Admissibility of Out-of-court Statement of a Person Not Testifying at Trial

In Crawford v. Washington (2004) 541 U.S. 36, dealing with the admission of the out-of-court statement of any person not testifying at trial, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, 65 L. Ed. 2d 597, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S at pp. 60-63.) The Supreme Court concluded that, "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Crawford, supra, at p. 68.) While the Supreme Court left for another day any effort to spell out a comprehensive definition of "'testimonial'" (ibid.), it stated that it includes "at a minimum" "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68, italics added.) "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Id. at pp. 68-69.) In Richardson v. Marsh (1987) 481 U.S. 200, the high court held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Id. at p. 211.) The court distinguished the redacted confession from the confession at issue in Bruton v. U.S. (1968) 391 U.S. 123 because the redacted confession was not incriminating on its face, but only when linked to other evidence. (Richardson, supra, at p. 208.) Express incrimination is more vivid than inferential incrimination and more difficult to thrust out of the mind. While the express incrimination of the confession in Bruton justified the belief the jury will likely disobey the instruction not to consider the evidence, there is no overwhelming probability the jury will not obey the limiting instruction to disregard the confession in assessing defendant's guilt when the confession incriminates only by inference. (Richardson, supra, at p. 208.) In Bruton v. U.S. (1968) 391 U.S. 123, the United States Supreme Court held that introduction of an incriminating extrajudicial statement by a non-testifying codefendant violates the defendant's right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant's guilt or innocence. (Bruton, supra, 391 U.S. at p. 137.) The Supreme Court in Bruton reasoned that, even when so instructed, jurors cannot be expected to ignore the statements of one defendant that are "powerfully incriminating" as to another defendant. (Id. at pp. 135-136.)