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U.S. Supreme Court,
Constitutional Law

May 17, 2023

Et tu, Bruton?

The 1968 decision in Bruton v. United States – which acts as a defensive shield for defendants – has witnessed a slow erosion on several fronts. A currently pending case may erode it further.

2nd Appellate District, Division 2

Brian M. Hoffstadt

Associate Justice, California Court of Appeal

UCLA School of Law, 1995


In the last five years, the United States Supreme Court has overruled ten of its precedents. Will the Court “go to eleven” by overruling its 1968 decision in Bruton v. United States, 391 U.S. 123?

Bruton interpreted the Confrontation Clause of the Federal Constitution’s Sixth Amendment. By its text, the Clause secures the “right” of the “accused” “[i]n all criminal prosecutions” “to be confronted with the witnesses against him.”

Bruton dealt with the following scenario: Defendant #1 and defendant #2 are tried before a single jury in a joint trial; defendant #1 confesses, and his confession implicates himself and defendant #2; the prosecutor seeks to admit defendant #1’s confession at the trial; and the trial court gives a limiting instruction telling the jury, “Consider the confession only against defendant #1, but not against defendant #2.” Bruton asked: Is the limiting instruction sufficient to protect defendant #2 from the “spill-over” effect of admitting defendant #1’s confession? Bruton answered, “No.” Specifically, Bruton reasoned that—notwithstanding a limiting instruction—no jury could realistically be expected to ignore defendant #1’s confession implicating defendant #2, that defendant #1 was accordingly a “witness against” defendant #2, and that defendant #2 was denied the right to “confront” defendant #1 because defendant #1 would assert his privilege against self-incrimination (thereby precluding defendant #2’s ability to cross-examine him).

Because it is grounded in the Confrontation Clause that grants rights only to the accused, Bruton acts as a defensive shield for defendants; it does not place any constitutional restrictions on a defendant’s offensive use of a third party’s confession to exonerate himself (although the confession would still have to fit into an applicable hearsay exception).

Yet the ensuing 55 years have witnessed a slow erosion of Bruton on several fronts, and one currently pending case may erode it further.

The first erosion is exemplified by People v. Greenberger, 58 Cal.App.4th 298 (1997).

The facts of Greenberger could not be any more “1980s Hollywood” if they tried. Greenberger was a Hollywood power broker who introduced a New Yorker to a Hollywood producer so the New Yorker could pitch a movie. Greenberger also happened to be a cocaine dealer. When Greenberger learned the New Yorker tried to cheat her out of a finder’s fee and also suspected that the New Yorker might know who stole 10 kilos of cocaine and $275,000 from her, she hired three men to help her kidnap and kill the New Yorker. Greenberger picked him up for dinner in her stretch limo; en route, her henchman-driver stopped the limo, she jumped out, and two more of her henchmen jumped in. They proceeded to drive the New Yorker to the outskirts of Los Angeles, where they shot him 27 times. Several years later, two of the henchmen had informal conversations with a friend— who happened to be the former brother-in-law of Hustler’s Larry Flynt, no less—in which they implicated themselves and one another. Greenberger and the henchmen proceeded to a joint jury trial. The trial court admitted the henchmen’s confessions after finding that they constituted declarations against interest that rendered them admissible against all defendants, and all were convicted.

Borrowing the hypo’s language from above, Greenberger presented the question: If defendant #1’s confession is admissible against defendant #1 and against defendant #2, does Bruton apply?

Although language in the post-Bruton case of Richardson v. Marsh, 481 U.S. 200 (1987), strongly suggested that Bruton would apply even if defendant #1’s confession was admissible against defendant #2, id. at 206-07, Bruton itself noted that it had only been dealing with a case where defendant #1’s confession was “clearly inadmissible against” defendant #2 —and that other situations were “not before [the Court].” Bruton at 128 n.3.

Greenberger held that Bruton did not apply, reading Bruton as applying only to situations in which defendant #1’s confession is inadmissible against defendant #2. The court went on to hold that each henchman’s confession was a declaration against interest, including those portions of the confession that implicated the other henchmen. Further, Greenberger held that admitting the confessions as declarations against interest did not otherwise offend the Confrontation Clause under the then-applicable (and now-overruled) standard, set forth in Ohio v. Roberts, 448 U.S. 56 (1980), for admitting hearsay because those declarations bore sufficient indicia of reliability.

Greenberger’s limitation of Bruton to cases in which the confession is inadmissible against defendant #2 is consistent with other Federal Circuit court authority. See, e.g., United States v. Hamilton, 19 F.3d 350 (7th Cir. 1994); United States v. Sasso, 59 F.3d 341 (2d Cir. 1995).

This limitation on Bruton is, by definition, narrow. It applies only when the confession (either by defendant #1 or by some third party) qualifies for admission as a declaration against interest, because that is what makes it admissible against everyone, including defendant #2. (If defendant #1’s confession is admitted merely as the statement of a party opponent, it is admissible only against defendant #1 because, as in Bruton itself, that hearsay exception only makes a statement admissible against that specific party opponent.) However, to qualify as a declaration against interest, it is not enough that defendant #1’s confession, as a whole, exposes defendant #1 to criminal liability; instead, the specific portion of the confession referring to defendant #2 will usually qualify only if that specific portion exposes defendant #1 to criminal liability (usually because naming defendant #2 increases defendant #1’s criminal exposure). Williamson v. United States, 512 U.S. 594 (1994); People v. Duarte, 24 Cal.4th 603 (2000); People v. Grimes, 1 Cal.5th 698 (2016).

The second erosion occurred when the Supreme Court abandoned the Roberts standard for the new standard articulated in Crawford v. Washington, 541 U.S. 36 (2004). Roberts held that hearsay could be admitted against a criminal defendant without offending the Confrontation Clause as long as the out-of-court declarant was unavailable to testify, and the hearsay fit into a “firmly rooted hearsay exception” or otherwise bore indicia of reliability. Crawford rejected Roberts. Crawford adopted a more absolute back-end rule: Hearsay offends the Confrontation Clause unless the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. But Crawford shrank the scope of the Clause to reach only “testimonial” hearsay, yet left the definition of “testimonial” “for another day.” “Testimonial” has since been construed to exclude statements between co-conspirators while the conspiracy is ongoing as well as post-conspiracy statements made when defendant #1 is talking to someone he believes is not involved with law enforcement (such as a close friend or undercover jailhouse informant). Davis v. Washington (2006) 547 U.S. 813 (2006); People v. Arauz, 210 Cal.App.4th 1394 (2012). Crawford’s narrowing of the scope of the Clause has been applied to Bruton, so Bruton poses no obstacle if defendant #1’s confession is not “testimonial.” People v. Tran, 13 Cal.5th 1169 (2022).

The third possible erosion is before the U.S. Supreme Court right now in United States v. Samia, No. 22-196.

Samia deals with how to admit defendant #1’s confession when it is not admissible against defendant #2 and is also “testimonial” under Crawford. Bruton held that one way to sidestep any Confrontation Clause problem is to redact all references to defendant #2 from the confession; if done properly, defendant #1 would no longer be a “witness” against defendant #2. The Court in Richardson held that redaction cures any Bruton problem as long as it does not “facially incriminat[e]” defendant #2 (and regardless of whether other references inferentially link defendant #2 to the admitted confession), but held in Gray v. Maryland, 523 U.S. 185 (1998), that a redaction that merely swaps in blanks for defendant #1’s name does not cure the Bruton problem because a jury could inferentially link those blanks to defendant #2. Gray held that there would be no Bruton problem if the names were replaced with “a few other guys.” Following Gray’s lead, the redaction in Samia substituted in the words “the other person” for Samia’s name in his co-defendant’s admitted confession.

Interestingly, at the March 29, 2023, oral argument, Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito each expressed reservations about the continuing validity of Bruton itself—although both litigants disclaimed any desire to have the Court revisit Bruton.

Samia will likely provide guidance on how to redact a confession—either by resolving the tension between Richardson and Gray, or by jettisoning Bruton entirely. Beware the Ides of …June?


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