You Should See “The Other Person”: Redacted Codefendant Confessions in Light of Samia v. United States

Introduction

The Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”¹ Essential to this right is the ability of a criminal defendant to cross-examine witnesses who testify against him.² In joint criminal trials, the most damaging witness against a defendant is frequently the one seated next to him at the counsel’s table—his codefendant.³ In Samia v. United States, the Supreme Court dramatically limited the right of criminal defendants to confront their most powerful accusers by holding that the admission of a codefendant’s confession implicating another defendant does not violate that defendant’s confrontation right when (1) his name is substituted with neutral pronouns and (2) the confession is accompanied by a limiting instruction to consider it only as to the confessor—even when the defendant has had no opportunity to confront his accuser.⁴ This decision, as its dissenters suggest, all but overrules the Court’s landmark holding in Bruton v. United States and forebodes further decay of constitutional protections for criminal defendants.⁵

Samia follows a line of cases called the Bruton trilogy, which outlines the Court’s jurisprudence on codefendant confessions in joint trials.⁶ In Bruton v. United States, the Court held that in a joint trial, admitting a codefendant’s confession that inculpates another defendant by name violates that defendant’s confrontation right when the confessing defendant is not available for cross-examination, even when accompanied by a limiting instruction.⁷ For example, when a police officer reads a codefendant’s prior confession that “X and I robbed the bank” at trial despite the confessor’s decision not to testify, the nonconfessing defendant, X, is unable to cross-examine the confessor as to the veracity of his accusation against X because of his Fifth Amendment right to silence. Though the jury may be instructed to consider the confession only against the confessor and not against X, the Bruton Court held that this instruction was an insufficient substitute for the right of X to confront his accuser. In so holding, the Court carved out a rare exception to the established presumption that juries can be trusted to follow limiting instructions when faced with testimony inadmissible against, but highly prejudicial to, another defendant.⁸

To comply with Bruton, courts and prosecutors dealing with finger-pointing confessions by nontestifying codefendants faced a choice of abandoning joint trials, not admitting the confessions, or attempting to comply with the rule by redacting or editing problematic statements.⁹ In Richardson v. Marsh, the Court held that admission of a codefendant’s finger-pointing confession edited to remove any reference to the existence of the defendant does not violate Bruton, even when it becomes incriminating once linked with other evidence at trial.¹⁰ The Court later qualified Richardson’s seemingly broad endorsement of redaction as a cure to Bruton violations, holding in Gray v. Maryland that some obviously redacted confessions, such as blanks or the word “deleted,” unavoidably create an inference that the defendant’s name should fill in the blank, thus effectively failing to comply with Bruton.¹¹

In the more than twenty-five years since Gray, state and federal courts have varied widely in their attempts to comply with the Bruton rule in joint trials. Underlying this variance was disagreement about two important inquiries: (1) should Bruton’s rule be limited to directly inculpatory confessions, or should it also apply to indirectly inculpatory confessions? and (2) in determining the degree to which a codefendant’s confession inculpates another defendant, should a court consider only the four corners of a confession or consider it in the context of other evidence at trial? In Samia v. United States, the Court answered that it should only look to the four corners of a codefendant’s confession to determine that it only indirectly implicated the nonconfessor when edited to replace the nonconfessing defendant’s name with “the other person.” Therefore, according to the Court, a limiting instruction would suffice to protect him from undue prejudice.¹²

In this Comment, I argue that the Court’s holding in Samia fails to protect, and indeed threatens to dismantle, the confrontation right of criminal defendants in joint trials. Part I will trace the historical evolution of the Court’s Confrontation Clause jurisprudence, with attention to the essential role of cross-examination in the administration of fair trials. Part II will analyze the doctrinal basis for the Bruton rule and its sequels. Across this line of cases, I will highlight the Court’s inconsistent application and characterization of the Bruton rule’s scope. Part III will focus on Samia. First, I will examine its facts, demonstrating the uniquely prejudicial impact of the codefendant’s confession in the context of the trial. Next, I will critique the Court’s reasoning, highlighting its departure from both the principles of the Confrontation Clause elucidated in Part I and the Court’s own precedents outlined in Part II. Then, I suggest that the Court’s departure from principle and precedent subordinates the fundamental constitutional right to confrontation beneath evidentiary principles. Finally, in Part IV I will argue that, to restore the force of Bruton’s protections, courts should exercise their discretion under the Federal Rules of Criminal Procedure and Evidence to prevent admission of confessions that remain highly prejudicial to nonconfessing defendants. I propose that courts should only admit confessions that the prosecution can demonstrate are substantially more probative than prejudicial to a nonconfessing defendant in their redacted form. If the prosecution cannot meet the burden of this reverse Rule 403 balancing test, the court should exclude the confession or sever the defendant’s trial.

1. U.S. Const. amend. VI. ↩︎
2. See Crawford v. Washington, 541 U.S. 36, 55-56 (2004) (“We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive.”). ↩︎
3. See Bruton v. United States, 391 U.S. 123, 135-36 (1968) (noting that accusatory codefendant confessions can be powerfully incriminating). ↩︎
4. 143 S. Ct. 2004, 2017-18 (2023). ↩︎
5. Id. at 2025 (Kagan, J., dissenting) (“[O]ne might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. . . . Under this decision, prosecutors can always circumvent Bruton’s protections.”); Id. (Jackson, J., dissenting) (“[T]he majority’s bottom-line view is that ‘Bruton should go.’”). ↩︎
6. See United States v. de Leon-De La Rosa, 17 F.4th 175, 193 (1st Cir. 2021) (referring to the “Bruton trilogy”). ↩︎
7. 391 U.S. at 126. An incriminating statement made by a defendant that is not in furtherance of a conspiracy cannot be offered as substantive evidence against a codefendant, hence the need for limiting instructions. Id. When the court admits evidence against a party for a proper purpose, it must, on request, restrict the use of that evidence to its proper purpose by instructing the jury not to consider it for an improper purpose. Fed. R. Evid. 105. ↩︎
8. Bruton, 391 U.S. at 135-36. ↩︎
9. See Gray v. Maryland, 523 U.S. 185, 192 (1998) (noting that Bruton problems necessitate redaction, abandonment of confessions, or abandonment of joint trials). ↩︎
10. 481 U.S. 200, 208-11 (1987). ↩︎
11. 523 U.S. at 188 (internal quotation marks omitted). ↩︎
12. 143 S. Ct. 2004, 2017 (2023). ↩︎