The X Files: Joint Trials, Redacted Confessions and Thirty Years of Sidestepping Bruton

Abstract

In the 1968 Bruton decision, the Court held that, despite a limiting instruction, it was unrealistic to assume that a jury could be relied upon to disregard the “powerfully incriminating” confession of a co-defendant in assessing the guilt of a defendant. According to the Bruton Court, even with a limiting jury instruction, the introduction of a non-testifying co-defendant’s confession incriminating a jointly tried defendant is a violation of that defendant’s Sixth Amendment right to confront the witnesses against him or her. This Article exposes the decay of the Supreme Court’s Bruton rule. In the decades following Bruton, both federal and state courts have gone unchecked in their efforts to ameliorate Bruton’s directive.

In the wake of Bruton, prosecutors were left with three choices. First, they could sever the trials of co-defendants where the confession of one implicated the other. Second, they could forego the use of the confession against the confessor. Third, they could redact portions of the confession by deleting references to jointly tried defendants. For obvious reasons, the first and second options were far less attractive than the third. Therefore, after Bruton, prosecutors naturally turned to the redacted confession as the avenue for preserving their ability to conduct joint trials.

This Article calls upon the judiciary to take a hard and honest look at the widespread allowance of the admission of redacted co-defendant confessions at joint trial. It recommends that courts adopt a per se rule prohibiting the use of neutral pronoun or symbol redactions because they violate the dictates of Bruton. It also discusses the legal and practical consequences of such a rule and argues that the unacceptable risk to the constitutional right to confrontation posed by partial redactions should not be tolerated in the name of judicial economy or convenience.

Keywords: confessions, co-defendants, criminal law, joint trials

JEL Classification: K14