Hemphill v. New York

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 1
Pages 140–169
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T H E S U P R E M E C O U R T
January 20, 2022
REBECCA A. WOMELDORF
reporter of decisions
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140 OCTOBER
TERM, 2021
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 fght in the Bronx. Eyewitnesses described the shooter as wear-
ing a blue shirt or sweater. Police offcers 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 identifed 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 Gilliam's apartment
shortly after the murder. At his trial, Hemphill elicited undisputed
testimony from a prosecution witness that police had recovered 9-
millimeter 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 ar-
guments and evidence had “opened the door” and admission of the state-
ments was reasonably necessary to correct the misleading impression
Hemphill had created. The State, in its closing argument, cited Morris'
plea allocution and emphasized that possession of a .357 revolver, not
murder, was the crime Morris committed. The jury found Hemphill
guilty. Both the New York Appellate Division and the Court of Ap-
peals affrmed Hemphill's conviction.
Held: The trial court's admission of the transcript of Morris' plea allocution
over Hemphill's objection violated Hemphill's Sixth Amendment right
to confront the witnesses against him. Pp. 148–156.
(a) The State's threshold argument—that Hemphill's failure to pres-
ent his claim adequately to the state courts should prevent the Court

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141
Syllabus
from deciding his federal-law challenge to the state-court decision—is
re
jected. Hemphill satisfed 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
Morris' plea allocution violated his Sixth Amendment right to confronta-
tion as interpreted by this Court. And “[o]nce a federal claim is prop-
erly presented, a party can make any argument in support of that
claim.” Yee v. Escondido, 503 U. S. 519, 534. Pp. 148–149.
(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 al-
lowed the “use of ex parte examinations as evidence against the ac-
cused.” 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 confron-
tation guarantee was “most naturally read” to admit “only those excep-
tions 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 witness who did not
appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination,” 541 U. S., at 53–
54, 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 unavail-
able witness so long as those statements had “adequate `indicia of relia-
bility.' ” Pp. 150–151.
(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” limit-
ing only the manner of asserting the confrontation right, not its substan-
tive scope. While the Court's precedents do recognize that the Sixth
Amendment leaves States with fexibility to adopt reasonable proce-
dural rules that bear on the exercise of a defendant's confrontation 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 substantive principle of evi-
dence that dictates what material is relevant and admissible in a case.
The State would have trial judges weigh the reliability or credibility of
testimonial hearsay evidence, but that approach would negate Craw-
ford's emphatic rejection of the reliability-based approach to the Con-
frontation Clause guarantee. Here, it was not for the trial judge to

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142 HEMPHIL
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Syllabus
determine whether Hemphill's theory that Morris was the shooter was
unrel
iable, incredible, or otherwise misleading in light of the State's prof-
fered, unconfronted plea evidence, nor whether this evidence was rea-
sonably necessary to correct that misleading impression. Pp. 151–153.
(d) The Court also rejects the State's insistence that the Reid rule is
necessary to safeguard the truth-fnding 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. 153–155.
(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 allo-
cution 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 criminal de-
fendant. Pp. 155–156.
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., fled a concurring opinion, in which Kavanaugh, J.,
joined, post, p. 156. Thomas, J., fled a dissenting opinion, post, p. 159.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were Edward C. DuMont, Kendall Turner,
Claudia Trupp, Matthew Bova, and Yaira Dubin.
Gina Mignola argued the cause for respondent. With her
on the brief were Darcel D. Clark, Nancy D. Killian, Noah
J. Chamoy, Robert C. McIver, and Paul A. Andersen.*
*Briefs of amici curiae urging reversal were fled for the American
Civil Liberties Union et al. by Caitlin Halligan, Claire O'Brien, David
D. Cole, Cecillia Wang, Ezekiel Edwards, Jennesa Calvo-Friedman,
Christopher Dunn, and John W. Whitehead; for the Association of Crimi-
nal Defense Lawyers of New Jersey by Gary S. Stein; for the Bronx De-
fenders et al. by David Debold, Joel M. Cohen, and Aimee Carlisle; for

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as: 595 U. S. 140 (2022)
143
Opinion of the Court
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 specifcally required Morris
to admit to a new charge of possession of a .357-magnum
revolver, not the 9-millimeter handgun originally charged in
the indictment and used in the killing.
Years later, the State prosecuted petitioner Darrell Hemp-
hill for the same murder. At his trial, Hemphill blamed
Morris, and he elicited undisputed testimony from a prosecu-
tion witness that police had recovered 9-millimeter ammuni-
tion from Morris' nightstand. Morris was outside the
United States and not available to testify. The trial court
allowed the State to introduce parts of the transcript of Mor-
ris' plea allocution as evidence to rebut Hemphill's theory
that Morris committed the murder. The court reasoned that
Hemphill's arguments and evidence had “opened the door”
to the introduction of these testimonial out-of-court state-
ments, not subjected to cross-examination, because they
the Constitutional Accountability Center by Elizabeth B. Wydra and Bri-
anne J. Gorod; for Evidence and Criminal Procedure Professors by Cather-
ine E. Stetson and Katherine B. Wellington; for the National Association
of Criminal Defense Lawyers by Nicholas D. Marais and Joshua L. Dra-
tel; and for Richard D. Friedman by Mr. Friedman, pro se.
Briefs of amici curiae urging affrmance were fled for the State of
Utah et al. by Sean D. Reyes, Attorney General of Utah, Melissa Holyoak,
Solicitor General, Thomas B. Brunker, Deputy Solicitor General, and
Christopher D. Ballard, and by the Attorneys General for their respective
States as follows: Mark Brnovich of Arizona, Leslie Rutledge of Arkansas,
Ashley Moody of Florida, Clare E. Connors of Hawaii, Derek Schmidt of
Kansas, Jeff Landry of Louisiana, Keith Ellison of Minnesota, Lynn Fitch
of Mississippi, Doug Peterson of Nebraska, Wayne Steneh jem of North
Dakota, Alan Wilson of South Carolina, and Jason R. Ravnsborg of South
Dakota; and for the District Attorneys Association of the State of New
York et al. by Cyrus R. Vance, Jr., Hilary Hassler, and David M. Cohn.
A brief of amici curiae was fled for the Innocence Project et al. by
James C. Dugan and Tricia Bushnell.
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144 HEMPHIL
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Opinion of the Court
were “ `reasonably necessary' ” to “ `correct' ” the “ `mislead-
i
ng impression' ” Hemphill had created. 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 Hemp-
hill's Sixth Amendment right to confront the witnesses
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 individu-
als got into a physical fght near Tremont Avenue in the
Bronx. Shortly after the fght, someone fred a 9-millimeter
handgun. The bullet killed a 2-year-old child sitting in a
nearby minivan.
Police offcers determined that Gilliam was involved and
that Nicholas Morris, Gilliam's best friend, had been at the
scene. Offcers searched Morris' apartment. On Morris'
nightstand, the offcers found a 9-millimeter cartridge and
three .357-caliber bullets. Three witnesses identifed Mor-
ris as the shooter out of a police lineup.
The police arrested Morris the next day and observed
br uisi ng on h is knuckles consistent w ith fist fighti ng.
Gilliam then surrendered and identifed 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 Gilli-
am'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 dismiss
the murder charges against Morris if he pleaded guilty to
criminal possession of a weapon. But rather than having
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145
Opinion of the Court
Morris plead to the charge in the existing indictment for pos-
sessi
on of a 9-millimeter handgun, the State fled a new
charge alleging that Morris had possessed a .357-magnum
revolver, a different type of frearm than the one used to
kill the victim. In exchange for this plea, the prosecution
recommended a sentence of time served. The State and
Morris' counsel agreed that there was insuffcient evidence
of Morris' possession of a .357-magnum revolver to obtain an
indictment absent Morris' willingness to admit to the allega-
tions. Morris did so, against his attorney's advice, to secure
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 offcers had recov-
ered 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 argument had
been misleading because offcers also had found .357-caliber
bullets on the nightstand and because Morris ultimately
pleaded guilty to possessing a .357 revolver.
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, ar-
guing that the plea allocution was “clearly hearsay” and that
Hemphill was being “deprived of an opportunity [for] cross-
examination.” App. 107. The trial court deferred ruling
and, in the meantime, allowed the State to put on testimony
regarding the .357-caliber bullets on Morris' nightstand.
Accordingly, both the State and Hemphill elicited undisputed
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146 HEMPHIL
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testimony from a law enforcement offcer that a 9-millimeter
c
ar tr idge and .357-ca liber bu llets were recovered from
Morris' nightstand.
The trial court then revisited the State's application to in-
troduce Morris' plea allocution. Hemphill's counsel objected
again, citing this Court's decision in Crawford v. Washing-
ton, 541 U. S. 36 (2004): “I think it is [a] Crawford violation.
I think the evidence is being offered to incriminate Mr. Hemp-
hill. 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 Peo-
ple v. Massie, 2 N. Y. 3d 179, 184, 809 N. E. 2d 1102, 1105
(2004)). The trial court applied Reid as follows:
“[A] signifcant 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
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-
1
The State responded that Morris' plea allocution was not testimonial
because it did not “incriminate or point a fnger at all against Mr. Hemp-
hill.” 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.
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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 coun-
sel's statements that he was doing so against counsel's ad-
vice, 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 empha-
sized that possession of a .357 revolver, not murder, was “the
crime [Morris] actually committed.” Id., at 356. After de-
liberations 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 witnesses
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 followed
the court's in limine rulings.” Supp. App. to Brief in Oppo-
sition 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 oppor-
tunity to question its reliability through cross-examination.”
Id., at SA111.
The Appellate Division affrmed. In relevant part, it rea-
soned that “[d]uring the trial, defendant created a misleading
impression that Morris possessed a 9 millimeter handgun,
which was consistent with the type used in the murder, and
introduction of the plea allocution was reasonably necessary
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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 insuffcient 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 mislead-
ing the jury, opening the door to testimonial hearsay. . . .
Such an approach is absurd in the context of the Con-
frontation Clause, the purpose of which is to afford the
accused the right to meaningfully test the prosecution's
proof.” App. 388.
The Court of Appeals affrmed. 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 fed-
eral claim `was either addressed by or properly presented 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 of words
or phrases is essential' ” for satisfying the presentation re-
quirement, 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) (quoting New
York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928)).
Hemphill has satisfed this requirement. At every level
of his proceedings in state court, Hemphill argued that the
admission of Morris' plea allocution violated his Sixth
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149
Opinion of the Court
Amendment right to confrontation as interpreted by this
Cour
t 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 be-
fore the Court of Appeals, he contended that “[t]he Appellate
Division's analysis,” which had affrmed 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 Confrontation
Clause” by “open[ing] the door to responsive evidence.”
Pet. for Cert. i.
2
Accordingly, the Court turns to the merits of that claim.
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 objec-
tion. Post, at 163 (opinion of Thomas, J.). Not so. Hemphill argued be-
fore the Court of Appeals that the Appellate Division's interpretation of
Reid in his case “equates presenting a valid, evidence-based third party
defense with misleading the jury, opening the door to testimonial hear-
say”—a rule that “unjustifably undermines the right to Confrontation”
for reasons he proceeded to explain. App. 388. Thus, Hemphill ex-
pressly raised a Confrontation Clause argument and, contrary to the dis-
sent's contention, offered the Court of Appeals “ `the frst opportunity' ” to
construe Reid “ `in a way which saves [its] constitutionality.' ” Post, at
168 (quoting Cardinale v. Louisiana, 394 U. S. 437, 439 (1969)). The dis-
sent also accuses this Court of “redefn[ing] Reid to be what Hemphill said
it was not.” Post, at 168. Far from it: This Court accepts the Court of
Appeals' conclusive determination that Reid authorized the admission of
testimonial hearsay in this case.
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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 prosecutions, 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 frmly rooted hearsay exception” or
otherwise bore “particularized guarantees of trustworthi-
ness.” However, 24 years later, this Court rejected that
reliability-based approach to the Confrontation Clause. See
Crawford, 541 U. S., at 61.
In charting a different path, the Crawford 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 pro-
cedure, and particularly its use of ex parte examinations as
evidence against the accused.” Id., at 50. The Court con-
tinued, “the Framers would not have allowed admission 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-examination.” Id., at
53–54.
4
Because “[t]he text of the Sixth Amendment does
3
The Clause binds the States through the Fourteenth Amendment.
Pointer v. Texas, 380 U. S. 400, 403 (1965).
4
The Crawford Court defned “testimony” as a “solemn declaration or
affrmation 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 hear-
ing, before a grand jury, or at a former trial; and . . . police interrogations.”
Id., at 68. Subsequent decisions have expounded on this defnition. See,
e. g., Ohio v. Clark, 576 U. S. 237, 244–245 (2015).
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Opinion of the Court
not suggest any open-ended exceptions from the confronta-
ti
on requirement to be developed by the courts,” the require-
ment was “most naturally read” to admit “only those excep-
tions 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 founding 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
applied 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 equiva-
lent of failing to object to the confrontation violation.”
Brief for Respondent 31. So construed, the argument goes,
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
fexibility 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
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court that his trial cannot be carried on with him in the
cour
troom.” 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 dictates what ma-
terial 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 lead-
ing case in this Court on `opening the door' ”); New York
State Unifed 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 illustrates, the principle
requires a trial court to determine whether one party's evi-
dence 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
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 refects a judgment, not only about the desir-
ability 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
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Opinion of the Court
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 hearsay 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 unrelia-
ble, incredible, or otherwise misleading in light of the State's
proffered, unconfronted plea evidence. Nor, under the
Clause, was it the judge's role to decide that this evidence
was reasonably necessary to correct that misleading impres-
sion. Such inquiries are antithetical to the Confrontation
Clause.
C
The State next insists that the Reid rule is necessary to
safeguard the truth-fnding function of courts because it pre-
vents the selective and misleading introduction of evidence.
See Reid, 19 N. Y. 3d, at 388, 971 N. E. 2d, at 357. The State
relies on this Court's precedents recognizing the need for
sensitivity to “ `the legitimate demands of the adversarial
system.' ” Taylor v. Illinois, 484 U. S. 400, 413 (1988) (quot-
ing United States v. Nobles, 422 U. S. 225, 241 (1975); empha-
sis deleted). This argument falls short as well. Even as it
has recognized and reaffrmed the vital truth-seeking func-
tion of a trial, the Court has not allowed such considerations
to override the rights the Constitution confers upon crimi-
nal 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,
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Opinion of the Court
involved exceptions to constitutional requirements. Rather,
i
n 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 Amend-
ment's guarantee against unreasonable searches or seizures
from the prophylactic rule designed to deter violations of
that guarantee by excluding the fruits of such searches or
seizures from trial. Id., at 590–591. Because the prophy-
lactic 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
defendant through the introduction of his own coerced testi-
mony. It did so despite the strong and obvious interest in
preventing perjury because the very introduction of the co-
erced testimony would violate the Fifth Amendment's provi-
sion that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” In view of that guar-
antee, balancing of interests was “not simply unnecessary,”
but “impermissible.” Portash, 440 U. S., at 459. The Sixth
Amendment speaks with equal clarity: “In all criminal prose-
cutions, 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 unconfronted testi-
monial hearsay might be reasonably necessary to correct a
misleading impression. Courts may not overlook its com-
mand, no matter how noble the motive. See United States
v. Gonzalez-Lopez, 548 U. S. 140, 145 (2006) (“It is true
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155
Opinion of the Court
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 nature
becomes apparent, it generally retains the authority to with-
draw it, strike it, or issue a limiting instruction as appro-
priate. See, e. g., Fed. Rule Evid. 105; New York State
Unifed Court System, Guide to New York Evidence Rule
1.13(1) (“Absent undue prejudice to a party, a judge may re-
visit 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 testimonial
hearsay. Under that rule, a party “ `against whom a part of
an utterance has been put in, may in his turn complement it
by putting in the remainder.' ” Beech Aircraft Corp. v.
Rainey, 488 U. S. 153, 171 (1988) (quoting 7 J. Wigmore, Evi-
dence § 2113, p. 653 (J. Chadbourn rev. 1978)); see also Fed.
Rule Evid. 106. The parties agree that the rule of complete-
ness does not apply to the facts of this case, as Morris' plea
allocution was not part of any statement that Hemphill intro-
duced. Whether and under what circumstances that rule
might allow the admission of testimonial hearsay against a
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Alito, J., concurring
criminal defendant presents different issues that are not be-
fore
this Court.
5
***
The Confrontation Clause requires that the reliability and
veracity of the evidence against a criminal defendant be tes-
ted by cross-examination, not determined by a trial court.
The trial court's admission of unconfronted testimonial hear-
say over Hemphill's objection, on the view that it was
reasonably necessary to correct Hemphill's misleading argu-
ment, violated that fundamental guarantee. The judgment
of the New York Court of Appeals is reversed, and the case
is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
Justice Alito, with whom Justice Kavanaugh joins,
concurring.
I agree with the Court's conclusion that—assuming
Morris's statement was testimonial—its admission violated
the Confrontation Clause of the Sixth Amendment. I write
separately 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 consti-
tutional 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,
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 evidence
of [Hemphill's] guilt,” Brief for Respondent 49. It offers no reason, how-
ever, 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).
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157
Alito, J., concurring
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 relinquish
the protection those rights afford.” Berghuis, 560 U. S.,
at 385.
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 fxed 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 carried
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 evinc-
*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.
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Alito, J., concurring
ing intent to relinquish the right of confrontation nor action
i
nconsistent with the assertion of that right. The introduc-
tion 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-examination. 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
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 de-
clarant, regardless of whether the statement is testimonial
or there was a prior opportunity to confront the declarant.
See, e. g., 1 B. Bergman, N. Hollander, & T. Duncan, Whar-
ton's Criminal Evidence § 4:10 (15th ed. 1997) (explaining 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 fts 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 remain-
der of the declarant's statement or the declarant's other
statements on the same subject should not be admitted due
to the impossibility of cross-examining that declarant. The
defendant's decision to present the statement of an unavail-
able declarant is inconsistent with the simultaneous asser-
tion of the Sixth Amendment right to subject that declarant
to cross-examination.
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Thomas, J., dissenting
Analogous logic governs the Fifth Amendment privilege
agai
nst 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 matters
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 an-
alyzed no differently. When a defendant introduces the
statement of an unavailable declarant on a given subject, 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 state-
ments by the same declarant on the same subject—are fair
game. The defendant cannot reasonably claim otherwise,
given his tactical choice to put the declarant's statements on
the relevant subject in contention despite his unavailability
for cross-examination. And that is true regardless of
whether the defendant attempts to “invoke” his right to con-
front an unavailable declarant after introducing 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 de-
clarant 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.
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-
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Thomas, J., dissenting
vant here, a federal right “is specially set up or claimed”
i
n 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
admit 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 quotation
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 tes-
timonial hearsay otherwise barred by the Sixth Amend-
ment's Confrontation Clause. In this case, invoking Reid,
the trial court permitted the prosecution to introduce Nicho-
las Morris' plea allocution to rebut Hemphill's defense that
Morris possessed the murder weapon. See ante, at 145–147.
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 petitioner's
federal claim unless it was either addressed by or properly
presented to the state court that rendered the decision 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 certio-
rari,” 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 . . . demon-
strating that the state court had a fair opportunity to ad-
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Thomas, J., dissenting
dress the federal question that is sought to be presented.”
Id.,
at 87 (internal quotation marks omitted).
The New York Court of Appeals did not address—
“expressly” or other w ise, i d., at 86 —Hemph i l l's Sixth
Amendment claim. It affrmed the trial court's application
of Reid in a single sentence: “[T]he trial court did not abuse
its discretion by admitting evidence that the allegedly culpa-
ble third party pleaded guilty to possessing a frearm 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., at
86–87 (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 “unmistakable
manner,” Dewey v. Des Moines, 173 U. S. 193, 198 (1899),
such that “the mind of the state court was directed 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. Morrison 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 briefng before that
court, Hemphill asserted that the “only issue before [that]
Court [was] whether the defense opened the door to Morris's
testimonial hearsay.” App. 385 (emphasis added). To that
end, Hemphill argued that his defense's presentation of evi-
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dence was not “misleading ” under Massie, Reid, and other
cases.
See App. 386–387. Of course, whether Hemphill
triggered New York's “substantive principle of evidence,”
ante, at 152, 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 “mislead-
ing.” 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 violated
[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 misap-
plied Reid and thus improperly admitted unconfronted testi-
monial hearsay. Put another way, Hemphill never argued
that evidence that complied with Reid violated the Confron-
tation Clause. To the contrary, Hemphill understood Reid
to be constitutional. As Hemphill explained, “both the trial
judge and the Appellate Division recognized that [Morris']
statements would otherwise be barred by the Confrontation
Clause” if he had not opened the door. App. 385. (emphasis
added). In short, everyone 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 analysis, that the
Appellate Division's ruling “unjustifably undermine[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 Division's approach to
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Thomas, J., dissenting
Reid represented “a radical shift never adopted by” the New
Y
ork 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 challenged only the misap-
plication of state law.
Nonetheless, even if the Court were correct that Hemp-
hill's feeting reference to the Confrontation Clause ad-
dressed 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 state-
ment that the decision of a court is against the constitutional
rights of the objecting party . . . will not raise a Federal
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 ques-
tion”—is inadequate). A litigant must adequately develop
any federal claim in his state briefng in order to give the
state court a “fair opportunity” to assess the claim. Adams,
520 U. S., at 87 (internal quotation marks omitted). Here,
the Court highlights two statements from Hemphill's state-
court briefng that, at best, offered a general and unreasoned
assertion that the New York courts violated the Sixth
Amendment. Such an unspecifc statement manifestly 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 149, n. 2.
The record demonstrates otherwise. Hemphill did not cite
a single case. He made no legal argument. In fact, he did
not even address the right to confront adverse witnesses.
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Rather, Hemphill lamented that, “[a]s a practical matter,”
the
Appellate Division's approach “create[d] a minefeld 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 criminal
trial is guaranteed by the Sixth Amendment's Compulsory
Process Clause and the Fourteenth Amendment's Due Proc-
ess 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 practi-
calities 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 149. But Yee still requires a federal claim to be
“properly presented” to the state court, even if a new argu-
ment in support of that claim is raised for the frst time here.
503 U. S., at 534. So, in Yee, the Fifth Amendment taking
claim was properly presented because the petitioners “un-
questionably 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 ” argu-
ment. 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 review.
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

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165
Thomas, J., dissenting
Court has excused the failure to present a federal claim in
st
ate court. See, e. g., Three Affliated Tribes of Fort Berth-
old 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
148 (quoting Howell v. Mississippi, 543 U. S. 440, 443 (2005)
(per curiam)). But, in my view, the Court's recent treat-
ment 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, be-
cause the proper-presentation requirement is a jurisdictional
prerequisite to our review. Absent jurisdiction, the only ap-
propriate remedy is dismissal.
1
Since the Judiciary Act of 1789, § 25, 1 Stat. 85, Congress
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: frst, 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
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, in fra.
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
satisfed—Hemphill did not raise his Sixth Amendment claim below, nor
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166 HEMPHIL
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Thomas, J., dissenting
was unremarkable given that the proper-presentation re-
quirement
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 jurisdicti onal ru le. 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 presen-
tation requirement is jurisdictional”). Even a century ago,
it was “well settled” that this Court was “without jurisdic-
tion 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 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 requirement is
a jurisdictional bar or merely a prudential consideration.
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 justifcation. First, in Terminiello v. Chicago, 337
U. S. 1 (1949), the petitioner raised a First Amendment chal-
lenge to a city ordinance in state court, but failed to chal-
lenge the jury instruction interpreting that ordinance either
below or in this Court. The Court sidestepped the proper-
presentation requirement by reading the jury instruction as
a “construction of the ordinance . . . as binding on us as
though the precise words had been written into the ordi-
view on whether a federal claim must be both pressed and passed upon in
the state court.
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167
Thomas, J., dissenting
nance.” 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 frst 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.,
Springfeld v. Kibbe, 480 U. S. 257, 259 (1987) (per curiam).
Since Vachon, the Court has not explained why the re-
quirement to present a federal claim in state court is pruden-
tial rather than jurisdictional. Instead, we have repeatedly
ducked the issue. See Howell, 543 U. S., at 445–446 (collect-
ing cases). I see no reason to prolong this Court's ambiva-
lence. The proper-presentation requirement appears in the
only statute that grants this Court jurisdiction to review
state-court decisions. For most of our history, that require-
ment was unfailingly understood to be jurisdictional. And
our cases have since departed from this principle without
squaring that departure with § 1257's unqualifed text. Ac-
cordingly, 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 failure
to present his claim to the New York Court of Appeals is
not a mere academic defect. “Federal nullifcation 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) (“the inability to enforce its
duly enacted plans clearly inficts irreparable harm on the
State”). And it is “unseemly in our dual system of govern-
ment to disturb the fnality of state judgments on a federal
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168 HEMPHIL
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Thomas, J., dissenting
ground that the state court did not have occasion to con-
sider
.” Adams, 520 U. S., at 90 (internal quotation marks
omitted). Thus, it is “important that state courts be given
the frst opportunity to consider the applicability of state
[rules],” particularly “in light of constitutional 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 affrmative 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
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 144. The Court thus redefnes Reid
to be what Hemphill said it was not, and then holds that
caricature 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 defne what it means
to “mislead” a jury, any uncertainty is all the more reason
for this Court to refrain from deciding this case prematurely.
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
apply the door-opening doctrine consistently. See Reply
Brief 10, n. 4. Some cases hold that Massie and Reid do
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Thomas, J., dissenting
not permit 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 aggres-
sively. 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 dis-
agreement 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 frst 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
dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 140, line 14, “Morris” is changed to “Gilliam's”
p. 141, line 24, “541 U. S., at 53–54,” is inserted before “the Court”
p. 147, line 16 from bottom, “witness” is changed to “witnesses”