What is a “Bruton motion?”
When a prosecutor wants to admit a codefendant’s statements at trial when 1) the codefendant’s statements also implicate the defendant, and 2) the codefendant is not going to testify, and therefore the defendant cannot cross-examine them about their statement, the defendant’s attorney will usually make a “Bruton motion” asking the court to either grant a severance (try the two cases separately) or exclude the hearsay statement.
Although the codefendant’s statement is admissible against the codefendant, it is not admissible against the defendant…
How does a Bruton motion work, and how can the court avoid a constitutional violation in this situation?
What is a “Bruton Motion?”
Hearsay statements – a statement made by someone other than the person testifying that is “offered in evidence to prove the truth of the matter asserted” – are not admissible in trial unless there is a valid exception.
An “admission of a party opponent” is not hearsay, however, according to Rule 801(d)(2) of the SC Rules of Evidence. In a criminal trial, a defendant’s prior statements are admissible against them unless there is another rule of evidence that prohibits it.
What happens when two codefendants are tried jointly, and the prosecutor wants to use the codefendant’s statement against the codefendant, but the codefendant’s statement also implicates the defendant?
As applied to the codefendant, the codefendant’s statements are an “admission of a party opponent” and are admissible. If the codefendant testifies, the defendant’s attorney can cross-examine the codefendant about their statements to show inconsistencies or the unreliability of the statement.
If the codefendant does not testify, however, the same statements as applied to the defendant are 1) inadmissible hearsay, and 2) a violation of the Confrontation Clause because the defendant does not have an opportunity to “confront” (cross-examine) the witness.
In Bruton v. U.S., in 1968, the US Supreme Court addressed this problem, holding that a defendant’s inability to cross-examine a codefendant as to the codefendant’s statement is a violation of the Sixth Amendment’s Confrontation Clause – even when the trial court gives a “limiting instruction” telling the jurors to disregard the statement as applied to the defendant.
What is the Remedy?
There are several possibilities, depending on the facts of the case:
- The trials can be severed, allowing the court to exclude the codefendant’s statements against the defendant in the defendant’s trial while still allowing the prosecutor to use the codefendant’s statements against the codefendant at the codefendant’s trial,
- The statement can be redacted, removing all reference to the defendant – this might work in some situations, but, in others, it will be impossible to avoid the references to the defendant in the codefendant’s statement, or
- The statement can be suppressed, and, to avoid the Confrontation Clause violation against the defendant, not admitted against either defendant or codefendant.
“Facially Implicating” or “Contextual Implication”
In Richardson v. Marsh, the US Supreme Court walked back their holding in Bruton, clarifying that there is a distinction between 1) a codefendant’s statement that “expressly implicates” the defendant and 2) a codefendant’s statement that implicates the defendant only when linked with other evidence at trial:
There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession “expressly implicat[ed]” the defendant as his accomplice. Id., at 124, n. 1, 88 S.Ct., at 1621, n. 1. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove “powerfully incriminating.” Id., at 135, 88 S.Ct., at 1627. 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).
The US Supreme Court weighs the conflicting interests of a defendant’s right to confrontation (cross-examination) vs. 1) the court’s interest in not taking the time to try codefendant’s separately and 2) society’s interest in convicting people even when their conviction is based on the deprivation of a defendant’s right to confrontation, and their conclusion is:
- If the co-defendant’s statement is facially implicating (for example, “Joe and I robbed that store together”), the statement must be excluded or the trial must be severed (they must be tried separately), but
- If the co-defendant’s statement is a “contextual implication” that requires additional evidence to make the connection, courts cannot be bothered to take the time for separate trials, and a limiting instruction is sufficient.
Can’t the Court Just Tell Jurors Not to Consider the Testimony Against the Defendant?
Even though the Court acknowledges that jurors are not likely to follow a court’s instructions to ignore the fact that a co-defendant’s statement incriminates the defendant (“Ladies and gentlemen of the jury, please disregard the portion of Mr. Smith’s statement where he says Joe committed the robbery…” would you “disregard” that if you were a juror?), the Court held that, where the statement only implicates the defendant by inference, a limiting instruction might be good enough:
Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton § exception to the general rule.
When 1) the statement does not implicate the defendant without reference to additional evidence, or 2) the statement can be redacted “to eliminate not only the defendant’s name, but any reference to his or her existence,” a limiting instruction might be enough to avoid the Confrontation Clause violation.
Can You Cross-Examine an “Absent” Witness?
If a prosecutor wants to admit a codefendant’s statement at trial, knowing 1) that it will incriminate the defendant and 2) it violates the defendant’s constitutional rights, the statement should be excluded from trial, or the prosecutor should be required to try the defendants separately.
If the trial court disagrees, and the trial goes forward with both defendants, what then?
First, in most cases, the defendant probably should not testify – note that, in Richardson v. Marsh, the Supreme Court emphasized that the defendant took the stand, testified in her own defense, and her own testimony was the additional evidence that made the link between her and the codefendant’s redacted statement.
Second, there is always Rule 806. Although the codefendant does not take the stand, and the inability to get live answers on cross-examination about the codefendant’s statement is the heart of the Confrontation Clause violation, the defendant still can conduct a limited “cross-examination” under Rule 806:
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Even though the codefendant does not take the witness stand, you can introduce evidence that would call the codefendant’s prior statements into question (you may or may not want to do this, depending on your trial strategy and circumstances) including:
- Character, conduct, and bias of the witness under Rule 608,
- Impeachment by evidence of prior criminal convictions under Rule 609, and
- Prior inconsistent statements under Rule 613.
Because the trials were not severed and the codefendant’s statement was admitted, the potential constitutional violations and conflicts between court rules begin to add up (increasing the issues for appeal if the trial judge doubles down and refuses to grant your motions).
- The defendant has a Sixth Amendment right to confront the witnesses against them which is violated when the codefendant’s out-of-court statement is admitted.
- The defendant has a Fifth Amendment right to remain silent and not take the witness stand but may be forced to take the stand to explain the codefendant’s untruthful statement – something the defendant should have been able to do on cross-examination of the codefendant.
- The codefendant has a Rule 609 right to not be impeached by their prior convictions if they do not take the witness stand, but the defendant now has a right under Rule 806 to inform the jurors of the codefendant’s prior convictions.
- The codefendant has a Fifth Amendment right to remain silent and not take the witness stand but may be forced to take the stand to explain the defendant’s impeachment evidence.
- The codefendant has a right under Rule 613 to be allowed to explain or deny prior inconsistent statements, but 1) the defendant has a right under Rule 806 to introduce the codefendant’s prior inconsistent statements, and 2) the codefendant cannot explain or deny the prior inconsistent statements unless they take the witness stand which forces them to testify in violation of their Fifth Amendment rights.
Make a careful record for a possible appeal – including the constitutional violations and rules conflicts that result from the trial court’s refusal to sever the trials or exclude the codefendant’s statement.
Criminal Defense Lawyers in Conway, SC
Attorney Johnny Gardner has thirty years of trial experience defending misdemeanors and felonies in SC courtrooms, including General Sessions Court, magistrate courts, and municipal courts.