EvidenceProf Blog

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

Tuesday, November 20, 2012

Avoiding A Confrontation, Take 2: 3rd Circuit Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

As I noted yesterday,

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.

The recent opinion of the Third Circuit in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012), is another opinion in this same vein, and it again illustrates with I disagree with what courts have done with the Bruton doctrine.

In Shavers, after a joint jury trial, Glorious Shavers, Andrew White, and Jermel Lewis  were convicted of robbery affecting interstate commerce, conspiracy to commit robbery affecting interstate commerce, witness tampering, and using and carrying firearms during and in relation to a crime of violence. After he was convicted, Shavers appealed, claiming, inter alia, that the trial court erred by allowing a witness to testify about statements made by Lewis, who did not testify at trial.

Specifically, Ebony Gist, an acquaintance of Lewis, testified that

Lewis related to Gist that he had injured his forehead while hiding under a children's pool the night before. When asked whether Lewis divulged what he had been doing that night, Gist testified that Lewis "didn't say exactly what he was doing, but he just stated that F [referring to White] and Butts [referring to Shavers] had got locked up. They had got caught trying to rob, I think a speakeasy or something."

As is par for the course, the Third Circuit quickly dispensed with this argument, finding that

Under Bruton v. United States, using a non-testifying codefendant's confession violates a defendant's rights under the Confrontation Clause. 391 U.S. 123, 127–28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Critically, we have asserted that, "because Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis and Crawford likewise limit Bruton to testimonial statements." Berrios, 676 F.3d at 128.

Do I agree that Bruton is a byproduct of the Confrontation Clause? Yes. But does that mean that Davis and Crawford limit Bruton. I don't think so. Why? Davis and Crawford are just a byproduct of the Confrontation Clause. 

Courts can say that the Confrontation Clause is only concerned with testimonial hearsay until the cows come home, but that doesn't make it true. Assume that Diego makes a nontestimonial statement incriminating Dan, who has been charged with murder. The government then deports Diego so that he can't change his tune at Dan's trial. Will Diego's statement be admissible at Dan's trial? No, it will be barred by the doctrine of forfeiture by wrongdoing, which would also apply if Diego made a nontestimonial statement exculpating Dan, who then killed him to prevent him changing his tune the other way at trial.

In the context of forfeiture by wrongdoing, the Confrontation Clause is not concerned with whether the subject statement is testimonial; instead, 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 way, I see it, the same goes for the Bruton doctrine, which also does not purport to be an alternate means of determining reliability. And here's the thing: The Crawford Court agreed with me. As the Court, noted, Bruton doctrine cases such as Parker v. Randolph and Cruz v. New York did not address the question that was before the Court but instead "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."

So, why have courts not paid this language any heed?



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I'm not sure that I understand your argument. In your hypothetical about Diego and Dan, how is the forfeiture by wrongdoing doctrine applicable? FBW applies to "a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." In that case, the "party that engaged or acquiesced in wrongdoing" is the government, and the statement is not "offered against" the government. Granted, there ought to be some sort of remedy for Dan, probably of the ad hoc substantive due process sort, but I don't see how it is forfeiture by wrongdoing.

You say that "Courts can say that the Confrontation Clause is only concerned with testimonial hearsay until the cows come home, but that doesn't make it true." Why doesn't it? I thought the courts were right because they're last, not last because they're right.

Posted by: Matthew Caplan | Nov 20, 2012 10:53:37 PM

Forfeiture by wrongdoing contains both a positive and a negative component. In the most typical case, a party that intentionally procures the unavailability of a prospective witness forfeits his Confrontation Clause and hearsay objections to the admission of hearsay statements by that prospective witness. This common law doctrine of forfeiture by wrongdoing is now codified in Federal Rule of Evidence 804(b)(6). But it works both ways.

In my example, in which the government intentionally procures the unavailability of a prospective witness, it loses the ability to admit that prospective witness's statements under an exception to the rule against hearsay, and the defendant can assert his Confrontation Clause right against the admission of such a statement. This common law doctrine is now codified at the end of Federal Rule of Evidence 804(a):

"But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying."

In terms of courts being "right because they are last" that is true, and they are "right" in the sense that the current law says that the Bruton doctrine is only concerned with testimonial hearsay. But, as with the Belton fiction, the law can be changed, and when the Supreme Court realized how far the Belton fiction strayed from the goals of a search incident to a lawful arrest, it dismantled it.

I think that the same applies here. The way that I see it Court's decision in Crawford makes this clear. The test for Constitutional reliability is now to ask whether a statement is testimonial, and, if so, to ask whether the prospective witness is unavailable and whether the defendant had a chance to cross-examine him. Forfeiture by wrongdoing, a subset of the Confrontation Clause, is not a test of Constitutional reliability, so its application does not depend on whether the subject statement is testimonial. If a defendant kills a witness, the witness's statement can come in even if it is testimonial. If the government deports a witness, it can't admit his statement even if it is nontestimonial.

What I can't conceive is how courts think that the Bruton doctrine is a test of Constitutional reliability. It's about the likelihood that jurors will ignore a limiting instruction and the resulting harm to Dan when Police Officer Peters testifies that Carl told him, "Dan and I robbed the bank."

Posted by: Colin Miller | Nov 21, 2012 4:20:37 AM

I suppose I don't see how forfeiture by wrongdoing is "a subset of the Confrontation Clause", and I'm not persuaded by the dictum in Crawford.

I thought Bruton was about evidence that is admissible as against Carl but inadmissible as against Dan. The need for a limiting instruction (which, per Bruton, is insufficient) exists because the evidence is inadmissible against Dan. But under the testimonial/non-testimonial analysis, if the hearsay at issue is non-testimonial, the evidence *is* admissible against Dan - assuming both (i) the existence of an exception to the hearsay rule and (ii) relevance. I can foresee a situation in which the hearsay is relevant and admissible under the statement-against-interest exception. See United States v. Smalls, 605 F.3d 765 (10th Cir. 2010). In that circumstance, there is no concern that the jurors will ignore a limiting instruction because there is no limiting instruction to be given.

Again, this all presumes the correctness of existing law, and there always is the possibility of the court dismantling Crawford if it concludes that Crawford has strayed from the goals of the Confrontation Clause. But I don't see what goals of the Confrontation Clause are disserved by saying that Bruton doesn't apply to non-testimonial statements.

Posted by: Matthew Caplan | Nov 21, 2012 6:18:44 AM

Matthew: In the case in which the confessing defendant's statement is admissible against the co-defendant, I agree that there is no Bruton problem. This point, though, also explains why I think that the testimonial/nontestimonial dichotomy is irrelevant to the Bruton doctrine. In Bruton, the Court noted that "[t]here is not before us...any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause." That was the question later addressed by the Court in Ohio v. Roberts and Crawford v. Washington: Can a statement that is reliable under the rules of evidence (because it satisfied a hearsay exception) still be unreliable for purposes of the Confrontation Clause?

But a statement covered by the Bruton doctrine is inadmissible against the co-defendant under the rules of evidence, meaning that it should be irrelevant whether it is reliable for purposes of the Confrontation Clause. Indeed, the Court addressed this very argument in Cruz v. New York. The prosecution claimed that a confession that was inadmissible under a co-defendant was admissible because it had adequate indicia of reliability under Ohio v. Roberts. The Court disagreed, finding that "reliability...may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant...but 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."

Posted by: Colin Miller | Nov 21, 2012 9:23:48 AM

Thanks for responding. Now I see where you're coming from.

Posted by: Matthew Caplan | Nov 21, 2012 6:19:53 PM

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