The Floodgates, Opening the Door, and the Confrontation Clause

Posted on October 5, 2021 by Joseph

The Supreme Court will once again take up the Confrontation Clause of the Sixth Amendment, and how it fits into the rules of evidence. Without getting into the complicated facts of the upcoming Hemphill case, I will try to distill what is at stake. 

It is a well-established rule of evidence that a criminal defendant can “open the door” to the introduction of otherwise inadmissible evidence. For example, take a typical domestic violence case. There is a general rule that prior bad acts, including convictions similar to the crime at issue, are not admissible as evidence. But if the Domestic violence defendant claims that his partner’s injuries were the result of a simple accident, prosecutors may be able to introduce his prior convictions for violent acts to show the absence of a mistake. This rule makes a criminal defense lawyer’s job harder, because sometimes opening the door means releasing the floodgates. In the above example, the defendant claiming mistake could actually open the floodgates to all sorts of prior acts of violence that would be otherwise inadmissible. The prosecutors might now be allowed to illicit testimony regarding every other time the defendant attacked the victim intentionally. 

To modify the example slightly, imagine that there was a child custody battle going on as a backdrop to the criminal charges. What happens if instead of claiming an accident, the defendant claims that the alleged victim fabricated the allegation to get the upper hand in a custody dispute? Defense counsel elicits testimony from the victim during cross-examination to establish that such a custody dispute exists. The question is, what has the defendant opened the door to? Is the alleged victim now free to testify as to all the reasons she wants a divorce, even if the information is unproven and highly prejudicial to a defendant? What about third-party statements, that would otherwise be inadmissible at trial without the declarant being available for cross examination? Could prosecutors introduce an affidavit by the defendant’s previous former partner, alleging abuse by the defendant, without calling her as a witness? None of these questions have clear answers, and trial judges are given wide latitude to strike the right balance.

A good defense lawyer will often file a Motion in Limine, to feel out a trial judge on this subject. Such a motion basically just asks the court to allow the defendant to question on a specific subject, without “opening the floodgates” to unproven prejudicial information. While it is difficult for a Court to rule on such a motion without the full context of the questioning within the larger body of evidence, it is an opportunity to seek guidance from the Court on how far the questioning can go, before it “opens the door” to information harmful to the defendant.  Some judges will get specific, while others won’t. The point is that the lawyer has planted a flag and expressed to the judge that the defendant is concerned that exercising his right of confrontation (through cross-examination)  could ultimately cause more harm than good. It reminds a judge that a defendant does have the right to ask tough probing questions, without having to risk “opening the floodgates.” 

The Supreme Court is going to decide the question of whether otherwise inadmissible statements by a non-testifying witness becomes admissible when a defendant “opens the door” to the topic that the non-testifying witness’s statement addresses. The smart money says to keep a close eye on Justice Gorsuch’s questions during oral argument. The late Justice Antonin Scalia was a fierce defender of the Confrontation Clause, and many believe that Gorsuch is his heir on the Court. Criminal defense attorneys will be watching for whether the court will provide trial courts with updated guidance on how wide to “open the floodgates” of otherwise inadmissible evidence, when a defendant “opens the door” to an otherwise-excluded issue.