Prior to Crawford v. Washington, 541 U.S. 36 (2004), the admissibility of a defendant's statements in a trial involving multiple defendants was assessed under Bruton v. United States, 391 U.S. 123 (2004). Crawford now dictates that, if the declarant defendant's statements are testimonial, they must be excluded from the trial, and regardless of the Bruton rule, if the statements are nontestimonial, the U.S. Constitution does not require they be excluded. Nonetheless, pre-Crawford opinions applying Bruton are still useful in determining whether statements are admissible under the hearsay rule, and in analyzing when redaction of otherwise inadmissible statements is permissible.
The objective of this article and self-study test is to acquaint attorneys and bench officers with limits to admission of a defendant's statements in multiple defendant trials, and to explore redaction as a way to permit statements to be admitted in a joint trial.
Issues arise in multi-defendant cases when the prosecution seeks to introduce the otherwise admissible statement of one defendant and that statement implicates not only that defendant in the commission of the crime, but also implicates another defendant being jointly tried. The U.S. Supreme Court in Bruton
held that admission of a codefendant's confession implicating the nonconfessing defendant in a single trial violated the confrontation clause of the Sixth Amendment of the U.S. Constitution.
A constitutional violation could occur under Bruton
even if the jury was instructed to consider the confession only against the declarant defendant because "it may be psychologically impossible for jurors to put the confession out of their minds when determining the guilt of the nondeclarant." People v. Fletcher
, 13 Cal. 4th 451 (1996).
The California Supreme Court in People v. Aranda
, 63 Cal. 2d 518 (1965), had reached a similar result as Bruton
based on nonconstitutional grounds under "judicially declared rules of practice." However, as discussed by Fletcher
was abrogated in 1982 by the enactment of Proposition 8 (Cal. Const., art. I, Section 28, subd. (d)), which eliminated judicially created rules requiring the exclusion of relevant evidence that need not be excluded under federal constitutional law.
The rule that admission of a declarant defendant's statement violated a codefendant's right to confrontation did not apply at a preliminary hearing. People v. Miranda
, 23 Cal. 4th 340 (2000). Nor did it apply in juvenile delinquency proceedings (In re Jose M.
, 21 Cal. App. 4th 1470 (1994)) or in non-jury court trials (People v. Walkkein
, 14 Cal. App. 4th 1401 (1993)).
rule also did not apply if the declarant defendant testified in the trial. In that situation, the declarant defendant could be confronted with the statement that implicated the nondeclarant, including the circumstances of the declarant providing the statement, the declarant's motive to lie or shift blame, and other issues affecting the credibility of the statement. Nelson v. O'Neil
, 402 U.S. 622 (1971); People v. Hoyos
, 41 Cal. 4th 872 (2007).
did apply, a court had to determine whether the statement at issue bore a sufficient indicia of trustworthiness so as to render it admissible. People v. Greenberger
, 58 Cal. App. 4th 298 (1997).
Pursuant to Crawford
, a hearsay statement that is testimonial is inadmissible under the confrontation clause of the Sixth Amendment unless the declarant is unavailable and there has been a prior opportunity for cross-examination of the declarant. If the statement is not being admitted for the truth of the matter against the nondeclarant defendant, it is not hearsay and Crawford
does not apply. See People v. Combs
, 34 Cal. 4th 821 (2004). Crawford
is also inapplicable when the codefendant had an opportunity to cross-examine the declarant regarding the statement at a prior proceeding, such as, for example, when the declarant testified at the preliminary hearing but chose to not testify at trial. See People v. Hollinquest
, 190 Cal. App. 4th 1534 (2010).
A statement is testimonial under Crawford
if it was made in a formal proceeding or in response to structured police questioning, or obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. See People v. Taulton
, 129 Cal. App. 4th 1218 (2005).
Because of Crawford
, "The threshold question in every case is whether the challenged statement is testimonial. If it is not, 'the Confrontation Clause has no application.'" People v. Arceo
, 195 Cal.App.4th 556 (2011) (internal citation omitted). Under Arceo
, if the statement is nontestimonial, the confrontation clause has no application, "even if it is a statement by a codefendant
now controls because the Bruton
rule presupposed that the nondeclarant defendant had a Sixth Amendment right to confront the declarant defendant in the first place: "If none of the co-defendants has a constitutional right to confront the declarant, none can complain that his right has been denied." United States v. Figueroa-Cartagena
, 612 F.3d 69 (1st Cir. 2010).
As the Court of Appeal found in People v. Garcia
, 168 Cal. App. 4th 261 (2008), "the determination of whether the admission of a hearsay statement violates a defendant's rights under the confrontation clause turns on whether the statement is testimonial ... if the statement is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule."
Even if a statement is admissible under Crawford
, to the extent that the statement is being offered to prove the truth of the matter, it is hearsay and must satisfy an exception to the hearsay rule. Opinions pre-dating Crawford
dealing with admissibility of statements under Bruton
, such as Greenberge
r, are still useful because Bruton
only applied when a statement was inadmissible hearsay against a nondeclarant defendant. Hence, the discussion of state law in these pre-Crawford
opinions as to whether statements fell within one or more exceptions to the hearsay rule remains highly relevant even after Crawford
With respect to the statement's admissibility against the declarant defendant, the statement will almost always be admissible as an admission under Evidence Code Section 1220. Yet, as discussed by Fletcher
, a statement that is admissible against the declarant defendant as an admission is not admissible under Section 1220 against a nondeclarant defendant. To satisfy the hearsay rule as to the nondeclarant, the statement must be admissible against that nondeclarant defendant.
Statements that qualify under the spontaneous statement exception of the hearsay rule in Evidence Code Section 1240 can be admitted against a nondeclarant defendant. People v. Smith
, 135 Cal. App. 4th 914 (2005). Assuming the statements are made while a conspiracy is still ongoing, the statements in furtherance of a conspiracy exception to the hearsay rule in Evidence Code Section 1223 could also render statements admissible. See People v. Hardy
, 2 Cal. 4th 86 (1992).
The statement against interest exception to the hearsay rule in Evidence Code Section 1230 provides yet another way to render statements admissible against a nondeclarant defendant. Guidelines for admission of a statement against interest were set forth in Greenberger
, where the court held that a trial court must consider the totality of the circumstances under which the statement was made, including to whom it was made, the possible motivation of the declarant in making the statement, whether the declarant was attempting to improve his situation with the police in making the statement by deflecting responsibility for the crime, and the setting in which the statement was made. As Greenberger
observed: "In order for a statement to qualify as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant."
This last point is critical: The statement against interest exception allows admission only of those portions of the statement that are "specifically disserving" to the declarant defendant's interest. People v. Leach
, 15 Cal. 3d 419 (1975). Statements that minimize a declarant defendant's responsibility or shift blame to others are not specifically disserving of a declarant defendant's interests. People v. Duarte
, 24 Cal. 4th 603 (2000). As held by Smith
, such statements cannot be used against a nondeclarant defendant under this exception to the hearsay rule in a joint trial.
When a statement would otherwise be inadmissible against the nondeclarant defendant, the court can either sever the defendants' trials, or order a joint trial but with separate juries. People v. Cummings
, 4 Cal. 4th 1233 (1993). The California Supreme Court has specifically held that "the problem addressed in Bruton
may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence," and has "rejected various constitutional and statutory arguments against the dual jury system and concluded that it is 'a permissible practice' and 'is not a basis for reversal on appeal in the absence of identifiable prejudice resulting from the manner in which it is implemented.'" People v. Jackson
, 13 Cal. 4th 1164 (1996) (internal citation omitted).
A more popular and economic method used to protect the nondeclarant defendant's right to confrontation which still permits the prosecution to use the statement against the declarant defendant in a joint trial is to redact, or edit the statement for presentation to the jury. In addition to permitting the joint trial to proceed with a single jury, redacting the statement eliminates any possibility of violating Crawford
because, once the statement is properly redacted, it offers no evidence of the nondeclarant's guilt. People v. Stevens
, 41 Cal. 4th 182 (2007). The same type of redaction that "prevents Bruton
error also serves to prevent Crawford
error." United States v. Lung Fong Chen
, 393 F.3d 139 (2d Cir. 2004).
The redacting must be done with care to ensure that the result does not obviously suggest to the jury that there are deleted portions of the statement that refer to and implicate the nondeclarant defendant. The guiding principle is that the court must redact all aspects of the statement that are not specifically disserving to the personal penal interest of the declarant before it may be presented to the jury. People v. Lawley
, 27 Cal. 4th 102 (2002). Redacting the statement to omit any reference to the nondeclarant defendant, or even to his existence, will almost always suffice. People v. Hampton
, 73 Cal. App. 4th 710 (1999).
Many times redaction can be accomplished by changing the declarant's statement to read that "I" had committed a particular act, rather than that "we" committed it, though the court must be careful to avoid artificially inflating the declarant's role in the crime by virtue of the redaction. See, e.g., People v. Douglas
, 234 Cal. App. 3d 273 (1991).
Simply substituting blanks or the word "delete" for the nondeclarant defendant's name does not suffice, as that is likely to suggest to the jury that something is being hidden from them, and that it is likely the nondeclarant defendant's name. Gray v. Maryland
, 523 U.S. 185 (1998). Likewise, depending on the circumstances, replacing the nondeclarant defendant's name with a neutral pronoun or with words such as "a friend" can violate the confrontation clause when other evidence suggests the "friend" is the nondeclarant defendant and the statement is inculpatory as to that defendant. People v. Archer
, 82 Cal. App. 4th 1380 (2000); People v. Bryden
, 63 Cal. App. 4th 159 (1998). Redaction by use of neutral pronouns is examined on a case-by-case basis. Richardson v. Marsh
, 481 U.S. 200 (1987).
simplified the analysis of the admissibility of statements by one defendant against a codefendant. If the declarant defendant's statements are testimonial, they must be excluded. If the statements are nontestimonial, the issue becomes whether there exists an applicable hearsay exception that operates to admit the statement. When possible to do so without violating either defendant's Sixth Amendment rights, conducting a joint trial and properly redacting the statements at issue is often preferable to other alternatives, as it eliminates any Crawford