In yesterday’s post I set out the basics of the Bruton rule. Put simply, Bruton v. United States, 391 U.S. 123 (1968), held that a defendant’s confrontation clause rights are violated when a non-testifying codefendant’s confession naming the defendant as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Later cases clarified that the confrontation clause is not violated by the admission of a non-testifying codefendant’s confession if:
- a proper limiting instruction is given and
- the confession is redacted to eliminate not only the defendant’s name but also any reference to his or her existence.
Crawford, of course also was grounded in the confrontation clause. Crawford v. Washington, 541 U.S. 36 (2004). Not surprisingly then, it impacts the Bruton rule. Specifically, Crawford and its progeny have two significant implications on the Bruton rule.
First, Crawford made clear that confrontation clause protections are limited to testimonial statements. Whorton v. Bockting, 549 U.S. 406, 420 (2007) (confrontation clause has “no application” to non-testimonial statements). Thus, if the statement is non-testimonial, neither Crawford nor Bruton apply. Although there does not appear to be a North Carolina decision on point, ample case law supporting this proposition exists in other jurisdictions. See, e.g., United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010); United States v. Dale, 614 F.3d 942, 955 (8th Cir. 2010); United States v. Johnson, 581 F.3d 320, 325-26 (6th Cir. 2009). This means that when a Bruton issue arises at trial, one of the first inquiries will be: Is the confession testimonial. Of course, Bruton issues arise most commonly with respect a codefendant’s confession that was procured through police interrogation. Such a statement is clearly testimonial under Crawford. Crawford, 541 U.S. at 51. However, because the Bruton rule is not limited to confessions procured by police interrogation, issues may arise as to whether a confession made in other contexts is testimonial and subject to the confrontation clause, such as when the codefendant confessed to a relative or a friend.
Second, a number of pre-Crawford North Carolina Bruton cases hold that if a Bruton-challenged confession falls within a hearsay exception and is reliable, Bruton does not bar admissibility. See, e.g., State v. Porter, 303 N.C. 680, 695-97 (1981). This law is clearly invalid after Crawford. In Crawford the Court overruled the reliability test for confrontation clause objections and set in place a new, stricter standard for admission of hearsay statements under the confrontation clause. Under the old Ohio v. Roberts, 448 U.S. 56 (1980), reliability test the confrontation clause did not bar admission of an unavailable witness’s statement if the statement had an adequate indicia of reliability. Evidence satisfied that test if it fell within a firmly rooted hearsay exception or had particularized guarantees of trustworthiness. Crawford rejected the Roberts analysis, concluding that although the ultimate goal of the confrontation clause is to ensure reliability of evidence, “it is a procedural rather than a substantive guarantee.” Crawford, 541 U.S. at 61. It continued: The confrontation clause “commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. Crawford went on to hold that testimonial statements by declarants who do not appear at trial may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Thus, any pre-Crawford cases holding that a confession satisfies the confrontation clause because it is reliable are no longer good law.
If you’ve faced other issues involving the intersection of Crawford and Bruton, I’d be interested to know about them.