Nontestimonial Extrajudicial Statements
In United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, where the extrajudicial statements at issue were nontestimonial, the court first pointed out that Davis v. Washington (2006) 547 U.S. 813 stated that nontestimonial statements "do not 'cause the declarant to be a "witness"' within the meaning of the Sixth Amendment and thus are 'not subject to the Confrontation Clause.' " (Figueroa-Cartagena, at p. 84.)
The court then discussed the earlier Bruton/Richardson framework for determining admissibility when a nontestifying defendant's statement is proffered at trial. (Figueroa-Cartagena, at p. 85.)
In Richardson v. Marsh (1987) 481 U.S. 200, 211, 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."
The court reasoned that the Bruton/Richardson framework "presupposes that the aggrieved codefendant has a Sixth Amendment right to confront the declarant in the first place." (Figueroa-Cartagena, supra, at p. 85.)
The court continued:
"If none of the co-defendants has a constitutional right to confront the declarant, none can complain that his right has been denied. It is thus necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause 'has no application.'" (Figueroa-Cartagena, supra, 612 F.3d at p. 85, quoting Whorton, supra, 549 U.S. at p. 420.)