Redacted: 6th Circuit Becomes Latest Court To Find Neutral Pronouns Satisfy Bruton

In United States v. Vasilakos, 2007 WL 4124283 (6th Cir. 2007), the Court of Appeals for the Sixth Circuit became the latest court to determine that there is no Bruton violation when a trial court permits the introduction of a non-testifying co-defendant's self-incriminating statement which also incriminates the other defendant when the other defendant's name is redacted and replaced with a neutral pronoun.  In order to analyze this case, let's start with the Supreme Court's opinion in Bruton v. United States, 391 U.S. 123 (1968).

In Bruton, the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant.  This holding has since become known as the "Bruton doctrine."  In Richardson v. Marsh, 481 U.S. 2000 (1987), the Supreme Court held, however, that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession which also incriminates the other defendant does not violate the Confrontation Clause if the confession is redacted to elimate any reference to the other defendant's existence.  The Court in Richardson left open the question of whether the Bruton doctrine would be violated by the admission of such a confession with the other defendant's name replaced with a symbol or neutral pronoun.

In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court partially answered that question by finding that the Bruton doctrine is violated when the other defendant's name is replaced with an obvious blank space, a word such as "deleted," a symbol, or other similarly obvious indications of alteration."  While the Court did not directly resolve the question of whether a defendant's name could be replaced with a neutral pronoun, it strongly implied that such replacement could be proper, at least in some cases.  To wit, the Court found that the redacted confession in the case before it was improper because it read:

     "Question:  Who was in the group that beat up Stacey?"

     "Answer:  Me, deleted, deleted, and a few other guys."

The Court then pondered why the redacted confession could not instead have read:

     "Question:  Who was in the group that beat up Stacey?"

     "Answer:  Me and a few other guys."

In the wake of this language in Gray, most courts have allowed for the redactions of defendants' names and their replacement with neutral pronouns. See, e.g., United States v. Logan, 210 F.3d 820, 821-23 (8th Cir. 2000).  In some cases, I think that these decisions make sense.  Gray noted that a confession with "obvious indications of alteration" is inadmissible under the Bruton doctrine, but noted that the redacted confession "Me and a few other guys" would be permissible, presumably because the jury would have no way of knowing that the confession originally mentioned Gray.

However, let's look at the redacted confessions in United States v. Vasilakos that the court listed:

"Q.  Who made deposits into that account?"

"A.     Another person has."

"Q.     Another person has?"

"A.     Yeah."

To me, this is an entirely different beast than the example cited in Gray.  Whereas in Gray, under the example given, there were no "obvious indications of alteration," it seems to me quite clear that the redacted confession in Vasilakos was altered with the substitution of "Another person" for some other defendant's name (admittedly, the Vasilakos case is somewhat more complicated than a typical 2 defendant case because it involved a conspiracy with several defendants, so "Another person" could have referred to a few different people).  My conclusion that either:  (1) prosecutors need to hire script doctors to make redactions/replacements less obvious (I know a few WGA members who may be available), or (2) there are simply some cases where the use of a neutral doctrine can't pass the Bruton doctrine. 

-CM