In 2022, the Supreme Court was asked the question: May a criminal defendant “open the door” to evidence that it is otherwise inadmissible because of their Sixth Amendment right to confront adversarial witnesses? It is not unheard of that, at trial, a defendant’s attorney makes arguments that prosecutors and judges think will mislead the jury. Many times, these arguments reference evidence that—by evidentiary rule, pretrial ruling, or otherwise—is inadmissible. Trial courts have long been afforded the discretion to measure how much evidence can come through the door a defendant opens by raising these arguments to cure any false impression that may be left in the mind of the fact finder. When that door is open to evidence barred by the defendant’s confrontation rights, misleading arguments are met with testimonial hearsay, which, by definition, cannot have its reliability measured by the right of cross-examination.

Although the Court, in an eight-to-one opinion, answered that question in the negative, it overturned a two-decade-old majority rule that said otherwise. Consequently, a number of individuals were incarcerated and had their criminal convictions based on a rule that the Supreme Court later deemed unconstitutional. Thus a new question arises: Will all of those persons reap the benefit of the new rule? This Article explores the rule in Hemphill v. New York and whether it qualifies as a rule for retroactivity. This Article argues that under a well-established framework, courts should consider whether it is not only a new rule but a watershed rule of criminal procedure that is essential to the fundamental fairness of a criminal trial for three reasons. First, the confrontation right is a bedrock rule akin to the right to counsel. Second, a person’s right to cross-examination is critical to the truth-seeking function of trials. Third, convictions based on uncontroverted testimonial hearsay diminish their accuracy.

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