EvidenceProf Blog

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

Saturday, July 14, 2012

Avoiding A Confrontation: 6th Circuit Becomes Latest Court To Find Nontestimonial Hearsay Beyond Bruton's Scope

Our conclusion that the contested statements were nontestimonial under Davis compels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court held that the Confrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. Id. at 126, 88 S.Ct. 1620. "We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay." United States v. Mussare, 405 F.3d 161, 168 (3d Cir.2005) (citing Monachelli v. Graterford, 884 F.2d 749, 753 (3d Cir.1989), and United States v. Ruff, 717 F.2d 855, 857–58 (3d Cir.1983)). However, because Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis and Crawford likewise limit Bruton to testimonial statements. See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.Cir.2010) (holding that alleged Bruton claim did not violate the Confrontation Clause because the statements were not testimonial). Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. See Monachelli, 884 F.2d at 753 (holding that Bruton applies to statements "made in a non-custodial setting to family and friends"); Ruff, 717 F.2d at 857–58 (same). And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz. United States v. Berrios, 676 F.3d 118 (3rd Cir. 2012).

And, just like that, the Third Circuit, like many courts before it, decided to dispense with decades of precedent by finding that the Bruton doctrine does not apply to nontestimonial hearsay in the wake of Davis and Crawford. And, like many courts before it, the Third CIrcuit has it wrong.

In Berrios, Reinaldo Berrios, Felix Cruz, Troy Moore, and Angel Rodriguez were convicted of crimes arising out of a series of carjackings, an attempted robbery, and the murder of a security guard. At trial, "[t]he Title III recording of [a] conversation between Berrios and Moore formed the cornerstone of the prosecution's case against Rodriguez, Cruz, and Moore...."

After they were convicted, Cruz and Rodriguez appealed, claiming, inter alia, that the admission of the recording was error under the Bruton doctrine. Under that doctrine, the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's statement that facially incriminates another defendant if the co-defendant does not testify at trial. 

And, as is made clear by the block quote that led this post, before the Supreme Court's opinions in Davis and Crawford, the admission of the conversation between Berrios and Moore would have violated the Bruton doctrine assuming (1) that Berrios and Moore did not testify at trial; and (2) that the conversation facially incriminated Cruz and Rodriguez. The fact that the conversation was not "custodial" was irrelevant. But, as the above block quote also makes clear, in the wake of Davis and Crawford, the statements by Berrios and Moore did not run afoul of the Bruton doctrine because they were nontestimonial/noncustodial.

Finally, that block quote makes clear that this change occurred because "[a]ny protection provided by Bruton is...only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial." The question is raise in my recent article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine, is how courts across the country are reaching this conclusion.

The key Supreme Court cases here are Parker v. Randolph, 442 U.S. 62 (1979), and Cruz v. New York, 481 U.S. 186 (1987). In Randolph, a plurality of the Court found that the admission of statements that would today be deemed testimonial satisfied the Bruton doctrine despite the declarants not testifying. And, in Cruz, a majority of the Court found that statements that satisfied the prevailing Confrontation Clause test for hearsay at the time (the Ohio v. Roberts adequate indicia of reliability test) nonetheless violated the Bruton doctrine because the declarant did not testify. What these cases thus tell us is that the protection provided by Bruton is different than the protection provided by the Confrontation Clause under the Roberts/Crawford/Davis line of cases.

And indeed, Crawford tells us the same. As I noted in my article, in Crawford.

According to the Court, with one arguable exception, its cases remained faithful to the Framers' understanding of the Confrontation Clause: "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." In reaching this conclusion, however, the Court noted that its prior opinions in Parker v. Randolph and Cruz v. New York did not address the question of whether testimonial hearsay by an unconfronted declarant violated the Confrontation Clause but instead "addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant's own confession against him in a joint trial."

This of course makes sense because otherwise Randolph would not have been faithful to the Framers' understanding that testimonial statements by absent declarants cannot be admitted unless such declarants are unavailable and the defendant was previously able to cross-examine them (which was not the case in Randolph), In effect, then, the Court in Crawford was saying that the Confrontation Clause line of cases dealing with hearsay admitted under a hearsay exception is entirely separate from the Bruton doctrine line of cases. So, why do courts like the Sixth Circuit continue to merge them in a way that breaks from precedent and severely circumscribes Bruton?



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I thought that the Sixth Circuit had already so held. See United States v. Johnson, 581 F.3d 320, 325-326 (6th Cir. 2009).

Posted by: MBC | Jul 15, 2012 7:41:42 PM

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