EvidenceProf Blog

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

Tuesday, October 26, 2010

Avoiding A Confrontation?: Does The Bruton Doctrine Cover Nontestimonial Hearsay After Crawford?

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that, at a joint trial, a defendant's Sixth Amendment right of confrontation is violated by admitting the confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. In other words, if Carl confesses to Police Officer Peters, "Dan and I robbed the bank," Carl's confession is inadmissible at the joint trial of Carl and Dan for bank robbery unless Carl takes the witness stand. According to the Court, this is not because the introduction of Carl's confession literally would violate Dan's right "to be confronted with the witnesses against him...." 

Instead, the Court correctly noted that a confession such as Carl's confession is technically only admissible against him, which is why a court arguably could admit Carl's confession along with a limiting instruction telling jurors to ignore the confession in determining Dan's guilt or innocence. See Bruton, 391 U.S. at 128 n.3 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence,...the problem arising only because the statement was...admissible against the declarant."). The Court concluded, though, that there was a substantial threat that the jury would ignore such a limiting instruction and use the codefendant's confession as evidence of the other defendant's guilt, which is why such confessions are inadmissible unless the codefendant testifies.

This point is driven home by the fact that a "myriad [of] Courts of Appeals...have recognized that the rule and rationale of Bruton do not apply to bench trials." Johnson v. Tennis, 549 F.3d 296, 300 (3rd Cir. 2008). If Carl's confession literally violated Dan's right to be confronted with the witnesses against him, it would violate this right at both a jury trial and a bench trial.  But as noted, Carl's confession is not really admitted against Dan, and courts presume that judges are able to use Carl's confession solely as evidence of his guilt and not as evidence of Dan's guilt, which is why they don't apply Bruton to bench trials. See id.

Based upon this analysis, I don't think that the Supreme Court's landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), had any impact on the Bruton doctrine. Almost every court, however, seems to disagree.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, after Crawford, does the Bruton doctrine only cover testimonial hearsay? For instance, would Carl's confession to his friend Fred (which would likely not be defined as "testimonial" under Crawford and its progeny) that Dan and he robbed the bank be admissible at their joint jury trial only if Carl testified?

That takes us to the recent opinion of the United States District Court for the Eastern District of Virginia in United States v. Williams, 2010 WL 3909480 (E.D.Va. 2010). In Williams, Marvin Wayne Williams, Jr., Freddie Wigenton, and Deshawn Anderson were charged with conspiracy to distribute crack cocaine, intentional killing while engaged in drug trafficking, and use of a firearm during a drug offense relating in death. These defendants allegedly made statements to several witnesses incriminating both themselves and their co-defendants, and their joint trial is set for November 1, 2010.

The government moved to introduce these statements at trial, and, inter alia, Wigenton moved to suppress these statements, claiming that their admission would violate the Bruton doctrine (because apparently the defendants do not plan to testify at trial). If his case were being heard in most jurisdictions, Wigneton's motion likely would have been unsuccessful. The court noted that

the Government argues that Bruton, like the Confrontation Clause, is limited by Crawford to testimonial statements. The Government is in good company. See United States v. Dale, No. 08-3172, 2010 WL 2977410, at *9 (8th Cir. July 30, 2010) (defendant's statements to prisoner were not testimonial and therefore did not violate co-defendant's Confrontation Clause rights); United States v. Castro-Davis, 612 F.3d 53, 65 (1st Cir.2010) (finding defendant's recorded telephone statements to his mother non-testimonial); United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (“[T]he Bruton rule, like the Confrontation Clause on which it is premised, does not apply to nontestimonial hearsay statements.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009) (same); United States v. Pike, 292 F. App'x 108, 112 (2d Cir.2008) (“[B]ecause the statement was not testimonial, its admission does not violate either Crawford or Bruton.”). If correct, this argument would bar the statements at issue in this case, because, having allegedly been made by Defendants to fellow prisoners, they are not testimonial. See Davis v. Washington, 547 U.S. 813, 825 (2006) (statements from one prisoner to another are “clearly” not testimonial).

Moreover, I have found several other opinions reaching the conclusion that, after Crawford, the Bruton doctrine covers only testimonial hearsay.

The United States District Court for the Eastern District of Virginia, however, rejected this argument, finding that while the Court in Crawford held that the Confrontation Clause covers testimonial hearsay, it did not hold that the Clause only covers testimonial hearsay. See Crawford, 541 U.S. at 60-61 ("Members of this Court and academics have suggested....two proposals: First, that we apply the Confrontation Clause only to testimonial statements....Second, that we impose an absolute bar to statements that are testimonial....In [White v. Illinois, 502 U.S. 346, 352-53 (1992)], we considered the first proposal and rejected it. Although our analysis in this case casts doubt on that holding, we need not definitively resolve whether it survives our decision today...."). The opinion then provided some interesting reasons for why the Bruton doctrine should continue to apply to nontestimonial hearsay, and I will let readers review that opinion for those reasons.

The reason I'm not going to address the court's conclusion in this post, though, is that I don't even see how a case such as Williams triggers a Crawford analysis. This is because, as noted above, Bruton did not cover a case that literally triggered the Confrontation Clause. In Bruton, the Court noted that the codefendant's confession "was clearly inadmissible" against the defendant, just as Anderson's confession would be clearly inadmissible against Wigenton. Therefore because Carl's hearsay statement would not be admitted against Dan (and Anderson's hearsay statement would not be admitted against Wigenton), there is not a real Confrontation Clause issue, and Crawford does not apply.

Instead, as noted, the point of Bruton was that jurors would improperly use the codefendant's confession as evidence of the defendant's guilt even though the codefendant's confession was not being admitted against the defendant. Thus, the issue of whether the codefendant's confession is "testimonial" should be irrelevant unless jurors are less likely to use nontestimonial confessions as evidence of the defendant's guilt. And I don't think that this is the case. If Carl tells a cop, "Dan and I robbed the bank," the statement is almost certainly "testimonial," and, as noted, if Carl tells his friend the same, the statement is almost certainly "nontestimonial." I think that most would agree, though, that a juror hearing the latter confession is just as a juror hearing the former confession to use the confession as evidence of Dan's guilt. And that's why I think (a) that Crawford didn't alter the Bruton doctrine, and (b) that the Bruton doctrine covers nontestimonial hearsay. 



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You are right, and the courts are being really stupid about this. The only "Bruton" question when non-testimonial admissions are offered is the Rule 403 question: will the jury probably misuse the admission and use it against the other defendant mentioned in the admission. If so, the admission must be redacted to the extent it points to the other defendant.

Posted by: Fred | Oct 29, 2010 1:00:44 PM

I just taught this very question in my Evidence Class today. I agree with CM, I don't think Bruton is altered by Crawford for the reasons he states. But here are some possible arguments to the contrary: 1) Davis/Hammon make clear that non-testimonial hearsay is not covered by the CC. If that's the case, can Bruton as applied to non-testimonial hearsay be good law? 2) If a non-testimonial statement can be admitted against the non-testifying co-defendant without violating the CC, why does the CC protect the defendant against whom the statement is not admitted? In other words, after Crawford/Davis/Hammon, isn't a non-testimonial Bruton scenario now just a 403 problem, not a CC problem?

Posted by: 1yearprof | Nov 10, 2010 6:47:24 PM

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