Bruton

Gray v. Maryland, 523 U.S. 185 (1998)

Bruton bars the introduction of a non-testifying co-defendant’s confession that impliedly implicates the defendant, even if the defendant’s name was redacted from the confession.

Richardson v. Marsh, 481 U.S. 200 (1987)

A co-defendant’s confession may be admitted at a joint trial if the confession is redacted so that it omits all reference to the defendant and even to the existence of another guilty party if the jury could infer that the co-defendant’s statement implicates the defendant.

Cruz v. New York, 481 U.S. 186 (1987)

The Court rejects the “interlocking confession” rule. Even if the defendant has confessed, a co-defendant’s confession which implicates the defendant may not be introduced. Limiting instructions do not suffice.

Washington v. Sec’y Pa. Dep’t of Corr., --- F.3d --- (3rd Cir. 2015)

The redactions of the co-defendant’s statement to the police were not sufficient under Richardson. The redacted statement still contained references to “someone I know,” “another guy,” “the driver,” and other references to the defendant.

United States v. Taylor, 745 F.3d 15 (2d Cir. 2014)

The redactions of the defendant’s statement made it obvious that the names that were redacted were the co-defendants. This violated Bruton. In assessing whether the redactions are sufficient, the court should consider whether the jury would realize that specific names were omitted (i.e., the defendant’s actual statement was altered), or whether the redaction was done in such a way that the jury would believe that the defendant did not actually implicate the co-defendant. Thus, changing a statement to say, “I turned to another person and said, ‘look another person’, we need to get out of here” is not an appropriate redaction. Once it is obvious that specific names have been pruned from the actual statement, the question is whether the range of possibilities is narrow enough that the co-defendant’s identity is the obvious choice.

United States v. Powell, 732 F.3d 361 (5th Cir. 2013)

The defendant and his girlfriend were co-defendants and were alleged to have driven to Lubbock to purchase cocaine. The girlfriend made a statement confessing. At trial, the confession was redacted so that her statement only implicated herself. When the defendant testified, the prosecutor asked him repeatedly why his girlfriend acknowledged that she had been to Lubbock to purchase drugs? This questioning violated Bruton. The questioning had the effect of using the co-defendant’s statements “against” the defendant. Harmless error.

Washington v. Secretary of Pa. Dept. of Corrections, 726 F.3d 471 (3rd Cir. 2013)

The state violated Bruton in introducing the statement of a non-testsifying co-defendant that implicated the defendant in the robbery/murder. The Third Circuit thoroughly reviews the law regarding efforts to redact references to the defendant by the use of pronouns – discussing the Supreme Court decisions in Richardson and Gray – and concludes that the redaction efforts in this case were insufficient to overcome the Confrontation Clause violation. Following remand from the Supreme Court, the Third Circuit reached the same decision in Washington v. Secretary Pennsulvania Department of Corrections, --- F.3d --- (September 1, 2015).

Ray v. Boatwright, 592 F.3d 793 (7th Cir. 2010)

The police officer who took the defendant’s statement testified at trial and recounted the circumstances of his interrogation of the defendant. Included in this recitation were statements such as, “When he was confronted with the fact that his co-conspirators claimed to have been present at the time of the shooting” and “When confronted with statements by the co-conspirators that the defendant was doing the shooting” – the defendant responded in a certain fashion. This amounted to a Confrontation Clause violation, because the co-conspirators did not testify and the officer who testified recounted exactly what they had told the police. The error was sufficiently harmful that a new trial was required.

United States v. Cabrera-Rivera, 583 F.3d 26 (1st Cir. 2009)

The prosecutor elicted testimony from a police officer about his interrogation of a co-conspirator. Despite minimal efforts to eliminate references to the defendant, the officer testified that based on his interrogation of the co-conspirator, he determined that the defendant had received part of the proceeds of the robbery. This was a clear violation of Bruton which was compounded by the prosecutor’s closing argument that stressed the information learned from the co-conspirator in proving the defendant’s guilt.

United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668 (9th Cir. 2009)

Allowing an officer to testify about the statement of a co-defendant and then allowing the co-defendant’s counsel to cross-examine the agent eliciting further details about the co-defendant’s statement was reversible error as to the defendant. The Ninth Circuit states, during the course of the opinion, that admitting the co-defendant’s statement was a Crawford Confrontation Clause violation and whether or not the statement implicated the defendant only related to the harmless/harmful nature of the error.

United States v. Hardwick, 544 F.3d 565 (3rd Cir. 2008)

The statements of a co-defendant – even redacted to remove the defendant’s name – sufficiently implicated the defendant that permitting those statements to be introduced violated Bruton.

Vazquez v. Wilson¸ 550 F.3d 270 (3rd Cir. 2008)

The state introduced the co-defendant’s statement at trial. In place of the defendant’s name, the court permitted the substitution of “my boy” and “the other guy” as a substitute for the defendant’s name in the co-defendant’s statement. This did not protect the defendant’s Confrontation Clause rights and the Bruton violation required that the writ be granted.

United States v. Schwartz, 541 F.3d 1331 (11th Cir. 2008)

This decision contains an encyclopedic review of Bruton jurisprudence and ultimately concludes that an affidavit of a co-defendant, who did not testify at trial, that was introduced into evidence against the co-defendant, clearly implicated the defendant and, coupled with the prosecutor’s closing argument, which pointed to the affidavit and argued that the jury could infer the defendant’s guilt from the affidavit’s assertions, required reversal of the conviction. The affidavit did not implicate Schwartz by name. Rather, the out-of-court statement of the co-defendant only implicated Schwartz circumstantially (referring to corporations that Schwartz owned). The trial court cautioned the jury not to consider the affidavit against Schwartz (a cautionary note that Bruton itself said is inadequate to protect a defendant’s Confrontation Clause rights). In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that redacting the defendant’s name from a co-defendant’s out-of-court statement is a satisfactory method of avoiding a Confrontation Clause problem. Gray v. Maryland, 523 U.S. 185 (1998), held that a redaction that replaces a defendant’s name with an obvious indication of deletion, such as a blank space, or [delete], does not avoid a Bruton problem. Synthesizing these cases, as well as several Eleventh Circuit precedents, the court concluded, “A defendant’s confrontation right is violated when the court admits a codefendant statement that, in light of the Government’s whole case, compels a reasonable person to infer the defendant’s guilt.”

Stevens v. Ortiz, 465 F.3d 1229 (10th Cir. 2006)

A clear Bruton violation. The state’s argument was that the statement had sufficient indicia of reliability to be admissible. The Tenth Circuit granted the writ: neither the fact that the statement was against the declarant’s penal interest (he accepted some responsibility for the murder, but “shared” that responsibility with the defendant), nor the fact that it had some indicia of reliability was sufficient to overcome the Confrontation Clause violation. See Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999).

United States v. Santos, 449 F.3d 93 (2d Cir. 2006)

The trial court redacted portions of a co-defendant’s post-arrest statement and removed references to the defendants and instructed the jury not to consider the statement as evidence of the defendants’ participation in the conspiracy. However, the statement that was included revealed that the intention of the conspirators was to rob through the use of force. This was a contested element of the Hobbs Act prosecution and admitting this portion of the statement violated the remaining defendants’ confrontation clause rights.

Madrigal v. Bagley, 413 F.3d 548 (6th Cir. 2005)

The Bruton error was obvious (and conceded by the state) and was also prejudicial. The defendant’s conviction and sentence of death was reversed.

United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005)

The trial court approved certain redactions in a co-defendant’s confession which replaced the defendant’s name with vague reference to “another person.” This was permissible under Bruton. However, the trial court failed to instruct the jury not to consider the confession of the co-defendant against the defendant. The defendant did not request such an instruction; nevertheless, it was plain error in this case, because the prosecutor, in closing argument, urged the jury to conclude that “another person” was, in fact, the defendant. Thus, the prosecutor argued precisely what the trial court should have instructed the jury was an improper inference.

Howard v. Walker, 406 F.3d 114 (2d Cir. 2005)

A co-conspirator’s statement to the police was excluded on Bruton grounds. However, an expert witness for the state relied on that statement in reaching her conclusion that the victim’s death was caused by conduct of the conspirators. Though an expert may generally rely on inadmissible evidence in reaching a conclusion, including hearsay, that rule assumes that an expert will carefully analyze the basis of his opinion and that the trial court will conduct a sufficient Daubert hearing to ensure the reliability of the expert’s underlying data from which she draws her conclusion. In this case, the unreliable statements of the co-conspirator were not reliable and the expert’s opinion was therefore improperly admitted.

Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005)

The state trial court erroneously admitted the statement of a witness who made a custodial statement implicating the defendant shortly after the murder. The witness refused to testify at trial, even with a grant of immunity. This evidence would clearly be barred under Crawford, but Crawford does not apply retroactively. Nevertheless, this evidence was also inadmissible under Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999).

United States v. Macias, 387 F.3d 509 (6th Cir. 2004)

A co-defendant offered the testimony (from prior grand jury testimony) of a law enforcement officer who stated, during the grand jury testimony that the co-defendant implicated the defendant. This is a Bruton violation. Confrontation Clause violations can be caused by the introduction of testimony by a co-defendant’s counsel.

United States v. Vejar-Urias, 165 F.3d 337 (5th Cir. 1999)

Though it was harmless error, the trial court erred in permitting the government to introduce the co-defendant’s post-arrest statement. Merely replacing the defendant’s name with the word “someone” did not vitiate the Confrontation Clause violation. See Gray v. Maryland, 523 U.S. 185 (1998).

United States v. Peterson, 140 F.3d 819 (9th Cir. 1998)

The co-defendant's post-arrest statement made reference to the defendant, but the references were redacted at trial and replaced with "person X." During closing argument, the prosecutor argued that "person X" was the defendant. The Ninth Circuit concluded that the redaction was insufficient and violated Bruton. The closing argument of the prosecutor, needless to say, also violated Bruton. Reversible error.

United States v. Walker, 148 F.3d 518 (5th Cir. 1998)

The government improperly admitted evidence that violated Bruton. The government suggested that the evidence was not offered for the truth of the matter asserted, but the Fifth Circuit held that even if that were the case, there was still a Bruton violation. Harmless error.

Graham v. Hoke, 946 F.2d 982 (2d Cir. 1991)

The decision in Cruz v. New York, 481 U.S. 186 (1987), which eliminated the interlocking confession exception to the Bruton rule, should be applied retroactively to cases on habeas review. Arguably, Cruz did not establish a new rule, but even if it did, the rule fit at least one of the Teague v. Lane exceptions to the non-retroactive application of new rules to old cases.

Holland v. Scully, 797 F.2d 57 (2d Cir. 1986)

Both the defendant and his co-defendant confessed prior to trial. Though they were similar in many details, the co-defendant’s confession indicated that the defendant was the mastermind and had invited him to commit the robbery. In this context, the introduction of the co-defendant’s confession was prejudicial error under Bruton.

United States v. Schmick, 904 F.2d 936 (5th Cir. 1990)

The defendant was confronted with the incriminating statements of his co-defendant in violation of Bruton. Despite the trial judge’s instructions to the jury to disregard the statements, the defendant was prejudiced by the admission of this testimony, especially in light of the prosecutor’s reliance on those statements during his closing argument. The trial court should have granted a new trial to the defendant.

Sanders v. Lane, 835 F.2d 1204 (7th Cir. 1987)

The admission of the co-defendant’s confession which implicated the defendant was reversible error. The defendant’s own confession was admitted during the course of this trial, but the statement of his co-defendant was more incriminating than his own confession.

United States v. Payne, 923 F.2d 595 (8th Cir. 1991)

The co-defendant’s redacted confession referred to helping “someone” escape from federal custody. Everyone at trial knew who the “someone” was: the co-defendant who was charged with conspiracy to escape. Though the error was harmless, this violated Bruton.

Hardnett v. Marshall, 25 F.3d 875 (9th Cir. 1994)

Three defendants were charged with murder. One of the defendants had made statements to the police about another one of the defendants. The declarant did not testify at trial. The other defendant did, and was cross-examined by the prosecutor about the statements of the non-testifying defendant. This violated Bruton, but was harmless error. See Robbins v. Small, 371 F.2d 793 (1st Cir. 1967).

Toolate v. Borg, 828 F.2d 571 (9th Cir. 1987)

A co-defendant testified and offered a confession which was incriminating both of himself and of the defendant. The co-defendant refused to be cross-examined by the defendant. This constitutes a violation of the Bruton rule even though Bruton refers to out-of-court confessions. The inability to cross-examine the co-defendant in court represents the same confrontation problems as envisioned in the classic Bruton situation.

United States v. Glass, 128 F.3d 1398 (10th Cir. 1997)

The Bruton violation in this case was harmful error requiring reversal of the defendant’s conviction. A police officer testified that one of the defendants (who did not testify) made a statement that incriminated herself and expressly incriminated another defendant, as well. The other defendant’s right to confront the testimony against him was violated by this Bruton violation.

United States v. Hill, 901 F.2d 880 (10th Cir. 1990)

The defendant and co-defendant were tried jointly. At the beginning of trial, the co-defendant’s attorney announced that his client would take the stand. In reliance on this prediction, the government introduced the co-defendant’s confession which implicated the defendant. The co-defendant did not take the stand. This constitutes a Bruton violation and the defendant’s conviction was reversed. The defendant cannot be penalized for the co-defendant’s attorney’s inaccurate prediction.

United States v. Brazel, 102 F.3d 1120 (11th Cir. 1996)

Though it was not plain error, the government improperly elicited testimony that one non-testifying co-defendant inculpated another defendant in his out-of-court statement.

Glock v. Singletary, 36 F.3d 1014 (11th Cir. 1994), rev’d on other grounds 65 F.3d 878 (11th Cir. 1995)

The state violated Bruton by introducing a non-testifying co-defendant’s confession. Even though the confessions “interlocked,” this does not eliminate the Bruton concerns. The error was harmless, however.

United States v. Costa, 31 F.3d 1073 (11th Cir. 1994)

The government offered the confession of a co-defendant (who was not on trial with the defendant) which implicated both the defendant on trial, and the co-defendant, himself. The government relied on Rule 804(b)(3). The court reversed: even though the statement might appear to be against the declarant’s penal interest, the part of the statement implicating the defendant was not sufficiently against the declarant’s penal interest to be admissible under this theory. Under Bruton, such statements must be excluded. The declarant’s statement was made while he was in custody, and after he was told by the AUSA that if he did not provide substantial assistance, he would face life in prison.

United States v. Veltmann, 6 F.3d 1483 (11th Cir. 1993)

The Bruton violation in this case was not harmless error. Admitting evidence of a co-defendant’s jailhouse statement to a cellmate which implicated the defendant was reversible error.

United States v. Beale, 921 F.2d 1412 (11th Cir. 1991)

A non-testifying co-defendant’s post-arrest statement that another co-defendant used the alias “Bee” should not have been admitted at trial. Bruton errors are subject to the constitutional harmless error test. The error in this case was not harmless and the conviction of this defendant was reversed.

United States v. Perez-Garcia, 904 F.2d 1534 (11th Cir. 1990)

The trial court erred in permitting the government to introduce testimony concerning what the defendant’s co-conspirator stated to a DEA agent following his arrest. An arrest amounts to a termination of the conspiracy and under Bruton, such statements are hearsay and are inadmissible. The failure to object to the introduction of this testimony, however, precluded reversal.

United States v. Pendegraph, 791 F.2d 1462 (11th Cir. 1986)

Even though the co-defendant’s confession was redacted to omit the defendant’s name, its admission was error under Bruton. There was no possible person other than the defendant who could have been referred to as “the individual” in the co-defendant’s confession.