Wednesday, November 21, 2012
Avoiding A Confrontation, Take 3: More Proof That The Bruton Doctrine Is Not A Test Of Constitutional Reliability
As I have noted that last couple of days:
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.
Yesterday, I posted an entry about the Third Circuit's opinion in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012). In Shavers, the Third Circuit found that the Bruton doctrine does not cover nontestimonial hearsay. Today, I will look at the opinion of the Third Circuit in Pabon v. Mahanoy, 654 F.3d 385 (3rd Cir. 2011), and use it to explain why the Third Circuit's opinion in Shavers makes no sense.
Mahanoy is representative of a line of cases in which courts have found no problem under the Bruton doctrine as long as the court replaces the co-defendant's name with a neutral pronoun. In Mahanoy, Angel Pabon and José DeJesus were jointly tried before a jury on charges of murder, and DeJesus did not testify. The prosecution, however introduced this confession by DeJesus:
Question: José, is there anything you would like to add to your statement? Answer, Yeah. I know that I didn't shoot the girl who got killed. Another should be arrested for this. He paid it off. He even gave me the Grand National for helping to do this besides the money that Guatauba paid me.
The confession originally named Mahanoy before Mahanoy's name was replaced with the neutral pronoun "Another" Now, the Third Circuit didn't actually resolve the issue of whether this substitution was proper, but I have written about other cases in which courts have approved of the use of neutral pronouns in the place of co-defendants' names.
This gets me to my point. Courts finding that the Bruton doctrine does not cover nontestimonial hearsay like to focus on the fact that Crawford and its progeny say that the Confrontation Clause is only concerned with testimonial hearsay. As the above makes clear, such statements are to be taken with a grain of salt. Plenty of courts have found that testimonial confessions by a nontestifying defendant are admissible at the defendant's joint jury trial with a co-defendant despite the co-defendant having no chance to cross-examine the defendant. How is this possible when Crawford requires the right to cross-examination before testimonial hearsay is admitted?
The answer, of course, is that Crawford's testimonial/nontestimonial dichotomy was never supposed to apply to the Bruton doctrine. As the Court noted in Crawford, its testimonial/nontestimonial dichotomy had no effect on the doctrine of forfeiture by wrongdoing because "forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability."
The Supreme Court elaborated on Bruton's core holding in a case issued the same day, Cruz v. New York, 481 U.S. 186, 194, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). When a defendant's confession substantially "interlocks" with the non-testifying codefendant's confession, this exacerbates the potential for a Bruton violation rather than rectifying it. Id. at 192, 107 S.Ct. 1714. This is because it is not the reliability of the codefendant's confession that is at issue in Bruton situations, but the likelihood that the jury is not able to disregard it. Id. at 192–93, 107 S.Ct. 1714. (emphasis added).
And there you have it. The Bruton doctrine, like the doctrine of forfeiture by wrongdoing, "does not purport to be an alternative means of determining reliability." So, why have courts found that it is governed by the testimonial/nontestimonial dichotomy?