Other Evidence Used to Determine Extent of Bruton Error

A state court must look beyond the four corners of a nontestifying co-defendant's redacted confession when evaluating the merits of a confrontation clause claim.

 

Washington v. Sec'y Pa. Dep't of Corr., 2015 BL 282414, 3d Cir., No. 12-2883, 9/1/15

    The Bruton rule prohibits prosecutors from presenting a nontestifying co-defendant's confession to the jury when that confession implicates the defendant. These confessions are sometimes allowed, if references to the defendant are eliminated. (Richardson v. Marsh, 481 U.S. 200 (1987). However, in Gray v. Maryland, 523 U.S. 185 (1998), the court indicated that merely replacing the references to the defendant with the word "deleted" or a blank space set off by commas was not enough to keep a confession from facially incriminating the defendant, and rendering limiting jury instructions moot.

    In this case the prosecution replaced references to the defendant with phrases such as "someone I know," "the other guy," "the driver," the guy who went into the store," and "the shooter." The Third Circuit held that this did not cure the confrontation problem because an accomplice who had already testified had identified the defendant as the driver, making it simple for the jury to connect the dots in the redacted confession.

    The state court in this case, ruled the Third Circuit, erroneously used an overly strict interpretation of the Bruton/Richardson/Gray cases and looked only within the four corners of the confession. As a result of the error, the state court found no confrontation problem because there was no direct implication of the defendant.

    The Third Circuit ruled that this interpretation violated the clearly established rules set by the U.S. Supreme Court "and would permit the admission of many facially incriminating confessions."

http://www2.bloomberglaw.com/public/desktop/document/Washington_v_Secy_Pa_Dept_of_Corr_No_122883_2015_BL_282414_3d_Cir