MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part VII. Multiple Defendants

        Part VII(B)  Bruton Rule

        Part VII(B)     Bruton Rule: General Principles
        Part VII(B)1   Determining Whether Bruton Rule Is Applicable
        Part VII(B)2   Avoidance Of Bruton Problem

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that the Confrontation Clause of the Sixth Amendment was violated when the confession of one defendant, implicating another defendant, was placed before the jury at the defendants' joint trial and the confessing defendant did not take the witness stand and was therefore not subject to cross-examination. This was a violation even though the court gave the jury a cautionary instruction that the confession was to be considered only as evidence against the confessing defendant.

In Richardson v. Marsh, 481 U.S. 200 (1987), the Court held that the Bruton rule is limited to confessions of a nontestifying codefendant that are facially incriminating of another defendant. Thus, the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession that is redacted to eliminate the defendant's name and any other reference to the defendant's existence. In Richardson, evidence introduced after the codefendant's redacted statement caused the statement to inculpate the defendant. However, the Court found that such "contextual" incrimination did not violate Bruton because the jury was likely to obey a cautionary instruction to consider the statement itself as evidence only against the confessing defendant.

In multidefendant cases, the court should explore the possibility of a Bruton problem before the potential jurors are sworn in, since the government may be planning to offer in evidence a pretrial confession by one of the codefendants. The court must consider whether there is a possible Bruton problem and, if so, methods of avoiding that problem.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Bruton does not apply to the confession of one codefendant if that confession does not refer to the other defendant and the jury is instructed that the confession is received as evidence only against the confessing defendant.

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

Bruton does not apply to the confession of a codefendant if the codefendant testifies at trial, because he or she is then subject to cross-examination by the other defendant or defendants. Since the codefendant is available for cross-examination, the Confrontation Clause is not violated and severance is not constitutionally mandated.

Nelson v. O’Neil, 402 U.S. 622 (1971)
United States v. Morgan, 562 F.2d 1001 (5th Cir. 1977)
Hodges v. Rose, 570 F.2d 643 (6th Cir. 1978)

However, if a testifying codefendant refuses to allow cross-examination by another defendant, Bruton applies.

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

In Cruz v. New York, 481 U.S. 186 (1987), the Supreme Court abolished the "interlocking confessions" exception to the Bruton rule that had been espoused by four justices in Parker v. Randolph, 442 U.S. 62 (1979). In Parker, a plurality of the Court had concluded that if two defendants have made full confessions, Bruton does not apply and the "interlocking confessions" are admissible against their respective makers in a joint trial. Cruz held that when a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at the defendants' 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 or her.

If the nontestifying codefendant's confession is introduced in rebuttal to impeach a testifying defendant's explanation of his or her own confession, and the jury is properly instructed that the nontestifying codefendant's confession is not to be considered for its truth, the Confrontation Clause is not violated and Bruton does not apply.

Tennessee v. Street, 471 U.S. 409 (1985)

Some circuits have held that the Bruton rule does not apply to an out-of court statement that is admissible under FRE 801(d)(2)(E) as a coconspirator statement.

United States v. Archbold-Newball, 554 F.2d 665 (5th Cir. 1977)
United States v. Warren, 578 F.2d 1058 (5th Cir. 1978), overruled on other grounds by United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988)
United States v. Goins, 593 F.2d 88 (8th Cir. 1979)

Bruton does not apply to an out-of-court statement that is admissible as an excited utterance under FRE 803(2).

McLaughlin v. Vinzant, F.2d 448 (1st Cir. 1975)
United States v. Vazquez, 875 F.2d 857 (1st Cir. 1988)

At least one circuit has held that Bruton does not apply to an out-of-court statement against penal interest.

United States v. Kelley, 526 F.2d 615 (8th Cir. 1975)
Contra United States v. Flores, 985 F.2d 770 (5th Cir. 1993)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part VII(B) 2    Avoidance Of Bruton Problem

CAVEAT: See Publication Preface and Caveats.

When the court learns before trial that the government proposes to introduce an out-of-court confession of one defendant, the court should make inquiry as to the confession intended to be used and then decide what, if any, remedial steps are required. The court may

1. exclude the confession at a joint trial;

2. delete references in the confession to the codefendant against whom the confession is inadmissible;

3. order severance or

4. try the defendants together but before different juries.

If the confession of a nontestifying codefendant is to be admitted at a joint trial, it must be redacted to eliminate any reference to the non-confessing defendant. In editing the confession, the court must eliminate both the non-confessing defendant's name and any references to his or her existence.

Richardson v. Marsh, 481 U.S. 200 (1987)
United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988)

The court may avoid Bruton problems by conducting the trial before two juries, with the confessing statement made by one defendant being heard only by the jury that is trying that defendant.

United States v. Hayes, 676 F.2d 1359 (11th Cir. 1982)
United States v. Lewis, 716 F.2d 16 (D.C. Cir. 1983)
Smith v. De Robertis, 758 F.2d 1151 (7th Cir. 1985)