Wednesday, December 5, 2012
Avoiding A Confrontation: Why Don't Courts Find Nontestimonial Co-Defendant Statements Inadmissible Under Rule 403?
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's statement that facially incriminates another defendant. As I have written on numerous occasions, however, in the wake of the Supreme Court's opinion in Crawford v. Washington, courts have nearly categorically concluded that nontestimonial hearsay is beyond the scope of the Bruton doctrine. In my article, Avoiding a Confrontation, I argued against such conclusions, but I recognize that courts are unlikely to adopt my reasoning any time soon. Recognizing this, I also argued in the article the courts faced with this problem should simply declare the co-defendant's statement inadmissible under Federal Rule of Evidence 403 and state counterparts. Let's take a look at the opinion of the United States v. Caroni, 2011 WL 5184194 (N.D.Fla. 2011), which I think supports my argument.
In Caroni, an "indictment charge[f] that from January 2004 through February 2008, [Dennis] Caroni, Dr. Dileo, Theodore G. Aufdemorte, and Dr. Joseph George Pastorek, II, conspired to unlawfully dispense controlled substances as purported pain management treatment through 'their clinics in Metairie and Covington, Louisiana, and Pensacola, Florida....'" Thereafter, Dr. Dileo entered into a Consent Order with the Louisiana State Board of Medical Examiners that allegedly incriminated Caroni.
Caroni thereafter moved to sever, and the Northern District of Florida denied his motion. In denying the motion, the court questioned whether the Consent Order would be admissible at trial in the even that Dr. Dileo did not testify because it did not referenced Caroni by name. But then the court held that
Even assuming the Consent Order does not sufficiently compel an inference of guilt contrary to the principles of Bruton and the Confrontation Clause, it is inadmissible hearsay as to both Caroni and Pastorek and its prejudicial value must be closely examined. On reconsideration, the court concludes that admitting the Consent Order against Dileo presents a danger of unfair prejudice to Caroni in light of the evidence now in the record, and discussed above, which substantially outweighs the probative value of this evidence. "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury...." Fed.R.Evid. 403....The Consent Order was entered in March 2008 and the conspiracy alleged in the indictment concluded in February 2008; therefore, it cannot be used against Caroni as proof of knowledge or willfulness, notice of wrongdoing, or proof of an agreement, and a cautionary instruction to this effect would be necessary. On this record, however, the court finds that the danger of confusion and unfair prejudice would limit the effectiveness of a cautionary instruction because the object of the conspiracy alleged is the very act that Dileo, by signing the LSBME Consent Order, admitted could be shown from his own prescribing practices. Also, the evidence now indicates that Dileo and Caroni both were involved in operating the clinics. While civil medical standards may be relevant, there is a danger in this instance that the jury will rely on the Consent Order and investigation of the LSBME, a civil licensing board, to impermissibly draw an inference of Caroni's criminal guilt. Also, the fact that the government seeks to use a willful blindness instruction gives rise to a concern that the jury will impermissibly consider the Consent Order as proof of notice to Caroni because of the government's theory that Dileo and Caroni both were de facto operators of the clinics. Therefore, even if the evidence is insufficient to compel an inference of guilt in violation of the Confrontation Clause, the court finds that the probative value of the Consent Order is substantially outweighed by the danger of unfair prejudice to Caroni.
I agree and think that the same conclusion should hold in cases involving nontestimonial hearsay. If Carl says to his sister, "Dan and I robbed his bank," the statement is inadmissible against Dan and thus has no probative value in the case against him. Moreover, the whole point of the Bruton doctrine is that, unlike in most cases, courts don't trust jurors to honor limiting instructions regarding co-defendant confessions in joint jury trials, resulting in a devastating practical effect on the cases of defendants like Dan. And, if we look at the Advisory Committee's Note to Federal Rule of Evidence 403, it tells us that "[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction."
Thus, isn't a co-defendant confession case the classic case in which Federal Rule of Evidence 403 should apply to exclude the confession? In my mind, this makes the testimonial/nontestimonial dichotomy somewhat irrelevant. Sure, nontestimonial hearsay might be beyond the scope of the Bruton doctrine, meaning that there is no Confrontation Clause issue. But such a classification should make no difference with regard to the application of Federal Rule of Evidence 403. And yet, in the numerous Bruton doctrine involving nontestimonial hearsay in the wake of Crawford, I haven't seen a single reference to the Rule.