On January 20, 2022, the U.S. Supreme Court held in an 8-1 opinion in Hemphill v. New York that Darrell Hemphill did not “open the door” to the admission of out-of-court third-party testimony by making it “arguably relevant to his theory of defense.” The Court further held that the admission of such testimony violated Hemphill’s rights under the Sixth Amendment’s Confrontation Clause. The opinion will have practical significance for defense attorneys and prosecutors preparing for trial.  See Supreme Court to Weigh Protections Under Confrontation Clause.

Continue Reading U.S. Supreme Court Rejects Argument That Defendant “Opened the Door” to Evidence That Violated Confrontation Clause

The Sixth Amendment’s Confrontation Clause provides criminal defendants with the right to “confront”—i.e., cross-examine—the witnesses against them.  But can a criminal defendant “open the door” to the admission of evidence otherwise barred by the Confrontation Clause?  The U.S. Supreme Court will address that question in Hemphill v. New York, scheduled for oral argument next month.  The outcome of that case may significantly expand when prosecutors at all levels, from local district attorneys’ offices to DOJ Main Justice, can overcome defendants’ right to exclude absent-witness testimony.

Darrell Hemphill was convicted of murder in New York after another man was unsuccessfully prosecuted for the same crime.  Hemphill argued at trial that the first suspect committed the crime.  That was enough for the trial court, and ultimately New York’s highest court, to determine he had opened the door for the prosecution to introduce evidence rebutting Hemphill’s claim—specifically, an out-of-court statement by the first man that he did not possess the type of gun responsible for the murder.

Federal and state rules of evidence like New York’s typically allow a party to introduce rebuttal testimony like this—even if it could not do so originally—if the opposing party puts the issue into play.  But Hemphill argues that the Confrontation Clause is a separate safeguard that cannot be overcome simply by opening the door.  Under Hemphill’s theory, the first man’s statement should not have been admitted, even after Hemphill implicated him for the crime, unless the man could also be cross-examined at trial.
Continue Reading Supreme Court to Weigh Protections Under Confrontation Clause

On July 19, 2021, CME Group Inc. (the CME), the parent company of derivatives exchanges including the Chicago Mercantile Exchange and New York Mercantile Exchange, issued a Market Regulation Advisory Notice amending prior guidance on prohibited disruptive trading practices. The CME’s amended Advisory Notice RA2107-5 (Advisory Notice), took effect on August 2, 2021, and impacts