EvidenceProf Blog

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

Sunday, July 15, 2012

Avoiding A Confrontation, Take 2: Court Of Appeals Of Washington Finds Nontestimonial Hearsay Doesn't Trigger Bruton

Following up on yesterday's post, the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Brown, 2012 WL 1255168 (Wash.App. Div.1 2012), gives us yet another example of a court erroneously concluding that nontestimonial hearsay is beyond the scope of the Bruton doctrine.

In Brown, William Brown was convicted of possession of stolen property in the third degree. At trial, Frank Harris testified that during a drug overdose episode, Brown's co-defendant, Christina Lux, admitted to taking Barbara Brittain's purse and giving it to Brown. Lux did not testify at trial.

After he was convicted, Brown appealed, claiming, inter alia, that Harris' testimony constituted a violation of the Bruton doctrine. Under that doctrine, the admission of a nontestifying co-defendant's statement that facially incriminates a defendant violates the Confrontation Clause. The theory is that, even though the statement is only admissible against the co-defendant (Lux), the jury would use the statement of the defendant's (Brown's) guilt, even if given a limiting instruction only to use the statement as evidence of the co-defendant's (Lux's) guilt.

But, as in the case yesterday, the court rejected this argument, concluding that

In recent years, the Supreme Court has clarified the contours of the confrontation clause in Crawford v. Washington and Davis v. Washington. It is now evident that the confrontation clause does not apply to nontestimonial statements made by an out-of-court declarant. As recognized by several federal and state courts, because Bruton and its progeny are based on the protections afforded by the confrontation clause, after Crawford, Bruton's restriction on the admission of inculpatory statements by a jointly tried codefendant is limited to testimonial hearsay.

This is indeed what several courts have done, but none have explained their reasoning. My response is that the Bruton doctrine is indeed based upon the protections afforded by the Confrontation Clause but that it is based upon a different set of protections than those offered by the Clause in the Ohio v. Roberts/Crawford/Davis line of cases. 

Let's look back to Cruz v. New York, 481 U.S. 186 (1987), in which the Supreme Court found that the admission of a nontestifying co-defendant's statement violated the Bruton doctrine despite it arguably satisfying the Ohio v. Roberts "adequate indicia of reliability" test that was the predecessor to the Crawford testimonial/nontestimonial dichotomy. In reaching this conclusion, the Court held that

This case is indistinguishable from Bruton with respect to those factors the Court has deemed relevant in this area: the likelihood that the instruction will be disregarded, Bruton, 391 U.S., at 135, 88 S.Ct., at 1627; the probability that such disregard will have a devastating effect, id., at 136, 88 S.Ct., at 1628; and the determinability of these facts in advance of trial, Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

What Cruz tells us is that the protections afforded by the Confrontation Clause apply under the Bruton doctrine if these three factors apply to a nontestifying co-defendant's confession. And what is clear from Brown is that these three factors apply regardless of whether the co-defendant's statement is testimonial. Assume, for instance, that Lux's statement were made to a police officer at the police station rather than to a friend.

Compared to this hypothetical statement to the police officer:

Would the jury be any less likely to disregard a limiting instruction telling it to use Lux's statement to the friend solely as evidence of her guilt?

Would the statement to the friend be any less likely to have a devastating effect?

Would the court be any less able to determine these issues in advance of trial?

Unless, as a general rule, a court could answer any three of these questions in the affirmative, the Bruton doctrine should apply to nontestimonial hearsay. And, to this point, I haven't been able to come up with any good argument that any of these three questions should be answered in the affirmative.



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