The Co-Defendant Confession Conundrum

Criminal defendants are constitutionally entitled to confront the witnesses against them, a right that places a limit on the admission of out-of-court statements in addition to the general, exception-riddled rule of evidence against hearsay. But witnesses, for this purpose, do not include the defendant himself. So what do we do in a joint trial when a statement of one defendant incriminates them both? The Supreme Court sallied forth “once more unto the breach, dear friends” today in Samia v. United States, No. 22-196. Here is the holding from the syllabus:

Held: The Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.

The Court has gone back and forth on this, to put it mildly.

The Supreme Court upheld the introduction of a confession that implicated both defendants with a jury instruction limiting its use to the defendant who made it in Delli Paoli v. United States (1957). It was a 5-4 decision, with Justices Frankfurter, Black, Douglas, and Brennan dissenting.

Eleven years later, the Court had far less confidence in such instructions, and it overruled Delli Paoli in Bruton v. United States (1968), a 6-2 decision with Justice Brennan writing the opinion for the majority. An earlier case barred the practice of letting a jury determine if a confession was voluntary with instructions to ignore it if it was not. The Bruton Court said that decision had “expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary.” It does not necessarily follow that the same conclusion applies to someone else’s statement, as the defendant’s own confession has long been recognized to be uniquely powerful. Even so, the Bruton majority required “viable alternative[]” ways of using the confessor’s confession against him and not the co-defendant be employed.

The most obvious way is to hold two separate trials. That is expensive, however, both in government resources and in the time of witnesses and jurors. The Bruton opinion also noted the possibility of deleting the name of the co-defendant while also noting that this practice has been criticized as ineffective. (See footnote 10 and accompanying text.) Bruton thus left hanging the question presented in today’s case.

Now we go forward another 19 years. The Court had regained confidence in the efficacy of limiting instructions in Richardson v. Marsh (1987). The opinion of the Court in Richardson, by Justice Scalia, notes “the almost invariable assumption of the law that jurors follow their instructions” and characterizes Bruton as “a narrow exception.” In Richardson, co-defendant Williams’ “confession was redacted to omit all reference to respondent [Marsh] — indeed, to omit all indication that anyone other than Martin and Williams participated in the crime.” The Court distinguished Bruton as a case where the “the codefendant’s confession ‘expressly implicat[ed]’ the defendant as his accomplice…. 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).”

After another 11 years, we have Gray v. Maryland (1998). There the co-defendant’s confession named Gray, but it was read to the jury by an officer who said “deleted” where Gray’s name appeared. A written copy introduced in evidence had a white space where the name had been. The Supreme Court held 5-4 that this was a violation of the Confrontation Clause.

That brings us to the present case. There are three defendants, alleged to have conspired to murder real-estate broker Catherine Lee at the behest of “crime boss” Paul LeRoux. “[T]he Government’s theory of the case was that Hunter had hired Samia and Stillwell to pose as real-estate buyers and visit properties with Lee. The Government also sought to prove that Samia, Stillwell, and Lee were in a van that Stillwell was driving when Samia shot Lee.” Hunter and Stillwell confessed, but Samia did not.

Instead of introducing Stillwell’s actual confession, a government agent paraphrased it. No one objected to this aspect of the procedure.

“Q. Did [Stillwell] say where [the victim] was when she was killed?
“A. Yes. He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.”

Where does this fall on the Richardson – Gray –  Bruton continuum?  I would think it is more like Gray than Richardson, but there is not a lot of daylight there to begin with. (CJLF filed an amicus brief supporting the state in Gray.) The Gray Court had to stretch to say that the evidence directly implicated Gray in order to distinguish Richardson, and that provided the Court in the present case with a basis to distinguish it from Gray.

The opinion of the Court by Justice Thomas includes a discussion of historical practice and earlier understanding that calls into question the correctness of Bruton itself. Sometimes a majority of the present justices believe that an old precedent was wrongly decided but need not be overruled. In that case, they freeze the precedent in place and decline to make any extensions. When was the last time the Supreme Court applied Miranda v. Arizona to exclude a confession not clearly barred by existing precedent? I can’t think of one in a very long time.

Justice Kagan dissents, joined by Justices Sotomayor and Jackson. She thinks this case is more like Gray also. She “wonder[s] after reading today’s decision
whether Bruton is the next precedent on this Court’s chopping block.” It might not be, she posits, because the present case provides an easy bypass. It also might not be overruled, in my opinion, because the justices who think it was wrongly decided really do have a principled approach to stare decisis, and it may not meet the criteria for overruling.

Constitutional questions aside, we should be concerned about introducing evidence that is not subject to what Wigmore called the greatest engine for truth, cross-examination. A trial with two juries is a resource compromise between joint and severed trials. It does require duplication of the resources to empanel the juries, and it requires twice as many people to give up their time for jury duty. But the other expense of trial are not duplicated. A two-jury trial also reduces the chances of reversal on appeal and the enormous cost of retrial and a new round of appeals in the event that an appellate court finds that the case is more like Gray than Samia, a decision that may involve splitting hairs. Something to consider.