Admissibility of Co-defendant’s Incriminating Confession in a Joint Trial

In Bruton v. United States (1968) 391 U.S. 123, the United States Supreme Court concluded that the constitutional right of confrontation precludes the admission of a nontestifying codefendant's facially incriminating confession in a joint trial, even where the jury has been given a limiting instruction. (Id. at pp. 135-137.)

Subsequently the court declined to extend Bruton to a situation where a codefendant's confession was redacted to omit any reference to the defendant, but the defendant was linked to the confession by other evidence. (Richardson v. Marsh (1987) 481 U.S. 200.)

The court stated in Richardson:

"The rule that juries are presumed to follow their instructions 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. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate. As our discussion above shows, the calculus changes when confessions that do not name the defendant are at issue." (Ibid.)

The court found that the confession in Richardson was distinguishable from the confession in Bruton because it "was not incriminating on its face, and became so only when linked with evidence introduced later at trial . . . ." (Id. at p. 208.)

The court indicated that under those circumstances it could properly presume that jurors would follow a limiting instruction. (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 p. 211, fn. omitted.)

In Gray v. Maryland (1998) 523 U.S. 185, the court held that a confession, "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." (Id. at p. 197.)

Although conceding that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially" (id. at p. 195), the court determined that "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, , and perhaps even full names of defendants who are always known by a nickname." (Ibid.)

Where the confession made a direct reference to a person other than the speaker and the jury could infer immediately that the person was defendant, without considering other evidence, admission of the confession was Bruton error despite the limiting instruction. (Id. at p. 196.)

In Crawford v. Washington (2004) 541 U.S. 36, the court held that "out-of-court statements that are testimonial must be excluded under the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Id. at p. 68; . . .)

A statement elicited during a police interrogation is testimonial. (Ibid.)" (People v. Song (2004) 124 Cal.App.4th 973, 982 (Song).) "Admission of an extrajudicial statement in violation of defendant's rights under the confrontation clause is subject to Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705 harmless error analysis. " (Song, supra, 124 Cal.App.4th at p. 982.)

In Song, the defendant was charged, along with two codefendants with kidnapping ( § 207) and sexual battery by restraint ( § 243.4, subd. (a)). At trial, the officer who spoke with all three defendants testified as to statements the codefendants made inculpating defendant in the kidnapping. The jury acquitted the codefendants but convicted the defendant. (Song, supra, 124 Cal.App.4th at pp. 979-980.)

On appeal, the defendant contended and the Attorney General conceded that admission of the codefendants' statements inculpating the defendant violated Bruton, but the parties disagreed on whether the error was prejudicial. (Id. at pp. 981.)

The court held that the admission of the statements was Crawford error as well as Bruton error. Although the trial court had instructed the jury that statements made by any defendant after his arrest were not to be considered against any other defendant, the appellate court found that the instruction was insufficient to cure the error because the codefendants' statements directly incriminated the defendant in the kidnapping, and thus the defendant's rights to confrontation were also implicated. (Song, supra, 124 Cal.App.4th at pp. 982-984.)

"If only those statements of the codefendants that did not directly incriminate defendant had been admitted at trial, we would agree it is reasonable to presume the jury followed the limiting instruction and defendant's rights to confrontation were not implicated." (Id. at p. 984.)

Therefore, as to the kidnapping charge, the court found that the erroneous admission of the codefendants' statements was prejudicial. However, as to the sexual battery charge, the court found that the error was harmless beyond a reasonable doubt as defendant did not deny the offense occurred or claim that the victim consented. (Id. at pp. 984-985.)