EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 14, 2011

Avoiding a Confrontation Take 3: Central District Of California Finds Nontestimonial Hearsay Beyond Scope of Bruton

A defendant and his brother are charged with first degree murder and jointly tried before a jury. The same day as the murder, the defendant and his brother both allegedly made statements to a friend at a baby shower implicating themselves in the murder, and the brother's statement identified the defendant as the shooter. At their joint trial, the brother does not testify. Is the brother's statement admissible at trial? That was the question addressed by the United States District Court for the Central District of California in its recent opinion in De Niz v. Clark, 2011 WL 836448 (C.D. Cal. 2011), and it is also the question addressed in an article I should have completed tomorrow.

The question comes down to the effect of Crawford v. Washington, 541 U.S. 36 (2004), and its progeny on the Bruton doctrine, which holds that the Confrontation Clause is violated by the admission of the statement of a nontestifying co-defendant that facially incriminates other defendants but is inadmissible against them under the rules of evidence. In Crawford and its progeny, the Supreme Court declared that, with limited exceptions, the Confrontation Clause is only concerned with testimonial hearsay. And while a co-defendant's formal confession to a police officer would be considered "testimonial," a co-defendant's informal but incriminatory statement to his mother, brother, or lover (or his statement to a friend at a baby shower) would be considered "nontestimonial."

Therefore, many courts such as the United States District Court for the Central District of California in Clark have concluded that the Bruton doctrine does not apply to nontestimonial hearsay. As the court noted in Clark,

Petitioner's claim likewise fails to the extent it is intended to be separately predicated upon Bruton v. United States, 391 U.S. 123, 135-36 (1968), which held that “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 207 (1987). “Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements [,]” such as those at issue here.United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009)cert. denied, 130 S.Ct. 3409 (2010);see United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (same); United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir.2009) (same); United States v. Pike, 292 Fed. Appx. 108, 112 (2d Cir.2008) (same), cert. denied, 129 S.Ct. 957, 959 (2009)see also United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010) (“It is ... necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause “has no application.”) (citations omitted). 

So, why do I think that the vast majority of courts have got it wrong? Crawford, like its predecessor Ohio v. Roberts, 448 U.S. 56 (1980), is a test of Constitutional reliability. Conversely, the the Bruton doctrine is a test of Constitutional harmfulness. Indeed in its opinion in Cruz v. New York, 481 U.S. 186 (1987), in which it found that inadmissible hearsay which had "adequate indicia or reliability" under Roberts still violated the Bruton doctrine, the Court noted that, quite logically, hearsay becomes more harmful as it becomes more reliable. I'll have more on this when I post the draft of my article tomorrow.



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