Two weeks ago, the U.S. Supreme Court issued a stinging rebuke to the New York Court of Appeals in a case in which the state’s highest court had brushed aside a criminal defendant’s claim he would have been able to establish his innocence had he not been denied his constitutional right to confront a key witness. In an 8-1 decision written by Justice Sonia Sotomayor, liberal and conservative justices agreed that the Court of Appeals’ position that prosecutors were free to introduce hearsay evidence without an opportunity to cross-examine if the defense had created a “misleading impression” violated the Sixth Amendment’s Confrontation Clause.

The Supreme Court’s January 20th decision in Hemphill v. New York, No 20-637, comes on the heels of three new appointments to the seven-member Court of Appeals. The court now is heavily weighted towards the prosecution, and a rare opportunity to move the court in a more progressive direction has been lost. It also comes at a time when the court’s attention to the rights of criminal defendants has shrunk dramatically, with its criminal docket having dropped from 107 decisions in 2016 to 42 in 2020 (the court’s report for 2021 has not yet been released). Perhaps in light of Hemphill and a similar case in the pipeline to the Supreme Court, the Court of Appeals will reconsider its approach to constitutional claims by criminal defendants.

9 Millimeter or .357 Caliber?