Under
Bruton v. United States, 391 U.
S. 123, a defendant is deprived of his rights under the
Confrontation Clause of the Sixth Amendment when his codefendant's
incriminating confession is introduced at their joint trial, even
if the jury is instructed to consider that confession only against
the codefendant. At petitioner's and his brother's joint trial for
the felony murder of a gas station attendant, the court allowed the
State, over petitioner's objection, to introduce the brother's
videotaped confession that he had killed the attendant who had just
shot petitioner. The brother did not himself testify, and the court
warned the jury that his confession was not to be used against
petitioner. The State also called a witness who testified about a
conversation with petitioner which recited essentially the same
facts as the brother's confession. The New York Court of Appeals
affirmed petitioner's conviction, adopting the reasoning of the
plurality opinion in
Parker v. Randolph, 442 U. S.
62, that
Bruton did not require the brother's
confession to be excluded, because petitioner had himself confessed
and his confession "interlocked" with his brother's.
Held:
1. Where a nontestifying codefendant's confession facially
incriminating the defendant is not directly admissible against the
defendant, the Confrontation Clause bars its admission at their
joint trial, even if the jury is instructed not to consider it
against the defendant, and even if the defendant's own confession
is admitted against him. The
Parker plurality's view that
Bruton is inapplicable to cases involving interlocking
confessions is rejected in favor of JUSTICE BLACKMUN's view in
Parker that, although introduction of the defendant's own
interlocking confession cannot cure the Confrontation Clause
violation caused by introduction of the nontestifying codefendant's
confession, it might, in some cases, render that violation
harmless. The
Parker plurality's view is predicated on the
erroneous theory that, when the defendant has himself confessed,
introduction of the codefendant's confession will seldom, if ever,
be of the "devastating" character required by
Bruton to
prove a Confrontation Clause violation. Although
Bruton
did consider "devastating" effect, it did so in the context of
justification for excluding the entire category of codefendant
confessions that implicate the defendant, and not as a factor whose
existence must be assessed on a case-by-case basis. The
assumption
Page 481 U. S. 187
that an interlocking confession precludes devastation is
rendered untenable by the infinite variability of inculpatory
statements and their likely effect on juries. In fact,
"interlocking" bears an inverse relationship to devastation, since
a codefendant's confession that corroborates the defendant's
alleged confession significantly harms the defendant's case,
whereas one that is positively incompatible gives credence to the
defendant's assertion that his own alleged confession was
nonexistent or false. The "interlocking" nature of a codefendant's
confession pertains not to its harmfulness but to its
reliability, which, although relevant to whether the
confession should be admitted as evidence against the defendant, is
irrelevant to the questions whether the jury is likely to obey the
instruction to disregard it or whether the jury's failure to do so
is likely to be inconsequential. Pp.
481 U. S.
189-193.
2. Although a codefendant's interlocking confession
incriminating the defendant may not be admitted at trial, the
defendant's own confession may be considered in assessing whether
his codefendant's statements are supported by sufficient "indicia
of reliability" to be directly admissible against him (assuming the
codefendant's "unavailability") despite the lack of opportunity for
cross-examination, and may be considered on appeal in assessing
whether any Confrontation Clause violation was harmless. Pp.
481 U. S.
193-194.
66 N.Y.2d 61, 485 N.E.2d 221, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and POWELL
and O'CONNOR, JJ., joined,
post, p.
481 U. S.
194.
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 codefendant's
incriminating confession
Page 481 U. S. 188
is introduced at their joint trial, even if the jury is
instructed to consider that confession only against the
codefendant. In
Parker v. Randolph, 442 U. S.
62 (1979), we considered, but were unable
authoritatively to resolve, the question whether
Bruton
applies where the defendant's own confession, corroborating that of
his codefendant, is introduced against him. We resolve that
question today.
I
Jerry Cruz was murdered on March 15, 1982. That is not the
murder for which petitioner was tried and convicted, but the
investigation of the one led to the solving of the other. On the
day following Jerry Cruz's murder, and on several later occasions,
the police talked to Jerry's brother Norberto about the killing. On
April 27, Norberto for the first time informed the police of a
November 29, 1981, visit by petitioner Eulogio Cruz and his brother
Benjamin to the apartment Norberto shared with Jerry. (Eulogio and
Benjamin Cruz were longtime friends of Norberto and Jerry Cruz, but
the two sets of brothers were not related.) Norberto said that, at
the time of the visit, Eulogio was nervous, and was wearing a
bloodstained bandage around his arm. According to Norberto, Eulogio
confided that he and Benjamin had gone to a Bronx gas station the
night before, intending to rob it; that Eulogio and the attendant
had struggled; and that, after the attendant had grabbed a gun from
behind a counter and shot Eulogio in the arm, Benjamin had killed
him. Norberto claimed that Benjamin gave a similar account of the
incident.
On May 3, 1982, the police questioned Benjamin about the murder
of Jerry Cruz. He strongly denied any connection with that homicide
and became frustrated when the police seemed unwilling to believe
him. Suddenly, to prove that he would tell the truth about killing
someone if he were guilty, Benjamin spontaneously confessed to the
murder of the gas station attendant. Later that evening, he gave a
detailed videotaped confession to an Assistant District Attorney,
in
Page 481 U. S. 189
which he admitted that he, Eulogio, Jerry Cruz, and a fourth man
had robbed the gas station, and that he had killed the attendant
after the attendant shot Eulogio. Benjamin and Eulogio were
indicted for felony murder of the station attendant.
The brothers were tried jointly, over Eulogio's objection.
Likewise over Eulogio's objection, the trial judge allowed the
prosecutor to introduce Benjamin's videotaped confession, warning
the jury that the confession was not to be used against Eulogio.
The government also called Norberto, who testified about his
November 29 conversation with Eulogio and Benjamin. Finally, the
government introduced police testimony, forensic evidence, and
photographs of the scene of the murder, all of which corroborated
Benjamin's videotaped confession and the statements recounted by
Norberto. At the trial's end, however, Norberto's testimony stood
as the only evidence admissible against Eulogio that directly
linked him to the crime. Eulogio's attorney tried to persuade the
jury that Norberto had suspected Eulogio and Benjamin of killing
his brother Jerry, and had fabricated his testimony to gain
revenge. Unconvinced, the jury convicted both defendants.
The New York Court of Appeals affirmed Eulogio's conviction, 66
N.Y.2d 61, 485 N.E.2d 221 (1985), adopting the reasoning of the
plurality opinion in
Parker that
Bruton did not
require the codefendant's confession to be excluded because Eulogio
had himself confessed, and his confession "interlocked" with
Benjamin's. We granted certiorari. 476 U.S. 1168 (1986).
II
The Confrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant "to be confronted with the witnesses
against him." We have held that that guarantee, extended against
the States by the Fourteenth Amendment, includes the right to
cross-examine witnesses.
See Pointer v. Texas,
380 U. S. 400,
380 U. S. 404
(1965). Where two or
Page 481 U. S. 190
more defendants are tried jointly, therefore, the pretrial
confession of one of them that implicates the others is not
admissible against the others unless the confessing defendant
waives his Fifth Amendment rights, so as to permit
cross-examination.
Ordinarily, a witness is considered to be a witness "against" a
defendant for purposes of the Confrontation Clause only if his
testimony is part of the body of evidence that the jury may
consider in assessing his guilt. Therefore, a witness whose
testimony is introduced in a joint trial with the limiting
instruction that it be used only to assess the guilt of one of the
defendants will not be considered to be a witness "against" the
other defendants. In
Bruton, however, we held that this
principle will not be applied to validate, under the Confrontation
Clause, introduction of a nontestifying codefendant's confession
implicating the defendant, with instructions that the jury should
disregard the confession insofar as its consideration of the
defendant's guilt is concerned. 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. Not only are the incriminations
devastating to the defendant, but their credibility is inevitably
suspect. . . ."
391 U.S. at
391 U. S.
135-136 (citations omitted).
We had occasion to revisit this issue in
Parker, which
resembled
Bruton in all major respects save one: each of
the jointly tried defendants had himself confessed, his own
confession was introduced against him, and his confession recited
essentially the same facts as those of his nontestifying
Page 481 U. S. 191
codefendants. The plurality of four Justices found no Sixth
Amendment violation. It understood
Bruton to hold that the
Confrontation Clause is violated only when introduction of a
codefendant's confession is "devastating" to the defendant's case.
When the defendant has himself confessed, the plurality reasoned,
"[his] case has already been devastated," 442 U.S. at
442 U. S. 75, n.
7, so that the codefendant's confession "will seldom, if ever, be
of the
devastating' character referred to in Bruton,"
and impeaching that confession on cross-examination "would likely
yield small advantage," id. at 442 U. S. 73.
Thus, the plurality would have held Bruton inapplicable to
cases involving interlocking confessions. The four remaining
Justices participating in the case disagreed, subscribing to the
view expressed by JUSTICE BLACKMUN that introduction of the
defendant's own interlocking confession might, in some cases,
render the violation of the Confrontation Clause harmless, but
could not cause introduction of the nontestifying codefendant's
confession not to constitute a violation. Id. at
442 U. S. 77-80
(BLACKMUN, J., concurring in part and concurring in judgment).
(JUSTICE BLACKMUN alone went on to find that the interlocking
confession did make the error harmless in the case before the
Court, thereby producing a majority for affirmance of the
convictions. Id. at 442 U. S.
80-81.) We face again today the issue on which the Court
was evenly divided in Parker.
We adopt the approach espoused by JUSTICE BLACKMUN. While
"devastating" practical effect was one of the factors that
Bruton considered in assessing whether the Confrontation
Clause might sometimes require departure from the general rule that
jury instructions suffice to exclude improper testimony, 391 U.S.
at
391 U. S. 136,
it did not suggest that the existence of such an effect should be
assessed on a case-by-case basis. Rather, that factor was one of
the justifications for excepting from the general rule the entire
category of codefendant confessions that implicate the defendant in
the crime. It is impossible to imagine why there should be
Page 481 U. S. 192
excluded from that category, as generally not "devastating,"
codefendant confessions that "interlock" with the defendant's own
confession.
"[T]he infinite variability of inculpatory statements (whether
made by defendants or codefendants), and of their likely effect on
juries, makes [the assumption that an interlocking confession will
preclude devastation] untenable."
Parker, 442 U.S. at
442 U. S. 84
(STEVENS, J., dissenting). In this case, for example, the precise
content and even the existence of petitioner's own confession were
open to question, since they depended upon acceptance of Norberto's
testimony, whereas the incriminating confession of codefendant
Benjamin was on videotape.
In fact, it seems to us that "interlocking" bears a positively
inverse relationship to devastation. A codefendant's confession
will be relatively harmless if the incriminating story it tells is
different from that which the defendant himself is alleged to have
told, but enormously damaging if it confirms, in all essential
respects, the defendant's alleged confession. It might be otherwise
if the defendant were standing by his confession, in which case it
could be said that the codefendant's confession does no more than
support the defendant's very own case. But in the real world of
criminal litigation, the defendant is seeking to
avoid his
confession -- on the ground that it was not accurately reported, or
that it was not really true when made. In the present case, for
example, petitioner sought to establish that Norberto had a motive
for falsely reporting a confession that never in fact occurred. In
such circumstances, a codefendant's confession that corroborates
the defendant's confession significantly harms the defendant's
case, whereas one that is positively incompatible gives credence to
the defendant's assertion that his own alleged confession was
nonexistent or false. Quite obviously, what the "interlocking"
nature of the codefendant's confession pertains to is not its
harmfulness, but rather its
reliability: if it
confirms essentially the same facts as the defendant's own
confession, it is more likely to be true. Its reliability,
Page 481 U. S. 193
however, may be relevant to whether the confession should
(despite the lack of opportunity for cross-examination) be
admitted as evidence against the defendant,
see Lee v.
Illinois, 476 U. S. 530
(1986), but cannot conceivably be relevant to whether, assuming it
cannot be admitted, the jury is likely to obey the instruction to
disregard it, or the jury's failure to obey is likely to be
inconsequential. The law cannot command respect if such an
inexplicable exception to a supposed constitutional imperative is
adopted. Having decided
Bruton, we must face the honest
consequences of what it holds.
The dissent makes no effort to respond to these points, urging
instead a rejection of our "remorseless logic" in favor of "common
sense and judgment."
See post at
481 U. S. 197.
But those qualities, even in their most remorseless form, are not
separable. It seems to us illogical, and therefore contrary to
common sense and good judgment, to believe that codefendant
confessions are less likely to be taken into account by the jury
the more they are corroborated by the defendant's own admissions;
or that they are less likely to be harmful when they confirm the
validity of the defendant's alleged confession. Far from carrying
Bruton "to the outer limits of its logic,"
ibid.,
our holding here does no more than reaffirm its central
proposition. This case is indistinguishable from
Bruton
with respect to those factors the Court has deemed relevant in this
area: the likelihood that the instruction will be disregarded,
Bruton, 391 U.S. at
391 U. S. 135;
the probability that such disregard will have a devastating effect,
id. at
391 U. S. 136;
and the determinability of these facts in advance of trial,
Richardson v. Marsh, post at
481 U. S.
208.
We hold that, where a nontestifying codefendant's confession
incriminating the defendant is not directly admissible against the
defendant,
see Lee v. Illinois, supra, the Confrontation
Clause bars its admission at their joint trial, even if the jury is
instructed not to consider it against the defendant, and even if
the defendant's own confession is admitted against him. Of course,
the defendant's confession may be
Page 481 U. S. 194
considered at trial in assessing whether his codefendant's
statements are supported by sufficient "indicia of reliability" to
be directly admissible against him (assuming the "unavailability"
of the codefendant) despite the lack of opportunity for
cross-examination,
see Lee, supra, at
476 U. S.
543-544;
Bruton, supra, at
391 U. S. 128,
n. 3, and may be considered on appeal in assessing whether any
Confrontation Clause violation was harmless,
see Harrington v.
California, 395 U. S. 250
(1969).
Because the Court of Appeals analyzed petitioner's Confrontation
Clause claim under an approach we have now rejected, we reverse and
remand for further proceedings not inconsistent with this
opinion.
So ordered.
JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and
JUSTICE O'CONNOR join, dissenting.
Bruton v. United States, 391 U.
S. 123 (1968), involved a joint trial and the admission
of a codefendant's confession with instructions to the jury not to
consider it against the defendant. [
Footnote 1] Concededly, if the jury had followed its
instructions, there would have been no error, constitutional or
otherwise. But the Court held that, in "some contexts" -- and the
Bruton case fell in that category -- the chance was "so
great" that the jury would not follow its instructions to consider
the codefendant's confession only against him, and the failure to
follow such instructions would be so "devastating"
Page 481 U. S. 195
to the defendant's case, that it would be constitutional error
to admit the confession even against the codefendant.
Id.
at
391 U. S.
135-136. The introduction of the codefendant's
confession "posed a substantial threat to petitioner's right to
confront the witnesses against him," a threat the Court said it
could not ignore.
Id. at
391 U. S.
137.
In
Bruton, the defendant himself had not confessed.
Here, it is otherwise: defendant Cruz had confessed, and his
confession was properly before the jury. Yet the Court's holding is
that the codefendant's confession was inadmissible even if it
completely "interlocked" with that of Cruz himself, that is, was
substantially the same as, and consistent with, Cruz's confession
with respect to all elements of the crime, and did not threaten to
incriminate Cruz any more than his own confession.
This makes little sense to me.
"[T]he defendant's own confession is probably the most probative
and damaging evidence that can be admitted against him. Though
itself an out-of-court statement, it is admitted as reliable
evidence because it is an admission of guilt by the defendant, and
constitutes direct evidence of the facts to which it relates. Even
the testimony of an eyewitness may be less reliable than the
defendant's own confession. An observer may not correctly perceive,
understand, or remember the acts of another, but the admissions of
a defendant come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past conduct."
Id. at
391 U. S.
139-140 (WHITE, J., dissenting). Confessions of
defendants have profound impact on juries, so much that we held in
Jackson v. Denno, 378 U. S. 368
(1964), that there is justifiable doubt that juries will disregard
them even if told to do so. But a codefendant's out-of-court
statements implicating the defendant are not only hearsay, but also
have traditionally been viewed with special suspicion.
Bruton,
supra, at 136;
Holmgren
v.
Page 481 U. S. 196
United States, 217 U. S. 509,
217 U. S.
523-524 (1910);
Crawford v. United States,
212 U. S. 183,
212 U. S. 204
(1909). And the jury may be so informed.
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.
But here, Cruz had admitted the crime, and this fact was before the
jury. I disagree with the Court's proposition that, in every
interlocking confession case, the jury, with the defendant's
confession properly before it, would be tempted to disobey its
instructions and fail to understand that presumptively unreliable
evidence must not be used against the defendant. Nor is it remotely
possible that, in every case, the admission of an interlocking
confession by a codefendant will have the devastating effect
referred to in
Bruton. [
Footnote 2]
The Court finds it "impossible to imagine" why the defendant's
interlocking confession could ever make the
Bruton rule
inapplicable; any such conclusion would be "illogical."
Ante at
481 U. S. 191,
481 U. S. 193.
But many Court of Appeals Judges -- as many as embrace the Court's
harmless error rule -- are not so unimaginative; they see nothing
illogical, in interlocking confession cases, in adhering to the
traditional presumption that juries follow their instructions.
[
Footnote 3] Of course, the
decision here is not
Page 481 U. S. 197
a matter of imagination or logic, but one of common sense and
judgment in interpreting the Constitution.
Bruton
disallowed the codefendant's confession into evidence, even with an
instruction to disregard it as evidence against Bruton, because it
posed a "substantial threat" to his Confrontation Clause rights. It
does not defy logic to find that in other circumstances, such as
where the defendant's own confession interlocks with his
codefendant's, the threat is not of such magnitude. Even where
remorseless logic may seem to justify the extension of what
otherwise might be a sound constitutional rule, common sense should
prevail. Otherwise, especially in applying prophylactic rules, we
may trivialize the principles of prior cases by applying them to
situations that, in general, do not really pose the dangers that
the rules were intended to obviate.
The Court states that "[W]e must face the honest consequences"
of the
Bruton decision.
Ante at
481 U. S. 193.
But
Richardson v. Marsh, post, p.
481 U. S. 200,
decided today, recognizes that
Bruton cannot be followed
to the outer limits of its logic with out serious disruption of the
State's ability to conduct joint trials. In
Richardson,
the Court of Appeals held inadmissible a codefendant's confession
even though it had been redacted to eliminate any references to the
defendant, the
Page 481 U. S. 198
fear being that the jury, if it disobeyed its instructions,
could have drawn unfavorable inferences from the challenged
confession when considered together with other evidence.
Marsh
v. Richardson, 781 F.2d 1201 (CA6 1986). We reversed the Court
of Appeals despite this possibility, thus rejecting the
Bruton claim,
post at
481 U. S. 211,
as we should do in this case.
That the error the Court finds may be harmless and the
conviction saved will not comfort prosecutors and judges. I doubt
that the former will seek joint trials in interlocking confession
cases, and if that occurs, the judge is not likely to commit error
by admitting the codefendant's confession. Of course, defendants
may be tried separately and
Bruton problems avoided. But
joint trials
"conserve state funds, diminish inconvenience to witnesses and
public authorities, and avoid delays in bringing those accused of
crime to trial,"
Bruton, 391 U.S. at
391 U. S. 134,
to say nothing of the possibility of inconsistent verdicts and the
effect of severance on already-overburdened state and federal court
systems.
See also Richardson v. Marsh, post at
481 U. S.
209-210.
I thus adhere to the views expressed by the plurality in
Parker v. Randolph, 442 U. S. 62
(1979). There was no constitutional error here that
Bruton
sought to avoid, and no occasion to inquire into harmless error. In
announcing its prophylactic rule,
Bruton did not address
the situation where the defendant himself had confessed, and I
would not extend its holding to cases where the jury has heard the
defendant's own confession.
Lee v. Illinois, 476 U. S. 530
(1986), and
Ohio v. Roberts, 448 U. S.
56 (1980), suggest that a codefendant's interlocking
confession will often be admissible against the defendant, in which
event there would not be the Confrontation Clause issue
Bruton identified. [
Footnote 4] Here, the codefendant's confession
Page 481 U. S. 199
carries numerous indicia of reliability, and I gather that the
Court's disposition does not deny the state courts, on remand, the
opportunity to deal with the admissibility of that confession
against Cruz.
[
Footnote 1]
The crime with which Bruton and his codefendant Evans were
charged was the robbery of postal funds from a jewelry store that
operated a contract branch for the United States Post Office
Department.
Evans v. United States, 375 F.2d 355, 357 (CA8
1967). Evans was readily identified by the store's owner and
another employee, who knew him as a frequent visitor to the store,
but the owner could not identify Bruton as Evans' accomplice.
Ibid. The employee did identify Bruton at trial, but
admitted that she had failed to identify him at a first lineup of
three persons, and had identified him only at a second lineup, at a
time when she suspected that he had been part of the previous
lineup. App. in
Bruton v. United States, O.T. 1967, No.
705, pp. 70-73.
[
Footnote 2]
The Court is of the view that "
interlocking' bears a
positively inverse relationship to devastation." Ante at
481 U. S. 192.
In so reasoning, the Court gives no weight whatsoever to the
devastating effect that the defendant's own confession is likely to
have upon his case. The majority's excuse for ignoring this
consideration apparently is that the damaging effect of the
defendant's confession may vary somewhat from case to case.
Ibid. But the Bruton rule is prophylactic in
nature, and, in view of the fact that it imposes significant
burdens on the prosecution, see Richardson v. Marsh, post
at 481 U. S.
209-210, the rule should be confined to those cases
where the jury's ignoring of limiting instructions is most likely
to change the verdict, which is to say, those cases where there is
the greatest risk that jury misconduct will lead to the conviction
of an innocent defendant. It is self-evident that, as a class,
cases where the defendant has not confessed fit that description
far better than cases where the defendant has confessed.
[
Footnote 3]
As I read the cases, the Second, Seventh, and Eleventh Circuits
follow the course the Court rejects.
United States ex rel.
Catanzaro v. Mancusi, 404 F.2d 296, 300 (CA2 1968);
United
States v. Paternina-Vergara, 749 F.2d 993, 998-999 (CA2 1984);
United States v. Spinks, 470 F.2d 64 (CA7 1972);
United States v. Kroesser, 731 F.2d 1509 (CA11 1984). The
Fourth and Fifth Circuits lean in that direction,
United States
v. Smith, 792 F.2d 441, 443 (CA4 1986);
Mack v.
Maggio, 538 F.2d 1129 (CA5 1976);
United States v.
Miller, 666 F.2d 991, 997-999 (CA5 1982); and the Tenth
Circuit's view is that any difference between the two views is only
a legal nicety,
Metropolis v. Turner, 437 F.2d 207 (1971).
The Third, Sixth, Eighth, and Ninth Circuits take the harmless
error route.
United States v. DiGilio, 538 F.2d 972 (CA3
1976);
Hodges v. Rose, 670 F.2d 643, 647 (CA6 1978);
United States v. Parker, 622 F.2d 298 (CA8 1980);
United States v. Espericueta-Reyes, 631 F.2d 616, 624, n.
11 (CA9 1980). The Court of Appeals Judges who have addressed the
issue are approximately equally divided as to whether to apply
Bruton in interlocking confession cases.
[
Footnote 4]
As JUSTICE BLACKMUN commented in dissent in
Lee:
"In
Bruton v. United States, 391 U. S.
123 (1968), the inadmissibility of the codefendant's
out-of-court statements against the defendant was not contested. .
. . The
Bruton rule thus necessarily applies only to
situations in which the out-of-court statements are
constitutionally inadmissible against the defendant."
476 U.S. at
476 U. S. 552,
n. 5.