Monday, November 19, 2012
Avoiding A Confrontation: D.C. Court Of Appeals Finds Bruton Doctrine Does Not Cover Nontestimonial Hearsay
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. In its recent opinion in Ward v. United States, 2012 WL 5512579 (D.C. 2012), the District of Columbia Court of Appeals joined the chorus. As always, I disagree.
I previously wrote about Ward a couple of days ago in a post about the forfeiture by wrongdoing. To repeat, in Ward, after a several-week trial, a jury convicted appellants Marquette Ward and Franklin Thompson of several offenses relating to the shooting deaths of Mario Evans and Jakhema “Princess” Hansen in the Sursum Corda neighborhood of N.W. Washington.
At trial, the prosecution called Devin Evans, a fellow inamte of of Ward and Thompson at the D.C. Jail. After he was convicted, Thompson appealed, claiming, inter alia,
that the court erred in admitting against him Evans's testimony that, while incarcerated with Evans in 2005, Ward said that he sent Thompson "to kill the little girl" and that he "was supposed to pay...Thompson 8,000 dollars."
This argument didn't even merit a discussion in the body of the court's opinion, with the court instead curtly concluding in a footnote that
appellants' statements to Evans were not testimonial. Thus, they were not subject to the Confrontation Clause. See Johnson v. United States, 17 A.3d 621, 627 (D.C.2011) (statements by which a witness relayed casual remarks her acquaintance Johnson made to her regarding the charged murder "were not testimonial and thus not subject to the strictures of the Sixth Amendment under Bruton [v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ]").
I will state my continuing objection to this line of cases. The Bruton doctrine is about two factor: (1) the likelihood that a jury will ignore a limiting instruction telling it only to use a statement like Ward's statement as evidence his guilt and not as evidence of Thompson's guilt; and (2) the resulting "devastating" effect to Thompson's defense. Imagine a fact pattern in which Ward made the same statement to a police officer during interrogation, making the statement "testimonial." The analysis of the above two factors would be no different, which is why the Bruton doctrine should apply to both testimonial and nontestimonial statements.