OCTOBER TERM, 1997
Syllabus
GRAY
v. MARYLAND
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND No. 96-8653.
Argued December 8, 1997-Decided March 9, 1998
Anthony Bell confessed to the police that he, petitioner Gray,
and another man participated in the beating that caused Stacey
Williams' death. After the third man died, a Maryland grand jury
indicted Bell and Gray for murder, and the State tried them
jointly. When the trial judge permitted the State to introduce a
redacted version of Bell's confession, the detective who read it to
the jury said "deleted" or "deletion" whenever the name of Gray or
the third participant appeared. Immediately after that reading,
however, the detective answered affirmatively when the prosecutor
asked, "after [Bell] gave you that information, you subsequently
were able to arrest ... Gray; is that correct?" The State also
introduced a written copy of the confession with the two names
omitted, leaving in their place blanks separated by commas. The
judge instructed the jury that the confession could be used as
evidence only against Bell, not Gray. The jury convicted both
defendants. Maryland's intermediate appellate court held that
Bruton v.
United States, 391 U. S. 123, prohibited
use of the confession and set aside Gray's conviction. Maryland's
highest court disagreed and reinstated that conviction.
Held: The confession here at issue, which substituted
blanks and the word "delete" for Gray's proper name, falls within
the class of statements to which
Bruton's protective rule
applies. pp. 189-197.
(a)
Bruton also involved two defendants tried jointly for
the same crime, with the confession of one of them incriminating
both himself and the other. This Court held that, despite a
limiting instruction that the jury should consider the confession
as evidence only against the confessing codefendant, the
introduction of such a confession at a joint trial violates the
nonconfessing defendant's Sixth Amendment right to crossexamine
witnesses. The Court explained that this situation, in which the
powerfully incriminating extrajudicial statements of a codefendant
are deliberately spread before the jury in a joint trial, is one of
the contexts in which the risk that the jury will not, or cannot,
follow limiting instructions is so great, and the consequences of
failure so devastating to the defendant, that the introduction of
the evidence cannot be allowed. See 391 U. S., at 135-136.
Bruton's scope was limited by
Richardson v.
Marsh, 481 U.
S. 200, 211, in which the Court held that the Confrontation
Clause is not violated by the admission of a nontesti-
186
Syllabus
fying codefendant's confession with a proper limiting
instruction when the confession is redacted to eliminate not only
that defendant's name, but any reference to his or her existence.
Pp. 189-191.
(b) Unlike
Richardson's redacted confession, the
confession here refers directly to Gray's "existence." Redactions
that simply replace a name with an obvious blank space or a word
such as "deleted" or a symbol or other similarly obvious
indications of alteration leave statements that, considered as a
class, so closely resemble
Bruton's unredacted statements as
to warrant the same legal results. For one thing, a jury will often
react similarly to an unredacted confession and a confession
redacted as here, for it will realize that the confession refers
specifically to the defendant, even when the State does not
blatantly link the defendant to the deleted name, as it did below
by asking the detective whether Gray was arrested on the basis of
information in Bell's confession. For another thing, the obvious
deletion may well call the jurors' attention specially to the
removed name. By encouraging the jury to speculate about the
reference, the redaction may overemphasize the importance of the
confession's accusation-once the jurors work out the reference.
Finally,
Bruton's protected statements and statements
redacted to leave a blank or some other similarly obvious
alteration, function the same way grammatically: They point
directly to, and accuse, the nonconfessing codefendant. Pp.
192-195.
(c) Although
Richardson placed outside
Bruton's
scope statements that incriminate inferentially, 481 U. S., at 208,
and the jury must use inference to connect Bell's statements with
Gray,
Richardson does not control the result here. Inference
pure and simple cannot make the critical difference. If it did,
then
Richardson would also place outside
Bruton's
scope confessions that use,
e. g., nicknames and unique
descriptions, whereas this Court has assumed that such identifiers
fall inside
Bruton's protection, see
Harrington v.
California, 395 U. S. 250, 253. Thus,
Richardson must depend in significant part upon the
kind of, not the simple
fact of, inference.
Richardson's inferences involved statements that did not
refer directly to the defendant himself, but became incriminating
"only when linked with evidence introduced later at trial." 481 U.
S., at 208. In contrast, the inferences here involve statements
that, despite redaction, obviously refer directly to someone, often
obviously to Gray, and involve inferences that a jury ordinarily
could make immediately, even were the confession the very first
item introduced at trial.
Richardson's policy reasons for
its conclusion-that application of
Bruton's rule would force
prosecutors to abandon use either of the confession or of a joint
trial in instances where adequate redaction would "not [be]
possible," 481 U. S., at 209, and would lead to those same
187
results, or provoke mistrials, because of the difficulty of
predicting, before introduction of all the evidence, whether
Bruton barred use of a particular confession that
incriminated "by connection," see
ibid.-are inapplicable in
the circumstances here. Pp. 195-197.
344 Md. 417, 687 A. 2d 660, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY
and THOMAS, JJ., joined,
post, p. 200.
Arthur A. DeLano, Jr., argued the cause for
petitioner.
With him on the briefs were
Stephen E. Harris and
Nancy
Carmen M. Shepard, Deputy Attorney General of Maryland,
argued the cause for respondent. With her on the brief were J.
Joseph Curran, Jr., Attorney General, and
Gary E.
Bair and
Mary Ellen Barbera, Assistant Attorneys
General.
Roy W McLeese III argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were Acting
Solicitor General Waxman, Acting Assistant Attorney General Keeney,
and Deputy Solicitor General Dreeben. *
*David Reiser and
Barbara E. Bergman filed a brief
for the National Association of Criminal Defense Lawyers et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of New York et al. by
Dennis C.
Vacco,
Attorney General of New York,
Barbara G.
Billet,
Solicitor General,
Peter H. Schiff, Deputy Solicitor
General, and
Marlene Q Tuczinski, Assistant Attorney
General,
John M. Balley, Chief State's Attorney of
Connecticut, and by the Attorneys General for their respective
States as follows:
M. Jane Brady of Delaware,
Margery
S.
Bronster of Hawaii,
Richard P. Ieyoub of
Louisiana,
Frank J.
Kelley of Michigan,
Joseph P.
Mazurek of Montana,
Frankie Sue Del Papa of Nevada,
W
A. Drew Edmondson of Oklahoma,
Jan Graham of Utah, and
William H. Sorrell of Vermont; and for the Criminal Justice
Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
188
JUSTICE BREYER delivered the opinion of the Court.
The issue in this case concerns the application of Bruton v.
United States,
391 U.
S. 123 (1968). Bruton involved two defendants accused of
participating in the same crime and tried jointly before the same
jury. One of the defendants had confessed. His confession named and
incriminated the other defendant. The trial judge issued a limiting
instruction, telling the jury that it should consider the
confession as evidence only against the codefendant who had
confessed and not against the defendant named in the confession.
Bruton held that, despite the limiting instruction, the
Constitution forbids the use of such a confession in the joint
trial.
The case before us differs from Bruton in that the prosecution
here redacted the codefendant's confession by substituting for the
defendant's name in the confession a blank space or the word
"deleted." We must decide whether these substitutions make a
significant legal difference. We hold that they do not and that
Bruton's protective rule applies.
I
In 1993, Stacey Williams died after a severe beating. Anthony
Bell gave a confession, to the Baltimore City police, in which he
said that he (Bell), Kevin Gray, and Jacquin "Tank" Vanlandingham
had participated in the beating that resulted in Williams' death.
Vanlandingham later died. A Maryland grand jury indicted Bell and
Gray for murder. The State of Maryland tried them jointly.
The trial judge, after denying Gray's motion for a separate
trial, permitted the State to introduce Bell's confession into
evidence at trial. But the judge ordered the confession redacted.
Consequently, the police detective who read the confession into
evidence said the word "deleted" or "deletion" whenever Gray's name
or Vanlandingham's name appeared. Immediately after the police
detective read the redacted confession to the jury, the prosecutor
asked, "after he gave you that information, you subsequently were
able
189
to arrest Mr. Kevin Gray; is that correct?" The officer
responded, "That's correct." App. 12. The State also introduced
into evidence a written copy of the confession with those two names
omitted, leaving in their place blank white spaces separated by
commas. See Appendix,
infra. The State produced other
witnesses, who said that six persons (including Bell, Gray, and
Vanlandingham) participated in the beating. Gray testified and
denied his participation. Bell did not testify.
When instructing the jury, the trial judge specified that the
confession was evidence only against Bell; the instructions said
that the jury should not use the confession as evidence against
Gray. The jury convicted both Bell and Gray. Gray appealed.
Maryland's intermediate appellate court accepted Gray's argument
that
Bruton prohibited use of the confession and set aside
his conviction. 107 Md. App. 311, 667 A. 2d 983 (1995). Maryland's
highest court disagreed and reinstated the conviction. 344 Md. 417,
687 A. 2d 660 (1997). We granted certiorari in order to consider
Bruton's application to a redaction that replaces a name
with an obvious blank space or symbol or word such as
"deleted."
II
In deciding whether
Bruton's protective rule applies to
the redacted confession before us, we must consider both
Bruton and a later case,
Richardson v.
Marsh,
481 U. S. 200
(1987), which limited
Bruton's scope. We shall briefly
summarize each of these two cases.
Bruton, as we have said, involved two defendants-Evans
and Bruton-tried jointly for robbery. Evans did not testify, but
the Government introduced into evidence Evans' confession, which
stated that both he (Evans) and Bruton together had committed the
robbery. 391 U. S., at 124. The trial judge told the jury it could
consider the confession
190
as evidence only against Evans, not against Bruton.
Id.,
at 125.
This Court held that, despite the limiting instruction, the
introduction of Evans' out-of-court confession at Bruton's trial
had violated Bruton's right, protected by the Sixth Amendment, to
cross-examine witnesses.
Id., at 137. The Court recognized
that in many circumstances a limiting instruction will adequately
protect one defendant from the prejudicial effects of the
introduction at a joint trial of evidence intended for use only
against a different defendant.
Id., at 135. But it said:
"[T]here are some contexts in which the risk that the jury will
not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored. Such a context is presented here, where the powerfully
incriminating extrajudicial statements of a codefendant, who stands
accused sideby-side with the defendant, are deliberately spread
before the jury in a joint trial. Not only are the incriminations
devastating to the defendant but their credibility is inevitably
suspect .... The unreliability of such evidence is intolerably
compounded when the alleged accomplice, as here, does not testify
and cannot be tested by cross-examination." Id., at 135-136
(citations omitted).
The Court found that Evans' confession constituted just such a
"powerfully incriminating extrajudicial statemen[t]," and that its
introduction into evidence, insulated from crossexamination,
violated Bruton's Sixth Amendment rights.
Id., at 135.
In
Richardson v.
Marsh, supra, the Court
considered a redacted confession. The case involved a joint murder
trial of Marsh and Williams. The State had redacted the confession
of one defendant, Williams, so as to "omit all reference"
191
to his codefendant, Marsh-"indeed, to omit all indication that
anyone other than ... Williams" and a third person had
"participated in the crime."
Id., at 203 (emphasis in
original). The trial court also instructed the jury not to consider
the confession against Marsh.
Id., at 205. As redacted, the
confession indicated that Williams and the third person had
discussed the murder in the front seat of a car while they traveled
to the victim's house.
Id., at 203-204, n. 1. The redacted
confession contained no indication that Marsh-or any other
person-was in the car.
Ibid. Later in the trial, however,
Marsh testified that she was in the back seat of the car.
Id., at 204. For that reason, in context, the confession
still could have helped convince the jury that Marsh knew about the
murder in advance and therefore had participated knowingly in the
crime.
The Court held that this redacted confession fell outside
Bruton's scope and was admissible (with appropriate limiting
instructions) at the joint trial. The Court distinguished Evans'
confession in
Bruton as a confession that was "incriminating
on its face," and which had "expressly implicat[edJ" Bruton. 481 U.
S., at 208. By contrast, Williams' confession amounted to "evidence
requiring linkage" in that it "became" incriminating in respect to
Marsh "only when linked with evidence introduced later at trial."
Ibid. The Court held
"that the Confrontation Clause is not violated by the admission
of a nontestifying codefendant's confession with a proper limiting
instruction when, as here, the confession is redacted to eliminate
not only the defendant's name, but any reference to his or her
existence." Id., at 211.
The Court added: "We express no opinion on the admissibility of
a confession in which the defendant's name has been replaced with a
symbol or neutral pronoun."
Id., at 211, n.5.
192
III
Originally, the codefendant's confession in the case before us,
like that in
Bruton, referred to, and directly implicated,
another defendant. The State, however, redacted that confession by
removing the nonconfessing defendant's name. Nonetheless, unlike
Richardson's redacted confession, this confession refers
directly to the "existence" of the nonconfessing defendant. The
State has simply replaced the nonconfessing defendant's name with a
kind of symbol, namely, the word "deleted" or a blank space set off
by commas. The redacted confession, for example, responded to the
question "Who was in the group that beat Stacey," with the phrase,
"Me, , and a few other guys." See Appendix,
infra, at 199.
And when the police witness read the confession in court, he said
the word "deleted" or "deletion" where the blank spaces appear. We
therefore must decide a question that
Richardson left open,
namely, whether redaction that replaces a defendant's name with an
obvious indication of deletion, such as a blank space, the word
"deleted," or a similar symbol, still falls within
Bruton's
protective rule. We hold that it does.
Bruton, as interpreted by
Richardson, holds that
certain "powerfully incriminating extrajudicial statements of a
codefendant"-those naming another defendant-considered as a class,
are so prejudicial that limiting instructions cannot work.
Richardson, 481 U. S., at 207;
Bruton, 391 U. S., at
135. Unless the prosecutor wishes to hold separate trials or to use
separate juries or to abandon use of the confession, he must redact
the confession to reduce significantly or to eliminate the special
prejudice that the
Bruton Court found. Redactions that
simply replace a name with an obvious blank space or a word such as
"deleted" or a symbol or other similarly obvious indications of
alteration, however, leave statements that, considered as a class,
so closely resemble
Bruton's unredacted statements that, in
our view, the law must require the same result.
193
For one thing, a jury will often react similarly to an
unredacted confession and a confession redacted in this way, for
the jury will often realize that the confession refers specifically
to the defendant. This is true even when the State does not
blatantly link the defendant to the deleted name, as it did in this
case by asking whether Gray was arrested on the basis of
information in Bell's confession as soon as the officer had
finished reading the redacted statement. Consider a simplified but
typical example, a confession that reads "I, Bob Smith, along with
Sam Jones, robbed the bank." To replace the words "Sam Jones" with
an obvious blank will not likely fool anyone. A juror somewhat
familiar with criminal law would know immediately that the blank,
in the phrase "I, Bob Smith, along with , robbed the bank," refers
to defendant Jones. A juror who does not know the law and who
therefore wonders to whom the blank might refer need only lift his
eyes to Jones, sitting at counsel table, to find what will seem the
obvious answer, at least if the juror hears the judge's instruction
not to consider the confession as evidence against Jones, for that
instruction will provide an obvious reason for the blank. A more
sophisticated juror, wondering if the blank refers to someone else,
might also wonder how, if it did, the prosecutor could argue the
confession is reliable, for the prosecutor, after all, has been
arguing that Jones, not someone else, helped Smith commit the
crime.
For another thing, the obvious deletion may well call the
jurors' attention specially to the removed name. By encouraging the
jury to speculate about the reference, the redaction may
overemphasize the importance of the confession's accusation-once
the jurors work out the reference. That is why Judge Learned Hand,
many years ago, wrote in a similar instance that blacking out the
name of a codefendant not only "would have been futile .... [T]here
could not have been the slightest doubt as to whose names had been
blacked out," but "even if there had been, that blacking out itself
would
194
have not only laid the doubt, but underscored the answer."
United States v.
Delli Paoli, 229
F.2d 319, 321 (CA2 1956), aff'd,
352 U. S. 232 (1957),
overruled by
Bruton v.
United States, 391 U. S. 123 (1968). See
also
Malinski v.
New York, 324 U. S. 401, 430 (1945)
(Rutledge, J., dissenting) (describing substitution of names in
confession with "X" or "Y" and other similar redactions as "devices
... so obvious as perhaps to emphasize the identity of those they
purported to conceal").
Finally,
Bruton's protected statements and statements
redacted to leave a blank or some other similarly obvious
alteration function the same way grammatically. They are directly
accusatory. Evans' statement in
Bruton used a proper name to
point explicitly to an accused defendant. And
Bruton held
that the "powerfully incriminating" effect of what Justice Stewart
called "an out-of-court accusation," 391 U. S., at 138 (concurring
opinion), creates a special, and vital, need for
cross-examination-a need that would be immediately obvious had the
codefendant pointed directly to the defendant in the courtroom
itself. The blank space in an obviously redacted confession also
points directly to the defendant, and it accuses the defendant in a
manner similar to Evans' use of Bruton's name or to a testifying
codefendant's accusatory finger. By way of contrast, the factual
statement at issue in
Richardson-a statement about what
others said in the front seat of a car-differs from directly
accusatory evidence in this respect, for it does not point directly
to a defendant at all.
We concede certain differences between
Bruton and this
case. A confession that uses a blank or the word "delete" (or, for
that matter, a first name or a nickname) less obviously refers to
the defendant than a confession that uses the defendant's full and
proper name. Moreover, in some instances the person to whom the
blank refers may not be clear: Although the followup question asked
by the State in this case eliminated all doubt, the reference might
not be
195
transparent in other cases in which a confession, like the
present confession, uses two (or more) blanks, even though only one
other defendant appears at trial, and in which the trial indicates
that there are more participants than the confession has named.
Nonetheless, as we have said, we believe that, considered as a
class, redactions that replace a proper name with an obvious blank,
the word "delete," a symbol, or similarly notify the jury that a
name has been deleted are similar enough to
Bruton's
unredacted confessions as to warrant the same legal results.
IV
The State, in arguing for a contrary conclusion, relies heavily
upon
Richardson. But we do not believe
Richardson
controls the result here. We concede that
Richardson placed
outside the scope of
Bruton's rule those statements that
incriminate inferentially. 481 U. S., at 208. We also concede that
the jury must use inference to connect the statement in this
redacted confession with the defendant. But inference pure and
simple cannot make the critical difference, for if it did, then
Richardson would also place outside
Bruton's scope
confessions that use shortened first names, nicknames, descriptions
as unique as the "red-haired, bearded, one-eyed man-with-a-limp,"
United States v.
Grinnell Corp., 384 U. S. 563, 591 (1966)
(Fortas, J., dissenting), and perhaps even full names of defendants
who are always known by a nickname. This Court has assumed,
however, that nicknames and specific descriptions fall inside, not
outside,
Bruton's protection. See
Harrington v.
California, 395 U. S. 250, 253 (1969)
(assuming
Bruton violation where confessions describe
codefendant as the "white guy" and gives a description of his age,
height, weight, and hair color). The Solicitor General, although
supporting Maryland in this case, concedes that this is
appropriate. Brief for United States as
Amicus Curiae 18-19,
n. 8.
196
That being so,
Richardson must depend in significant part
upon the
kind of, not the simple
fact of, inference.
Richardson's inferences involved statements that did not
refer directly to the defendant himself and which became
incriminating "only when linked with evidence introduced later at
triaL" 481 U. S., at 208. The inferences at issue here involve
statements that, despite redaction, obviously refer directly to
someone, often obviously the defendant, and which involve
inferences that a jury ordinarily could make immediately, even were
the confession the very first item introduced at trial. Moreover,
the redacted confession with the blank prominent on its face, in
Richardson's words,
"facially incriminat[es]" the
codefendant.
Id., at 209 (emphasis added). Like the
confession in
Bruton itself, the accusation that the
redacted confession makes "is more vivid than inferential
incrimination, and hence more difficult to thrust out of mind." 481
U. S., at 208.
Nor are the policy reasons that
Richardson provided in
support of its conclusion applicable here.
Richardson
expressed concern lest application of
Bruton's rule apply
where "redaction" of confessions, particularly "confessions
incriminating by connection," would often "not [be] possible,"
thereby forcing prosecutors too often to abandon use either of the
confession or of a joint trial. 481 U. S., at 209. Additional
redaction of a confession that uses a blank space, the word
"delete," or a symbol, however, normally is possible. Consider as
an example a portion of the confession before us: The witness who
read the confession told the jury that the confession (among other
things) said,
"Question: Who was in the group that beat Stacey? "Answer: Me,
deleted, deleted, and a few other guys." App.11.
Why could the witness not, instead, have said:
"Question: Who was in the group that beat Stacey? "Answer: Me
and a few other guys."
197
Richardson itself provides a similar example of this kind
of redaction. The confession there at issue had been "redacted to
omit all reference to respondent-indeed, to omit all indication
that anyone other than Martin and Williams participated in the
crime," 481 U. S., at 203 (emphasis deleted), and it did not
indicate that it had been redacted. But cf.
post, at 203
(SCALIA, J., dissenting) (suggesting that the Court has "never
before endorsed ... the redaction of a statement by some means
other than the deletion of certain words, with the fact of the
deletion shown").
The
Richardson Court also feared that the inclusion,
within
Bruton's protective rule, of confessions that
incriminated "by connection" too often would provoke mistrials, or
would unnecessarily lead prosecutors to abandon the confession or
joint trial, because neither the prosecutors nor the judge could
easily predict, until after the introduction of all the evidence,
whether or not
Bruton had barred use of the confession. 481
U. S., at 209. To include the use of blanks, the word "delete,"
symbols, or other indications of redaction, within
Bruton's
protections, however, runs no such risk. Their use is easily
identified prior to trial and does not depend, in any special way,
upon the other evidence introduced in the case. We also note that
several Circuits have interpreted
Bruton similarly for many
years, see,
e. g., United States v.
Garcia, 836 F.2d
385 (CA8 1987);
Clark v.
Maggio, 737 F.2d
471 (CA5 1984), yet no one has told us of any significant
practical difficulties arising out of their administration of that
rule.
For these reasons, we hold that the confession here at issue,
which substituted blanks and the word "delete" for the petitioner's
proper name, falls within the class of statements to which
Bruton's protections apply.
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
198
Appendix to opinion of the Court
APPENDIX TO OPINION OF THE COURT [Typewritten Version of
Handwritten Redacted Statement, State's Exhibit 5B]
(REDACTED STATEMENT)
This is a statement of Anthony Bell, taken on 1-4-94 at 0925 hrs
in the small interview room. Statement taken by Det. Pennington and
Det. Ritz.
(Q) Is your name Anthony Bell
(A) Yes
(Q) Are 19 years old and your date of Birth is 6-17-74
(A) Yes
(Q) Can you read and write
(A) Yes
(Q) Are you under the influence of alcohol or drugs
(A) No
(Q) You were explained your Explanation of Rights, do you fully
understand them
(A) Yes
(Q) Are you willing to answer questions without an attorney
present at this time
(A) Yes
Anthony Bell
[Page -2-] Bell, Anthony
(Q) Has anyone promised you anything if you answer questions
(A) No
(Q) What can you tell me about the beating of Stacey Williams
that occurred on 10 November 1993
(A) An argument broke out between and Stacey in the 500 blk of
Louden Ave Stacey got smacked and then ran into Wildwood Parkway.
Me , and a few other guys ran after Stacey. We caught up to him on
Wild-
199
wood Parkway. We beat Stacey up. After we beat Stacey up, we
walked him back to Louden Ave I then walked over and used the
phone. Stacey and the others walked down Louden
(Q) When Stacey was beaten on Wildwood Parkway, how was he
beaten
Anthony Bell
[Page -3-] Bell, Anthony
(A) Hit, kicked
(Q) Who hit and kicked Stacey
(A) I hit Stacey, he was kicked but I don't know who kicked him
(Q) Who was in the group that beat Stacey
(A) Me, , and a few other guys
(Q) Do you have the other guys names
, and me, I don't remember who was out there out there
(Q) Did anyone pick Stacey up and drop him to the ground
(A) No when I was there.
(Q) What was the argument over between Stacey and
Anthony Bell
[Page -4-] Bell, Anthony
(A) Some money that Stacey owed
(Q) How many guys were hitting on Stacey
(A) About six guys
(Q) Do you have a black jacket with Park Heights written on the
back
(A) Yeh
(Q) Who else has these jacket.
(A) ,
200
(Q) After reading this statement would you sign it
(A) Yes
Anthony Bell
Det. William F. Ritz
Det. Homer Pennington
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JusTICE KENNEDY,
and JUSTICE THOMAS join, dissenting.
In
Richardson v.
Marsh, 481 U. S. 200 (1987), we
declined to extend the "narrow exception" of
Bruton v.
United States, 391 U. S. 123 (1968),
beyond confessions that facially incriminate a defendant. Today the
Court "concede[s] that
Richardson placed outside the scope
of
Bruton's rule those statements that incriminate
inferentially,"
ante, at 195, and "concede[s] that the jury
must use inference to connect the statement in this redacted
confession with the defendant,"
ibid., but nonetheless
extends
Bruton to confessions that have been redacted to
delete the defendant's name. Because I believe the line drawn in
Richardson should not be changed, I respectfully
dissent.
The almost invariable assumption of the law is that jurors
follow their instructions.
Francis v.
Franklin,
471 U. S. 307,
324-325, n. 9 (1985). This rule "is a pragmatic one, rooted less in
the absolute certitude that the presumption is true than in the
belief that it represents a reasonable practical accommodation of
the interests of the state and the defendant in the criminal
justice process."
Richardson, supra, at 211. We have held,
for example, that the state may introduce evidence of a defendant's
prior convictions for the purpose of sentencing enhancement, or
statements elicited from a defendant in violation of
Miranda
v.
Arizona, 384 U. S. 436 (1966), for
the purpose of impeachment, so long as the jury is instructed that
such evidence may not be considered for the purpose of determining
guilt.
Spencer v.
Texas, 385 U. S. 554 (1967);
Harris v.
New York, 401 U. S. 222 (1971). The
same applies to codefendant confessions:
201
"[A] witness whose testimony is introduced at a joint trial is
not considered to be a witness 'against' a defendant if the jury is
instructed to consider that testimony only against a codefendant."
Richardson, supra, at 206. In
Bruton, we recognized a
"narrow exception" to this rule: "We held that a defendant is
deprived of his Sixth Amendment right of confrontation when the
facially incriminating confession of a nontestifying codefendant is
introduced at their joint trial, even if the jury is instructed to
consider the confession only against the codefendant." 481 U. S.,
at 207.
We declined in
Richardson, however, to extend
Bruton to confessions that incriminate only by inference
from other evidence. When incrimination is inferential, "it is a
less valid generalization that the jury will not likely obey the
instruction to disregard the evidence." 481 U. S., at 208. Today
the Court struggles to decide whether a confession redacted to omit
the defendant's name is incriminating on its face or by inference.
On the one hand, the Court "concede[s] that the jury must use
inference to connect the statement in this redacted confession with
the defendant,"
ante, at 195, but later asserts, on the
other hand, that "the redacted confession with the blank prominent
on its face ...
'facially incriminat[esJ''' him,
ante, at 196. The Court should have stopped with its
concession: The statement "Me, deleted, deleted, and a few other
guys" does not facially incriminate anyone but the speaker. The
Court's analogizing of "deleted" to a physical description that
clearly identifies the defendant (which we have assumed
Bruton covers, see
Harrington v.
California,
395 U. S. 250,
253 (1969)) does not survive scrutiny. By "facially incriminating,"
we have meant incriminating independent of other evidence
introduced at trial.
Richardson, supra, at 208-209. Since
the defendant's appearance at counsel table is not evidence, the
description "red-haired, bearded, one-eyed man-with-alimp,"
ante, at 195, would be facially incriminating-unless, of
course, the defendant had dyed his hair black and shaved
202
his beard before trial, and the prosecution introduced evidence
concerning his former appearance. Similarly, the statement "Me,
Kevin Gray, and a few other guys" would be facially incriminating,
unless the defendant's name set forth in the indictment was not
Kevin Gray, and evidence was introduced to the effect that he
sometimes used "Kevin Gray" as an alias. By contrast, the person to
whom "deleted" refers in "Me, deleted, deleted, and a few other
guys" is not apparent from anything the jury knows independent of
the evidence at trial. Though the jury may speculate, the statement
expressly implicates no one but the speaker.
Of course the Court is correct that confessions redacted to omit
the defendant's name are more likely to incriminate than
confessions redacted to omit any reference to his existence. But it
is also true-and more relevant here-that confessions redacted to
omit the defendant's name are
less likely to incriminate
than confessions that expressly state it. The latter are
"powerfully incriminating" as a class,
Bruton, supra, at
124, n. 1, 135; the former are not so. Here, for instance, there
were two names deleted, five or more participants in the crime, and
only one other defendant on trial. The jury no doubt may "speculate
about the reference,"
ante, at 193, as it speculates when
evidence connects a defendant to a confession that does not refer
to his existence. The issue, however, is not whether the confession
incriminated petitioner, but whether the incrimination is so
"powerful" that we must depart from the normal presumption that the
jury follows its instructions.
Richardson, supra, at 208, n.
3. I think it is not-and I am certain that drawing the line for
departing from the ordinary rule at the
facial
identification of the defendant makes more sense than drawing
it anywhere else.
The Court's extension of
Bruton to name-redacted
confessions "as a class" will seriously compromise "society's
compelling interest in finding, convicting, and punishing those who
violate the law."
Moran v.
Burbine, 475 U. S. 412, 426
203
(1986) (citation omitted). We explained in
Richardson
that forgoing use of codefendant confessions or joint trials was
"too high" a price to ensure that juries never disregard their
instructions. 481 U. S., at 209-210. The Court minimizes the damage
that it does by suggesting that "[a]dditional redaction of a
confession that uses a blank space, the word 'delete,' or a symbol
... normally is possible." In the present case, it asks, why could
the police officer not have testified that Bell's answer was "Me
and a few other guys"?
Ante, at 196. The answer, it seems
obvious to me, is because that is not what Bell said. Bell's answer
was "Me, Tank, Kevin and a few other guys." Introducing the
statement with full disclosure of deletions is one thing;
introducing as the complete statement what was in fact only a part
is something else. And of course even concealed deletions from the
text will often not do the job that the Court demands. For inchoate
offenses-conspiracy in particularredaction to delete all reference
to a confederate would often render the confession nonsensical. If
the question was "Who agreed to beat Stacey?", and the answer was
"Me and Kevin," we might redact the answer to "Me and [deleted],"
or perhaps to "Me and somebody else," but surely not to just
"Me"-for that would no longer be a confession to the conspiracy
charge, but rather the foundation for an insanity defense. To my
knowledge we have never before endorsed-and to my strong belief we
ought not endorse-the redaction of a statement by some means other
than the deletion of certain words, with the fact of the deletion
shown.1 The risk to the integrity of our system (not to mention the
increase in its complexity) posed by the approval of such
IThe Court is mistaken to suggest that in
Richardson v.
Marsh, 481 U. S. 200 (1987), we endorsed rewriting
confessions as a proper method of redaction. See
ante, at
197. There the parties agreed to the method of redaction, App. in
Richardson v.
Marsh, O. T. 1986, No. 85-1433, pp.
100, 107-108, and we had no occasion to address the propriety of
editing confessions without showing the nature of the editing.
204
freelance editing seems to me infinitely greater than the risk
posed by the entirely honest reproduction that the Court
disapproves.
The United States Constitution guarantees, not a perfect system
of criminal justice (as to which there can be considerable
disagreement), but a minimum standard of fairness. Lest we lose
sight of the forest for the trees, it should be borne in mind that
federal and state rules of criminal procedure-which can afford to
seek perfection because they can be more readily changed-exclude
nontestifying-codefendant confessions even where the Sixth
Amendment does not. Under the Federal Rules of Criminal Procedure
(and Maryland's), a trial court may order separate trials if
joinder will prejudice a defendant. See Fed. Rule Crim. Proc. 14;
Md. Crim. Rule 4-253(c) (1998). Maryland courts have described the
term "prejudice" as a "term of art," which "refers only to
prejudice resulting to the defendant from the reception of evidence
that would have been inadmissible against that defendant had there
been no joinder."
Ogonowski v.
State, 589 A. 2d 513,
520, cert. denied, 593 A. 2d 1127 (1991). The Federal Rule
expressly contemplates that in ruling on a severance motion the
court will inspect
"in camera any statements or confessions
made by the defendants which the government intends to introduce in
evidence at the triaL" Fed. Rule Crim. Proc. 14. Federal and most
state trial courts (including Maryland's) also have the discretion
to exclude unfairly prejudicial (albeit probative) evidence. Fed.
Rule Evid. 403; Md. Rule Evid. 5-403 (1998). Here, petitioner moved
for a severance on the ground that the admission of Bell's
confession would be unfairly prejudicial. The trial court denied
the motion, explaining that where a confession names two others,
and the evidence is that five or six others participated, redaction
of petitioner's name would not leave the jury with the "unavoidable
inference" that Bell implicated Gray. App. 8.
205
I do not understand the Court to disagree that the redaction
itself left unclear to whom the blank referred.2 See
ante,
at 194-195. That being so, the rule set forth in
Richardson
applies, and the statement could constitutionally be admitted with
limiting instruction. This remains, insofar as the Sixth Amendment
is concerned, the most "reasonable practical accommodation of the
interests of the state and the defendant in the criminal justice
process."
Richardson, 481 U. S., at 211. For these reasons,
I would affirm the judgment of the Court of Appeals of
Maryland.
2 The Court does believe, however, that the answer to a
"followup question" -"All right, now, officer, after he gave you
that information, you subsequently were able to arrest Mr. Kevin
Gray; is that correct?" ("That's correct")-"eliminated all doubt"
as to the subject of the redaction.
Ante, at 189, 194. That
is probably not so, and is certainly far from clear. Testimony that
preceded the introduction of Bell's confession had already
established that Gray had become a suspect in the case, and that a
warrant had been issued for his arrest,
before Bell
confessed. Brief for Respondent 26, n. 10. Respondent contends
that, given this trial background, and in its context, the
prosecutor's question did not imply any connection between Bell's
confession and Gray's arrest, and was simply a means of making the
transition from Bell's statement to the next piece of evidence,
Gray's statement.
Ibid. That is at least arguable, and an
appellate court is in a poor position to resolve such a contextual
question
de novo. That is why objections to trial testimony
are supposed to be made
at the timeso that trial judges, who
hear the testimony in full, live context, can make such
determinations in the first instance. But if the question
did bring the redaction home to the defendant, surely that
shows the impropriety of the question rather than of the
redaction-and
the question was not objected to. The failure
to object deprives petitioner of the right to complain of some
incremental identifiability added to the redacted statement by the
question and answer. Of course the Court's reliance upon this
testimony belies its contention that name-redacted confessions are
powerfully incriminating "as a class,"
ante, at 195.
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