Monday, January 27, 2014
Pronoun Problem: Supreme Court of South Carolina Finds Pronoun Redaction Didn't Solve Bruton Problem
The Confrontation Clause of the Sixth Amendment states that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...
Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. In State v. Henson, 2014 WL 229891 (S.C. 2014), however, the Supreme Court of South Carolina disagreed.
In Henson, Davontay Henson, Donta Reid, and other defendants were charged with criminal conspiracy and related crimes connected to the shooting death of Tyrone King. Reid eventually gave four confessions to the police, including one in which he implicated himself, Henson (nicknamed B'More), Samanatha Ervin (nicknamed Sam), and Aileen Newman (nicknamed LeLe) as the perpetrators, and stated Henson was the shooter.
Before a joint jury trial, Henson moved for a severance, claiming that the admission of Reed's confession(s) would violate the Bruton doctrine.
The State opposed the motion on the grounds of judicial economy and lack of prejudice and offered a redacted version of Reid's confession as a solution to the Confrontation Clause problem. In the redacted statement, Henson's name was replaced with “the guy,” “he,” and “him,” and a statement about picking Henson out of a photo lineup was removed entirely. The circuit court ruled the redacted statement did not incriminate Henson on its face and therefore, its admission would not violate the Confrontation Clause. Finding the confession to be the sole basis for the motion to sever, the court also denied that motion.
After he was convicted, Henson appealed, claiming that the court's decision was erroneous and that the subsequent admission of Reid's fourth confession violated the Bruton doctrine.
In response, the Supreme Court of South Carolina surveyed the case law dealing with the use of neutral pronouns in co-defendant confessions, nothing that the ultimate question is whether such substitution makes it so that the confession does not facially incriminate other defendants. Applying this analysis, the court concluded that
here the jury could infer from the face of Reid's confession without relying on any other evidence, that the confession referred to and incriminated Henson. In his opening statement the solicitor asserted that four individuals—Henson, Reid, Ervin, and Newman—committed the crimes and that Henson was the shooter. Reid's redacted confession was offered into evidence by the solicitor. It identified three individuals by name as committing the crimes and acknowledged that another male participated and fired the fatal shots, but left that person unnamed. The jury likely would infer that Henson—a male, seated before them as a defendant, and the only defendant not named in the confession—was the fourth individual and the shooter referenced in Reid's confession. The jury also could presume the solicitor would not both assert that Henson was the fourth conspirator and offer the confession into evidence if the solicitor believed the confession referred to anyone other than Henson.