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Avoiding the Prisoner’s Dilemma: Refining the Bruton Rule to Resolve the Split Over Neutral Term Substitution

Imagine three men—Alex, Brian, and Chris—who rob and kill a young woman in the parking lot of a Pennsylvania shopping mall. Once a subsequent investigation begins to tighten, Alex (the lookout) turns himself in, helping police arrest Brian (the driver) and Chris (the shooter). After an interrogation mimicking the classic Prisoner’s Dilemma, Brian partially confesses, exposing himself and Chris to criminal liability. At arraignment, Alex pleads guilty; Brian and Chris proceed to a joint trial in state court, where both decline to testify.

This is standard fare for courts, prosecutors, and defense attorneys. The Supreme Court has expressed a preference for joint trials, praising the resultant benefits for judicial economy and for avoiding inconsistent verdicts. And although somewhat dated, a study from the 1990s suggests nearly half of felony defendants invoke the privilege against self‐incrimination.

Yet these dueling propensities for joint trials and for not taking the stand put Chris on the wrong side of a collision with another constitutional provision: the Sixth Amendment’s Confrontation Clause. The right to confrontation means defendants must have the opportunity to crossexamine the witnesses against them. But what should the court do in this situation? Since Brian’s confession is admissible under the hearsay exception for a statement by an opposing party, the jury will hear evidence that incidentally incriminates Chris. And with Brian not testifying, Chris is unable to challenge the incrimination.

This constitutional collision iterates daily in state and federal courts across the country. The solution—developed over three Supreme Court decisions: Bruton v. United States, Richardson v. Marsh, and Gray v. Maryland—is to redact the confession so it remains fair and useful evidence against the declarant (Brian) without unfairly prejudicing the nonconfessor (Chris). But jurisdictions vary considerably in applying this doctrine, and the fractured approach has left trial courts and prosecutors with a Gordian knot.

In particular, this doctrinal confusion has caused a circuit split over neutral term substitution—a specific type of redaction that discretely replaces references to codefendants’ names with a nonspecific term or adjective to prevent incidental incrimination. And while the federal courts disfavor circuit splits generally, this split’s particular harm amplifies when federal courts review state judgments under 28 U.S.C. Section 2254. Suppose three other men—David, Ed, and Frank—rob and kill a woman in New Jersey, independent of Alex, Brian, and Chris’s crime in Pennsylvania. Although both states of course follow Bruton, Pennsylvania courts take a slightly more flexible tack: Pennsylvania allows neutral term substitution in all cases; New Jersey only allows it if there are many criminal actors, requiring more thorough redaction in other cases. After the respective prosecutors redact each confession according to their state’s standard, both sets of codefendants are convicted; the state intermediate appellate courts affirm; the state supreme courts deny review; and the U.S. Supreme Court denies certiorari. So far, so good—similar defendants similarly committed similar crimes, so they deserve similar results. But if the defendants file habeas petitions in the Third Circuit, the similarity turns on its head: the New Jersey petitioners are denied collateral relief, yet their Pennsylvania doppelgangers prevail (unless the state can show harmless error or a procedural bar), solely because the Third Circuit disfavors Pennsylvania’s approach to neutral term substitution. To be sure, this outcome raises deference questions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), but it also reveals a thorny upshot to the debate over Bruton: intracircuit splits.

This Comment seeks to resolve these jurisprudential conflicts. Part I retraces the rule’s evolution to reveal the foundation laid by the Supreme Court and its relationship to the current divide over neutral term substitution. Part II examines ways to resolve this disagreement by comparing Bruton’s functionalist approach to confrontation to the more recent formalist understanding exemplified by Crawford v. Washington. In the end, this Comment calls for the Supreme Court to adopt a rebuttable presumption allowing neutral term substitution.