EvidenceProf Blog

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

Friday, November 8, 2013

Et tu, Bruton?: When is a Statement "Testimonial" for Bruton Doctrine Purposes?

Pursuant to the Bruton doctrine, at a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in the wake of the Supreme Court's opinion in Crawford v. Washington, almost every court has found that Bruton only covers testimonial hearsay. I disagree with this conclusion, but, even assuming that it is correct, I wonder what such a conclusion actually means. Let's take a look at the recent opinion of the United States District Court for the Eastern District of Kentucky in United States v. Thompson, 2013 WL 5528827 (E.D.Ky. 2013), as an example.

In Thompson, the defendants were charged with various violations of federal law, all of which are related to their alleged participation in a vote-buying and vote-stealing scheme in Clay County, Kentucky that lasted from 2002 to 2007 and encompassed three election cycles—2002, 2004, and 2006. Two of the co-defendants, Freddy Thompson and Douglas C. Adams, claimed that recorded statements made by their fellow co-defendants to confidential informants should be deemed inadmissible under the Bruton doctrine.

The Eastern District of Kentucky disagreed, concluding that

“Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements.” United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009).

Neither Bruton nor Crawford is implicated with the admission of the recordings in this case because the statements of the codefendants on the recordings are not testimonial. “In determining whether statements are testimonial, we ask whether the declarant ‘intend[ed] to bear testimony against the accused.’" Johnson, 581 F.3d at 325 (quoting United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004)). This depends on “whether a reasonable person in the declarant's position would anticipate his statements being used against the accused in investigating and prosecuting the crime.”

Now, my first argument would be that Bruton and Crawford implicate different Confrontation Clause concerns, meaning that we should not commingle their analyses. And indeed, in other contexts, courts continue to reach such a conclusion. For instance, in Lane v. State, 2013 WL 5737052 (Ga.App. 2013), the defendant objected to the admission of a statement under Bruton but not Crawford. In response, the Court of Appeals of Georgia held 

that Crawford and Bruton expound related but distinct doctrines. Although both are grounded in the Sixth Amendment's Confrontation Clause, Crawford holds that a defendant must have an opportunity to confront and cross-examine any person whose testimonial statement is put into evidence...while Bruton limits the use of inculpatory statements by nontestifying co-defendants at trial....Although Dominique preserved his objection under Bruton, he waived any objection under Crawford by failing to object on this ground at trial.

Let's assume, though, that we should commingle the analysis. What, then, is the definition of "testimonial" in the Bruton context? Is a statement testimonial if the co-defendant would anticipate that his statements could be used against him? Or, is a statement testimonial if the co-defendant would anticipate that his statements could be used against the other defendant(s)? Or both?



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