It is a regular occurrence in trials for one party to approach the Judge and say “Your Honor,” they just opened the door to X; may I now ask questions or present evidence on that point?” The response may be more reactive than reasoned, and that is because we rarely discuss the legal principles underpinning the “opened the door” doctrine.
Consider these four examples and ask whether in any the door was opened. The particular concern is whether proof of “other acts,” here, prior possession of a firearm, would be a fair response.
Scenario 1:
By defense counsel questioning a defense witness
Q: Did you see my client on [the date of the crime]?
A: Yes.
Q: On that day, did he have a gun with him?
A: He is more likely to carry a bible than a weapon.
Scenario 2:
By defense counsel questioning a prosecution witness
Q: Did you see my client on [the date of the crime]?
A: Yes.
Q: On that day, did he have a gun with him?
A: He is more likely to carry a bible than a weapon.
Scenario 3:
By defense counsel questioning any witness:
Q: Did you see my client on [the date of the crime]?
A: Yes
Q: Does he carry a gun?
A: he is more likely to carry a bible than a weapon.
Scenario 4:
By defense counsel questioning the accused
Q: You have been accused of committing a gunpoint robbery on [the date of the crime]. Did you do that?
A: No.
Q: On that day, did you have a gun?
A: I am more likely to carry a bible than a weapon.
What are the governing legal principals? In Pennsylvania, the proper focus is on counsel’s intent or recklessness. “One who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of that opening. Commonwealth v. Lewis, 2005 PA Super 341, 885 A. 2d 51 (Pa. Super. 2005).
Indeed, the term “waiver,” generally understood as the knowing relinquishment of a right, applies in ‘opened the door’ analysis. “The phrase ‘opening the door’…by cross examination involves a waiver. If defendant delves into what would be objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe further into the objectionable area.” Id.; see also Commonwealth v. Stakley, 243 Pa. Super. 426, 430 (Pa. Super. 1976).
Pennsylvania is not alone in focusing on counsel’s mens rea.
An inadvertent or nonresponsive answer by a witness that invokes the defendant’s good character, however, does not automatically “put his character [at] issue” so as to open the door to character evidence…[w]hether a statement making reference to the defendant’s good character is merely inadvertent or manifests a conscious election is a question of fact, determined primarily upon the trial court’s assessment of the intent of the accused and his counsel.
Harris v. State, 330 Ga. App. 267, 765 S.E.2d 369 (Ga. App. 2014). A related concept is that of
“[c]urative admissibility” [which] allows the trial court discretion to permit a party to introduce otherwise inadmissible evidence on an issue (a) when the opposing party has opened the door by introducing inadmissible evidence on the same issue, and (b) when needed to rebut a false impression that may have resulted from the opposing party’s evidence.
United States v. Howard, 639 Fed. Appx. 686, 689 (2nd Cir. 2016). Here, reference to “the opposing party” arguably includes the defendant or plaintiff and not merely counsel.
There is one more factor to be weighed regarding whether a door has been ‘opened,’ and that is whether resulting use of the thus-far omitted proof would violate the Constitution. The United States Supreme Court answered that question recently in Hemphill v. New York, 142 S. Ct. 681 (U.S. 2022). Hemphill, charged with murder, tried to blame a third party [Morris] for the crime. As the Court explained,
officers had recovered 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 officers also had found .357-caliber bullets on the nightstand and because Morris ultimately pleaded guilty to possessing a .357 revolver.
142 S. Ct. at 687. In response the prosecutor introduced Morris’ guilty plea allocution from the firearm’s case to show that they admitted only to possessing a .357, which could not have been the murder weapon. Because Morris was not at trial, and because Hemphill never had a chance to cross-examine Morris about the allocution, the guilty plea transcript was “testimonial” hearsay inadmissible under the Confrontation guarantee.
Recognizing that a state may create procedural rules that address how a defendant may challenge a potential Confrontation Clause violation, the Court first determined that the “open the door” rule is substantive, i.e., one that “dictates what material is relevant and admissible in a case.” 142 S.Ct. at 691. From that, the outcome was determined – even if Hemphill did somehow open the door, the response could only be made with constitutional proof.
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 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 unreliable, 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 impression. Such inquiries are antithetical to the Confrontation Clause.
142 S.Ct. at 692.
Read together, a door is opened if it is done in a manner equivalent to a waiver of a known right, and even if the door is opened that does not permit refutation with constitutionally-inadmissible hearsay.
There is one more principle to be discussed. Even where the door has been opened, it is not automatic that otherwise inadmissible proof need come in. A judge has a clear alternative, to strike the response and instruct the jury to exclude it from their deliberations.
Let us return to the four hypotheticals and analyze how they should be treated [response in italics]:
Scenario 1:
By defense counsel questioning a defense witness
Q: Did you see my client on [the date of the crime]?
A: Yes.
Q: On that day, did he have a gun with him?
A: He is more likely to carry a bible than a weapon.
The question shows no intent to elicit general character proof, so the door should not be deemed opened.
Scenario 2:
By defense counsel questioning a prosecution witness
Q: Did you see my client on [the date of the crime]?
A: Yes.
Q: On that day, did he have a gun with him?
A: He is more likely to carry a bible than a weapon.
The question shows no intent to elicit general character proof, so the door should not be deemed opened. This is especially true here, where it is a prosecution witness who defense counsel has less control over.
Scenario 3:
By defense counsel questioning any witness:
Q: Did you see my client on [the date of the crime]?
A: Yes
Q: Does he carry a gun?
A: he is more likely to carry a bible than a weapon.
Here, the question is so broad as to encompass other acts that it is fair to deem the door opened.
Scenario 4:
By defense counsel questioning the accused
Q: You have been accused of committing a gunpoint robbery on [the date of the crime]. Did you do that?
A: No.
Q: On that day, did you have a gun?
A: I am more likely to carry a bible than a weapon.
This final scenario is the most difficult. Counsel’s question was narrowly focused, but the party responded in a way that made the focus more general and, in effect, a statement of good character. Even here, should this depend on the defendant’s level of intelligence or experience with the criminal courts? And because of the clear unfair prejudice that will come from hearing that the defendant charged with a violent crime has had a gun in the past, the fairer move might be to strike the answer and tell the jury to disregard it.
The bottom line is that inadmissible proof may sometimes be properly admitted in response to an ‘invitation’ by the opposing counsel. But courts should proceed with caution, especially where it is the answer that expanded the issues at trial and not any conduct of the party or their attorney.