EvidenceProf Blog

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

Monday, January 9, 2012

Staying Neutral: 4th Circuit Finds Neutral Pronoun Substitution Satisfied Bruton Doctrine

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. The recent opinion of the Fourth Circuit in United States v. Glisson, 2012 WL 19667 (4th Cir. 2012), reveals that the Fourth Circuit is among their ranks.

In Glisson, brothers Decardio Glisson and Derrick Glisson were convicted of various narcotics and firearms offenses. Before Decardio was convicted, he filed a pretrial motion under Bruton to suppress a statement that Derrick provided to the police which linked Decardio to the crimes charged. The district court denied the motion, instead approving a procedure under which Derrick's statement would be admitted, with any references to Decardio were replaced with "another person," "other person," and "the driver."

After he was convicted, Decardio appealed, claiming, inter alia, that the admission of Derrick's statement violated the Bruton doctrine. The Fourth Circuit disagreed, concluding that

Although the statements, when combined with other evidence, may have incriminated Decardio, such inferential incrimination does not violate theConfrontation Clause. See United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.1999) (approving of neutral phrases in the redaction such as "another person" or "another individual"); United States v. Vogt, 910 F.2d 1184, 1191–92 (4th Cir.1990) (noting that a redacted statement, in which the co-defendant's name was replaced with the word "client," did not on its face impermissibly incriminate the codefendant even though the incriminating import was inferable from other evidence that had been admitted). Accordingly, we hold that the district court did not abuse its discretion by admitting the redacted statement into evidence



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