A joint trial of petitioner and one Evans resulted in the
convictions of both for armed postal robbery. Evans did not take
the stand, but a postal inspector testified that Evans confessed
orally that he and petitioner committed the robbery. The trial
judge instructed the jury that, although Evans' confession was
competent evidence against him it was inadmissible hearsay against
petitioner and had to be disregarded in determining petitioner's
guilt or innocence. Evans and petitioner both appealed to the Court
of Appeals. That court set aside Evans' conviction on the ground
that the oral confession should not have been received against him,
but affirmed petitioner's conviction in view of the trial judge's
instructions, relying on
Delli Paoli v. United States,
352 U. S. 232.
Held: Because of the substantial risk that the jury,
despite instructions to the contrary, looked to the incriminating
extrajudicial statements in determining petitioner's guilt,
admission of Evans' confession in the joint trial violated
petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment.
Delli Paoli v.
United States, supra, overruled. Pp.
391 U. S.
126-137.
375 F.2d 355, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question, last considered in
Delli
Paoli v. United States, 352 U. S. 232,
whether the conviction of a defendant at a joint trial should be
set aside
Page 391 U. S. 124
although the jury was instructed that a codefendant's confession
inculpating the defendant had to be disregarded in determining his
guilt or innocence.
A joint trial of petitioner and one Evans in the District Court
for the Eastern District of Missouri resulted in the conviction of
both by a jury on a federal charge of armed postal robbery, 18
U.S.C. § 2114. A postal inspector testified that Evans orally
confessed to him that Evans and petitioner committed the armed
robbery. The postal inspector obtained the oral confession, and
another in which Evans admitted he had an accomplice whom he would
not name, in the course of two interrogations of Evans at the city
jail in St. Louis, Missouri, where Evans was held in custody on
state criminal charges. Both petitioner and Evans appealed their
convictions to the Court of Appeals for the Eighth Circuit. That
court set aside Evans' conviction on the ground that his oral
confessions to the postal inspector should not have been received
in evidence against him. 375 F.2d 355, 361. [
Footnote 1] However, the court, relying upon
Delli
Page 391 U. S. 125
Paoli, affirmed petitioner's conviction because the
trial judge instructed the jury that, although Evans' confession
was competent evidence against Evans, it was inadmissible hearsay
against petitioner, and therefore had to be disregarded in
determining petitioner's guilt or innocence. 375 F.2d at 361-363.
[
Footnote 2] We granted
certiorari to reconsider
Delli Paoli. 389 U.S. 818. The
Solicitor General has since submitted a memorandum stating
that,
"in the light of the record in this particular case and in the
interests of justice, the judgment below should be reversed and the
cause remanded for a new trial."
The Solicitor General states that this disposition is urged in
part because
"[h]ere it has been determined that the confession was wrongly
admitted against [Evans] and his conviction has been reversed,
leading to a new trial at which he was
Page 391 U. S. 126
acquitted. To argue, in this situation, that [petitioner's]
conviction should nevertheless stand may be to place too great a
strain upon the [
Delli Paoli] rule at least, where, as
here, the other evidence against [petitioner] is not strong."
We have concluded, however, that
Delli Paoli should be
overruled. We hold that, because of the substantial risk that the
jury, despite instructions to the contrary, looked to the
incriminating extrajudicial statements in determining petitioner's
guilt, admission of Evans' confession in this joint trial violated
petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment. We therefore overrule
Delli Paoli and reverse.
The basic premise of
Delli Paoli was that it is
"reasonably possible for the jury to follow" sufficiently clear
instructions to disregard the confessor's extrajudicial statement
that his codefendant participated with him in committing the crime.
352 U.S. at
352 U. S. 239.
If it were true that the jury disregarded the reference to the
codefendant, no question would arise under the Confrontation
Clause, because by hypothesis, the case is treated as if the
confessor made no statement inculpating the nonconfessor. But since
Delli Paoli was decided, this Court has effectively
repudiated its basic premise. Before discussing this, we pause to
observe that, in
Pointer v. Texas, 380 U.
S. 400, we confirmed "that the right of
cross-examination is included in the right of an accused in a
criminal case to confront the witnesses against him" secured by the
Sixth Amendment,
id. at
380 U. S.
404;
"a major reason underlying the constitutional confrontation rule
is to give a defendant charged with crime an opportunity to
cross-examine the witnesses against him."
Id. at
380 U. S.
406-407.
We applied
Pointer in Douglas v. Alabama, 380 U.
S. 415, in circumstances analogous to those in the
present case. There two persons, Loyd and Douglas, accused
Page 391 U. S. 127
of assault with intent to murder, were tried separately. Loyd
was tried first and found guilty. At Douglas' trial the State
called Loyd as a witness against him. An appeal was pending from
Loyd's conviction and Loyd invoked the privilege against
self-incrimination and refused to answer any questions. The
prosecution was permitted to treat Loyd as a hostile witness. Under
the guise of refreshing Loyd's recollection, the prosecutor
questioned Loyd by asking him to confirm or deny statements read by
the prosecutor from a document purported to be Loyd's confession.
These statements inculpated Douglas in the crime. We held that
Douglas' inability to cross-examine Loyd denied Douglas "the right
of cross-examination secured by the Confrontation Clause." 380 U.S.
at
380 U. S. 419.
We noted that
"effective confrontation of Loyd was possible only if Loyd
affirmed the statement as his. However, Loyd did not do so, but
relied on his privilege to refuse to answer."
Id. at
380 U. S. 420.
The risk of prejudice in petitioner's case was even more serious
than in
Douglas. In
Douglas we said,
"Although the Solicitor's reading of Loyd's alleged statement,
and Loyd's refusals to answer, were not technically testimony, the
Solicitor's reading may well have been the equivalent in the jury's
mind of testimony that Loyd, in fact, made the statement, and
Loyd's reliance upon the privilege created a situation in which the
jury might improperly infer both that the statement had been made
and that it was true."
Id. at
380 U. S. 419.
Here Evans' oral confessions were, in fact, testified to, and were
therefore actually in evidence. That testimony was legitimate
evidence against Evans and to that extent was properly before the
jury during its deliberations. Even greater then, was the
likelihood that the jury would believe Evans made the statements
and that they were true -- not just the self-incriminating portions
but those implicating petitioner as well. Plainly, the introduction
of
Page 391 U. S. 128
Evans' confession added substantial, perhaps even critical,
weight to the Government's case in a form not subject to
cross-examination, since Evans did not take the stand. Petitioner
thus was denied his constitutional right of confrontation.
Delli Paoli assumed that this encroachment on the right
to confrontation could be avoided by the instruction to the jury to
disregard the inadmissible hearsay evidence. [
Footnote 3] But, as we have said, that assumption
has since been effectively repudiated. True, the repudiation was
not in the context of the admission of a confession inculpating a
codefendant but in the context of a New York rule which submitted
to the jury the question of the voluntariness of the confession
itself.
Jackson v. Denno, 378 U.
S. 368. Nonetheless the message of
Jackson for
Delli Paoli was clear. We there held hat a defendant is
constitutionally entitled at least to have the trial judge first
determine whether a confession was made voluntarily
Page 391 U. S. 129
before submitting it to the jury for an assessment of its
credibility. More specifically, we expressly rejected the
proposition that a jury, when determining the confessor's guilt,
could be relied on to ignore his confession of guilt should it find
the confession involuntary.
Id. at
378 U. S.
388-389. Significantly, we supported that conclusion in
part by reliance upon the dissenting opinion of Mr. Justice
Frankfurter for the four Justices who dissented in
Delli
Paoli. Id. at
378 U. S. 388,
n. 15.
That dissent challenged the basic premise of
Delli
Paoli that a properly instructed jury would ignore the
confessor's inculpation of the nonconfessor in determining the
latter's guilt.
"The fact of the matter is that, too often, such admonition
against misuse is intrinsically ineffective, in that the effect of
such a nonadmissible declaration cannot be wiped from the brains of
the jurors. The admonition therefore becomes a futile collocation
of words, and fails of its purpose as a legal protection to
defendants against whom such a declaration should not tell."
352 U.S. at
352 U. S. 247.
The dissent went on to say, as quoted in the cited note in
Jackson,
"The government should not have the windfall of having the jury
be influenced by evidence against a defendant which, as a matter of
law, they should not consider, but which they cannot put out of
their minds."
Id. at
352 U. S. 248.
To the same effect, and also cited in the
Jackson note, is
the statement of Mr. Justice Jackson in his concurring opinion in
Krulewitch v. United States, 336 U.
S. 440,
336 U. S.
453:
"The naive assumption that prejudicial effects can be overcome
by instructions to the jury . . . all practicing lawyers know to be
unmitigated fiction. . . . [
Footnote 4] "
Page 391 U. S. 130
The significance of
Jackson for
Dell Paoli was
suggested by Chief Justice Traynor in
People v.
Arand, 63 Cal. 2d
518, 528-529, 407 P.2d 265 271-27:
"Although
Jackson was directly concerned with obviating
any risk that a jury might rely on an unconstitutionally obtained
confession in determining the defendant's guilt, its logic extends
to obviating the risks that the jury may rely on any inadmissible
statements. If it is a denial of due process to rely on a jury's
presumed ability to disregard an involuntary confession, it may
also be a denial of due process to rely on a jury's presumed
ability to disregard a codefendant's confession implicating another
defendant when it is determining that defendant's guilt or
innocence."
"Indeed, the latter task may be an even more difficult one for
the jury to perform than the former. Under the New York procedure,
which
Jackson held violated due process, the jury was only
required to
Page 391 U. S. 131
disregard a confession it found to be involuntary. If it made
such a finding, then the confession was presumably out of the case.
In joint trials, however, when the admissible confession of one
defendant inculpates another defendant, the confession is never
deleted from the case and the jury is expected to perform the
overwhelming task of considering it in determining the guilt or
innocence of the declarant and then of ignoring it in determining
the guilt or innocence of any codefendants of the declarant. A jury
cannot 'segregate evidence into separate intellectual boxes.' . . .
It cannot determine that a confession is true insofar as it admits
that A has committed criminal acts with B and at the same time
effectively ignore the inevitable conclusion that B has committed
those same criminal acts with A. [
Footnote 5]"
In addition to
Jackson, our action in 1966 in amending
Rule 14 of the Federal Rules of Criminal Procedure also evidences
our repudiation of
Delli Paoli's basic premise. Rule 14
authorizes a severance where it appears that a defendant might be
prejudiced by a joint trial. [
Footnote 6] The Rule was amended in 1966 to provide
expressly that,
"[i]n ruling on a motion by a defendant for severance the
Page 391 U. S. 132
court may order the attorney for the government to deliver to
the court for inspection
in camera any statements or
confessions made by the defendants which the government intends to
introduce in evidence at the trial."
The Advisory Committee on Rules said in explanation of the
amendment:
"A defendant may be prejudiced by the admission in evidence
against a codefendant of a statement or confession made by that
codefendant. This prejudice cannot be dispelled by
cross-examination if the codefendant does not take the stand.
Limiting instructions to the jury may not, in fact, erase the
prejudice. . . ."
"The purpose of the amendment is to provide a procedure whereby
the issue of possible prejudice can be resolved on the motion for
severance. . . . [
Footnote
7]"
Those who have defended reliance on the limiting instruction in
this area have cited several reasons in support. Judge Learned
Hand, a particularly severe critic of the proposition that juries
could be counted on to disregard inadmissible hearsay, [
Footnote 8] wrote the opinion for
the
Page 391 U. S. 133
Second Circuit which affirmed Delli Paoli's conviction. 229 F.2d
319. In Judge Hand's view, the limiting instruction, although not
really capable of preventing the jury from considering the
prejudicial evidence, does as a matter of form provide a way around
the exclusionary rules of evidence that is defensible because it
"probably furthers, rather than impedes, the search for truth. . .
."
Nash v. United States, 54 F.2d 1006, 1007. Insofar as
this implies the prosecution ought not to be denied the benefit of
the confession to prove the confessor's guilt, [
Footnote 9] however, it overlooks alternative ways
of achieving that benefit without at the same time infringing the
nonconfessor's
Page 391 U. S. 134
right of confrontation. [
Footnote 10] Where viable alternatives do exist, it is
deceptive to rely on the pursuit of truth to defend a clearly
harmful practice.
Another reason cited in defense of
Delli Paoli is the
justification for joint trials in general, the argument being that
the benefits of joint proceedings should not have to be sacrificed
by requiring separate trials in order to use the confession against
the declarant. Joint trials do conserve state funds, diminish
inconvenience to witnesses and public authorities, and avoid delays
in bringing those accused of crime to trial. But the answer to this
argument was cogently stated by Judge Lehman of the New York Court
of Appeals, dissenting in
People v. Fisher, 249 N.Y. 419,
432, 164 N.E. 336, 341:
"We still adhere to the rule that an accused is entitled to
confrontation of the witnesses against him and the right to
cross-examine them. . . . We destroy the age-old rule which in the
past has been regarded as a fundamental principle of our
jurisprudence
Page 391 U. S. 135
by a legalistic formula, required of the judge, that the jury
may not consider any admissions against any party who did not join
in them. We secure greater speed, economy and convenience in the
administration of the law at the price of fundamental principles of
constitutional liberty. That price is too high."
Finally, the reason advanced by the majority in
Delli
Paoli was to tie the result to maintenance of the jury
system.
"Unless we proceed on the basis that the jury will follow the
court's instructions where those instructions are clear and the
circumstances are such that the jury can reasonably be expected to
follow them, the jury system makes little sense."
352 U.S. at
352 U. S. 242.
We agree that there are many circumstances in which this reliance
is justified. Not every admission of inadmissible hearsay or other
evidence can be considered to be reversible error unavoidable
through limiting instructions; instances occur in almost every
trial where inadmissible evidence creeps in, usually inadvertently.
"A defendant is entitled to a fair trial but not a perfect one."
Lutwak v. United States, 344 U. S. 604,
344 U. S. 619;
see Hopt v. Utah, 120 U. S. 430,
120 U. S. 438;
cf. Fed.Rule Crim.Proc. 52(a). It is not unreasonable to
conclude that, in many such cases the jury can and will follow the
trial judge's instructions to disregard such information.
Nevertheless, as was recognized in
Jackson v. Lenno,
supra, there are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored.
Compare Hopt v. Utah, supra; Throckmorton v.
Holt, 180 U. S. 552,
180 U. S. 567;
Mora v. United States, 190 F.2d 749;
Holt v. United
States, 94 F.2d 90. Such a context is presented here, where
the powerfully incriminating extrajudicial statements of a
codefendant,
Page 391 U. S. 136
who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial. Not only are
the incriminations devastating to the defendant, but their
credibility is inevitably suspect, a fact recognized when
accomplices do take the stand and the jury is instructed to weigh
their testimony carefully given the recognized motivation to shift
blame onto others. [
Footnote
11] The unreliability of such evidence is intolerably
compounded when the alleged accomplice, as here, does not testify
and cannot be tested by cross-examination. It was against such
threats to a fair trial that the Confrontation Clause was directed.
[
Footnote 12]
Pointer v.
Texas, supra. We, of course, acknowledge the impossibility of
determining whether, in fact, the jury did or did not ignore Evans'
statement inculpating petitioner in determining petitioner's guilt.
But that was also true in the analogous situation in
Jackson v.
Denno, and was not regarded as militating against striking
down the New York procedure
Page 391 U. S. 137
there involved. It was enough that that procedure posed
"substantial threats to a defendant's constitutional rights to
have an involuntary confession entirely disregarded and to have the
coercion issue fairly and reliably determined. These hazards we
cannot ignore."
378 U.S. at
378 U. S. 389.
Here, the introduction of Evans' confession posed a substantial
threat to petitioner's right to confront the witnesses against him,
and this is a hazard we cannot ignore. Despite the concededly clear
instructions to the jury to disregard Evans' inadmissible hearsay
evidence inculpating petitioner, in the context of a joint trial we
cannot accept limiting instructions as an adequate substitute for
petitioner's constitutional right of cross-examination. The effect
is the same as if there had been no instruction at all.
See
Anderson v. United States, 318 U. S. 350,
318 U. S.
356-357;
cf. Burgett v. Texas, 389 U.
S. 109,
389 U. S.
115.
Reversed.
MR. JUSTICE BLACK concurs in the result for the reasons stated
in the dissent in
Delli Paoli v. United States,
352 U. S. 232,
352 U. S.
46.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
The trial began June 20, 1966, one week after the decision in
Miranda v. Arizona, 384 U. S. 436. T
he Court of Appeals held, 375 F.2d at 357, that
Miranda
and its companion cases were therefore applicable and controlling
on the question of the admissibility in evidence of the postal
inspector's testimony as to Evans' admissions.
Johnson v. New
Jersey, 384 U. S. 719. On
April 8, 1966, St. Louis police officers, without giving Evans
preliminary warnings of any kind and in the absence of counsel,
obtained an oral confession during an interrogation at the city
jail. The police informed the postal inspector, who interrogated
Evans at the jail on April 11 and May 4, 1966; he obtained the oral
confession expressly implicating petitioner on the latter date. On
the merits, the Court of Appeals held, 375 F.2d at 361, that Evans'
admissions to the postal inspector "were tainted and infected by
the poison of the prior, concededly unconstitutional confession
obtained by the local officer," and were therefore inadmissible
under
Westover v. United States, decided with
Miranda, 384 U.S. at
384 U. S.
494-497. On the retrial, Evans was acquitted.
[
Footnote 2]
At the close of the Government's direct case, the trial judge
cautioned the jury that Evans' admission implicating
petitioner,
"if used, can only be used against the defendant Evans. It is
hearsay insofar as the defendant George William Bruton is
concerned, and you are not to consider it in any respect to the
defendant Bruton, because, insofar as he is concerned, it is
hearsay."
The instructions to the jury included the following:
"A confession made outside of court by one defendant may not be
considered as evidence against the other defendant, who was not
present and in no way a party to the confession. Therefore, if you
find that a confession was, in fact, voluntarily and intentionally
made by the defendant Evans, you should consider it as evidence in
the case against Evans, but you must not consider it, and should
disregard it, in considering the evidence in the case against the
defendant Bruton."
"
* * * *"
"It is your duty to give separate, personal consideration to the
cause of each individual defendant. When you do so, you should
analyze what the evidence shows with respect to that individual,
leaving out of consideration entirely any evidence admitted solely
against some other defendant. Each defendant is entitled to have
his case determined from his own acts and statements and the other
evidence in the case which may be applicable to him."
[
Footnote 3]
We emphasize that the hearsay statement inculpating petitioner
was clearly inadmissible against him under traditional rules of
evidence,
see Krulewitch v. United States, 336 U.
S. 440;
Fiswick v. United States, 329 U.
S. 211, the problem arising only because the statement
was (but for the violation of
Westover, supra, n 1) admissible against the declarant
Evans.
See C. McCormick, Evidence § 239 (1954); 4 J.
Wigmore, Evidence §§ 1048-1049 (3d ed.1940); Morgan, Admissions as
an Exception to the Hearsay Rule, 30 Yale L.J. 355 (1921).
See
generally Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159
(1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions,
24 U.Chi.L.Rev. 710 (1957); Note, Criminal Conspiracy, 72
Harv.L.Rev. 920, 984-990 (1959). There is not before us, therefore,
any recognized exception to the hearsay rule insofar as petitioner
is concerned and we intimate no view whatever that such exceptions
necessarily raise questions under the Confrontation Clause.
See
Pointer v. Texas, 380 U. S. 400;
Barber v. Page, 390 U. S. 719;
Mattox v. United States, 156 U. S. 237.
See generally McCormick,
supra, § 224; 5 Wigmore,
supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the
Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948).
[
Footnote 4]
Several cases since
Delli Paoli have refused to
consider an instruction as inevitably sufficient to avoid the
setting aside of convictions.
See, e.g., United States ex rel.
Floyd v. Wilkins, 367 F.2d 990;
United States v.
Bozza, 365 F.2d 206;
Greenwell v. United States, 119
U.S.App.D.C. 43, 336 F.2d 962;
Jones v. United States, 119
U.S.App.D.C. 284, 342 F.2d 863;
Barton v. United States,
263 F.2d 894;
United States ex rel. Hill v.
Deegan, 268 F.
Supp. 580. In
Bozza the Court of Appeals for the
Second Circuit stated:
"It is impossible realistically to suppose that, when the twelve
good men and women had Jones' confession in the privacy of the jury
room, not one yielded to the nigh irresistible temptation to fill
in the blanks with the keys Kuhle had provided and ask himself the
intelligent question to what extent Jones' statement supported
Kuhle's testimony, or that, if anyone did yield, his colleagues
effectively persuaded him to dismiss the answers from his
mind."
365 F.2d at 215.
State decisions which have rejected
Delli Paoli include
People v. Aranda, 63 Cal. 2d
518, 407 P.2d 265;
State v. Young, 46 N.J. 152, 215
A.2d 352.
See also People v. Barbaro, 395 Ill. 264, 69
N.E.2d 692;
State v. Rosen, 151 Ohio St. 339, 86 N.E.2d
24.
It has been suggested that the limiting instruction actually
compounds the jury's difficulty in disregarding the inadmissible
hearsay.
See Broeder, The University of Chicago Jury
Project, 38 Neb.L.Rev. 744, 753-755 (1959).
[
Footnote 5]
See Pointer v. Texas, supra, at
380 U. S.
405:
"Indeed, we have expressly declared that to deprive an accused
of the right to cross-examine the witnesses against him is a denial
of the Fourteenth Amendment's guarantee of due process of law."
[
Footnote 6]
Joinder of defendants is governed by Rules 8(b) and 14 of the
Federal Rules of Criminal Procedure.
"The rules are designed to promote economy and efficiency and to
avoid a multiplicity of trials, where these objectives can be
achieved without substantial prejudice to the right of the
defendants to a fair trial."
Dale v. United States, 231 F.2d 123, 125. An important
element of a fair trial is that a jury consider only relevant and
competent evidence bearing on the issue of guilt or innocence.
See, e.g., Blumenthal v. United States, 332 U.
S. 539,
332 U. S.
559-560.
[
Footnote 7]
34 F.R.D. 419.
See generally Note, Joint and Single
Trials Under Rules 8 and 14 of the Federal Rules of Criminal
Procedure, 74 Yale L.J. 553 (1965).
[
Footnote 8]
Judge Hand addressed the subject several times. The limiting
instruction, he said, is a "recommendation to the jury of a mental
gymnastic which is beyond, not only their powers, but anybody's
else,"
Nash v. United States, 54 F.2d 1006, 1007; "Nobody
can indeed fail to doubt whether the caution is effective, or
whether usually the practical result is not to let in hearsay,"
United States v. Gottfried, 165 F.2d 360, 367; "it is
indeed very hard to believe that a jury will, or for that matter
can, in practice observe the admonition,"
Delli Paoli v. United
States, 229 F.2d 319, 321. Judge Hand referred to the
instruction as a "placebo," medically defined as "a medicinal lie."
Judge Jerome Frank suggested that its legal equivalent
"is a kind of 'judicial lie': it undermines a moral relationship
between the courts, the jurors, and the public; like any other
judicial deception, it damages the decent judicial administration
of justice."
United States v. Grunewald, 233 F.2d 556, 574.
See
also 8 Wigmore,
supra, n 3, § 2272, at 416.
Compare E. Morgan, Some Problems of Proof Under the
Anglo-American System of Litigation 105 (1956), who suggests that
the use of limiting instructions fosters an inconsistent attitude
toward juries by
"treating them at times as a group of low-grade morons, and at
other times as men endowed with a superhuman ability to control
their emotions and intellects."
See also Shepard v. United States, 290 U. S.
96,
290 U. S. 104;
Meltzer, Involuntary Confessions: The Allocation of Responsibility
Between Judge and Jury, 21 U.Chi.L.Rev. 317, 326 (1954).
[
Footnote 9]
In this case, however, Evans' conviction was reversed on the
ground that his confessions were inadmissible in evidence even
against him, and, on his retrial, he was acquitted. In
People
v. Aranda, supra, 63 Cal. 2d at 526, 407 P.2d at 270, it was
said:
"When, however, the confession implicating both defendants is
not admissible at all, there is no longer room for compromise. The
risk of prejudicing the nonconfessing defendant can no longer be
justified by the need for introducing the confession against the
one who made it. Accordingly, we have held that the erroneous
admission into evidence of a confession implicating both defendants
is not necessarily cured by an instruction that it is to be
considered only against the declarant."
See also Jones v. United States and
Greenwell v.
United States, both
supra, n 4.
[
Footnote 10]
Some courts have required deletion of references to codefendants
where practicable.
See, e.g., Oliver v. United States, 335
F.2d 724;
People v. Vitagliano, 15 N.Y.2d 360, 206 N.E.2d
864;
People v. La Belle, 18 N.Y.2d 405, 222 N.E.2d 727.
For criticisms suggesting that deletions (redaction) from the
confession are ineffective,
see, e.g., Note, 72
Harv.L.Rev. 920, 990 (1959); Comment, 24 U.Chi.L.Rev. 710, 713
(1957); Note, 74 Yale L.J. 553, 564 (1965).
In this case, Evans' confessions were offered in evidence
through the oral testimony of the postal inspector. It has been
said:
"Where the confession is offered in evidence by means of oral
testimony, redaction is patently impractical. To expect a witness
to relate X's confession without including any of its references to
Y is to ignore human frailty. Again, it is unlikely that an
intentional or accidental slip by the witness could be remedied by
instructions to disregard."
Note, 3 Col.J. of Law & Soc.Prob. 80, 88 (1967).
Some courts have promulgated rules governing the use of the
confessions.
See n 4,
supra. See also rules suggested by Judge Frank,
dissenting in
Delli Paoli v. United States, 229 F.2d 319,
324.
[
Footnote 11]
See Crawford v. United States, 212 U.
S. 183,
212 U. S. 24;
Caminetti v. United States, 242 U.
S. 470,
242 U. S. 495;
Stoneking v. United States, 232 F.2d 385.
[
Footnote 12]
It is suggested that, because the evidence is so unreliable the
need for cross-examination is obviated. This would certainly seem
contrary to the acceptance of the rule of evidence which would
require exclusion of the confession as to Bruton as
"inadmissible hearsay, a presumptively unreliable out-of-court
statement of a nonparty who was not a witness subject to
cross-examination."
Post at
391 U. S.
138.
"The theory of the Hearsay rule is that the many possible
deficiencies, suppressions, sources of error and untrustworthiness,
which lie underneath the bare untested assertion of a witness, may
he best brought to light and exposed by the test of
Cross-examination."
5 Wigmore, Evidence § 1362, at 3. The reason for excluding this
evidence as an evidentiary matter also requires its exclusion as a
constitutional matter. Surely the suggestion is not that
Pointer v. Texas, for example, be repudiated and that all
hearsay evidence be admissible so long as the jury is properly
instructed to weigh it in light of "all the dangers of inaccuracy
which characterize hearsay generally."
Post at
391 U. S.
141.
MR. JUSTICE STEWART, concurring.
I join the opinion and judgment of the Court. Although I did not
agree with the decision in
Jackson v. Denno, 378 U.
S. 368 (
see id. at
378 U. S.
427), I accept its holding and share the Court's
conclusion that it compels the overruling of
Delli Paoli v.
United States, 352 U. S. 232.
Quite apart from
Jackson v. Denno, however, I think it
clear that the underlying rationale of the Sixth Amendment's
Confrontation Clause precludes reliance upon cautionary
instructions when the highly damaging out-of-court
Page 391 U. S. 138
statement of a codefendant, who is not subject to
cross-examination, is deliberately placed before the jury at a
joint trial. A basic premise of the Confrontation Clause, it seems
to me, is that certain kinds of hearsay (
see, e.g., Pointer v.
Texas, 380 U. S. 400;
Douglas v. Alabama, 380 U. S. 415) are
at once so damaging, so suspect, and yet so difficult to discount,
that jurors cannot be trusted to give such evidence the minimal
weight it logically deserves, whatever instructions the trial judge
might give.
See the Court's opinion,
ante at
391 U. S. 136,
n. 12. It is for this very reason that an out-of-court accusation
is universally conceded to be constitutionally inadmissible against
the accused, rather than admissible for the little it may be worth.
Even if I did not consider
Jackson v. Denno controlling,
therefore, I would still agree that
Delli Paoli must be
overruled.
MR. JUSTICE WHITE, dissenting.
Whether or not Evans' confession was inadmissible against him,
nothing in that confession which was relevant and material to
Bruton's case was admissible against Bruton. As to him, it was
inadmissible hearsay, a presumptively unreliable out-of-court
statement of a nonparty who was not a witness subject to
cross-examination. Admitting Evans' confession against Bruton would
require a new trial unless the error was harmless.
The trial judge in this case had no different view. He admitted
Evans' confession only against Evans, not against Bruton, and
carefully instructed the jury to disregard it in determining
Bruton's guilt or innocence.
*
Page 391 U. S. 139
Contrary to its ruling just a decade ago in
Delli Paoli v.
United States, 352 U. S. 232
(1957), the Court now holds this instruction insufficient, and
reverses Bruton's conviction. It would apparently also reverse
every other case where a court admits a codefendant's confession
implicating a defendant, regardless of cautionary instructions and
regardless of the circumstances. I dissent from this excessively
rigid rule. There is nothing in this record to suggest that the
jury did not follow the trial judge's instructions. There has been
no new learning since
Delli Paoli indicating that juries
are less reliable than they were considered in that case to be.
There is nothing in the prior decisions of this Court which
supports this new constitutional rule.
The Court concedes that there are many instances in which
reliance on limiting instructions is justified --
"Not every admission of inadmissible hearsay or other evidence
can be considered to be reversible error unavoidable through
limiting instructions; instances occur in almost every trial where
inadmissible evidence creeps in, usually inadvertently."
Ante at
391 U. S. 135.
The Court asserts, however, that the hazards to the defendant of
permitting the jury to hear a codefendant's confession implicating
him are so severe that we must assume the jury's inability to heed
a limiting instruction. This was the holding of the Court with
respect to a confession of the defendant himself in
Jackson v.
Denno, 378 U. S. 368
(1964). There are good reasons, however, for distinguishing the
codefendant's confession from that of the defendant himself, and
for trusting in the jury's ability to disregard the former when
instructed to do so.
First, the defendant's own confession is probably the most
probative and damaging evidence that can be admitted against him.
Though itself an out-of-court statement, it is admitted as reliable
evidence because it is an admission of guilt by the defendant, and
constitutes
Page 391 U. S. 140
direct evidence of the facts to which it relates. Even the
testimony of an eyewitness may be less reliable than the
defendant's own confession. An observer may not correctly perceive,
understand, or remember the acts of another, but the admissions of
a defendant come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past conduct.
Certainly, confessions have profound impact on the jury, so much so
that we may justifiably doubt its ability to put them out of mind
even if told to do so. This was the conclusion of the Court in
Jackson, and I continue to believe that case to be sound
law.
Second, it must be remembered that a coerced confession is not
excluded because it is thought to be unreliable. Regardless of how
true it may be, it is excluded because specific provisions of the
Constitution demand it, whatever the consequences for the criminal
trial. In
Jackson itself, it was stated that
"[i]t is now axiomatic that a defendant in a criminal case is
deprived of due process of law if his conviction is founded, in
whole or in part, upon an involuntary confession, without regard
for the truth or falsity of the confession. . . ."
378 U.S. at
378 U. S. 376.
See id. at
378 U. S.
385-386. In giving prospective effect only to its rules
in
Miranda v. Arizona, 384 U. S. 436
(1966), the Court specifically reaffirmed the principle that
coerced confessions are inadmissible regardless of their truth or
falsity,
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 729,
n. 9 (1966). The Court acknowledged that the rules of
Miranda apply to situations "in which the danger [of
unreliable statements] is not necessarily as great as when the
accused is subjected to overt and obvious coercion."
Id.
at
384 U. S. 730.
And, in
Tehan v. United States ex rel. Shott, 382 U.
S. 406,
382 U. S. 416
(1966), holding the rule of
Griffin v. California,
380 U. S. 609
(1965), not retroactive, the Court quite explicitly stated that
"the Fifth Amendment's privilege against self-incrimination is
not
Page 391 U. S. 141
an adjunct to the ascertainment of truth. That privilege, like
the guarantees of the Fourth Amendment, stands as a protection of
quite different constitutional values. . . ."
The exclusion of probative evidence in order to serve other ends
is sound jurisprudence but, as the Court concluded in
Jackson
v. Denno, 378 U.S. at
378 U. S. 382, juries would have great difficulty in
understanding that policy, in putting the confession aside, and in
finding the confession involuntary if the consequence was that it
could not be used in considering a defendant's guilt or
innocence.
The situation in this case is very different. Here we deal with
a codefendant's confession which is admitted only against the
codefendant and with a firm instruction to the jury to disregard it
in determining the defendant's guilt or innocence. That confession
cannot compare with the defendant's own confession in evidentiary
value. As to the defendant, the confession of the codefendant is
wholly inadmissible. It is hearsay, subject to all the dangers of
inaccuracy which characterize hearsay generally. Furthermore, the
codefendant is no more than an eyewitness, the accuracy of whose
testimony about the defendant's conduct is open to more doubt than
would be the defendant's own account of his actions. More than
this, however, the statements of a codefendant have traditionally
been viewed with special suspicion.
Crawford v. United
States, 212 U. S. 183,
212 U. S. 204
(1909);
Holmgren v. United States, 217 U.
S. 509,
217 U. S.
523-524 (1910).
See also Caminetti v. United
States, 242 U. S. 470,
242 U. S. 495
(1917); Mathes, Jury Instruction and Forms for Federal Criminal
Cases, 27 F.R.D. 39, 68-69 (1961). Due to his strong motivation to
implicate the defendant and to exonerate himself, a codefendant's
statements about what the defendant said or did are less credible
than ordinary hearsay evidence. Whereas the defendant's own
confession possesses greater reliability and evidentiary
Page 391 U. S. 142
value than ordinary hearsay, the codefendant's confession
implicating the defendant is intrinsically much less reliable.
The defendant's own confession may not be used against him if
coerced, not because it is untrue, but to protect other
constitutional values. The jury may have great difficulty
understanding such a rule and following an instruction to disregard
the confession. In contrast, the codefendant's admissions cannot
enter into the determination of the defendant's guilt or innocence
because they are unreliable. This the jury can be told and can
understand. Just as the Court believes that juries can reasonably
be expected to disregard ordinary hearsay or other inadmissible
evidence when instructed to do so, I believe juries will disregard
the portions of a codefendant's confession implicating the
defendant when so instructed. Indeed, if we must pick and choose
between hearsay as to which limiting instructions will be deemed
effective and hearsay the admission of which cannot be cured by
instructions, codefendants' admissions belong in the former
category, rather than the latter, for they are not only hearsay,
but hearsay which is doubly suspect. If the Court is right in
believing that a jury can be counted on to ignore a wide range of
hearsay statements which it is told to ignore, it seems very odd to
me to question its ability to put aside the codefendant's hearsay
statements about what the defendant did.
It is a common experience of all men to be informed of "facts"
relevant to an issue requiring their judgment, and yet to disregard
those "facts" because of sufficient grounds for discrediting their
veracity or the reliability of their source. Responsible judgment
would be impossible but for the ability of men to focus their
attention wholly on reliable and credible evidence, and jurymen are
no less capable of exercising this capacity than other
Page 391 U. S. 143
men. Because I have no doubt that serious-minded and responsible
men are able to shut their minds to unreliable information when
exercising their judgment, I reject the assumption of the majority
that giving instructions to a jury to disregard a codefendant's
confession is an empty gesture.
The rule which the Court announces today will severely limit the
circumstances in which defendants may be tried together for a crime
which they are both charged with committing. Unquestionably, joint
trials are more economical and minimize the burden on witnesses,
prosecutors, and courts. They also avoid delays in bringing those
accused of crime to trial. This much the Court concedes. It is also
worth saying that separate trials are apt to have varying
consequences for legally indistinguishable defendants. The
unfairness of this is confirmed by the common prosecutorial
experience of seeing codefendants who are tried separately
strenuously jockeying for position with regard to who should be the
first to be tried.
In view of the practical difficulties of separate trials and
their potential unfairness, I am disappointed that the Court has
not spelled out how the federal courts might conduct their business
consistent with today's opinion. I would suppose that it will be
necessary to exclude all extrajudicial confessions unless all
portions of them which implicate defendants other than the
declarant are effectively deleted. Effective deletion will probably
require not only omission of all direct and indirect inculpations
of codefendants, but also of any statement that could be employed
against those defendants once their identity is otherwise
established. Of course, the deletion must not be such that it will
distort the statements to the substantial prejudice of either the
declarant or the Government. If deletion is not feasible, then the
Government will have to choose either not to
Page 391 U. S. 144
use the confession at all or to try the defendants separately.
To save time, money, and effort, the Government might best seek a
ruling at the earliest possible stage of the trial proceedings as
to whether the confession is admissible once offending portions are
deleted. The failure of the Government to adopt and follow proper
procedures for insuring that the inadmissible portions of
confessions are excluded will be relevant to the question of
whether it was harmless error for them to have gotten before the
jury. Oral statements, such as that involved in the present case,
will present special problems, for there is a risk that the witness
in testifying will inadvertently exceed permissible limits. Except
for recommending that caution be used with regard to such oral
statements, it is difficult to anticipate the issues which will
arise in concrete factual situations.
I would hope, but am not sure, that, by using these procedures,
the federal courts would escape reversal under today's ruling. Even
so, I persist in believing that the reversal of
Delli
Paoli unnecessarily burdens the already difficult task of
conducting criminal trials, and therefore I dissent in this
case.
MR. JUSTICE HARLAN joins this opinion without abandoning his
original disagreement with
Jackson v. Denno, 378 U.
S. 368,
378 U. S. 427,
expressed in his dissenting opinion in that case.
* As the Court observes, "[i]f . . . the jury disregarded the
reference to the codefendant, no question would arise under the
Confrontation Clause. . . ."
Ante at
391 U. S. 126.
Because, in my view, juries can reasonably be relied upon to
disregard the codefendant's references to the defendant, there is
no need to explore the special considerations involved in the
Confrontation Clause.