Respondents were convicted, after a joint trial in a Tennessee
court, of murder committed during the commission of a robbery. None
of the respondents took the witness stand, and their oral
confessions, found by the trial court to have been freely and
voluntarily given, were admitted into evidence through police
officers' testimony. Respondent Pickens' written confession was
also admitted into evidence over his objection that it had been
obtained in violation of his rights under
Miranda v.
Arizona, 384 U. S. 436. The
trial court instructed the jury that each confession could be used
only against the defendant who gave it and could not be considered
as evidence of a codefendant's guilt. Ultimately, the Tennessee
Supreme Court upheld the convictions, holding that admission of
respondents' confessions did not violate the rule of
Bruton v.
United States, 391 U. S. 123,
which held that a defendant's rights under the Confrontation Clause
of the Sixth Amendment were violated by the admission, at a joint
trial, of the confession of a codefendant who did not take the
stand. Respondents subsequently obtained writs of habeas corpus in
a Federal District Court, which held that respondents' rights under
Bruton had been violated, and that introduction of
respondent Pickens' written confession had violated his rights
under
Miranda. The Court of Appeals affirmed.
Held: The judgment is affirmed as to respondent Pickens
and reversed as to the other respondents. Pp.
442 U. S. 69-77;
442 U. S.
77-81.
575 F.2d 1178, affirmed in part and reversed in part.
MR. JUSTICE REHNQUIST delivered the opinion of the Court with
respect to Parts I and III, concluding that, since the grant of
certiorari was limited to the
Bruton issue, the Court had
no occasion to pass on the merits of the ruling that respondent
Pickens' rights under
Miranda had been violated. Pp.
442 U. S.
76-77.
MR. JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE WHITE, concluded, in Part II, that
admission of respondents' confessions with proper limiting jury
instructions did
Page 442 U. S. 63
not infringe respondents' right of confrontation secured by the
Sixth and Fourteenth Amendments. Pp.
442 U. S.
69-76.
(a) In
Bruton, introduction at a joint trial of a
nontestifying codefendant's confession had a "devastating" effect
on the nonconfessing defendant's case. Introduction of such
incriminating extrajudicial statements of a codefendant will
seldom, if ever, have the same "devastating" consequences to a
defendant who has himself confessed. The constitutional right of
cross-examination protected by
Bruton has far less
practical value to a defendant who has confessed to the crime than
to one who has consistently maintained his innocence. Pp.
442 U. S.
72-73.
(b) Nor does the natural "motivation to shift blame onto
others," recognized in
Bruton to render the incriminating
statements of codefendants "inevitably suspect," require
application of the
Bruton rule when the incriminated
defendant has corroborated his codefendant's statements by heaping
blame onto himself. P.
442 U. S.
73.
(c) The Confrontation Clause does not bar admission into
evidence of every relevant extrajudicial statement by a
nontestifying declarant simply because it in some way incriminates
the defendant. And an instruction directing the jury to consider a
codefendant's extrajudicial statement only against its source is
generally sufficient to avoid offending the implicated defendant's
confrontation right. Pp.
442 U. S.
73-74.
(d) When the defendant's own confession is properly before the
jury, as here, the possible prejudice resulting from the jury's
failure to follow the trial court's instructions is not so
"devastating" or "vital" to the confessing defendant as to require
departure from the general rule allowing admission of evidence with
limiting instructions. Pp.
442 U. S. 74-75.
MR. JUSTICE BLACKMUN would not find the rule of
Bruton
to be inapplicable simply because interlocking confessions are
involved. Rather, even where the confessions of nontestifying
codefendants overlap to some degree, he would follow the analysis
indicated by
Bruton and then determine whether the error
was harmless beyond a reasonable doubt. On the facts of this case,
he concludes that any error was clearly harmless beyond a
reasonable doubt. Pp.
442 U. S.
77-81.
REHNQUIST, J., announced the Court's judgment and delivered an
opinion of the Court with respect to Parts I and III, in which
BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined, and an
opinion with respect to Part II, in which BURGER, C.J., and STEWART
and WHITE, JJ., joined. BLACKMUN, J., filed an opinion concurring
in part and concurring in the judgment,
post, p.
442 U. S. 77.
STEVENS, J., filed a dissenting opinion,
Page 442 U. S. 64
in which BRENNAN and MARSHALL, JJ., joined,
post, p.
442 U. S. 81.
POWELL, J., took no part in the consideration or decision of the
case.
MR. JUSTICE REHNQUIST delivered the opinion of the Court (Parts
I and III) together with an opinion (Part II), in which THE CHIEF
JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE joined, and
announced the judgment of the Court.
In
Bruton v. United States, 391 U.
S. 123 (1968), this Court reversed the robbery
conviction of a defendant who had been implicated in the crime by
his codefendant's extrajudicial confession. Because the codefendant
had not taken the stand at the joint trial, and thus could not be
cross-examined, the Court held that admission of the codefendant's
confession had deprived the defendant of his rights under the
Confrontation Clause of the Sixth Amendment. The issue before us in
this case is whether
Bruton requires reversal of a
defendant's conviction when the defendant himself has confessed and
his confession "interlocks" with and supports the confession of his
codefendant. We hold that it does not.
I
Respondents were convicted of murder committed during the
commission of a robbery, and were sentenced to life imprisonment.
The cast of characters playing out the scenes that led up to the
fatal shooting could have come from the pen of Bret Harte.
[
Footnote 1] The story began in
June, 1970, when
Page 442 U. S. 65
one William Douglas, a professional gambler from Las Vegas,
Nev., arrived in Memphis, Tenn., calling himself Ray Blaylock and
carrying a gun and a deck of cards. It ended on the evening of July
6, 1970, when Douglas was shot and killed in a Memphis
apartment.
Testimony at the trial in the Tennessee state court showed that
one Woppy Gaddy, who was promised a cut of Douglas' take, arranged
a game of chance between Douglas and Robert Wood, a sometime
Memphis gambler. Unwilling to trust the outcome of the contest
entirely to luck or skill, Douglas marked the cards, and, by game's
end, Robert Wood and his money had been separated. A second
encounter between the two men yielded similar results, and Wood
grew suspicious of Douglas' good fortune. In order to determine
whether and how Douglas was cheating, Wood brought to the third
game an acquaintance named Tommy Thomas, who had a reputation of
being a "pretty good poker player." Unknown to Wood, however,
Thomas' father and Douglas had been close friends; Thomas,
predictably, threw in his lot with Douglas, purposefully lost some
$1,000, and reported to Wood that the game was clean. Wood
nonetheless left the third game convinced that he was being cheated
and intent on recouping his now considerable losses. He explained
the situation to his brother, Joe E. Wood, and the two men decided
to relieve Douglas of his ill-gotten gains by staging a robbery of
the upcoming fourth game.
At this juncture, respondents Randolph, Pickens, and Hamilton
entered the picture. To carry out the staged robbery, Joe Wood
enlisted respondent Hamilton, who was one of his employees, and the
latter, in turn, associated respondents Randolph and Pickens.
Douglas and Robert Wood sat down to the fourth and final contest on
the evening of July 6, 1970. Joe Wood and Thomas were present in
the room as spectators.
Page 442 U. S. 66
During the course of the game, Douglas armed himself with a
.38-caliber pistol and an automatic shotgun; in response to this
unexpected development Joe Wood pulled a derringer pistol on
Douglas and Thomas, gave the gun to Robert Wood, and left to tell
respondents to move in on the game. Before respondents arrived,
however, Douglas reached for his pistol and was shot and killed by
Robert Wood. Moments later, respondents and Joe Wood broke down the
apartment door, Robert Wood gathered up the cash left on the table,
and the gang of five fled into the night. Respondents were
subsequently apprehended by the police and confessed to their
involvement in the crime.
Respondents and the Wood brothers were jointly tried and
convicted of murder during the commission of a robbery. Tenn.Code
Ann. § 39-2402 (1975). [
Footnote
2] Each defendant was sentenced to life imprisonment. Robert
Wood took the stand at trial, admitting that he had killed Douglas,
but claiming that the shooting was in self-defense. Thomas
described Douglas' method of cheating at cards and admitted his
complicity in the fraud on Robert Wood. He also testified in
substance that he was present in the room when Joe Wood produced
the derringer and when Robert Wood shot and killed Douglas.
None of the respondents took the stand. Thomas could not
positively identify any of them, and although Robert Wood named
Hamilton as one of the three men involved in the staged robbery, he
did not clearly identify Randolph and Pickens as the other two. The
State's case against respondents thus rested primarily on their
oral confessions, found by
Page 442 U. S. 67
the trial court to have been freely and voluntarily given, which
were admitted into evidence through the testimony of several
officers of the Memphis Police Department. [
Footnote 3] A written confession signed by Pickens was
also admitted into evidence over his objection that it had been
obtained in violation of his rights under
Miranda v.
Arizona, 384 U. S. 436
(1966). The trial court instructed the jury that each confession
could be used only against the defendant who gave it, and could not
be considered as evidence of a codefendant's guilt.
The Tennessee Court of Criminal Appeals reversed respondents'
convictions, holding that they could not be guilty of felony
murder, since Douglas had been shot before they arrived on the
scene, and, alternatively, that admission of their confessions at
the joint trial violated this Court's decision in
Bruton.
The Tennessee Supreme Court, in turn, reversed the Court of
Criminal Appeals and reinstated the convictions. Because "each and
every defendant either through words or actions demonstrated his
knowledge that
killing may be necessary,'" App. 237, the court
held that respondents' agreement to participate in the robbery
rendered them liable under the Tennessee felony murder statute for
Douglas' death. The Tennessee Supreme Court also disagreed with the
Court of Criminal Appeals that Bruton had been violated,
emphasizing that the confession at issue in Bruton had
inculpated a nonconfessing defendant in a joint trial at which
neither defendant took the stand. Here, in contrast, the
"interlocking inculpatory confessions" of respondents Randolph,
Pickens, and Hamilton,
"clearly demonstrated the involvement of each, as to crucial
facts such as time, location, felonious activity, and
Page 442 U. S. 68
awareness of the overall plan or scheme."
App. 245. Accordingly, the Tennessee Supreme Court
concluded:
"The fact that jointly tried codefendants have confessed
precludes a violation of the
Bruton rule where the
confessions are similar in material aspects."
Ibid., quoting
State v.
Elliott, 524
S.W.2d 473, 477-478 (Tenn.1975).
The United States District Court for the Western District of
Tennessee thereafter granted respondents' applications for writs of
habeas corpus, ruling that their rights under
Bruton had
been violated and that introduction of respondent Pickens'
uncounseled written confession had violated his rights under
Miranda v. Arizona, supra. The Court of Appeals for the
Sixth Circuit affirmed, holding that admission of the confessions
violated the rule announced in
Bruton and that the error
was not harmless, since the evidence against each respondent, even
considering his confession, was "not so overwhelming as to compel
the jury verdict of guilty. . . ." 575 F.2d 1178, 1182 (1978). The
Court of Appeals frankly acknowledged that its decision conflicts
with decisions of the Court of Appeals for the Second Circuit
holding the
Bruton rule inapplicable "[w]here the jury has
heard not only a codefendant's confession but the defendant's own
[interlocking] confession. . . ."
United States ex rel.
Catanzaro v. Mancusi, 404 F.2d 296, 300 (1968),
cert.
denied, 397 U.S. 942 (1970).
Accord, United States ex rel.
Stanbridge v. Zelker, 514 F.2d 45, 48-50,
cert.
denied, 423 U.S. 872 (1975);
United States ex rel. Duff v.
Zelker, 452 F.2d 1009, 1010 (1971),
cert. denied, 406
U.S. 932 (1972). We granted certiorari in this case to resolve that
conflict. [
Footnote 4] 439 U.S.
978 (1978).
Page 442 U. S. 69
II
In
Delli Paoli v. United States, 352 U.
S. 232 (1957), a nontestifying codefendant's confession,
which incriminated a defendant who had not confessed, was admitted
at a joint trial over defendant's hearsay objection. Concluding
that "it was reasonably possible for the jury to follow" the trial
court's instruction to consider the confession only against the
declarant, this Court held that admission of the confession did not
constitute reversible error. Little more than a decade later,
however,
Dell Paoli was expressly overruled in
Bruton
v. United States. In that case, defendants Bruton and Evans
were convicted of armed postal robbery after a joint trial.
Although Evans did not take the stand, a postal inspector was
allowed to testify that Evans had orally confessed to having
committed the robbery with Bruton. The trial judge instructed the
jury that Evans' confession was competent evidence against Evans,
but was inadmissible hearsay against
Page 442 U. S. 70
Bruton and therefore could not be considered in determining
Bruton's guilt.
This Court reversed Bruton's conviction, noting that, despite
the trial court's admittedly clear limiting instruction, "the
introduction of Evans' confession added substantial, perhaps even
critical, weight to the Government's case in a form not subject to
cross-examination." 391 U.S. at
391 U. S.
127-128. Bruton was therefore held to have been denied
his Sixth Amendment right of confrontation. The
Bruton
court reasoned that, although in many cases the jury can and will
follow the trial judge's instruction to disregard inadmissible
evidence,
"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. Such a context is presented here, where the powerfully
incriminating extrajudicial statements of a codefendant, 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. 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."
Id. at
391 U. S.
135-136 (citations and footnotes omitted). One year
after
Bruton was decided, this Court rejected the notion
that erroneous admission at a joint trial of evidence such as that
introduced in
Bruton automatically requires reversal of an
otherwise valid conviction.
See Harrington v. California,
395 U. S. 250
(1969). In some cases, the properly
Page 442 U. S. 71
admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the codefendant's admission so insignificant
by comparison, that it is clear beyond a reasonable doubt that
introduction of the admission at trial was harmless error.
[
Footnote 5]
Page 442 U. S. 72
Petitioner urges us to follow the reasoning of the Court of
Appeals for the Second Circuit and to hold that the
Bruton
rule does not apply in the context of interlocking confessions.
Alternatively, he contends that, if introduction of interlocking
confessions at a joint trial does violate
Bruton, the
error is all but automatically to be deemed harmless beyond a
reasonable doubt. We agree with petitioner that admission at the
joint trial of respondents' interlocking confessions did not
infringe respondents' right of confrontation secured by the Sixth
and Fourteenth Amendments to the United States Constitution, but
prefer to cast the issue in a slightly broader form than that posed
by petitioner.
Bruton recognized that admission at a joint trial of
the incriminating extrajudicial statements of a nontestifying
codefendant can have "devastating" consequences to a nonconfessing
defendant, adding "substantial, perhaps even critical, weight to
the Government's case." 391 U.S. at
391 U. S. 128.
Such statements go to the jury untested by cross-examination and,
indeed, perhaps unanswered altogether unless the defendant waives
his Fifth Amendment privilege and takes the stand. The prejudicial
impact of a codefendant's confession upon an incriminated defendant
who has, insofar as the jury is concerned, maintained his innocence
from the beginning is simply too great in such cases to be cured by
a limiting instruction. The same cannot be said, however, when the
defendant's own confession -- "probably the most probative and
damaging evidence that can be admitted against him,"
id.
at
391 U. S. 139
(WHITE, J., dissenting) -- is properly introduced at trial. The
defendant is "the most knowledgeable and unimpeachable source of
information about his past conduct,"
id. at
391 U. S.
140
Page 442 U. S. 73
(WHITE, J., dissenting), and one can scarcely imagine evidence
more damaging to his defense than his own admission of guilt. Thus,
the incriminating statements of a codefendant will seldom, if ever,
be of the "devastating" character referred to in
Bruton
when the incriminated defendant has admitted his own guilt. The
right protected by
Bruton -- the "constitutional right of
cross-examination,"
id. at
391 U. S. 137
-- has far less practical value to a defendant who has confessed to
the crime than to one who has consistently maintained his
innocence. Successfully impeaching a codefendant's confession on
cross-examination would likely yield small advantage to the
defendant whose own admission of guilt stands before the jury
unchallenged. Nor does the natural "motivation to shift blame onto
others," recognized by the
Bruton Court to render the
incriminating statements of codefendants "inevitably suspect,"
id. at
391 U. S. 136,
require application of the
Bruton rule when the
incriminated defendant has corroborated his codefendant's
statements by heaping blame onto himself.
The right of confrontation conferred by the Sixth Amendment is a
safeguard to ensure the fairness and accuracy of criminal trials,
see Dutton v. Evans, 400 U. S. 74,
400 U. S. 89
(1970), and its reach cannot be divorced from the system of trial
by jury contemplated by the Constitution. A crucial assumption
underlying that system is that juries will follow the instructions
given them by the trial judge. Were this not so, it would be
pointless for a trial court to instruct a jury, and even more
pointless for an appellate court to reverse a criminal conviction
because the jury was improperly instructed. The Confrontation
Clause has never been held to bar the admission into evidence of
every relevant extrajudicial statement made by a nontestifying
declarant simply because it in some way incriminates the defendant.
See, e.g., id. at
400 U. S. 80;
Mattox v. United States,
156 U. S. 237,
156 U. S.
240-244 (1895). And an instruction directing the jury to
consider a codefendant's extrajudicial statement only against its
source has been found sufficient to
Page 442 U. S. 74
avoid offending the confrontation right of the implicated
defendant in numerous decisions of this Court. [
Footnote 6]
When, as in
Bruton, the confessing codefendant has
chosen not to take the stand and the implicated defendant has made
no extrajudicial admission of guilt, limiting instructions cannot
be accepted as adequate to safeguard the defendant's rights under
the Confrontation Clause. Under such circumstances, the "practical
and human limitations of the jury system,"
Bruton v. United
States, supra at
391 U. S. 135,
override the theoretically sound premise that a jury will follow
the trial court's instructions. But when the defendant's own
confession is properly before the jury, we believe that the
constitutional scales tip the other way. The possible prejudice
resulting from the failure of the jury to follow the trial court's
instructions is not so "devastating" or "vital" to the confessing
defendant to require departure from the general rule allowing
admission of evidence with limiting
Page 442 U. S. 75
instructions. [
Footnote 7]
We therefore hold that admission of interlocking confessions with
proper limiting instructions conforms to the requirements of the
Sixth and Fourteenth Amendments to the United States Constitution.
[
Footnote 8] Accordingly, the
judgment
Page 442 U. S. 76
of the Court of Appeals as to respondents Hamilton and Randolph
is reversed.
III
The Court of Appeals affirmed the District Court's granting of
habeas corpus relief to respondent Pickens on the additional
Page 442 U. S. 77
ground that his rights under
Miranda v. Arizona,
384 U. S. 436
(1966), had been violated. Although petitioner sought review of
this ruling, our grant of certiorari was limited to the
Bruton issue. We thus have no occasion to pass on the
merits of the Court of Appeals'
Miranda ruling.
Accordingly, the judgment of the Court of Appeals as to respondent
Pickens is affirmed.
Affirmed in part and reversed in part.
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
[
Footnote 1]
As the Court of Appeals aptly commented:
"This appeal involves a sequence of events which have the flavor
of the old West before the law ever crossed the Pecos. The
difference is that here there are no heroes, and here there was a
trial."
575 F.2d 1178, 1179 (CA6 1978).
[
Footnote 2]
Tennessee Code Ann. § 39-2402 (1975) provides in pertinent part
as follows:
"n individual commits murder in the first degree if . . ."
"(4) he commits a willful, deliberate and malicious killing or
murder during the perpetration of any arson, rape, robbery,
burglary, larceny, kidnapping, aircraft piracy, or unlawful
throwing, placing, or discharging of a destructive device or
bomb."
[
Footnote 3]
Each of the confessions was subjected to a process of redaction
in which references by the confessing defendant to other defendants
were replaced with the words "blank" or "another person." As the
Court of Appeals for the Sixth Circuit observed below, the
confessions were nevertheless "such as to leave no possible doubt
in the jurors' minds concerning the
person[s]' referred to."
575 F.2d at 1180.
[
Footnote 4]
The conflict extends throughout the Courts of Appeals. The
Courts of Appeals for the Third and Sixth Circuits have expressly
ruled that the
Bruton rule applies in the context of
interlocking confessions,
see Hodges v. Rose, 570 F.2d 643
(CA6 1978);
United States v. DiGilio, 538 F.2d 972 981-983
(CA3 1976),
cert. denied sub nom. Lupo v. United States,
429 U.S. 1038 (1977), and the Court of Appeals for the Ninth
Circuit has done so impliedly,
see Ignacio v. Guam, 413
F.2d 513, 515-516 (1969),
cert. denied, 397 U.S. 943
(1970). In addition to the Court of Appeals for the Second Circuit,
at least four other Courts of Appeals have rejected the
Bruton claims of confessing defendants. Cases from the
Fifth and Seventh Circuits have reasoned that the
Bruton
rule does not apply in the context of interlocking confessions and
that, even if it does, the error was harmless beyond a reasonable
doubt.
See Mack v. Maggio, 538 F.2d 1129, 1130 (CA5 1976);
United States v. Spinks, 470 F.2d 64, 65-66 (CA7),
cert. denied, 409 U.S. 1011 (1972). Two other Courts of
Appeals have rejected the
Bruton claims of confessing
defendants, refusing to concern themselves
"with the legal nicety as to whether the . . . case is 'without'
the
Bruton rule, or is 'within'
Bruton [and] the
violation thereof constitut[es] only harmless error."
Metropolis v. Turner, 437 F.2d 207, 208-209 (CA10
1971);
accord, United States v. Walton, 538 F.2d 1348,
1353-1354 (CA8),
cert. denied, 429 U.S. 1025 (1976). State
court decisions in this area are in similar disarray.
Compare,
e.g., Stewart v. State, 257 Ark. 753,
519
S.W.2d 733 (1975),
and People v. Moll, 26 N.Y.2d 1,
256 N.E.2d 185,
cert. denied sub nom. Stanbridge v. New
York, 398 U.S. 911 (1970),
with People v
Rosochacki, 41 Ill. 2d
483,
244 N.E.2d
136 (1969),
and State v. Oliver, 160 Conn. 85, 273
A.2d 867 (1970).
[
Footnote 5]
In
Harrington v. California, 395 U.
S. 250 (1969), four defendants were found guilty of
murder after a joint trial. Defendant Harrington's extrajudicial
statements placed him at the scene of the crime, but "fell short of
a confession."
Id. at
395 U. S. 252.
His three codefendants, however, confessed, and their confessions
were introduced at trial with the instruction that the jury was to
consider each confession only against its source. One of
Harrington's codefendants, whose confession implicated Harrington,
took the stand and was subject to cross-examination. The other two
codefendants, whose statements corroborated Harrington's admitted
presence at the scene of the crime, did not take the stand. Noting
the overwhelming evidence of Harrington's guilt, and the relatively
insignificant prejudicial impact of his codefendants' statements,
the Court held that
"the lack of opportunity to cross-examine [the non-testifying
codefendants] constituted harmless error under the rule of
Chapman [v. California, 386 U. S. 18 (1967)]."
Id. at
395 U. S.
253.
On two subsequent occasions, this Court has applied the harmless
error doctrine to claimed violations of
Bruton. In
Schneble v. Florida, 405 U. S. 427
(1972), Schneble and a codefendant were found guilty of murder
following a joint trial. Although neither defendant took the stand,
police officers were allowed to testify as to a detailed confession
given by Schneble and a statement given by his codefendant which
tended to corroborate certain portions of Schneble's confession. We
assumed, without deciding, that admission of the codefendant's
statement had violated
Bruton, but held that, in view of
the overwhelming evidence of Schneble's guilt and the comparatively
insignificant impact of the codefendant's statement, "any violation
of
Bruton that
may have occurred at petitioner's
trial was harmless [error] beyond a reasonable doubt." 405 U.S. at
405 U. S. 428
(emphasis added) .
In
Brown v. United States, 411 U.
S. 223 (1973), the prosecution introduced police
testimony regarding extrajudicial statements made by two
nontestifying codefendants. Each statement implicated both of the
codefendants in the crimes charged. Neither codefendant took the
stand, and the police testimony was admitted into evidence at their
joint trial. Because the Solicitor General conceded that the
statements were admitted into evidence in violation of
Bruton, we had no occasion to consider the question
whether introduction of the interlocking confessions violated
Bruton. Proceeding from the Solicitor General's
concession, we held that the police testimony "was merely
cumulative of other overwhelming and largely uncontroverted
evidence properly before the jury." 411 U.S. at
411 U. S. 231.
Thus, any
Bruton error was harmless beyond a reasonable
doubt.
[
Footnote 6]
In
Opper v. United States, 348 U. S.
84 (1954), petitioner contended that the trial court had
erred in overruling his motion for severance, arguing that the jury
may have improperly considered statements of his codefendant, which
were inadmissible as to petitioner, in finding petitioner guilty.
This Court rejected the contention:
"It was within the sound discretion of the trial judge as to
whether the defendants should be tried together or severally, and
there is nothing in the record to indicate an abuse of such
discretion when petitioner's motion for severance was overruled.
The trial judge here made clear and repeated admonitions to the
jury at appropriate times that Hollifield's incriminatory
statements were not to be considered in establishing the guilt of
the petitioner. To say that the jury might have been confused
amounts to nothing more than an unfounded speculation that the
jurors disregarded clear instructions of the court in arriving at
their verdict. Our theory of trial relies upon the ability of a
jury to follow instructions. There is nothing in this record to
call for reversal because of any confusion or injustice arising
from the joint trial. The record contains substantial competent
evidence upon which the jury could find petitioner guilty."
Id. at
348 U. S. 95
(footnote omitted)
See, e.g., Blumenthal v. United States,
332 U. S. 539,
332 U. S.
552-553 (1947).
[
Footnote 7]
MR. JUSTICE STEVENS characterizes our decision as an attempt "to
create a vaguely defined exception" to the
Bruton rule for
cases involving interlocking confessions,
post at
442 U. S. 82,
and suggests that the "proposed exception" is designed "to limit
the effect of [the
Bruton] rule to the largely irrelevant
set of facts in the case that announced it."
Post at
442 U. S. 87.
First, the dissent describes what we believe to be the "rule" as
the "exception." The "rule" -- indeed, the premise upon which the
system of jury trials functions under the American judicial system
-- is that juries can be trusted to follow the trial court's
instructions.
Bruton was an exception to this rule,
created because of the "devastating" consequences that failure of
the jury to disregard a codefendant's inculpatory confession could
have to a nonconfessing defendant's case. We think it entirely
reasonable to apply the general rule, and not the
Bruton
exception, when the defendant's case has already been devastated by
his own extrajudicial confession of guilt.
Second, under the reasoning of
Bruton, its facts were
anything but "irrelevant" to its holding. The
Bruton Court
recognized:
"[T]here 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. . . . Such a context is presented here. . . ."
391 U.S. at
391 U. S. 135.
Clearly,
Bruton was tied to the situation in which it
arose:
"where the powerfully incriminating extrajudicial statements of
a codefendant, who stands accused side-by-side with the defendant,
are deliberately spread before the jury in a joint trial."
Id. at
391 U. S.
135-136.
[
Footnote 8]
MR JUSTICE STEVENS, in dissent, states that our holding
"squarely overrule[s]" this Court's decisions in
Roberts v.
Russell, 392 U. S. 293
(1968);
Hopper v. Louisiana, 392 U.
S. 658 (1968);
Brown v. United States,
411 U. S. 223
(1973); and
Harrington v. California, 395 U.
S. 250 (1969). "In all four of these cases," according
to the dissent, "the Court found a
Bruton error even
though the defendants' confessions interlocked."
Post at
442 U. S. 83 n.
3. We disagree.
We think that the dissent fails both to note significant factual
distinctions between the present case and
Roberts v. Russell,
supra, and to recognize the difference in precedential value
between decisions of this Court which have been fully argued and
disposed of on their merits and unargued summary dispositions, a
difference which we noted in
Edelman v. Jordan,
415 U. S. 651,
415 U. S.
670-671 (1974). In
Roberts, "[t]he facts
parallel[ed] the facts in
Bruton." 392 U.S. at
392 U. S. 293.
Petitioner was convicted of armed robbery after a joint trial in
which a codefendant's confession inculpating petitioner was
introduced through the testimony of a police officer. Petitioner's
cousin testified at trial that petitioner had "indicated that he
thought . . . Tennessee was an easy place to commit a robbery."
App. to Brief in Opposition, O.T. 1967, No 920, Misc., p. 4. This
extrajudicial statement, while inculpatory, was by no stretch of
the imagination a "confession." The District Court denied
petitioner's application for a writ of habeas corpus, expressly
relying on the authority of
Delli Paoli v. United States,
352 U. S. 232
(1957), and the Court of Appeals affirmed. This Court subsequently
overruled
Delli Paoli in
Bruton, and granted the
petition for certiorari in
Roberts to consider "the
question whether
Bruton [was] to be applied
retroactively."
Roberts v. Russell, supra at
392 U. S. 293. The
Court decided the question affirmatively, vacated the judgment of
the Court of Appeals, and remanded the case to the District Court
for further consideration in light of
Bruton, in no way
passing on the merits of petitioner's
Bruton claim. Thus,
Roberts, contrary to the dissent's reading, neither
involved interlocking confessions nor "found a
Bruton
error."
Hopper v. Louisiana, supra, came to this Court in much
the posture as
Roberts. Petitioners' manslaughter
convictions were affirmed by the Louisiana Supreme Court when
Delli Paoli was still good law, but, while their petition
for certiorari was pending before this Court,
Bruton was
decided. In a two-sentence summary disposition, this Court granted
petitioners' petition for certiorari, vacated the judgment of the
Louisiana Supreme Court, and remanded the case "for further
consideration in light of
Bruton v. United States,
391 U. S. 123, and
Roberts v.
Russell, [392 U.S.] 293."
392
U.S. at 658. Not having passed on the merits of petitioners'
Bruton claim, this Court can hardly be said to have "found
a
Bruton error" in
Hopper.
The dissent, we believe, likewise misreads
Harrington v.
California, supra, and
Brown v. United States, supra,
as our discussion of those cases in
n 5,
supra, reveals.
MR. JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I join Parts I and III of the principal opinion and concur in
the Court's judgment affirming in part and reversing in part the
judgment of the Court of Appeals.
For me, any error that existed in the admission of the
confessions of the codefendants, in violation of
Bruton v.
United States, 391 U. S. 123
(1968), was, on the facts of this case, clearly harmless beyond a
reasonable doubt. I refrain from joining
442 U.
S. as I read it, it abandons the harmless error analysis
the Court previously has applied in similar circumstances and now
adopts a
per se rule to the effect that
Bruton is
inapplicable in an interlocking confession situation.
In
Bruton, of course, the Court held that the admission
in a joint trial of the confession of a codefendant who did not
take the stand violated the Sixth Amendment confrontation right of
the other defendant. Because in most cases the impact of admitting
a codefendant's confession is severe, and because the credibility
of any such confession "is inevitably suspect,"
id. at
391 U. S. 136,
the Court went on to hold that a limiting jury instruction could
not alleviate the resultant substantial threat to a fair trial the
Confrontation Clause was designed to protect.
Id. at
391 U. S.
136-137.
Page 442 U. S. 78
In
Harrington v. California, 395 U.
S. 250 (1969), however, the Court recognized that
evidence of guilt could be sufficiently overwhelming so as to
render any
Bruton error "harmless beyond a reasonable
doubt," under
Chapman v. California, 386 U. S.
18 (1967). Reversal of a conviction, then, was not
required merely because of the existence of a
Bruton
error. The Court applied a similar harmless error analysis in
Schneble v. Florida, 405 U. S. 427
(1972), a case concerning the defendant's own confession and a
partially corroborating statement given by a nontestifying
codefendant.
In the present case, the principal opinion appears to me to
depart from this harmless error approach and analysis to hold that
Bruton simply does not apply in a case involving
interlocking confessions. It concludes that, in circumstances where
one defendant has confessed, the interlocking confession of a
codefendant "will seldom, if ever, be of the
devastating'
character referred to in Bruton." Ante at
442 U. S. 73.
Similarly, it finds that the fact that the confession of a
codefendant is "inevitably suspect" is of little weight where
interlocking confessions are in evidence. Ibid. Thus, it
holds that the right protected by Bruton, i.e., the
Confrontation Clause right of cross-examination, "has far less
practical value to a defendant who has confessed to the crime than
to one who has consistently maintained his innocence."
Ibid. Accordingly, it concludes "that admission of
interlocking confessions with proper limiting instructions conforms
to the requirements" of the Constitution. Ante at
442 U. S.
75.
The Court has not departed heretofore from a harmless error
approach in
Bruton cases. It is unclear where the present
analysis will lead in cases where interlocking confessions are not
in issue, but where any
Bruton error appears harmless
under
Chapman; for where the
Bruton error is
harmless, the error in admitting the nontestifying codefendant's
confession will be far from devastating. I would be unwilling to
depart from the traditional harmless error analysis
Page 442 U. S. 79
in the straightforward
Bruton error situation. Neither
would I depart from the harmless error approach in interlocking
confession cases. The fact that confessions may interlock to some
degree does not ensure, as a
per se matter, that their
admission will not prejudice a defendant so substantially that a
limiting instruction will not be curative. The two confessions may
interlock in part only. Or they may cover only a portion of the
events in issue at the trial. Although two interlocking confessions
may not be internally inconsistent, one may go far beyond the other
in implicating the confessor's codefendant. In such circumstances,
the admission of the confession of the codefendant who does not
take the stand could very well serve to prejudice the defendant who
is incriminated by the confession, notwithstanding that the
defendant's own confession is, to an extent, interlocking. I fully
recognize that in most interlocking confession cases, any error in
admitting the confession of a nontestifying codefendant will be
harmless beyond a reasonable doubt. Even so, I would not adopt a
rigid
per se rule that forecloses a court from weighing
all the circumstances in order to determine whether the defendant,
in fact, was unfairly prejudiced by the admission of even an
interlocking confession. Where he was unfairly prejudiced, the mere
fact that prejudice was caused by an interlocking confession ought
not to override the important interests that the Confrontation
Clause protects.
It is possible, of course, that the new approach will result in
no more than a shift in analysis. Instead of focusing on whether
the error was harmless, defendants and courts will be forced,
instead, to inquire whether the confessions were sufficiently
interlocking so as to permit a conclusion that
Bruton does
not apply. And I suppose that, after making a determination that
the confessions did not interlock to a sufficient degree, the court
then would have to make a harmless
Page 442 U. S. 80
error determination anyway, thus adding another step to the
process.
Unfortunately, it is not clear that the new approach mandates
even an inquiry whether the confessions interlock. Respondents have
argued that the confessions in this case, in fact, did not
interlock. Brief for Respondents 338. The principal opinion,
however, simply assumes the interlock. It thus comes close to
saying that, so long as all the defendants have made some type of
confession which is placed in evidence,
Bruton is
inapplicable without inquiry into whether the confessions actually
interlock, and the extent thereof. If it is willing to abandon the
factual inquiry that accompanies a harmless error determination, it
should be ready, at least, to substitute an inquiry into whether
there is genuine interlocking before it casts the application of
Bruton, and the underlying Confrontation Clause right,
completely aside.
I merely add that, in this case, any
Bruton error, in
my view, clearly was harmless. The principal issue concerning
respondents at trial was whether three Negro males identified by a
number of witnesses as having been at the murder scene were indeed
the respondents. Each confession placed the confessing respondent
at the scene of the killing. Each confession implicated the
confessor in the Woods' plan to rob the poker game. Each confession
largely overlapped with, and was cumulative to, the others.
Corroborative testimony from witnesses who were in the apartment
placed respondent Hamilton at the scene of the murder, and
tentatively identified respondent Randolph as one of the Negroes
who received a share of the proceeds in Hamilton's apartment
immediately after the killing. The testimony of five witnesses to
the events outside the apartment strongly corroborated the
confessions. In these circumstances, considering the confession of
each respondent against him, I cannot believe that "there is a
reasonable possibility that the improperly admitted evidence
contributed to the conviction."
Page 442 U. S. 81
Schneble v. Florida, 405 U.S. at
405 U. S. 432.
Reversal on the
Bruton issue, therefore, is required.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
As MR. JUSTICE BLACKMUN makes clear,
ante at
442 U. S. 77-78,
proper analysis of this case requires that we differentiate between
(1) a conclusion that there was no error under the rule of
Bruton v. United States, 391 U. S. 123, and
(2) a conclusion that, even if constitutional error was committed,
the possibility that inadmissible evidence contributed to the
conviction is so remote that we may characterize the error as
harmless. Because MR. JUSTICE BLACKMUN properly rejects the first
conclusion, my area of disagreement with him is narrow. In my view,
but not in his, the concurrent findings of the District Court and
the Court of Appeals that the error here was not harmless [
Footnote 2/1] preclude this Court from
reaching a
Page 442 U. S. 82
different result on this kind of issue.
E.g., Berenyi v.
Immigration Director, 385 U. S. 630,
385 U. S. 635;
Graver Tank & Mfg. Co. v. Linde Air Products Co.,
336 U. S. 271,
336 U. S. 275.
But see opinion of MR. JUSTICE BLACKMUN,
ante at
442 U. S.
80-81.
My area of disagreement with the plurality opinion is far wider,
and prompts more extended remarks. The plurality adopts the first
conclusion above -- that no constitutional error was committed when
the confessions of all three respondents were admitted into
evidence at their joint trial. Without purporting to modify the
Bruton rule precluding the use of a nontestifying
codefendant's extrajudicial admissions against a defendant in a
joint trial, the plurality reaches this conclusion by attempting to
create a vaguely defined exception for cases in which there is
evidence that the defendant has also made inculpatory statements
which he does not repudiate at trial. [
Footnote 2/2]
If ever adopted by the Court, such an exception would
Page 442 U. S. 83
seriously undercut the Court's decision in
Bruton by
limiting its effect to a small and arbitrarily selected class of
cases. Indeed, its adoption would squarely overrule holdings in
four decisions of this Court that applied the rule of
Bruton. [
Footnote 2/3]
Page 442 U. S. 84
Evidence that a defendant has made an "extrajudicial admission
of guilt" which "stands before the jury unchallenged,"
ante at
442 U. S. 74,
442 U. S. 73, is
not an acceptable reason for depriving him of his constitutional
right to confront the witnesses against him. [
Footnote 2/4] In arguing to the contrary, and in
striving "to cast the issue" presented "in a . . . broader form"
than any of the parties felt necessary to dispose of the case,
ante at
442 U. S. 72,
the plurality necessarily relies on two assumptions. Both are
erroneous. First, it assumes that the jury's ability to disregard a
codefendant's inadmissible and highly prejudicial confession is
invariably increased by the existence of a corroborating statement
by the defendant. Second, it assumes that all unchallenged
confessions by a defendant are equally reliable. Aside from two
quotations from the dissent in
Bruton, however, the
plurality supports these assumptions with nothing more than the
force of its own assertions. But the infinite variability of
inculpatory statements (whether made by defendants or
codefendants), and of their likely effect on juries, makes those
assertions untenable. A hypothetical example is instructive.
Suppose a prosecutor has 10 items of evidence tending to prove that
defendant X and codefendant Y are guilty of assassinating a public
figure. The first is the tape of a televised interview with Y
describing in detail how he and X planned and executed the crime.
Items 2 through 9 involve circumstantial evidence of a past
association between X and Y, a shared hostility for the victim, and
an expressed wish for his early demise -- evidence that, in itself,
might very well be insufficient to convict X. Item 10 is the
testimony of drinking partner, a former cellmate, or a divorced
spouse of X who vaguely recalls X saying that he had been with
Y
Page 442 U. S. 85
at the approximate time of the killing. Neither X nor Y takes
the stand.
If Y's televised confession were placed before the jury while Y
was immunized from cross-examination, it would undoubtedly have the
"devastating" effect on X that the
Bruton rule was
designed to avoid. 391 U.S. at
391 U. S. 128.
As MR. JUSTICE STEWART's characteristically concise explanation of
the underlying rationale in that case demonstrates, it would also
plaintly violate X's Sixth Amendment right to confront his accuser.
[
Footnote 2/5] Nevertheless, under
the plurality's first remarkable assumption, the prejudice to X --
and the violation of his constitutional right -- would be entirely
cured by the subsequent use of evidence of his own ambiguous
statement. In my judgment, such dubious corroboration would
enhance, rather than reduce, the danger that the jury would rely on
Y's televised confession when evaluating X's guilt.
See United
States v. Bozza, 365 F.2d 206, 215 (CA2 1966) (Friendly, J.),
quoted in
442 U.S.
62fn2/13|>n. 13,
infra. Even if I am wrong,
however, there is no reason to conclude that the prosecutor's
reliance on item 10 would obviate the harm flowing from the use of
item 1.
The dubiousness of X's confession in this example -- as in any
case in which the defendant's inculpatory statement is
Page 442 U. S. 86
ambiguous, incomplete, the result of coercive influences, or
simply the product of the well recognized and often untrustworthy
"urge to confess" [
Footnote 2/6] --
illustrates the inaccuracy of the plurality's second crucial
assumption. It is no doubt true that, in some cases, a defendant's
confession will constitute such convincing evidence of his guilt
that the violation of his constitutional rights is harmless beyond
a reasonable doubt.
E.g., Brown v. United States,
411 U. S. 223;
Schneble v. Florida, 405 U. S. 427. But
in many cases, it is not so convincing. Moreover, such evidence is
not inherently more incriminating or more reliable than other kinds
of evidence such as fingerprints, photographs, or eyewitness
testimony. Yet, if these types of corroboration are given the same
absolute effect that the plurality would accord confessions, the
Bruton rule would almost never apply. [
Footnote 2/7]
I am also at a loss to understand the relevance of X's failure
to "challenge" his confession at trial.
Ante at
442 U. S. 73.
For there is nothing he could say or not say about his own alleged
confession that would dispel the dramatically damning effect of
Y's. Furthermore, even apart from the general rule that a defendant
should not be penalized for exercising one right (in this case, the
right not to take the stand or to introduce other evidence) by
having another taken away (in this case the right to confront one's
accuser),
e.g., United States v. Jackson, 390 U.
S. 570, it is unclear why X's failure to repudiate it
necessarily enhances the reliability of a self-impeaching
"confession" such as the one hypothesized above.
Cf. Lakeside
v. Oregon, 435 U. S. 333,
435 U. S.
343-344 (STEVENS, J., dissenting).
Page 442 U. S. 87
In short, I see no logic to commend the proposed exception to
the rule of
Bruton save, perhaps, a purpose to limit the
effect of that rule to the largely irrelevant set of facts in the
case that announced it. If relevant at all in the present context,
the factors relied on by the plurality support a proposition no one
has even remotely advocated in this case -- that the corroborated
evidence used in this case was so trustworthy that it should have
been fully admissible against all of the defendants, and the jury
instructed as much. Conceivably, corroborating or other
circumstances surrounding otherwise inadmissible hearsay may so
enhance its reliability that its admission in evidence is justified
in some situations. [
Footnote 2/8]
But before allowing such a rule to defeat a defendant's fundamental
right to confront his accusers, this Court surely should insist
upon a strong showing not only of the reliability of the hearsay in
the particular case, but also of the impossibility, or at least
difficulty, of making the accusers available for cross-examination.
[
Footnote 2/9] And, in most cases,
the prosecution will be hard pressed to make the latter showing in
light of its ability to try the defendant and codefendant
separately, and to afford each immunity from the use against him of
his testimony at the other's trial.
See Kastigar v. United
States, 406 U. S. 441.
Absent admissibility of the codefendants' confessions against
respondents, therefore, the controlling question must be whether it
is realistic to assume that the jury followed the judge's
instructions to disregard those confessions when it was
Page 442 U. S. 88
evaluating respondents' guilt. The plurality would answer this
question affirmatively. But in so doing, it would repudiate much
that has been said by the Court and by an impressive array of
judicial and scholarly authorities who have addressed the
issue.
As the plurality sees it, the answer to this question is
supplied by the "crucial assumption underlying [the jury] system .
. . that juries will follow the instructions given them by the
trial judge."
Ante at
442 U. S. 73.
This assumption, it is argued, has been applied in "numerous
decisions of this Court" regarding codefendants' confessions.
Ante at
442 U. S. 74,
and n. 6, citing
Opper v. United States, 348 U. S.
84, and
Blumenthal v. United States,
332 U. S. 539. But
this reasoning was advanced just as forcefully in the case that
Bruton overruled -- a case, incidentally, that relied on
the same "numerous" decisions that the plurality resurrects in
favor of its analysis.
See Delli Paoli v. United States,
352 U. S. 232,
352 U. S. 242.
What
Bruton said in response to this reasoning -- despite
the plurality's contrary assertions,
see ante at
442 U. S. 773 --
is no less applicable in the present context:
"[T]here 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. . . . Such a context is presented here, where the
powerfully incriminating extrajudicial statements of a codefendant
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. The unreliability of such evidence is
intolerably compounded when the alleged accomplice,
Page 442 U. S. 89
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."
391 U.S. at
391 U. S.
135-136 (citations and footnotes omitted).
Rather than falling back on once numerous but now discredited
decisions, I prefer to stand by the observations about this sort of
question by jurists like Felix Frankfurter, Learned Hand, [
Footnote 2/10] Wiley Rutledge, [
Footnote 2/11] Robert Jackson, [
Footnote 2/12] and Henry
Page 442 U. S. 90
Friendly, [
Footnote 2/13] and
by scholars like Wigmore and Morgan. [
Footnote 2/14] In my judgment, as I think in theirs,
the odds that a jury will obey a command to ignore a codefendant's
confession [
Footnote 2/15] --
Page 442 U. S. 91
whether or not the defendant has himself confessed -- are no
less stacked against the defendant than was the deck of cards that
William Douglas used to Robert Wood's, and ultimately to his own,
downfall in the game of chance arranged by Woppy Gaddy. In contests
like this, the risk that one player may be confused with another is
not insubstantial. I respectfully dissent.
[
Footnote 2/1]
As Judge Edwards noted, writing for the Court of Appeals:
"In evaluating the question of harmless error in this case, it
is important to point out the factors which might affect a jury's
verdict in relation to these three defendants in separate trials
where the
Bruton rule was observed:"
"1) Randolph, Pickens and Hamilton were not involved in the
gambling game between Douglas, the Las Vegas gambler, and Robert
Wood, the hometown gambler who got cheated."
"2) They were not involved in originating the plan for recouping
Robert Wood's losses."
"3) They were not in the room (and had not been) when Robert
Wood killed Douglas."
"4) Indeed, the jury could conclude from the admissible evidence
in this case that, when Joe Wood pulled out his pistol, the
original plan for three 'unknown' blacks to rob the all-white poker
game was aborted, and that petitioners' subsequent entry into the
room did not involve them in the crime of murder."
"Additionally, if we return to consideration of the joint trial,
that jury, as charged by the state court judge, had the
responsibility of determining whether or not any of the three
confessions testified to by Memphis police was voluntarily given.
Assuming that two of the three confessions had been removed from
jury consciousness by adherence to
Bruton, we find it
impossible to conclude that the jury finding and ultimate verdict
would, 'beyond reasonable doubt,' have been the same."
"These factors serve to distinguish this case from
Harrington v.
California, [396 U.S. 250,] and
Schneble v.
Florida, [
405 U.S.
427,] and to convince us that the
Bruton errors found
by the District Judge cannot (as he also held) be determined to be
harmless beyond reasonable doubt."
575 F.2d 1178, 1182-1183.
[
Footnote 2/2]
As MR. JUSTICE BLACKMUN points out,
ante at
442 U. S. 78-79,
it is unclear whether the plurality restricts its analysis to
"interlocking" confessions, opinion of MR. JUSTICE REHNQUIST,
ante at
442 U. S. 75
(and, if so, what an "interlock" is), or whether a "broader"
exception is established for
all confessions.
Ante at
442 U. S. 72.
Indeed, its opinion does not explain how inculpatory a statement
must be before it qualifies as a "confession," an "extrajudicial
admission of guilt," or a "statemen[t] . . . heaping blame onto
[oneself]."
Ante at
442 U. S. 73,
442 U. S. 74.
Moreover, the plurality variously states its test as applicable
"when[ever] the incriminated defendant has [once] admitted his own
guilt" (
i.e., whenever he has not "maintained his
innocence from the beginning"), or only when he has once confessed
and has left his "admission of guilt . . . before the jury
unchallenged" by any evidence of its invalidity.
Ante at
442 U. S. 72,
442 U. S.
73.
[
Footnote 2/3]
In
Roberts v. Russell, 392 U.
S. 293, petitioner and a codefendant were jointly tried
and convicted of armed robbery, to which the codefendant had
confessed, implicating petitioner. In addition, petitioner's cousin
testified that petitioner made certain inculpatory statements to
him concerning the robbery -- statements that the State Supreme
Court relied upon heavily in upholding the jury finding of
petitioner's guilt. App. to Brief in Opposition, O.T. 1967, No.
920, Misc., pp. 4, 6. That court also held that the redaction of
the codefendant's confession to omit the references to petitioner
as well as a cautionary instruction to the jury to consider the
confession as evidence against the codefendant alone was sufficient
to avoid any problem under the Confrontation Clause. On habeas
corpus, the District Court and the Court of Appeals agreed. This
Court granted the writ of certiorari and summarily vacated the
conviction and remanded for reconsideration in light of
Bruton. In so doing, it established both that the
Bruton rule applied to the States, and that it was
retroactive. 392 U.S. at
392 U. S.
294-295.
Similarly, in
Hopper v. Louisiana, 392 U.
S. 658, the Court vacated the convictions of two
defendants, both of whom had made full confessions that were
introduced at their joint trial with the usual cautionary
instructions.
See 251 La. 77, 104,
203 So.
2d 222, 232-233 (1967). On remand, the Louisiana Supreme Court
held that the
Bruton errors as to both defendants were
harmless beyond a reasonable doubt in light of the overwhelming
untainted evidence inculpating both, 253 La. 439,
218 So. 2d
551 (1969), and this Court denied certiorari. 396 U.S.
1012.
In two subsequent decisions, the Court held that error had been
committed under the rule of
Bruton, although it found the
error to be harmless.
Brown v. United States, 411 U.
S. 223,
411 U. S.
230-231;
Harrington v. California, 395 U.
S. 250,
395 U. S. 254.
In all four of these cases, the Court found a
Bruton error
even though the defendants' confessions interlocked.
The plurality's analysis is also inconsistent with almost half
of the lower federal and state court opinions relied on in
Bruton in support of its reasoning. 391 U.S. at
391 U. S. 129,
391 U. S. 135,
and nn. 4, 8, 9. In 6 of the 14 cases cited there, the defendant as
well as the codefendant had confessed.
See United States ex
rel. Floyd v. Wilkins, 367 F.2d 990 (CA2 1966);
Greenwell
v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1964);
Barton v. United States, 263 F.2d 894 (CA5 1959);
United States ex rel. Hill v. Deegan, 268 F.
Supp. 580 (SDNY 1967);
People v. Barbaro, 395 Ill.
264, 69 N.E.2d 692 (1946);
People v. Fisher, 249 N.Y. 419,
432, 164 N.E. 336, 341 (1928) (Lehman, J., dissenting).
[
Footnote 2/4]
The Sixth Amendment to the United States Constitution
provides:
"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him. . . ."
[
Footnote 2/5]
"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 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 may give.
See the Court's opinion, [391 U.S.] 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."
391 U.S. at
391 U. S.
137-138 (STEWART, J., concurring).
[
Footnote 2/6]
E.g., Foster, Confessions and the Station House
Syndrome, 18 DePaul L.Rev. 683 (1969); Sterling, Police
Interrogation and the Psychology of Confession, 14 J.Pub.L. 25
(1965).
See generally T. Reik, The Compulsion to Confess
267 (1959).
[
Footnote 2/7]
Indeed, George Bruton was identified at trial as the perpetrator
by an eyewitness to the robbery. App. in
Bruton v. United
States, O.T. 1967, No. 705, p. 70.
[
Footnote 2/8]
Cf. Fed.Rule Evid. 804(b)(3) ("A statement tending to
expose the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement");
Chambers v. Mississippi, 410 U. S. 284.
[
Footnote 2/9]
See Berger v. California, 393 U.
S. 314;
Barber v. Page, 390 U.
S. 719;
Pointer v. Texas, 380 U.
S. 400;
Motes v. United States, 178 U.
S. 458; Rule 804(b),
supra, 442 U.S.
62fn2/8|>n. 8.
See generally Westen, Confrontation
and Compulsory Process: A Unified Theory of Evidence for Criminal
Cases, 91 Harv.L.Rev. 567, 582-586, and n. 43 (1978).
[
Footnote 2/10]
In his dissenting opinion in
Delli Paoli v. United
States, 352 U. S. 232, Mr.
Justice Frankfurter commented on the recurring difficulties arising
in the trial of two or more persons accused of collaborating in a
criminal enterprise when incriminating declarations by one or more
of the defendants are not admissible against others. He
observed:
"The dilemma is usually resolved by admitting such evidence
against the declarant but cautioning the jury against its use in
determining the guilt of the others. 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. While enforcing the rule of admitting
the declaration solely against a declarant and admonishing the jury
not to consider it against other defendants, Judge Learned Hand, in
a series of cases, has recognized the psychological feat that this
solution of the dilemma demands of juries. He thus stated the
problem:"
" In effect, however, the rule probably furthers, rather than
impedes, the search for truth, and this perhaps excuses the device
which satisfies form while it violates substance; that is, the
recommendation to the jury of a mental gymnastic which is beyond,
not only their powers, but anybody else's."
"
Nash v. United States, 54 F.2d 1006, 1007."
". . . 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.
247-248.
[
Footnote 2/11]
Writing for the Court in
Blumenthal v. United States,
332 U. S. 539,
332 U. S.
559-560, Mr. Justice Rutledge said:
"The grave danger in this case, if any, arose not from the trial
court's rulings upon admissibility or from its instructions to the
jury. As we have said, these were as adequate as might reasonably
be required in a joint trial. The danger rested, rather, in the
risk that the jury, in disregard of the court's direction, would
transfer, consciously or unconsciously, the effect of the excluded
admissions from the case as made against Goldsmith and Weiss across
the barrier of the exclusion to the other three defendants."
"That danger was real. It is one likely to arise in any
conspiracy trial, and more likely to occur as the number of persons
charged together increases. Perhaps, even at best, the safeguards
provided by clear rulings on admissibility, limitations of the
bearing of evidence as against particular individuals, and adequate
instructions are insufficient to ward off the danger entirely. It
is therefore extremely important that those safeguards be made as
impregnable as possible."
[
Footnote 2/12]
Referring to the passage quoted from
Blumenthal in the
preceding footnote, Mr. Justice Jackson made his frequently quoted
observation.
"The naive assumption that prejudicial effects can be overcome
by instructions to the jury,
cf. Blumenthal v. United
States, 332 U. S. 539,
332 U. S.
559, all practicing lawyers know to be unmitigated
fiction."
Krulewitch v. United States, 336 U.
S. 440,
336 U. S. 453
(concurring opinion).
[
Footnote 2/13]
"Not even appellate judges can be expected to be so naive as
really to believe that all twelve jurors succeeded in performing
what Judge L. Hand aptly called 'a mental gymnastic which is beyond
not only their powers, but anybody's else.'
Nash v. United
States, 54 F.2d 1006, 1007 (2 Cir.1932). It is impossible
realistically to suppose that, when the twelve good men and women
had [the codefendant's] confession in the privacy of the jury room,
not one yielded to the nigh irresistible temptation to fill in the
blanks [caused by the redaction of the defendants' names] with the
keys [the other evidence] provided and [to] ask himself the
intelligent question to what extent Jones' statement supported
[that evidence], or that, if anyone did yield, his colleagues
effectively persuaded him to dismiss the answers from his
mind."
United States v. Bozza, 365 F.2d 206, 215.
[
Footnote 2/14]
See 8 J. Wigmore, Evidence § 2272, p. 416 (3d ed.1940);
E. Morgan, Some Problems of Proof Under the Anglo-American System
of Litigation 105 (1956).
[
Footnote 2/15]
Indeed, the judge's command to ignore the confession may well
assure that any juror who happened to miss the connection to the
defendant at first will nonetheless have made it by the time he
enters the jury room.
Lakeside v. Oregon, 435 U.
S. 333,
435 U. S. 345
(STEVENS, J., dissenting).