EvidenceProf Blog

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

Tuesday, March 22, 2011

Avoiding A Confrontation, Take 4: EDVA Opinion Makes Clear That Redacted Co-Participant Confessions Are Inadmissible At Solo Trials

Last week, I posted my new article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. The article argues that courts have erred in finding that nontestimonial hearsay is beyond the scope of the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004), because Crawford is a test of Constitutional reliability while the Bruton doctrine is a test of Constitutional harmfulness. The converse of this is that even testimonial hearsay is admissible under the Bruton doctrine as long as it is not sufficiently harmful. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Meanwhile, under the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence.

Pursuant to Richardson v. Marsh, 481 U.S. 200 (1987), however, co-defendant confessions that are redacted to remove any reference to other defendants are admissible despite the Bruton doctrine because they are not sufficiently harmful. And, as I note in my article, the Richardson rule applies even to testimonial co-defendant confessions. So, if Co-Defendant confesses to Police Officer, "Defendant and I robbed the bank," and Co-Defendant does not testify at his joint jury trial with Defendant, Police Officer could testify that Co-Defendant confessed, "I robbed the bank." Obviously, Co-Defendant's confession is testimonial, and ordinarily we would require confrontation as "the only indicium of reliability sufficient to satisfy constitutional demands...." The Bruton doctrine, however, does not care about reliability, which is why Co-Defendant's redacted confession would be admissible. 

But what if Co-Defendant and Defendant are tried separately? Or what if Co-Defendant dies before the joint trial, meaning that Defendant is tried by himself? Would the admission of Co-Defendant's redacted confession violate Crawford and the Confrontation Clause?  I didn't address such a case in my article, but as the opinion of the United States District Court for the Eastern District of Virginia in United States v. Jordan, 357 F.Supp.2d 889 (E.D.Va. 2005), makes clear, the answer is "yes." Why? Crawford is a test of Constitutional reliability, not a test of Constitutional harmfulness.

In Jordan, the facts were as stated above, with Peter Jordan being charged with murder at a solo trial, and the prosecution trying to admit a redacted statement made by an alleged co-participant, Octavia Brown. According to the prosecution, a confession redacted to comply with Richardson should be admissible to the same extent at a solo trial as it is at a joint trial.  The Eastern District of Virginia disagreed, finding that

In this case, Brown's statement is one that the Confrontation Clause plainly meant to exclude. "The Bruton line of cases deals with situations in which the confession of one defendant is offered at a joint trial where the statement is redacted to omit any explicit reference to the co-defendant and the jury is instructed to consider the statement only against the declarant."...The judicial remedy of redaction was fashioned to fulfill a specific purpose, namely to balance a defendant's Confrontation Clause rights with the judicial interest in trying co-defendants jointly. The Sixth Amendment poses no barrier to the admissibility of a confession against the defendant who made the incriminating statement, when redaction, coupled with a limiting instruction from the court, protects the Confrontation Clause rights of a co-defendant at a joint trial. That is not the case here.

Conversely, the court held that

The Supreme Court has repeatedly stated that statements of non-testifying accomplices, like Brown's, that implicate defendants are presumptively unreliable and their admission violates the Confrontation Clause....In Crawford, the Supreme Court made clear that the only way to assure reliability of such statements is through the crucible of cross-examination...Thus, the redaction remedy adopted in Richardson is inapplicable to Brown's statement, and its admissibility must be analyzed utilizing the Crawford standard that replaced the rule articulated in Ohio v. Roberts....In this Court's view, Brown's statement was testimonial and is inadmissible during the guilt phase of trial.

In other words, Crawford and Bruton address 2 entirely different questions. Crawford addresses the question of whether testimonial hearsay by a nontestifying declarant can be admitted against a defendant, and its answer is that the only way to ensure the reliability of such hearsay is through the crucible of cross-examination.  Meanwhile, the Bruton doctrine addresses the entirely different question of whether a limiting instruction cures the harm/prejudice caused to other defendants by admitting the facially incriminatory confession of a co-defendant at a joint jury trial, and its answer is that the only way to cure the harm/prejudice is to redact the confession to remove references to the other defendants.

And how do we know that Crawford and Bruton address 2 entirely different questions? We know because the Crawford Court told us. After finding that all of its prior Confrontation Clause cases (of a certain variety) were consistent with the test of Constitutional reliability that it was (re)creating, the Crawford Court noted that "Our only precedent on interlocking confessions had addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant's own confession against him in a joint trial" and cited two Bruton doctrine cases. 



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