Respondent and Benjamin Williams were charged with murder,
robbery, and assault. At their joint trial, Williams' confession
was admitted over respondent's objection. The confession had been
redacted to omit all reference to respondent -- indeed, to omit all
indication that anyone other than Williams and a third accomplice
participated in the crime. In his confession, Williams described a
conversation he had with the third accomplice as they drove to the
victims' home, during which the accomplice said that he would have
to kill the victims after robbing them. At the time the confession
was admitted, the jury was admonished not to use it in any way
against respondent. Williams did not testify. Respondent's
testimony indicated that she had been in the car with Williams and
the third accomplice, but had not heard their conversation.
Respondent insisted that she had not intended to rob or kill
anyone. Respondent was convicted of felony murder and assault to
commit murder, and the Michigan Court of Appeals affirmed. The
Federal District Court denied respondent's petition for a writ of
habeas corpus, but the Court of Appeals reversed, holding that
respondent was entitled to a new trial under
Bruton v. United
States, 391 U. S. 123.
Bruton held that a defendant is deprived of his rights
under the Confrontation Clause when his nontestifying codefendant's
confession naming him as a participant in the crime is introduced
at their joint trial, even if the jury is instructed to consider
that confession only against the codefendant. The Court of Appeals
held that
Bruton requires the same result when the
codefendant's confession is redacted to omit any reference to the
defendant, but the defendant is nonetheless linked to the
confession by evidence properly admitted against him at trial.
Held: The Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a proper
limiting instruction when, as here, the confession is redacted to
eliminate not only the defendant's name, but any reference to her
existence. The
Bruton Court recognized a very narrow
exception to the almost invariable assumption of the law that
jurors follow their instructions in the situation when the facially
incriminating confession of a nontestifying codefendant is
introduced at a joint trial and the jury is instructed to consider
the confession only against the codefendant. In that situation,
Bruton explained, the
Page 481 U. S. 201
risk that the jury will not follow its instructions is so great,
and the consequences of that failure so vital to the defendant,
that jurors will be assumed incapable of obeying their
instructions. There are two important distinctions between this
case and
Bruton which cause it to fall outside the narrow
exception
Bruton created. First, in
Bruton, the
codefendant's confession expressly implicated the defendant as his
accomplice, whereas here the confession was not incriminating on
its face, but became so only when linked with evidence introduced
later at trial. Where the necessity of such linkage is involved,
there does not exist the overwhelming probability of jurors'
inability to disregard incriminating inferences that is the
foundation of
Bruton. Second, evidence requiring linkage
differs from evidence incriminating on its face in the practical
effects which application of the
Bruton exception would
produce. If limited to facially incriminating confessions,
Bruton can be complied with by redaction. If extended to
confessions incriminating by connection, not only is that not
possible, but it is not even possible to predict the admissibility
of a confession in advance of trial. Compliance with the Court of
Appeals' overbroad reading of
Bruton could not be achieved
without enormous costs to the criminal justice system. Pp.
481 U. S.
206-211.
781 F.2d 1201, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined,
post, p.
481 U. S.
211.
JUSTICE SCALIA delivered the opinion of the Court.
In
Bruton v. United States, 391 U.
S. 123 (1968), we held that a defendant is deprived of
his rights under the Confrontation Clause when his nontestifying
codefendant's confession naming him as a participant in the crime
is introduced at their joint trial, even if the jury is instructed
to consider
Page 481 U. S. 202
that confession only against the codefendant. Today we consider
whether
Bruton requires the same result when the
codefendant's confession is redacted to omit any reference to the
defendant, but the defendant is nonetheless linked to the
confession by evidence properly admitted against him at trial.
I
Respondent Clarissa Marsh, Benjamin Williams, and Kareem Martin
were charged with assaulting Cynthia Knighton and murdering her
4-year-old son, Koran, and her aunt, Ollie Scott. Respondent and
Williams were tried jointly, over her objection. (Martin was a
fugitive at the time of trial.) At the trial, Knighton testified as
follows: On the evening of October 29, 1978, she and her son were
at Scott's home when respondent and her boyfriend Martin visited.
After a brief conversation in the living room, respondent announced
that she had come to "pick up something" from Scott, and rose from
the couch. Martin then pulled out a gun, pointed it at Scott and
the Knightons, and said that "someone had gotten killed, and
[Scott] knew something about it." Respondent immediately walked to
the front door and peered out the peephole. The doorbell rang,
respondent opened the door, and Williams walked in, carrying a gun.
As Williams passed respondent, he asked, "Where's the money?"
Martin forced Scott upstairs, and Williams went into the kitchen,
leaving respondent alone with the Knightons. Knighton and her son
attempted to flee, but respondent grabbed Knighton and held her
until Williams returned. Williams ordered the Knightons to lie on
the floor, and then went upstairs to assist Martin. Respondent,
again left alone with the Knightons, stood by the front door and
occasionally peered out the peephole. A few minutes later, Martin,
Williams, and Scott came down the stairs, and Martin handed a paper
grocery bag to respondent. Martin and Williams then forced Scott
and the Knightons into the basement, where Martin shot them. Only
Cynthia Knighton survived.
Page 481 U. S. 203
In addition to Knighton's testimony, the State introduced (over
respondent's objection) a confession given by Williams to the
police shortly after his arrest. The confession was redacted to
omit all reference to respondent -- indeed, to omit all indication
that anyone other than Martin and Williams participated in the
crime. [
Footnote 1] The
confession largely corroborated
Page 481 U. S. 204
Knighton's account of the activities of persons other than
respondent in the house. In addition, the confession described a
conversation Williams had with Martin as they drove to the Scott
home, during which, according to Williams, Martin said that he
would have to kill the victims after the robbery. At the time the
confession was admitted, the jury was admonished not to use it in
any way against respondent. Williams did not testify.
After the State rested, respondent took the stand. She testified
that, on October 29, 1978, she had lost money that Martin intended
to use to buy drugs. Martin was upset, and suggested to respondent
that she borrow money from Scott, with whom she had worked in the
past. Martin and respondent picked up Williams and drove to Scott's
house. During the drive, respondent, who was sitting in the
backseat, "knew that [Martin and Williams] were talking," but could
not hear the conversation because "the radio was on and the speaker
was right in [her] ear." Martin and respondent were admitted into
the home, and respondent had a short conversation with Scott,
during which she asked for a loan. Martin then pulled a gun, and
respondent walked to the door to see where the car was. When she
saw Williams, she opened the door for him. Respondent testified
that, during the robbery, she did not feel free to leave, and was
too scared to flee. She said that she did not know why she
prevented the Knightons from escaping. She admitted taking the bag
from Martin, but said that, after Martin and Williams took the
victims into the basement, she left the house without the bag.
Respondent insisted that she had possessed no prior knowledge that
Martin and Williams were armed, had heard no conversation about
anyone's being harmed, and had not intended to rob or kill
anyone.
Page 481 U. S. 205
During his closing argument, the prosecutor admonished the jury
not to use Williams' confession against respondent. Later in his
argument, however, he linked respondent to the portion of Williams'
confession describing his conversation with Martin in the car.
[
Footnote 2] (Respondent's
attorney did not object to this.) After closing arguments, the
judge again instructed the jury that Williams' confession was not
to be considered against respondent. The jury convicted respondent
of two counts of felony murder in the perpetration of an armed
robbery and one count of assault with intent to commit murder. The
Michigan Court of Appeals affirmed in an unpublished opinion,
People v. Marsh, No. 46128 (Dec. 17, 1980), and the
Michigan Supreme Court denied leave to appeal, 412 Mich. 927
(1982).
Respondent then filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. ยง 2254. She alleged that her conviction was
not supported by sufficient evidence, and that introduction of
Williams' confession at the joint trial had violated her rights
under the Confrontation Clause. The District Court denied the
petition. Civ.Action No. 83-CV-2665-DT (ED Mich., Oct. 11, 1984).
The United States Court of Appeals for the Sixth Circuit reversed.
781 F.2d 1201 (1986). The Court of Appeals held that, in
determining whether
Bruton bars the admission of a
nontestifying codefendant's confession, a court must assess the
confession's "inculpatory
Page 481 U. S. 206
value" by examining not only the face of the confession, but
also all of the evidence introduced at trial. 781 F.2d at 1212.
Here, Williams' account of the conversation in the car was the only
direct evidence that respondent knew before entering Scott's house
that the victims would be robbed and killed. Respondent's own
testimony placed her in that car. In light of the "paucity" of
other evidence of malice and the prosecutor's linkage of respondent
and the statement in the car during closing argument, admission of
Williams' confession "was powerfully incriminating to [respondent]
with respect to the critical element of intent."
Id. at
1213. Thus, the Court of Appeals concluded, the Confrontation
Clause was violated. We granted certiorari, 476 U.S. 1168 (1986),
because the Sixth Circuit's decision conflicts with those of other
Courts of Appeals which have declined to adopt the "evidentiary
linkage" or "contextual implication" approach to
Bruton
questions,
see, e.g., United States v. Belle, 593 F.2d 487
(CA3 1979) (en banc).
II
The Confrontation Clause of the Sixth Amendment, extended
against the States by the Fourteenth Amendment, guarantees the
right of a criminal defendant "to be confronted with the witnesses
against him." The right of confrontation includes the right to
cross-examine witnesses.
See Pointer v. Texas,
380 U. S. 400,
380 U. S. 404,
380 U. S.
406-407 (1965). Therefore, where two defendants are
tried jointly, the pretrial confession of one cannot be admitted
against the other unless the confessing defendant takes the
stand.
Ordinarily, a witness whose testimony is introduced at a joint
trial is not considered to be a witness "against" a defendant if
the jury is instructed to consider that testimony only against a
codefendant. This accords with the almost invariable assumption of
the law that jurors follow their instructions,
Francis v.
Franklin, 471 U. S. 307,
471 U. S. 325,
n. 9 (1985), which we have applied in many varying contexts. For
example, in
Harris v. New York, 401 U.
S. 222 (1971),
Page 481 U. S. 207
we held that statements elicited from a defendant in violation
of
Miranda v. Arizona, 384 U. S. 436
(1966), can be introduced to impeach that defendant's credibility,
even though they are inadmissible as evidence of his guilt, so long
as the jury is instructed accordingly. Similarly, in
Spencer v.
Texas, 385 U. S. 554
(1967), we held that evidence of the defendant's prior criminal
convictions could be introduced for the purpose of sentence
enhancement, so long as the jury was instructed it could not be
used for purposes of determining guilt.
Accord, Marshall v.
Lonberger, 459 U. S. 422,
459 U. S.
438-439, n. 6 (1983).
See also Tennessee v.
Street, 471 U. S. 409,
471 U. S.
414-416 (1985) (instruction to consider accomplice's
incriminating confession only for purpose of assessing truthfulness
of defendant's claim that his own confession was coerced);
Watkins v. Sowders, 449 U. S. 341,
449 U. S. 347
(1981) (instruction not to consider erroneously admitted eyewitness
identification evidence);
Walder v. United States,
347 U. S. 62 (1954)
(instruction to consider unlawfully seized physical evidence only
in assessing defendant's credibility). In
Bruton, however,
we recognized a narrow exception to this principle: we held that a
defendant is deprived of his Sixth Amendment right of confrontation
when the facially incriminating confession of a nontestifying
codefendant is introduced at their joint trial, even if the jury is
instructed to consider the confession only against the codefendant.
We said:
"[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. . . ."
391 U.S. at
391 U. S.
135-136 (citations omitted).
Page 481 U. S. 208
There is an important distinction between this case and
Bruton which causes it to fall outside the narrow
exception we have created. In
Bruton, the codefendant's
confession "expressly implicat[ed]" the defendant as his
accomplice.
Id. at
391 U. S. 124,
n. 1. Thus, at the time that confession was introduced there was
not the slightest doubt that it would prove "powerfully
incriminating."
Id. at
391 U. S. 135.
By contrast, in this case, the confession was not incriminating on
its face, and became so only when linked with evidence introduced
later at trial (the defendant's own testimony). [
Footnote 3]
Where the necessity of such linkage is involved, it is a less
valid generalization that the jury will not likely obey the
instruction to disregard the evidence. Specific testimony that "the
defendant helped me commit the crime" is more vivid than
inferential incrimination, and hence more difficult to thrust out
of mind. Moreover, with regard to such an explicit statement, the
only issue is, plain and simply, whether the jury can possibly be
expected to forget it in assessing the defendant's guilt; whereas,
with regard to inferential incrimination, the judge's instruction
may well be successful in dissuading the jury from entering onto
the path of inference in the first place, so that there is no
incrimination to forget. In short, while it may not always be
simple for the members of a jury to obey the instruction that they
disregard an incriminating inference, there does not exist the
overwhelming probability of their inability to do so that is the
foundation of
Bruton's exception to the general rule.
Even more significantly, evidence requiring linkage differs from
evidence incriminating on its face in the practical effects which
application of the
Bruton exception would produce. If
Page 481 U. S. 209
limited to facially incriminating confessions,
Bruton
can be complied with by redaction -- a possibility suggested in
that opinion itself.
Id. at
391 U. S. 134,
n. 10. If extended to confessions incriminating by connection, not
only is that not possible, but it is not even possible to predict
the admissibility of a confession in advance of trial. The
"contextual implication" doctrine articulated by the Court of
Appeals would presumably require the trial judge to assess at the
end of each trial whether, in light of all of the evidence, a
nontestifying codefendant's confession has been so "powerfully
incriminating" that a new, separate trial is required for the
defendant. This obviously lends itself to manipulation by the
defense -- and, even without manipulation, will result in numerous
mistrials and appeals. It might be suggested that those
consequences could be reduced by conducting a pretrial hearing at
which prosecution and defense would reveal the evidence they plan
to introduce, enabling the court to assess compliance with
Bruton ex ante, rather than
ex post. If this
approach is even feasible under the Federal Rules (which is
doubtful --
see, e.g., Fed.Rule Crim.Proc. 14), it would
be time-consuming and obviously far from foolproof.
One might say, of course, that a certain way of assuring
compliance would be to try defendants separately whenever an
incriminating statement of one of them is sought to be used. That
is not as facile or as just a remedy as might seem. Joint trials
play a vital role in the criminal justice system, accounting for
almost one-third of federal criminal trials in the past five years.
Memorandum from David L. Cook, Administrative Office of the United
States Courts, to Supreme Court Library (Feb. 20, 1987) (available
in Clerk of Court's case file). Many joint trials -- for example,
those involving large conspiracies to import and distribute illegal
drugs -- involve a dozen or more codefendants. Confessions by one
or more of the defendants are commonplace -- and indeed the
probability of confession increases with the number
Page 481 U. S. 210
of participants, since each has reduced assurance that he will
be protected by his own silence. It would impair both the
efficiency and the fairness of the criminal justice system to
require, in all these cases of joint crimes where incriminating
statements exist, that prosecutors bring separate proceedings,
presenting the same evidence again and again, requiring victims and
witnesses to repeat the inconvenience (and sometimes trauma) of
testifying, and randomly favoring the last-tried defendants who
have the advantage of knowing the prosecution's case beforehand.
Joint trials generally serve the interests of justice by avoiding
inconsistent verdicts and enabling more accurate assessment of
relative culpability -- advantages which sometimes operate to the
defendant's benefit. Even apart from these tactical considerations,
joint trials generally serve the interests of justice by avoiding
the scandal and inequity of inconsistent verdicts. [
Footnote 4] The other way of assuring
compliance with an expansive
Bruton rule would be to forgo
use of codefendant confessions. That price also is too high, since
confessions
"are more than merely 'desirable;' they are essential to
society's compelling interest in finding, convicting, and punishing
those who violate the law."
Moran v. Burbine, 475 U. S. 412,
475 U. S. 426
(1986) (citation omitted).
Page 481 U. S. 211
The rule that juries are presumed to follow their instructions
is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant in the criminal justice process. On the precise
facts of
Bruton, involving a facially incriminating
confession, we found that accommodation inadequate. As our
discussion above shows, the calculus changes when confessions that
do not name the defendant are at issue. While we continue to apply
Bruton where we have found that its rationale validly
applies,
see Cruz v. New York, ante p.
481 U. S. 186, we
decline to extend it further. We hold that the Confrontation Clause
is not violated by the admission of a nontestifying codefendant's
confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant's name,
but any reference to his or her existence. [
Footnote 5]
In the present case, however, the prosecutor sought to undo the
effect of the limiting instruction by urging the jury to use
Williams' confession in evaluating respondent's case.
See
supra at
481 U. S. 205,
and n. 2. On remand, the court should consider whether, in light of
respondent's failure to object to the prosecutor's comments, the
error can serve as the basis for granting a writ of habeas corpus.
See Wainwright v. Sykes, 433 U. S. 72
(1977).
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.
[
Footnote 1]
The redacted confession, in its entirety, read:
"On Sunday evening, October the 29th, 1978, at about 6:30 p.m.,
I was over to my girl friend's house at 237 Moss, Highland Park,
when I received a phone call from a friend of mine named Kareem
Martin. He said he had been looking for me and James Coleman, who I
call Tom. He asked me if I wanted to go on a robbery with him. I
said okay. Then he said he'd be by and pick me up. About 15 or 20
minutes later, Kareem came by in his black Monte Carlo car. I got
in the car and Kareem told me he was going to stick up this crib,
told me the place was a numbers house. Kareem said there would be
over $6,000 or $10,000 in the place. Kareem said he would have to
take them out after the robbery. Kareem had a big silver gun. He
gave me a long barrelled [
sic] .22 revolver. We then drove
over to this house and parked the car across the big street near
the house. The plan was that I would wait in the car in front of
the house, and then I would move the car down across the big
street, because he didn't want anybody to see the car. Okay, Kareem
went up to the house and went inside. A couple of minutes later, I
moved the car and went up to the house. As I entered, Kareem and
this older lady were in the dining room, a little boy and another
younger woman were sitting on the couch in the front room. I pulled
my pistol and told the younger woman and the little boy to lay on
the floor. Kareem took the older lady upstairs. He had a pistol,
also. I stayed downstairs with the two people on the floor. After
Kareem took the lady upstairs I went upstairs, and the lady was
laying on the bed in the room to the left as you get up the stairs.
The lady had already given us two bags full of money before we ever
got upstairs. Kareem had thought she had more money, and that's why
we had went upstairs. Me and Kareem started searching the rooms,
but I didn't find any money. I came downstairs, and then Kareem
came down with the lady. I said, 'Let's go, let's go.' Kareem said
no. Kareem then took the two ladies and little boy down the
basement, and that's when I left to go to the car. I went to the
car and got in the back seat. A couple of minutes later, Kareem
came to the car and said he thinks the girl was still living,
because she was still moving, and he didn't have any more bullets.
He asked me how come I didn't go down the basement, and I said I
wasn't doing no shit like that. He then dropped me back off at my
girl's house in Highland Park, and I was supposed to get together
with him today, get my share of the robbery after he had counted
the money. That's all."
App. in No. 84-1777 (CA6), pp. 88-90.
[
Footnote 2]
The prosecutor said:
"It's important in light of [respondent's] testimony when she
says Kareem drives over to Benjamin Williams' home and picks him up
to go over. What's the thing that she says? 'Well, I'm sitting in
the back seat of the car.' 'Did you hear any conversation that was
going on in the front seat between Kareem and Mr. Williams?' 'No,
couldn't hear any conversation. The radio was too loud.' I asked
[
sic] you whether that is reasonable. Why did she say
that? Why did she say she couldn't hear any conversation? She said,
'I know they were having conversation, but I couldn't hear it
because of the radio.' Because if she admits that she heard the
conversation, and she admits to the plan, she's guilty of at least
armed robbery. So she can't tell you that."
Id. at 164.
[
Footnote 3]
The dissent is mistaken in believing we "assum[e] that
[Williams'] confession did not incriminate respondent."
Post at
481 U. S. 215,
n. 3. To the contrary, the very premise of our discussion is that
respondent would have been harmed by Williams' confession
if the jury had disobeyed its instructions. Our
disagreement pertains not to whether the confession incriminated
respondent, but to whether the trial court could properly assume
that the jury did not use it against her.
[
Footnote 4]
The dissent notes that
"all of the cases in this Court that involved joint trials
conducted after
Bruton was decided, in which compliance
with the rule of that case was at issue, appear to have originated
in a state court."
Post at
481 U. S. 219.
It concludes from this that "[f]ederal prosecutors seem to have had
little difficulty" in implementing
Bruton as the dissent
believes it must be implemented.
Ibid. Since the cases in
question number only a handful, the fact that they happened to be
state cases may signify nothing more than that there are many times
more state prosecutions than federal. There is assuredly no basis
to believe that federal prosecutors have been applying the
dissent's interpretation of
Bruton. Indeed the contrary
proposition -- as well as the harmfulness of that interpretation to
federal law enforcement efforts -- is suggested by the fact that
the Solicitor General has appeared here as
amicus to urge
reversal for substantially the reasons we have given.
See
Brief for United States as
Amicus Curiae.
[
Footnote 5]
We express no opinion on the admissibility of a confession in
which the defendant's name has been replaced with a symbol or
neutral pronoun.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
The rationale of our decision in
Bruton v. United
States, 391 U. S. 123,
391 U. S.
135-136 (1968), applies without exception to all
Page 481 U. S. 212
inadmissible confessions that are "powerfully incriminating."
Today, however, the Court draws a distinction of constitutional
magnitude between those confessions that directly identify the
defendant and those that rely for their inculpatory effect on the
factual and legal relationships of their contents to other evidence
before the jury. Even if the jury's indirect inference of the
defendant's guilt based on an inadmissible confession is much more
devastating to the defendant's case than its inference from a
direct reference in the codefendant's confession, the Court
requires the exclusion of only the latter statement. This illogical
result demeans the values protected by the Confrontation Clause.
Moreover, neither reason nor experience supports the Court's
argument that a consistent application of the rationale of the
Bruton case would impose unacceptable burdens on the
administration of justice.
I
It is a "basic premise" of the Confrontation Clause that certain
kinds of hearsay
"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. [
Footnote 2/1]
Page 481 U. S. 213
This constitutionally mandated skepticism undergirds the
Bruton holding, and is equally applicable to this case.
The Court framed the issue in
Bruton as"
"whether the conviction of a defendant at a joint trial should
be set aside although the jury was instructed that a codefendant's
confession inculpating the defendant had to be disregarded in
determining his guilt or innocence."
391 U.S. at
391 U. S. 123-124.
We answered that question in the affirmative, noting that the Sixth
Amendment is violated
"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.
Today, the Court nevertheless draws a line between codefendant
confessions that expressly name the defendant and those that do
not. The Court relies on the presumption that, in the latter
category, "it is a less valid generalization that the jury will not
likely obey the instruction to disregard the evidence."
Ante at
481 U. S. 208.
I agree; but I do not read
Bruton to require the exclusion
of
all codefendant confessions that do not mention the
defendant. [
Footnote 2/2] Some such
confessions may not have any significant impact on the defendant's
case. But others will. If we presume, as we must, that jurors give
their full and vigorous attention to every witness and each item of
evidence, the very acts of listening and seeing will sometimes lead
them down "the path of inference." Indeed, the Court tacitly
acknowledges this point; while the Court speculates that the
judge's instruction may dissuade the jury
Page 481 U. S. 214
from making inferences at all, it also concedes the probability
of their occurrence, arguing that there is no overwhelming
probability that jurors will be unable to "disregard an
incriminating inference."
Ibid. Bruton has always
required trial judges to answer the question whether a particular
confession is or is not "powerfully incriminating" on a
case-by-case basis; they should follow the same analysis whether or
not the defendant is actually named by his or her codefendant.
Instructing the jury that it was to consider Benjamin Williams'
confession only against him, and not against Clarissa Marsh, failed
to guarantee the level of certainty required by the Confrontation
Clause. The uncertainty arose because the prosecution's case made
it clear at the time Williams' statement was introduced that the
statement would prove "powerfully incriminating" of the
respondent, as well as of Williams himself. There can be
absolutely no doubt that spreading Williams' carefully edited
confession before the jury intolerably interfered with the jury's
solemn duty to treat the statement as nothing more than meaningless
sounds in its consideration of Marsh's guilt or innocence.
At the time that Williams' confession was introduced, the
evidence already had established that respondent and two men
committed an armed robbery in the course of which the two men
killed two persons and shot a third.
Ante at
481 U. S. 202.
There was a sharp dispute, however, on the question whether
respondent herself intended to commit a robbery in which murder was
a foreseeable result, or knew that the two men planned to do so.
The quantum of evidence admissible against respondent was just
sufficient to establish this intent, and hence to support her
conviction. As the Court of Appeals explained:
"[T]he issue is whether the evidence was sufficient to show that
Marsh aided and abetted the assault with the specific intent to
murder Knighton, or with the knowledge that Martin had this
specific intent. . . . Marsh's case presents a much closer question
on this issue than
Page 481 U. S. 215
does Williams'. There was no testimony indicating she harbored
an intent to murder Knighton, nor was there any showing that she
heard Martin's statements regarding the need to 'hurt' or 'take
out' the victims. There was, in addition, no testimony placing her
in the basement, the scene of the shootings. The evidence does
indicate, viewed in the light most favorable to the prosecution,
that she was aware that Williams and Martin were armed, that she
served as a guard or 'lookout' at the door, that she prevented an
attempted escape by Knighton, and that she was given the paper bag
thought to contain the proceeds of a robbery. The evidence also
indicates that Marsh knew Scott, supporting the inference that it
was Marsh who allowed Martin to gain entrance. While it is a close
question, we believe the evidence presented at the time of the
motion was sufficient to survive a motion for directed
verdict."
781 F.2d 1201, 1204 (CA6 1986) (emphasis omitted).
In the edited statement that the jury was instructed not to
consider against Marsh, Williams described the conversation he had
with Kareem Martin while they were in a car driving to their
victims' residence. In that conversation, Martin stated that "he
would have to take them out after the robbery."
See ante
at
481 U. S. 203,
n. 1. The State's principal witness had testified that Martin and
Marsh arrived at the victims' house together. The jury was
therefore certain to infer from the confession that respondent had
been in the car and had overheard the statement by Martin. Viewed
in the total context of the trial evidence, this confession was of
critical importance, because it was the only evidence directly
linking respondent with the specific intent, expressed before the
robbery, to kill the victims afterwards. [
Footnote 2/3] If Williams had taken
Page 481 U. S. 216
the witness stand and testified, respondent's lawyer could have
cross-examined him to challenge his credibility and to establish or
suggest that the car radio was playing so loudly that Marsh could
not have overheard the conversation between the two men from the
backseat. An acknowledgment of the possibility of such facts by
Williams would have done much more to eliminate the certainty
beyond a reasonable doubt that Marsh knew about the murder plan
than could possibly have been achieved by the later testimony of
respondent herself. Moreover, the price respondent had to pay in
order to attempt to rebut the obvious inference that she had
overheard Martin was to remind the jury once again of what he had
said, and to give the prosecutor a further opportunity to point to
this most damaging evidence on the close question of her specific
intent.
See ante at
481 U. S. 205,
n. 2.
The facts in this case are, admittedly, different from those in
Bruton, because Williams' statement did not directly
mention respondent. Thus, instead of being "incriminating on its
face,"
ante at
481 U. S. 208,
it became so only when considered in connection with the other
evidence presented to the jury. The difference between the facts of
Bruton and the facts of this case does not eliminate their
common, substantial, and constitutionally unacceptable risk that
the jury, when resolving
Page 481 U. S. 217
a critical issue against respondent, may have relied on
impermissible evidence. [
Footnote
2/4]
II
The facts that joint trials conserve prosecutorial resources,
diminish inconvenience to witnesses, and avoid delays in the
administration of criminal justice have been well known for a long
time.
See United States v. Lane, 474 U.
S. 438,
474 U. S. 449
(1986) (quoting
Bruton, 391 U.S. at
391 U. S.
134). It is equally well known that joint trials create
special risks of prejudice to one of the defendants, and that such
risks often make it necessary to grant severances.
See
Bruton, 391 U.S. at
391 U. S. 131;
Fed.Rule Crim.Proc. 14 (Relief from Prejudicial Joinder). The
Government argues that the costs of requiring the prosecution to
choose between severance and not offering the codefendant's
confession at a joint trial outweigh the benefits to the defendant.
Brief for United States as
Amicus Curiae 22. On the scales
of justice, however, considerations of fairness normally outweigh
administrative concerns.
In the
Bruton case, the United States argued that the
normal
"benefits of joint proceedings should not have to be
sacrificed
Page 481 U. S. 218
by requiring separate trials in order to use the confession
against the declarant."
See 391 U.S. at
391 U. S. 134.
The Court endorsed the answer to this argument that Judge Lehman of
the New York Court of Appeals had previously made in his dissenting
opinion in
People v. Fisher, 249 N.Y. 419, 432, 164 N.E.
336, 341 (1928):
"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 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."
The concern about the cost of joint trials, even if valid, does
not prevail over the interests of justice. Moreover, the Court's
effort to revive this concern in a state criminal case rests on the
use of irrelevant statistics. The Court makes the startling
discovery that joint trials account for "almost one-third of
federal criminal trials in the past five years."
Ante at
481 U. S. 209.
In the interest of greater precision, the Court might have stated
that there were 10,904 federal criminal trials involving more than
one defendant during that 5-year period. [
Footnote 2/5] The Court might have added that the
database from which that figure was obtained does not contain any
information at all to show the number of times that confessions
were offered in evidence in those 10,904 federal cases. [
Footnote 2/6] The
Page 481 U. S. 219
relevance of this data is also difficult to discern, because all
of the cases in this Court that involved joint trials conducted
after
Bruton was decided, in which compliance with the
rule of that case was at issue, appear to have originated in a
state court. Federal prosecutors seem to have had little
difficulty, in conducting the literally thousands of joint trials
to which the Court points, in maintaining "both the efficiency and
the fairness of the criminal justice system" that the Court
speculates will occur if
Bruton's reasoning is applied to
this case.
See ante at
481 U. S. 210.
Presumably, the options of granting immunity, making plea bargains,
or simply waiting until after a confessing defendant has been tried
separately before trying to use his admissions against an
accomplice have enabled the Federal Government to enforce the
criminal law without sacrificing the basic premise of the
Confrontation Clause. [
Footnote
2/7]
Page 481 U. S. 220
The Court also expresses concern that trial judges will be
unable to determine whether a codefendant's confession that does
not directly mention the defendant and is inadmissible against him
will create a substantial risk of unfair prejudice. In most such
cases, the trial judge can comply with the dictates of
Bruton by postponing his or her decision on the
admissibility of the confession until the prosecution rests, at
which time its potentially inculpatory effect can be evaluated in
the light of the government's entire case. The Court expresses
concern that such a rule would enable "manipulation by the
defense,"
see ante at
481 U. S. 209,
by which the Court presumably means the defense might tailor its
evidence to make sure that a confession which does not directly
mention the defendant is deemed powerfully incriminating when
viewed in light of the prosecution's entire case. As a practical
matter, I cannot believe that there are many defense lawyers who
would deliberately pursue this high-risk strategy of "manipulating"
their evidence in order to enhance the prejudicial impact of a
codefendant's confession. Moreover, a great many experienced and
competent trial judges throughout the Nation are fully capable of
managing cases and supervising counsel in order to avoid the
problems that seem insurmountable to appellate judges who are
sometimes distracted by illogical distinctions and irrelevant
statistics.
I respectfully dissent. [
Footnote
2/8]
[
Footnote 2/1]
Bruton v. United States, 391 U.
S. 123,
391 U. S. 138
(1968) (Stewart, J., concurring) (emphasis in original). Judge
Learned Hand and Justice Frankfurter also would recognize that the
admission of Williams' confession, even with limiting instructions,
placed too great a strain upon the jury's ability to exclude this
evidence from its consideration of respondent's innocence or guilt.
As we noted in
Bruton:
"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.'"
391 U.S. at
391 U. S. 132,
n. 8. In a similar vein, Justice Frankfurter observed:
"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."
Delli Paoli v. United States, 352 U.
S. 232,
352 U. S. 248
(1957) (dissenting opinion).
[
Footnote 2/2]
Indeed, I have no doubt that there are some codefendant
confessions that expressly mention the defendant, but nevertheless
need not be excluded under
Bruton because they are not
prejudicial.
[
Footnote 2/3]
The Court assumes that the confession did not incriminate
respondent at the time the confession was introduced. I disagree.
Cynthia Knighton had already testified that respondent and Kareem
Martin had arrived at the victims' residence together, and that
respondent admitted Williams to the house a few minutes later. In
his statement Williams said:
"We then drove over to this house and parked the car across the
big street near the house. The plan was that I would wait in the
car in front of the house, and then I would move the car down
across the big street, because he didn't want anybody to see the
car. Okay, Kareem went up to the house and went inside. A couple of
minutes later, I moved the car and went up to the house."
Ante at
481 U. S. 203,
n. 1.
It is unrealistic to believe that the jury would assume that
respondent did not accompany the two men in the car, but had just
magically appeared at the front door of the apartment at the same
time that Martin did.
[
Footnote 2/4]
It is worth noting that the dissenting opinion in
Bruton did not regard the Court's decision as limited to
codefendant confessions expressly implicating the defendant:
"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."
391 U.S. at
391 U. S. 143
(emphasis added) (WHITE, J., dissenting).
The author of that opinion today adheres to that interpretation
of
Bruton. See Cruz v. New York, ante at
481 U. S.
195-196 (WHITE, J., dissenting) ("[A] codefendant's
out-of-court statements implicating the defendant are not only
hearsay, but also have traditionally been viewed with special
suspicion. . . .
Bruton held that, where the defendant has
not himself confessed, there is too great a chance that the jury
would rely on the codefendant's confession").
[
Footnote 2/5]
See Memorandum from David L. Cook, Administrative
Office of the United States Courts, to Supreme Court Library (Feb.
20, 1987) (available in Clerk of Court's case file).
[
Footnote 2/6]
See Memorandum from David L. Cook, Administrative
Office of the United States Courts, to Supreme Court Library (Mar.
25, 1987) (available in Clerk of Court's case file) (establishing
that figures cited in Memorandum of February 20, 1987, cited
ante at
481 U. S. 209,
carry no information whatever about the number of
multiple-defendant trials in which a codefendant's confession was
offered or admitted).
[
Footnote 2/7]
The Court expresses an apparently deep-seated fear that an
evenhanded application of
Bruton would jeopardize the use
of joint trials. This proposition rests on the unsupported
assumption that the number of powerfully incriminating confessions
that do not name the defendant is too large to be evaluated on a
case-by-case basis. The Court then proceeds to the ostensible
administrative outrages of the separate trials that would be
necessary, contending that it would be unwise to compel prosecutors
to
"bring separate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat the
inconvenience (and sometimes trauma) of testifying, and randomly
favoring the last-tried defendants who have the advantage of
knowing the prosecution's case beforehand."
Ante at
481 U. S. 210.
This speculation also floats unattached to any anchor of reality.
Since the likelihood that more than one of the defendants in a
joint trial will have confessed is fairly remote, the prospect of
"presenting the same evidence again and again" is nothing but a
rhetorical flourish. At worst, in the typical case, two trials may
be required, one for the confessing defendant and another for the
nonconfessing defendant or defendants. And even in that category,
presumably most confessing defendants are likely candidates for
plea bargaining.
[
Footnote 2/8]
Except for Williams' confession, and the prosecutor's closing
argument that will be separately considered on remand, there was a
paucity of other evidence connecting respondent with the plan
discussed in the car on the way to the victims' home. The Court of
Appeals was thus unquestionably correct in concluding that the
violation of the Confrontation Clause in this case was not harmless
error.