Tuesday, March 15, 2011
My New Article: Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine
My new article addresses an issue I first raised on this blog last October: Is "nontestimonial" hearsay beyond the scope of the Bruton doctrine in the wake of the Supreme Court's opinion in Crawford v. Washington? Here is the abstract of the article, which you can download from SSRN (Download Article):
The Bruton doctrine holds that 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. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.
This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.