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

Wednesday, May 14, 2014

Avoiding a Confrontation: EDNY Writes Interesting Bruton Doctrine Opinion in Case With Nontestimonial Statement

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant, unless the co-defendant tesifies at trial. That said, in the wake of the Supreme Court's opinion of Crawford v. Washington, basically all courts have found that the Bruton doctrine only applies to testimonial statements. In my article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine, I argued against this cordoning off of the Bruton doctrine. Now, the recent opinion of the United States District Court for the Eastern District of New York in United States v. Taylor, 2014 WL 1653194 (E.D.N.Y. 2014) has given me additional ammunition.

Tayor looks like a lot of other cases. Shaun Taylor, Timothy Pinkney, and others were charged with various narcotics trafficking, firearms, and murder offenses in a twelve-count superseding indictment. Pinkney thereafter made a confession to a confidential informant that incriminated both Taylor and Pinkney himself. Because Pinkney and Taylor were scheduled for a joint jury trial and Pinkney indicated that he did not plan to testify, Taylor moved to sever his trial.

And, like in a lot of other cases, the court denied the motion, concluding that Pinkney's statement was nontestimonial, meaning that it fell beyond the reach of the Bruton doctrine because that doctrine only covers testimonial statements after Crawford

But then Taylor goes further. It notes that Ohio v. Roberts -- the predecessor to Crawford v. Washington -- has continuing viability. According to Ohio v. Roberts,

even if a declarant's hearsay statements are admissible against a defendant under an exception to the rule against hearsay, they run afoul of the Confrontation Clause if the declarant is not present for cross-examination at trial unless the State establishes two elements. First, the State must establish that the declarant is "unavailable." Second, it must prove that the statement "bears adequate indicia of reliability." The Court concluded that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." If a statement does not fall within such an exception, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

The Taylor court cites United States v. Saget, 377 F.3d 223 (2nd Cir. 2004), for the proposition that "[d]espite the criticisms that Crawford and the White concurrence aim at existing Confrontation Clause jurisprudence, Crawford leaves the Roberts approach untouched with respect to nontestimonial statements." Therefore, according to both Taylor and Saget, a nontestimonial statement is to be assessed under the Bruton doctrine through the prism of Ohio v. Roberts.

The result in Taylor was as follows:

To the extent that portions of Pinkney's statement are irrelevant or not “individually selfinculpatory,” these portions may be inadmissible. (Taylor Reply at 4–5 (citing Williamson, 512 U.S. at 600–01 (1994) (finding that Rule 804(b)(3) “does not allow admission of non-selfinculpatory statements, even if they are made within a broader narrative that is generally selfinculpatory”))). The government has indicated that it intends to submit a proposed redacted version of Pinkney's statement striking statements that refer only to bad acts by Taylor. (Gov. Resp. at 16, n. 6.) The government is directed to submit a transcript of Pinkney's statement indicating which portions it intends to redact for the Court's review no later than May 8, 2014. Nonetheless, the potential that certain portions of Pinkney's statement are inadmissible is not a sufficient reason to sever the defendants' trial under the circumstances present in this case. Accordingly, Taylor's motion for severance is denied.

Interesting. This was basically the analysis I claimed in my article that courts should conduct, and I think that it is the analysis compelled by the Supreme Court's opinion in Cruz v. New York. In that case, the prosecution sought to admit a co-defendant's confession that interlocked with (i.e., was corroborated by) the other defendant's confession. In finding that admission of the co-defendant's confession would violate the Bruton doctrine, the Court concluded that

Quite obviously, what the "interlocking" nature of the codefendant's confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant's own confession it is more likely to be true. Its reliability may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, see Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L.E.2d 514 (1986), but cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.



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I'm not sure that I buy the argument that Ohio v. Roberts "has continuing viability" with respect to the admission of nontestimonial statements. In Whorton v. Bockting, 509 U.S. 406 (2007), the Supreme Court said:

"Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability."

Posted by: Matthew Caplan | May 20, 2014 3:43:24 PM


Posted by: Bob | Aug 6, 2014 12:48:48 PM

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