EvidenceProf Blog

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

Wednesday, November 27, 2013

With Great Power: Does the Bruton Doctrine Only Cover "Powerfully Incriminating" Statements?

Pursuant to the Bruton doctrine, the Confrontation Clause is violated when the prosecution at a joint jury trial introduces a co-defendant's statement that facially incriminates another defendant unless the defendant testifies at trial. But is something more required to trigger application of the doctrine? That certainly seems to be the case according to the Third Circuit in United States v. Green, 2013 WL 6017425 (3rd Cir. 2013).

In Green, Tristan Green appealed his jury conviction and 360–month sentence for armed bank robbery. This conviction came after a joint jury trial, with Willie Elmore being Green's co-defendant. According to the Third Circuit,

During questioning following Elmore's arrest, FBI Special Agent Christopher Nawrocki attempted to show Elmore a photograph of Green, but Elmore would not look at the photograph and repeatedly denied involvement in the bank robbery. When Nawrocki mentioned Green's name to Elmore, Elmore quickly snapped his head around and began asking questions before verbally denying he knew Green.

At trial, Nawrocki testified about Elmore's response when Nawrocki tried to show him Green's photograph. Because Elmore didn't testify at trial, Green later appealed, claiming that Nawrocki's testimony violated the Bruton doctrine. According to the the Third Circuit, the main problem for Green was that Elmore's response was likely not hearsay:

Although nonverbal conduct may be considered a statement if it is intended as an assertion, ...the key to the definition of a statement is that “nothing is an assertion unless intended to be one.”...The burden is on the party claiming the intention to assert existed, and ambiguous cases should be resolved in favor of admissibility....

We are not persuaded Elmore intended his reaction upon being asked whether he knew Green to be an assertion. Elmore's refusal to look at Green's photograph, head turn, and asking questions upon mention of Green's name appear more “purely physical” than intentional nonverbal communicative acts....Moreover, although testimony regarding Elmore's reaction may have permitted an inference of association between Elmore and Green, Special Agent Nawrocki also testified Elmore verbally denied robbing the bank and knowing Green. We are doubtful Elmore intended to assert nonverbally the opposite of what he asserted verbally, especially since doing so would have incriminated him in the crime. Because Elmore did not intend his reaction as an assertion, his reaction is not a statement, and the District Court properly admitted testimony regarding Elmore's reaction.

Fair enough. But consider what the court then said in dicta:

Even assuming Elmore's reaction was a statement intending to assert familiarity with Green, there is no Bruton issue here. Bruton involved a co-defendant's extrajudicial confession or other “powerfully incriminating” statement....Elmore's reaction was neither a confession nor a “powerfully incriminating” statement of Green's involvement, since Elmore repeatedly denied robbing the bank and denied knowing Green during questioning.

Assume that Elmore were asked whether he was familiar with Green and the he answered in the affirmative. Would that statement then trigger the Bruton doctrine? The Third Circuit seems to imply that the answer is no because the statement would not be "powerfully incriminating." Bur for me, the "powerfully incriminating" portion of Bruton deals with whether there was harmless error, not whether there was a violation of the Bruton doctrine.



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