E Tu, Bruton?: Supreme Court Of Nevada Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

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. In Crawford v. Washington, 541 U.S. 36 (2004), however, 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 the wake of Crawford, several courts have been presented with the question of whether the Bruton doctrine still covers nontestimonial hearsay in the wake of Crawford. Almost every court, including the Supreme Court of Nevada in its recent opinion in Perez v. State, 2011 WL 4527520 (Nev. 2011), has answered this question in the negative. I continue to contend that these courts are wrong.

In Perez, Gladys Perez was convicted of child neglect resulting in substantial bodily harm, child abuse resulting in substantial bodily harm, and first-degree murder after a joint jury trial in which her boyfriend, Marc Colon, was a co-defendant. At trial, Colon did not testify, but the prosecution admitted some of his statements to a minor relative, such as his statement that "if we get caught, it's [Perez's] dumb ass fault."

After she was convicted, Perez appealed, claiming, inter alia, that the admission of these statement violated the Bruton doctrine. The Supreme Court of Nevada, like many courts before it faced with similar arguments, quickly rejected it, finding that

Colon made the statement to a minor relative. The statement was spontaneous and made during a private, casual conversation. Colon's statement was not made for the purpose of gathering evidence for possible use at a later trial or as a recount of past events made in a more formal setting. It is clear that Colon's statement, under these circumstances, was nontestimonial; thus, the Bruton rule, like the Confrontation Clause itself, has no application....As such, the joint trial did not compromise Perez's specific trial right of Confrontation. 

Pretty simple, right? Crawford and its progeny state that the Confrontation Clause is only concerned with testimonial hearsay. The Bruton doctrine is a species of the Confrontation Clause. Therefore, the Bruton doctrine is only concerned with testimonial hearsay. Right? Wrong.

Crawford's testimonial/nontestimonial dichotomy is the replacement for the Ohio v. Roberts adequate indicia of reliability test. Under Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability. The Court overruled this test in Crawford, holding that the question of whether hearsay admissible against a criminal defendant under an exception to the rule against hearsay violates the Confrontation Clause hinges on whether the hearsay is testimonial.

Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies  prevailing test of Constitutional reliability (set forth by Ohio v. Roberts and now Crawford).

This point is made clear by the Supreme Court's Ohio v. Roberts-era opinion in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of

reliability...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.

In other words, at the time of Cruz, it was irrelevant that a defendant's confession that was inadmissible against a co-defendant had adequate indicia of reliability. As long as it facially implicated the other defendant, it was Constitutionally harmful to the defendant because the jury would use it as (devastating) evidence against him.

The same should hold under Crawford. Who cares whether Colon's statement was an informal statement to a minor relative or a formal confession to a police officer? In either case, he was facially incriminating Cruz, his confession was inadmissible against Cruz, and the jury was certain to use the confession as evidence of Cruz's guilt. Therefore, the court should have found that its admission violated the Bruton doctrine. For a more thorough explication of the topic you can check out my forthcoming article on the subject.

-CM