In Hemphill v. New York, the Supreme Court ruled that the Confrontation Clause bars the introduction of testimonial hearsay under a theory that the defendant “opened the door” to its admission. But the Court conspicuously left open the issue regarding how the “rule of completeness” comports with the Clause’s protections.
The Confrontation Clause emphatically commands that all criminal defendants have the right to “confront” witnesses against them. As explained in Crawford v. Washington, it requires either testing a witness’s reliability through cross-examination or barring the hearsay’s introduction at trial. Crawford and its progeny have permitted exceptions, but only those found at common law: notably, forfeiture-by-wrongdoing and dying declarations. When Hemphill came before the Court, the jurisprudence had not recognized New York’s “opening the door” theory, which asserts that otherwise inadmissible hearsay evidence may be introduced against a party to correct that party’s misleading presentation of an issue—put differently, the misleading presentation opens the door for otherwise inadmissible hearsay evidence. Relying on the Confrontation Clause’s clear textual command and the history motivating its protections (e.g., Raleigh’s treason trial), the near-unanimous court (Justice Thomas dissented on procedural grounds) concluded that although opening the door was permissible in some contexts, it could not greenlight constitutional violations and was therefore inappropriate in the case under consideration. It reaffirmed the constitutional preference for cross-examination over a judge’s evaluation of the reliability of out-of-court statements.
Justice Alito’s concurrence, joined by Justice Kavanaugh, argued that—although this case was not a proper vehicle for considering the issue—the Court should clarify that the related “rule of completeness” should be viewed as a simple application of implied waiver. Completeness is a common law hearsay doctrine that permits the introduction of hearsay to provide context for an opposing side’s cherry-picking favorable portions of the same hearsay declaration. Alito’s opinion contends that where a defendant benefits from introducing part of an out-of-court statement, he cannot turn around and object to introducing more of the statement—a defendant cannot have his cake and eat it too.
This position has had some sway in state and federal courts. But implied waiver might not be the right theory to capture what is going on in such a situation given a defendant’s motivation for introducing an incomplete statement.
Defendants choose to selectively quote precisely for the purpose of isolating those statements favorable to their defense. Presumably, by extracting solely those portions, they do not also wish to waive their objections to the unfavorable portions of a declarant’s statements; defendants make conscious, tactical choices to omit the damning portions of hearsay testimony using their confrontation right filter. This selective waiver argument is analogous to Justice Gorsuch’s argument in Carpenter v. United States that a bailment theory of the Fourth Amendment implies one can still object to governmental access to one’s information even if a third party possesses it—a party shares information for the select purpose of the third party’s use, not for broader dissemination. Similarly, a historical argument contends that the forfeiture-by-wrongdoing exception, when relevant, should target specific confrontation concerns rather than serve as a comprehensive denial of the right.
One may retort that the Confrontation Clause’s concern with reliability implies that because defendant relied on a portion of the declarant’s hearsay, he has conceded its reliability and thus cannot object to completeness’s application. Yet, this cogent argument fails to capture the benefit defendant may still obtain from cross-examination. For example, assume a declarant confesses “I committed the crime. Defendant made me do it.” The prosecution may clearly claim that defendant’s introduction of only the first sentence is misleading and completeness requires including the second. But if in this hypothetical the declarant read a text from his wife saying she was pregnant before uttering the second sentence, defendant would benefit from cross-examination to draw out this changed circumstance, which limits the second sentence’s reliability. The dynamics and context can shift—even within a declarant’s statement—such that there is no guarantee that acknowledging the reliability of part concedes the reliability of the whole. Rather than admitting the complete quote, Crawford holds that the Confrontation Clause requires this hearsay’s reliability be tested using cross-examination.
Thus, because completeness is not clearly premised in knowing waivers of the confrontation right or concession of the reliability of the entire hearsay testimony, its application in confrontation cases poses a closer question than the concurrence presumes.
Yet, regardless of whether the rule of completeness is adopted, it is unlikely to have much practical effect. If completeness applies, the defendant may either introduce the hearsay in full (not selectively) or preserve his confrontation right. Without completeness, he may selectively introduce favorable hearsay testimony, but, as Hemphill’s majority indicates, selective quotations are still subject to Rule 403’s balancing of prejudice and probative value. Because completeness applies if partial quotations are likely to mislead, that deception concern could render the statement inadmissible under 403 unless presented in toto. Thus, the threat of an adverse 403 ruling puts defendants to the choice of admitting the full context or declining its introduction at all—the same choice presented where completeness applies.
Relying on 403 rather than completeness to deal with defendant’s possible misleading has collateral benefits. 403 rulings promote clarity ex ante by testing a defendant’s incomplete excerpts through motions in limine. The waiver under completeness, however, requires messier ex post—and often ad hoc—evaluations at trial to appraise whether completeness applies because an admitted statement misleads. Moreover, even assuming completeness waives defendant’s confrontation right, it serves the narrow purpose of correcting misleading snippets. Pretrial 403 assessments obviate concerns that the prosecution could compel admission of out-of-court testimony beyond what achieves that end, thereby exceeding the justification for finding a waiver in the first instance. The lack of a waiver for sake of completeness may also permit defendants to gamble that judges will be inattentive in reviewing selective testimony to when there is parity between 403 and completeness. But this possibility simply means the government bears the risk of legal error and incentivizes its pursuit of evidentiary arguments in court; similar to other criminal rights, the confrontation right tips the scales towards the defendant, which comports with the goal of safeguarding liberty.
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