Monday, December 26, 2011
E Tu, Bruton, Take 2: Eastern District Of Michigan Finds Nontestimonial Statements Beyond Scope Of Bruton
The statements from John Henry Williams to Kareemah Greer, Deville Thedford, Richard Peeples, and Donnell Hornbuckle concerning petitioner's involvement in the robbery and murder do not qualify as testimonial statements covered by the Confrontation Clause because they were casual remarks made to a friend or family member and not ones made to law enforcement....Morever, because the Confrontation Clause has no applicability to non-testimonial statements, they may be admitted even if they lack indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420...(2007). Thus, the admission of Williams' statements to Greer, Thedford, Peeples, and Hornbuckle did not violate petitioner's Sixth Amendment right to confrontation. Frazier v. Scutt, 2011 WL 5507 383 (E.D.Mich. 2011) (emphasis added).
Following up on my post from yesterday, the recent opinion of the United States District Court for the Eastern District of Michigan in Frazier v. Scutt is yet another example of a court finding that nontestimonial statements are beyond the scope of the the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004). And, I would argue that it is yet another example of a court getting it wrong.In Scutt, Corey Frazier appealed from his conviction for first-degree felony murder, which resulted from a joint jury trial with his co-defendant, John Henry Williams. At trial, Williams did not testify, but the prosecution did admit several of his casual comments to friends and family members in which he admitted his involvement in the murder and claimed that Frazier pulled the trigger on the gun that fired the fatal shot.
Frazier unsuccessfully appealed his conviction in the Michigan state court system on the ground that the admission of Williams' statements violated the Bruton doctrine, and he then unsuccessfully filed a petition for writ of habeas corpus with the Eastern District of Michigan. As you can see from the block quote introducing this post, that court told Frazier "no dice" because Williams' statements were nontestimonial and the Confrontation Clause is (allegedly) only concerned with testimonial hearsay after Crawford and its progeny.
But here's the thing that almost all courts seem to be missing: Crawford only overruled Ohio v. Roberts, which had no effect on the Bruton doctrine, and the Supreme Court's opinion in Whorton v. Bockting, cited by the Eastern District of Michigan, only confirms this. This being the case, Crawford and its progeny should also have no effect on the Bruton doctrine.
As noted yesterday, under
Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability....
Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies prevailing test of Constitutional reliability.
This was made clear in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of
reliability...cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.
Of course, Crawford overruled Ohio v. Roberts and replaced its adequate indicia of reliability test with the testimonial/nontestimonial dichotomy. But was this new test meant to serve as a limitation on the Bruton doctrine in a way that the prior test never did? Whorton v. Bockting seems to suggest that the answer is "no." In Bockting, the Court addressed the question of whether Crawford is more or less restrictive than Ohio v. Roberts as follows:
With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of factfinding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable....But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.
What we see here is the Court in Bockting construing Crawford quite narrowly. It basically construes Crawford as doing two things: (1) creating Confrontation Clause protection for testimonial statements that were previously admitted because they had adequate indicia of reliability; and (2) removing Confrontation Clause protection from nontestimonial statements that were previously excluded because they lacked adequate indicia of reliability. And if those are the only two things that Crawford did, it had no effect on Bruton.
Why? Well, as the Court itself found in Cruz, the Bruton doctrine had nothing to do with the adequate indicia of reliability test. Co-defendant statements were excluded under the Bruton doctrine because they were inadmissible against other defendants, not because they lacked adequate indicia of reliability. Indeed, such statements could have had adequate indicia of reliability and still been inadmissible under Bruton. Therefore, when the Supreme Court removed Confrontation Clause protection from statements in category #2 above, this removal should have had no effect on the Bruton doctrine because statements covered by the doctrine did not fall under category #2.