfully dissent.
I
Under New York case law, a trial court may generally ad-
mit otherwise inadmissible evidence if a party has “opened
the door” to its introduction at trial. People v. Massie, 2
N. Y. 3d 179, 180, 809 N. E. 2d 1102 (2004) (internal quota-
tion marks omitted). A party “opens the door” when he pre-
sents “evidence or argument” that is “incomplete and mis-
leading,” and responsive evidence is necessary to “correct
the misleading impression.” Id., at 184, 809 N. E. 2d, at
1105. In People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d
353, 357 (2012), the New York Court of Appeals held that
this door-opening doctrine permits a trial court to admit
testimonial hearsay otherwise barred by the Sixth Amend-
ment’s Confrontation Clause. In this case, invoking Reid,
the trial court permitted the prosecution to introduce Nich-
olas Morris’ plea allocution to rebut Hemphill’s defense that
Morris possessed the murder weapon. See ante, at 3–5.
2 HEMPHILL v. NEW YORK
THOMAS, J., dissenting
Hemphill argues in this Court that the Reid rule violates
the Sixth Amendment. That claim is not properly before
us. Under 28 U. S. C. §1257, “we will not consider a peti-
tioner’s federal claim unless it was either addressed by or
properly presented to the state court that rendered the de-
cision we have been asked to review.” Adams v. Robertson,
520 U. S. 83, 86 (1997) (per curiam). When the state court
does not “expressly address the question on which we
granted certiorari,” but is instead “silent on [the] federal
question before us, we assume that the issue was not
properly presented.” Ibid. The petitioner then “bears the
burden of . . . demonstrating that the state court had a fair
opportunity to address the federal question that is sought
to be presented.” Id., at 87 (internal quotation marks omit-
ted).
The New York Court of Appeals did not address—“ex-
pressly” or otherwise, id., at 86—Hemphill’s Sixth Amend-
ment claim. It affirmed the trial court’s application of Reid
in a single sentence: “[T]he trial court did not abuse its dis-
cretion by admitting evidence that the allegedly culpable
third party pleaded guilty to possessing a firearm other
than the murder weapon.” 35 N. Y. 3d 1035, 1036, 150
N. E. 3d 356, 358 (2020). This lone sentence does not evince
any awareness of, let alone respond to, a Confrontation
Clause claim. Because the Court of Appeals was “silent on
[the] federal question before us,” Hemphill must prove that
he afforded the state court a “fair opportunity” to address
his current Sixth Amendment claim. Adams, 520 U. S., at86–87 (internal quotation marks omitted).
Hemphill does not meet that burden. To provide the
Court of Appeals with a “fair opportunity” to evaluate his
Sixth Amendment claim, Hemphill was required to raise
that claim “with fair precision,” New York ex rel. Bryant v.
Zimmerman, 278 U. S. 63, 67 (1928), and in an “unmistak-
able manner,” Dewey v. Des Moines, 173 U. S. 193, 198
(1899), such that “the mind of the state court was directed
Cite as: 595 U. S. ____ (2022) 3
THOMAS, J., dissenting
to [the federal] question,” Capital City Dairy Co. v. Ohio,
183 U. S. 238, 248 (1902); see also Marvin v. Trout, 199
U. S. 212, 223 (1905). Put simply, there must have been a
“real contest . . . upon” the federal claim in state court. Mor-
rison v. Watson, 154 U. S. 111, 115 (1894); accord, Illinois
v. Gates, 462 U. S. 213, 222–223 (1983).
Here, there was no contest upon any federal claim in the
New York Court of Appeals. In his briefing before that
court, Hemphill asserted that the “only issue before [that]
Court [was] whether the defense opened the door to Mor-
ris’s testimonial hearsay.” App. 385 (emphasis added). To
that end, Hemphill argued that his defense’s presentation
of evidence was not “misleading” under Massie, Reid, and
other cases. See App. 386–387. Of course, whether
Hemphill triggered New York’s “substantive principle of ev-
idence,” ante, at 10, is a question of state law “not subject to
review here,” Moore v. Illinois, 408 U. S. 786, 799 (1972);
see also Hiawassee River Power Co. v. Carolina-Tennessee
Power Co., 252 U. S. 341, 343 (1920). Federal law does not
govern whether a defendant’s presentation of his case is
“misleading.” Thus, Hemphill pressed only a state-law
claim in the New York Court of Appeals.
True, Hemphill cited one Sixth Amendment precedent,
Crawford v. Washington, 541 U. S. 36 (2004), and stated
that “the introduction of Morris’s guilty plea minutes vio-
lated [his] Sixth Amendment right.” App. 385. But
Hemphill reached that conclusion not because there was a
“real contest . . . upon” the constitutionality of the Reid rule,
Morrison, 154 U. S., at 115, but rather because the trial
court misapplied Reid and thus improperly admitted un-
confronted testimonial hearsay. Put another way,
Hemphill never argued that evidence that complied with
Reid violated the Confrontation Clause. To the contrary,
Hemphill understood Reid to be constitutional. As
Hemphill explained, “both the trial judge and the Appellate
4 HEMPHILL v. NEW YORK
THOMAS, J., dissenting
Division recognized that [Morris’] statements would other-
wise be barred by the Confrontation Clause” if he had not
opened the door. App. 385. (emphasis added). In short, eve-
ryone agreed on what the Sixth Amendment required; the
only dispute was whether the trial court misapplied New
York’s door-opening doctrine.
The Court declines to address the substance of
Hemphill’s argument in the Court of Appeals. It focuses
instead on Hemphill’s remark, toward the end of his analy-
sis, that the Appellate Division’s ruling “unjustifiably un-
dermine[d]” the right to confrontation and was “absurd in
the context of the Confrontation Clause.” Id., at 388. But
this was not a challenge to the constitutionality of the Reid
rule; rather, it was an explanation why the Appellate Divi-
sion’s approach to Reid represented “a radical shift never
adopted by” the New York Court of Appeals in Reid or its
progeny. App. 388. Hemphill repeated that charge at
length in his reply brief. See id., at 404–406. Notably, he
faulted the trial court for its “basic misunderstanding of the
Reid doctrine.” Id., at 406. Thus, as before, Hemphill chal-
lenged only the misapplication of state law.
Nonetheless, even if the Court were correct that
Hemphill’s fleeting reference to the Confrontation Clause
addressed the constitutionality of the Reid rule, Hemphill
still would not have raised a “properly presented” federal
claim under 28 U. S. C. §1257. Adams, 520 U. S., at 86. For
more than a century, this Court has held that “[a] general
statement that the decision of a court is against the consti-
tutional rights of the objecting party . . . will not raise a fed-
eral question.” Clarke v. McDade, 165 U. S. 168, 172 (1897);
see also Chicago, I. & L. R. Co. v. McGuire, 196 U. S. 128,
131 (1905) (“mere suggestion of a violation of a Federal
right”—rather than “the distinct presentation of a Federal
question”—is inadequate). A litigant must adequately de-
velop any federal claim in his state briefing in order to give
Cite as: 595 U. S. ____ (2022) 5
THOMAS, J., dissenting
the state court a “fair opportunity” to assess the claim. Ad-
ams, 520 U. S., at 87 (internal quotation marks omitted).
Here, the Court highlights two statements from Hemphill’s
state-court briefing that, at best, offered a general and un-
reasoned assertion that the New York courts violated the
Sixth Amendment. Such an unspecific statement mani-
festly failed to give the Court of Appeals a “fair opportunity”
to assess any constitutional claim.
The Court tacitly recognizes that its chosen excerpts from
Hemphill’s brief are inadequate. It asserts that Hemphill,
after making those statements, “proceeded to explain” the
basis for a Confrontation Clause claim. Ante, at 8, n. 2. The
record demonstrates otherwise. Hemphill did not cite a sin-
gle case. He made no legal argument. In fact, he did not
even address the right to confront adverse witnesses. Ra-
ther, Hemphill lamented that, “[a]s a practical matter,” the
Appellate Division’s approach “create[d] a minefield for
counsel in which the only way for the accused to rely on the
rules of evidence or constitutional protections is to remain
mute.” App. 388. This general grievance about the inabil-
ity to present evidence or argument in defense says nothing
about the Confrontation Clause. To the contrary, under our
precedents, the right to present a defense in a state crimi-
nal trial is guaranteed by the Sixth Amendment’s Compul-
sory Process Clause and the Fourteenth Amendment’s Due
Process Clause. See, e.g., Washington v. Texas, 388 U. S.
14, 19 (1967). A claim under those provisions would not
preserve a Confrontation Clause claim. See Gates, 462
U. S., at 219–220. It follows that Hemphill’s assertion
about the practicalities of criminal defense, with no citation
to any authority, is even more obviously inadequate.
Ultimately, the Court all but concedes Hemphill’s failure
to develop his claim below, but relies on Yee v. Escondido,
503 U. S. 519 (1992), for the proposition that we may “con-
sider any argument Hemphill raises in support of his
claim.” Ante, at 7. But Yee still requires a federal claim to
6 HEMPHILL v. NEW YORK
THOMAS, J., dissenting
be “properly presented” to the state court, even if a new ar-
gument in support of that claim is raised for the first time
here. 503 U. S., at 534. So, in Yee, the Fifth Amendment
taking claim was properly presented because the petition-
ers “unquestionably raised [that] claim in the state courts”
based on a “physical taking argument,” and it was “unclear”
only whether they also raised a related “regulatory taking”
argument. Ibid. Here, by contrast, Hemphill developed no
basis for any federal claim before the Court of Appeals. Yee
is therefore inapplicable and §1257 bars this Court’s re-
view.
II
Hemphill’s failure to properly present his Sixth Amend-
ment claim to the New York Court of Appeals divests this
Court of jurisdiction. To be sure, on rare occasions, this
Court has excused the failure to present a federal claim in
state court. See, e.g., Three Affiliated Tribes of Fort
Berthold Reservation v. Wold Engineering, P. C., 476 U. S.
877, 883 (1986). Our insistence on proper presentation has
been “ ‘almost,’ ” though not completely, “ ‘unfailin[g].’ ”
Ante, at 6 (quoting Howell v. Mississippi, 543 U. S. 440, 443
(2005) (per curiam)). But, in my view, the Court’s recent
treatment of §1257’s proper-presentation requirement as
merely prudential is erroneous. We have no authority to
forgive a petitioner’s failure to raise a federal claim in state
court, because the proper-presentation requirement is a ju-
risdictional prerequisite to our review. Absent jurisdiction,
the only appropriate remedy is dismissal.1
Since the Judiciary Act of 1789, §25, 1 Stat. 85, Congress
——————
1 Even if the proper-presentation requirement were merely prudential,
I still would dismiss this case, albeit as improvidently granted. I see no
reason to deviate from our “almost unfailin[g]” refusal to hear improperly
presented federal claims. Howell, 543 U. S., at 443. In this case, like
many others, “ ‘the circumstances . . . justify no exception.’ ” Id., at 446(collecting cases). Particularly here, strong interests in comity counsel
against hearing Hemphill’s Sixth Amendment claim. See Part III, infra.
Cite as: 595 U. S. ____ (2022) 7
THOMAS, J., dissenting
has permitted this Court to review the judgments of state
courts only when petitioners properly present their federal
claims to those courts below. See Gates, 462 U. S., at 218.
This Court’s earliest cases held that the absence of a federal
claim in the state court defeats this Court’s jurisdiction.
See, e.g., Owings v. Norwood’s Lessee, 5 Cranch 344, 347
(1809). Justice Story explained: “[T]o give this court appel-
late jurisdiction two things should have occurred and be ap-
parent in the record: first, that some one of the [federal]
questions . . . did arise in the court below; and secondly,
that a decision was actually made thereon by the same
court.” Crowell v. Randell, 10 Pet. 368, 392 (1836).2 That
conclusion was unremarkable given that the proper-
presentation requirement has always appeared in this
Court’s only statutory grant of jurisdiction to review state-
court decisions.
For nearly 200 years, this Court adhered to the proper-
presentation requirement as a jurisdictional rule. The
Court routinely dismissed cases for lack of jurisdiction
when the petitioner failed to properly present his federal
claim to the state court. See, e.g., Oxley Stave Co. v. Butler
County, 166 U. S. 648, 660 (1897); Cincinnati, N. O. &
T. P. R. Co. v. Slade, 216 U. S. 78, 83–84 (1910); Cardinale
v. Louisiana, 394 U. S. 437, 439 (1969); see also Howell, 543
U. S., at 445 (noting “the long line of cases clearly stating
that the presentation requirement is jurisdictional”). Even
a century ago, it was “well settled” that this Court was
“without jurisdiction to review the judgment of a State
court . . . by reason of a federal question which was not
raised below or called to the attention of or decided by the
——————
2 Our later cases have stated this test in the disjunctive. See Illinois v.
Gates, 462 U. S. 213, 218, n. 1 (1983). Because neither precondition is
satisfied—Hemphill did not raise his Sixth Amendment claim below, nor
did the New York Court of Appeals address any such claim—I express no
view on whether a federal claim must be both pressed and passed upon
in the state court.
8 HEMPHILL v. NEW YORK
THOMAS, J., dissenting
State court.” New York ex rel. Rosevale Realty Co. v.
Kleinert, 268 U. S. 646, 650 (1925).
Despite this long tradition, our more recent cases say it
is “unsettled” whether the proper-presentation require-
ment is a jurisdictional bar or merely a prudential consid-
eration. E.g., Bankers Life & Casualty Co. v. Crenshaw, 486
U. S. 71, 79 (1988). But the Court has never explained why
it abandoned a centuries-old limit on our jurisdiction. Two
cases in the mid-20th century unsettled the doctrine with
little justification. First, in Terminiello v. Chicago, 337
U. S. 1 (1949), the petitioner raised a First Amendment
challenge to a city ordinance in state court, but failed to
challenge the jury instruction interpreting that ordinance
either below or in this Court. The Court sidestepped the
proper-presentation requirement by reading the jury in-
struction as a “construction of the ordinance . . . as binding
on us as though the precise words had been written into the
ordinance.” Id., at 4. Later, in Vachon v. New Hampshire,
414 U. S. 478 (1974) (per curiam), the Court deviated yet
further from the jurisdictional understanding of the proper-
presentation rule. For the first time, and in an unreasoned
footnote, the Court explicitly forgave a petitioner’s failure
to present a federal claim to the state court. See id., at 479,
n. 3. Other than Terminiello, the Court cited three cases
that reviewed claims from federal court, see 414 U. S., at
483 (Rehnquist, J., dissenting), where the requirement to
present a federal claim has never been jurisdictional, see,
e.g., Springfield v. Kibbe, 480 U. S. 257, 259 (1987) (per cu-
riam).
Since Vachon, the Court has not explained why the re-
quirement to present a federal claim in state court is pru-
dential rather than jurisdictional. Instead, we have repeat-
edly ducked the issue. See Howell, 543 U. S., at 445–446
(collecting cases). I see no reason to prolong this Court’s
ambivalence. The proper-presentation requirement ap-
pears in the only statute that grants this Court jurisdiction
Cite as: 595 U. S. ____ (2022) 9
THOMAS, J., dissenting
to review state-court decisions. For most of our history,
that requirement was unfailingly understood to be jurisdic-
tional. And our cases have since departed from this princi-
ple without squaring that departure with §1257’s unquali-
fied text. Accordingly, I would hold that this Court lacks
jurisdiction to hear a federal claim on review from a state
court where a petitioner, like Hemphill, fails to properly
present his claim to the court below.
III
That the Court decides this case despite Hemphill’s fail-
ure to present his claim to the New York Court of Appeals
is not a mere academic defect. “Federal nullification of a
state statute,” or any state rule, “is a grave matter.” Maine
v. Taylor, 477 U. S. 131, 135 (1986); see also Abbott v. Perez,
585 U. S. ___, ___, n. 17 (2018) (slip op., at 21, n. 17) (“the
inability to enforce its duly enacted plans clearly inflicts ir-
reparable harm on the State”). And it is “unseemly in our
dual system of government to disturb the finality of state
judgments on a federal ground that the state court did not
have occasion to consider.” Adams, 520 U. S., at 90 (inter-
nal quotation marks omitted). Thus, it is “important that
state courts be given the first opportunity to consider the
applicability of state [rules],” particularly “in light of con-
stitutional challenge, since the [rules] may be construed in
a way which saves their constitutionality.” Cardinale, 394
U. S., at 439. A state court’s interest in deciding “whether
to . . . amend [its] rules to avoid potential constitutional
challenges” is “undeniable.” Adams, 520 U. S., at 90.
Today, the Court disregards these important “[p]rinciples
of comity.” Webb v. Webb, 451 U. S. 493, 499 (1981). In the
Court of Appeals, Hemphill argued that state law required
“an affirmative attempt to mislead the jury . . . before the
door can be opened to otherwise inadmissible evidence.”
App. 386. Hemphill maintained that “[t]he doctrine is not
so capacious as to allow the admission of any evidence made
10 HEMPHILL v. NEW YORK
THOMAS, J., dissenting
relevant by the opposing party’s strategy.” Ibid. (internal
quotation marks omitted). But here, the Court describes
Reid as permitting the prosecution to introduce all evidence
that is “arguably relevant” to rebut the defendant’s “theory
of defense.” Ante, at 2. The Court thus redefines Reid to be
what Hemphill said it was not, and then holds that carica-
ture of Reid unconstitutional without giving the Court of
Appeals an opportunity to clarify its evidentiary rule in
light of a concrete constitutional challenge. Even if Massie,
Reid, and their progeny do not clearly define what it means
to “mislead” a jury, any uncertainty is all the more reason
for this Court to refrain from deciding this case prema-
turely. That the New York courts may clarify their doctrine
in a later case does not forgive the Court’s impetuosity here.
The Court’s neglect of our settled jurisdictional principles
is particularly unfortunate in this case. As Hemphill con-
cedes, New York’s Appellate Division does not appear to ap-
ply the door-opening doctrine consistently. See Reply Brief
10, n. 4. Some cases hold that Massie and Reid do not per-
mit the prosecution to introduce evidence merely to
“counte[r] the defendant’s theory of the case.” People v.
Richardson, 95 App. Div. 3d 1039, 1040, 943 N. Y. S. 2d
599, 600 (2012). Others seem to apply the rule more ag-
gressively. See People v. Cole, 59 App. Div. 3d 302, 302–
303, 873 N. Y. S. 2d 603, 604 (2009). Either way, the Court
today purports to resolve what is effectively an intramural
disagreement within the New York judiciary in order to
reach a novel constitutional claim. That task should—and
under §1257’s jurisdictional bar, must—be left to the New
York Court of Appeals in the first instance.
* * *
I would dismiss this case for lack of jurisdiction under 28
U. S. C. §1257 because Hemphill did not raise his federal
claim to the New York Court of Appeals. I respectfully dis-
sent.