*1 RANDOLPH PARKER et al. May 29, 1979 20, 1979 Decided Argued March 78-99.
No. *2 J., judgment announced the Court’s Rehnquist, and delivered an opinion of respect III, with to Parts I and in which Burger, J., C. and Stewart, White, and Blackmun, JJ., joined, opinion and an respect with II, Part J., in which C. and Burger, Stewart White, JJ., joined. Blackmun, opinion J., concurring filed an part and con- curring judgment, in the post, p. Stevens, J., dissenting 77. filed opin- post, p. JJ., joined, Powell, Marshall, BRENNANand ion, in which or decision of the case. part in the consideration J., no took Tennessee, Attorney General Terry, Michael E. Assistant brief were him on the petitioner. cause for With argued the E. Jr., Robert Leech, Attorney General, William M. Kendrick, Attorney General. Deputy Evans, by appointment Court,
Walter L. S. argued respondents. the cause and filed a brief for Rehnquist the Court opinion delivered the Mr. Justice I an (Parts III) together opinion (Part with which II), and Mr. The Chief Justice Justice Justice, Mr. Stewart, joined, judgment announced the of the Court. White *3 In Bruton United this Court (1968), robbery reversed the conviction of a defendant who had been in implicated extrajudicial the crime his con codefendant’s fession. Because the codefendant not taken had the stand at the trial and thus could not be cross-examined, Court held of that admission the codefendant’s confession had deprived rights the defendant of his under the Confrontation Clause the Sixth Amendment. The issue before us this requires case is whether Bruton reversal con of a defendant’s viction when the defendant himself has confessed and his con fession “interlocks” with supports and the confession of his codefendant. We hold that it does not.
I Respondents during convicted of murder were committed robbery the commission of a and were sentenced to life im- prisonment. playing The cast of characters out the scenes up shooting led to the fatal could have come from story pen began of Bret Harte.1 The June when aptly Appeals the Court of commented: appeal
1 As “This involves a sequence have the of events which flavor of the old West before the law Vegas,
one a professional gambler William from Las Douglas, Ray Blay- Nev., Tenn., calling arrived in himself Memphis, lock and a on the carrying gun and deck of cards. It ended a evening July and killed 6, 1970, Douglas when was shot a Memphis apartment.
Testimony the trial in state court showed the Tennessee that one Woppy promised Douglas’ who cut of Gaddy, was a arranged take, game Douglas of chance between and aWood, Memphis gambler. Unwilling Robert sometime entirely trust the outcome of the contest to luck or skill, Douglas cards, by game’s marked the and end Wood Robert . money his A separated. had been encounter second yielded between the two grew men similar results, Wood suspicious Douglas’ good fortune. order to determine Douglas brought whether and how was Wood cheating, game had acquaintance Tommy third an named who Thomas, reputation being “pretty good poker player.” Unknown Wood, however, Thomas’ Douglas father and been close had friends; Thomas, threw in predictably, Douglas, his lot with purposefully reported lost some $1,000, to Wood that the game game was clean. Wood nonetheless left con- the third he being vinced that cheated and on his recouping intent now explained considerable losses. He his the situation to brother, Wood, Joe E. the two men decided to relieve Douglas ill-gotten gains by staging a robbery of the upcoming game. fourth *4 juncture respondents
At this Randolph, Hamil- and Pickens, picture. carry ton entered To out staged the the Joe robbery, respondent Wood enlisted who was one of his Hamilton, and in employees, respondents the latter turn associated Ran- dolph Douglas and Pickens. and Robert Wood down to sat fourth and final on evening July contest present and Thomas were in spectators. Joe Wood the room as crossed the The difference is that ever Pecos. here there are no heroes and (CA6 1978). here there a trial.” 575 F. 2d was himself with Douglas armed of the game, course During the response in shotgun; an automatic pistol and .38-caliber derringer pulled Joe Wood development unexpected this Wood, gun to Robert Thomas, gave Douglas and pistol on Before game. in on to move respondents to tell and left pistol for Douglas reached however, arrived, respondents later, Moments by killed Robert Wood. and was shot and apartment door, down the broke and Joe Wood respondents and table, left on the gathered up the cash Robert Wood subse- were night. Respondents fled into the gang of five their confessed to police and apprehended quently crime. involvement in the jointly tried the Wood brothers were
Respondents and Tenn. robbery. commission of during of murder convicted was sentenced (1975).2 Each defendant § Code Ann. 39-2402 trial, stand Wood took the imprisonment. to life Robert claiming that admitting Douglas, that he had killed but Douglas’ shooting Thomas described self-defense. complicity in the cheating method of at cards admitted his He also testified in substance that fraud on Robert Wood. present produced in the room when Joe Wood he was Douglas. killed derringer and when Wood Robert shot Thomas could respondents None of the took the stand. positively identify any although Robert them, and men Wood named Hamilton as one of the three involved staged clearly identify Randolph he did not robbery, as the other against respond- Pickens two. State’s case primarily ents on thus rested their oral found confessions, (1975) pertinent provides part Code Ann. Tennessee §39-2402 follows: degree
“An' murder in individual commits the first if . . . “(4) willful, killing he commits a deliberate and malicious or murder dur- perpetration any arson, ing rape, robbery, burglary, larceny, kidnap- ping, piracy, throwing, placing, discharging or unlawful aircraft of a or bomb.” destructive device *5 freely voluntarily
the trial court to have been which given, testimony through were admitted into evidence of several A Memphis Department.3 officers of the Police written con- signed by fession Pickens into evidence over was also admitted his objection that had been in violation of it obtained The rights Arizona, under Miranda trial court could be instructed the each confession that only be gave used who and could not defendant guilt. considered as evidence of a codefendant’s respond- The Tennessee of Criminal Appeals Court reversed ents’ holding they guilty not be convictions, could felony Douglas they murder since had been before shot arrived on the scene and, that admission of their con- alternatively, joint fessions at in trial violated this decision Court’s Bruton. Supreme The Tennessee in Court turn reversed the Appeals Criminal and reinstated the convictions. every Because “each and through defendant either words actions his knowledge may demonstrated nec- 'killing be ” essary,’ App. 237, respondents’ the court held agree- ment participate robbery rendered them liable under felony-murder the Tennessee for Douglas’ statute death. Supreme Tennessee disagreed Court also with the Court of Appeals Criminal had emphasiz- been violated,- ing that the confession at issue in Bruton inculpated had nonconfessing defendant which neither defendant took the stand. Here, contrast, “interlocking inculpatory respondents confessions” of Pickens, Randolph, and Hamilton, “clearly demonstrated the of each, involvement as to crucial such facts as time, location, felonious activity, subjected Each of the confessions was process to a of redaction in confessing which references defendant to other defendants were replaced with the words “blank” or person.” “another As the Court of Appeals for below, the Sixth Circuit observed the confessions were never possible theless “such as to leave jurors’ no doubt in concerning minds (person[s]’ 2d, referred to.” 575 F. at 1180. *6 68 App. 245. Accord- plan
awareness of overall scheme.” “The fact Supreme concluded: ingly, the Tennessee a violation jointly precludes confessed tried codefendants have in mate- Bruton are similar rule where the confessions Elliott, 473, 2d Ibid., rial 524 aspects.” quoting State v. S. W. (Tenn. 1975). 477-478 District
The United
for
States District Court
the Western
for
of Tennessee
granted respondents’ applications
thereafter
writs of
under
corpus, ruling
rights
habeas
their
had been
Pickens’
respondent
violated
that introduction of
uncounseled written
under
rights
confession had violated his
Arizona,
Miranda v.
supra.
Appeals
The Court of
for the
holding
Sixth Circuit
confes
affirmed,
that admission of the
violated
sions
the rule
in Bruton
error
announced
and that the
was not harmless since the
respondent,
each
considering
even
was
confession,
overwhelming
so
“not
compel
jury
guilty
verdict of
. . . .”
Bruton rule
in the
interlocking
Hodges
context of
confessions,see
Rose,
(CA6 1978);
II
In Delli Paoli
(1957),
nontestifying codefendant's
which incriminated a
confession,
defendant who had
confessed,
was admitted
trial
over
hearsay
defendant’s
objection. Concluding
that “it
reasonably possible for
to follow” the
court’s
instruction to consider the confession only against
de-
clarant, this Court held that admission
confession did
*7
not constitute reversible error. Little more than a decade
later, however, Delli Paoli
expressly
was
overruled in Bruton
v. United States.
case,
that
Bruton
defendants
and Evans
were convicted of armed postal robbery
joint
after a
trial.
Although Evans did not take the stand, a postal inspector was
to testify
allowed
that Evans
orally
had
confessed
having
to
committed the robbery with Bruton. The trial
judge in-
jury
structed the
that Evans’ confession
competent
evi-
dence against Evans, but was inadmissible hearsay against
Ignacio
done
impliedly,
Guam,
so
see
v.
513,
413 F. 2d
(1969),
515-516
denied,
cert.
(1970).
397 U.
943
S.
In addition
Appeals
to the Court of
for the
Circuit,
Second
at least four other Courts
Appeals
rejected
have
the Bruton claims
confessing
frqm
defendants. Cases
the Fifth and
Seventh Circuits have reasoned that the Bruton rule does
apply
not
in the
context of interlocking
that,
does,
even if it
the error was
beyond
harmless
a reasonable
Maggio,
doubt. See Mack v.
1129,
538
2dF.
(CA5 1976);
1130
United States v. Spinks,
64,
(CA7),
470 F. 2d
65-66
denied,
cert.
(1972).
409 U.
1011
S.
Two other
of Appeals
Courts
have
rejected the Bruton claims of confessing defendants,
refusing to concern
themselves “with
legal nicety
as to whether the . . . case is 'without’
the Bruton rule, or is 'within’ Bruton
the violation
[and]
consti
thereof
only
Metropolis
tutes]
error.”
Turner,
harmless
v.
207,
437 F. 2d
208-
(CA10
209
1971); accord, United States v. Walton,
1348,
F.
538
2d
1353—
(CA8),
1354
denied,
cert.
429
(1976).
1025
S.
State-court
in
decisions
this area are in
disarray.
similar
g.,
e.
Compare,
State,
Stewart v.
257
753,
Ark.
519 S.
2d
People
(1975),
W.
733
Moll,
1,
26 N.
2d Y.
256
N. E. 2d
cert. denied sub
Stanbridge
nom.
York,
v. New
This Court reversed “the instruction, admittedly limiting the trial court’s clear perhaps substantial, introduction of Evans’ confession added form weight to case even the Government’s critical, Bru 127-128. subject atS., cross-examination.” Amend held to have been denied Sixth ton was therefore right reasoned ment of confrontation. The court although many follow jury cases the can and will judge’s instruction disregard evidence, inadmissible “there are some contexts which the risk will not, cannot, follow is instructions so and the great, consequences of failure so defendant, vital practical system and human limitations of the ignored. cannot be Such presented here, a context powerfully where the incriminating extrajudicial state- ments of who codefendant, side-by-side stands accused with the defendant, deliberately spread are before the jury in trial. only Not are the incriminations *8 devastating to the defendant credibility but their is inevitably suspect, recognized a fact when accomplices do take the stand and the weigh instructed to their testimony carefully given recognized motivation to shift blame onto others. The unreliability of such evi- dence is intolerably compounded when alleged accom- plice, as here, does testify by cannot be tested cross-examination. It was such threats ato fair trial the Confrontation Clause was Id., directed.” (citations at 135-136 and footnotes omitted). year
One after Bruton was decided, this rejected notion that erroneous admission joint at a trial of evidence such as that introduced in Bruton automatically requires reversal of an otherwise valid conviction. See Harrington v. California, 395 250 U. S. In some cases, the properly
71 prej- and the overwhelming, is so guilt of admitted insignificant so admission codefendant’s of the udicial effect doubt reasonable beyond a clear it is by comparison, harmless error.5 at trial was admission introduction 5 (1969), defendants four California, 250 U. S. Harrington Harrington’s joint trial. Defendant after guilty of murder a found were crime, but “fell of at scene placed extrajudicial him statements however, codefendants, three Id., His at 252. of confession.” short a instruction at with the introduced were confessed, their confessions One only source. against its confession each jury was to consider that the took Harrington, implicated codefendants, whose Harrington’s of codefend- two The other subject to cross-examination. and was the stand presence at Harrington's admitted ants, statements corroborated whose overwhelming Noting the stand. crime, did not take of scene prejudicial relatively insignificant guilt, Harrington’s evidence of “the lack held that statements, the Court impact his codefendants’ consti non-testifying co-defendants] to cross-examine opportunity [the California, 386 U. S. Chapman [v. the rule error under harmless tuted (1967)].” Id., at 253. harmless-error applied the occasions, subsequent this Court On two Florida, 405 U. S. In Schneble Bruton. claimed violations doctrine to guilty of murder were found (1972), codefendant Schneble stand, police took Although defendant neither following trial. given Schneble testify to detailed confession allowed to officers were to corroborate tended which given his codefendant and a statement deciding, assumed, without confession. We portions of Schneble’s certain Bruton, but had violated statement the codefendant’s that admission guilt and overwhelming Schneble’s evidence of that in view of the held “any statement, the codefendant’s impact of comparatively insignificant harm petitioner’s trial was may have occurred Bruton that violation of (emphasis S., at 428 beyond doubt.” a reasonable less [error] added). intro prosecution (1973), the States, 411 v. United In Brown by two made extrajudicial statements testimony regarding police duced of the co- both implicated Each nontestifying statement codefendants'. *9 stand, the took charged. codefendant Neither the crimes defendants joint trial. at their testimony into evidence admitted police and the admitted the were that statements conceded the Solicitor General Because to Bruton, consider we had no occasion of in violation into evidence interlocking violated confessions question introduction whether reasoning of the follow to urges us Petitioner Bruton hold that to Circuit for the Second Appeals confessions. interlocking context apply does not in the rule interlocking if introduction Alternatively, he contends Bruton, is error violate does joint trial at a confessions a reason- beyond harmless automatically be deemed to but all at admission petitioner with agree able doubt. We did interlocking respondents’ joint trial by the secured confrontation right of respondents’ infringe Con- States to the United Amendments Fourteenth Sixth broader slightly issue prefer cast but stitution, by petitioner. posed than form at a that admission recognized nontestifying of a extrajudicial statements incriminating non- to a “devastating” consequences have can codefendant criti- even “substantial, perhaps adding confessing defendant, 128. at S., case.” Government’s weight cal, jury untested cross-examination go to the Such statements unless the de- altogether unanswered indeed, perhaps and, privilege and takes his Fifth Amendment fendant waives impact of a codefendant’s prejudicial The stand. who
upon has, an incriminated defendant insofar as from is beginning is maintained innocence concerned, in- simply great limiting too such cases be cured said, struction. same cannot be the defend- however, The when probative ant’s own the most “probably and dam- confession — id., aging can be admitted him,” at ' J., dissenting) (White, properly introduced at trial. —is knowledgeable defendant “the most unimpeachable id., past source of information about his conduct,” at Proceeding Bruton. from the Solicitor concession, General's we held that police testimony merely “was cumulative of other overwhelming largely properly uncontroverted evidence jury.” before the S., Thus, any beyond Bruton error was harmless a reasonable doubt. *10 scarcely imagine (White, J., dissenting), one can more damaging guilt. to his defense his own admission of than Thus, will incriminating statements of codefendant sel- if dom, ever, “devastating” be character referred to Bruton when the his own incriminated defendant has admitted guilt. right protected by The Bruton —the “constitutional id., right of cross-examination,” practical 137—has at far less value ato defendant who confessed to crime than to has one who consistently maintained his innocence. Success- fully impeaching a codefendant’s confession on cross-examina- likely yield tion would small advantage to whose the defendant own guilt admission of unchallenged. the jury stands before Nor does the natural “motivation to blame onto others,” shift recognized by the Bruton incriminating Court to render the statements of id., “inevitably codefendants suspect,” at require application of rule when the incriminated defendant has corroborated by his codefendant’s statements heaping blame onto himself. right of confrontation by conferred the Sixth Amend-
ment
is a safeguard to ensure the
accuracy
fairness and
criminal trials,
Evans,
see Dutton 89 (1970),
its reach
cannot be
system
divorced from
of trial
jury contemplated by the
A
assumption
Constitution.
crucial
underlying
system
juries
is that
will follow
instruc-
given
tions
them
judge.
Were this
so,
pointless
would be
for a trial court to instruct a jury, and even
pointless
more
an appellate
for
court to
reverse
criminal con-
viction
because the
was improperly instructed. The Con-
frontation Clause has never been held to bar the admission
into
every
evidence of
extrajudicial
relevant
statement made
by a nontestifying declarant simply because
way
it in some
incriminates the
g., id.,
See, e.
defendant.
Mattox 80;
United States, 240-244 (1895). And an instruc-
tion directing
to consider a
extrajudicial
codefendant’s
only
statement
against its source has been found sufficient to
de-
implicated
right
confrontation
offending avoid
Court.6
of this
in numerous decisions
fendant
Bruton,
has chosen
codefendant
confessing
as in
When,
*11
implicated defendant
and the
to take the stand
limiting
instructions
guilt,
extrajudicial
no
admission
made
defendant’s
safeguard the
accepted
adequate
as
to
cannot be
cir-
Under such
Confrontation Clause.
rights under
the
of the
and human limitations
cumstances,
“practical
the
supra,
States,
Bruton United
override
at
jury
system,”
the
will follow
theoretically
premise
jury
that
sound
the
own
the defendant’s
But when
trial court’s instructions.
the
the
we believe that
properly
jury,
is
before
way.
possible prej-
The
tip the other
constitutional
scales
follow the
jury
failure of the
to
udice
from
resulting
the
or
not so
“vital”
“devastating”
court’s instructions
is
trial
from the
departure
confessing
require
defendant
to
limiting
of evidence with
allowing
rule
admission
general
States,
Opper
(1954), petitioner contended
v. United
7 Mr. Justice SteveNS
attempt
characterizes our decision as an
“to
vaguely
create a
exception”
defined
involving
for
to
Bruton rule
eases
interlocking confessions, post,
suggests
“proposed
exception”
designed
“to limit the effect of
rule to
[the Bruton]
largely irrelevant set of facts in
Post,
the case that announced it.”
at 87.
First, the dissent describes what
“excep
we believe to be
“rule”
tion.”
indeed,
premise
upon
system jury
which the
“rule” —
trials functions
judicial system
under the
juries
American
can be
—is
trusted
follow the trial court's
exception
instructions. Bruton
anwas
rule,
to this
created because
“devastating” consequences
that failure
disregard
inculpatory
a codefendant's
confession could have
*12
nonconfessing
to a
defendant’s
entirely
case.
think
We
reasonable to
apply
general rule,
and
exception,
when the defendant’s
already
case
by
been devastated
extrajudicial
his own
confession of
guilt.
Second, under the reasoning Bruton,
of
anything
its facts were
“ir-
but
holding.
relevant” to its
recognized:
The Bruton Court
are some contexts in
“[T]here
which
the risk that
not,
will
cannot,
great,
follow
consequences
instructions is so
and the
of failure so
vital
defendant,
to the
practical
and human limitations of the
jury system
ignored.
cannot be
. . . Such a
presented
context is
here ....”
S.,
391 U.
at 135.
Clearly, Bruton was tied to the situation in which it arose: “where the
powerfully incriminating extrajudicial
codefendant,
statements of a
who
side-by-side
stands accused
with
defendant,
deliberately spread
are
joint
before the
in a
Id.,
trial.”
at 135-136.
8
dissent,
SteveNS,
Mr. Justice
holding “squarely
states that our
this Court’s
Russell,
decisions in
overrule[s]”
Roberts v.
III Pickens on the additional corpus respondent of habeas relief to fully argued disposed have been of on their merits Court which summary dispositions, noted in Edelman unargued a difference which we Jordan, paralleled] 670-671 In Roberts facts “[t]he S., was of the facts in Bruton.” at 293. Petitioner convicted robbery codefendant's in- armed after a which a testimony culpating petitioner through police of a of- was introduced petitioner ficer. Petitioner’s cousin testified at trial that had “indicated easy thought robbery.” place . . . Tennessee an to commit a he was No, App. Opposition, 920, Misc., p. to Brief in O. T. 4. extra- This judicial statement, inculpatory, imagination while no stretch petitioner’s application Court denied “confession.” District for a relying authority corpus, expressly writ habeas on of Delli Paoli (1957), Appeals S. and the Court of affirmed. subsequently Bruton, granted This Court overruled Delli Paoli in petition question for certiorari in Roberts to consider “the whether Bruton applied retroactively.” Russell, supra, to be Roberts v. [was] question affirmatively, judgment The Court decided the vacated the Appeals, remanded the case to the District Court for light Bruton, way passing further consideration in in no on the merits petitioner’s contrary Thus, Roberts, Bruton claim. to the dissent’s reading, interlocking neither nor involved “found a Bruton error.”
Hopper Louisiana, supra, posture came to this Court in much the manslaughter Roberts. Petitioners’ convictions were affirmed the Loui- *13 Supreme good siana Court when Delli Paoli law, was still but their while petition for pending certiorari was Court, before this Bruton was decided. summary In a disposition, granted two-sentence petitioners’ this Court petition certorari, judgment for Supreme vacated the of the Louisiana Court, and remanded “for light the case further consideration in of States, Russell, Bruton v. United 391 U. S. and Roberts v. U. [392 S.] S., having passed 293.” 392 at 658. Not petitioners’ on the merits of claim, hardly Bruton this Court can be said to have “found a Bruton error” Hopper. in dissent, believe, Harrington we Califonia, supra, likewise misreads States, supra, Brown
and v. United our as discussion of those cases in n. supra, reveals. rights Arizona,
ground under Miranda v. (1966), had been petitioner sought violated. Although review of ruling, grant this our of certiorari was limited Bruton issue. We thus have no merits pass occasion to on the of the Court of Appeals’ Miranda ruling. Accordingly, judgment of the Pickens is Appeals respondent as to affirmed. in part. in part and reversed
Affirmed Mr. Justice Powell took in part no the consideration decision of this case.
Mr. Justice Blackmun, concurring part concurring judgment. in the
I join I III Parts principal opinion and concur in the judgment part Court’s affirming part reversing judgment of the Appeals. Court of
For me, any error existed in the of the admission the codefendants, in violation of Bruton v. 123 (1968), was, on the facts of this clearly case, beyond harmless a I reasonable doubt. refrain from II joining I principal opinion Part read because, it abandons it, analysis previ- the harmless-error the Court ously applied in similar adopts circumstances and now per se rule to the effect that inapplicable in an interlocking situation. Bruton, of course, the Court held that the admission
in a trial of the confession of a codefendant who did not take the stand violated the Sixth Amendment confron- right of tation the other defendant. Because in cases most impact admitting a codefendant’s confession is severe, credibility any because the such confession “is inevita- id., bly suspect,” Court went on to hold limiting jury instruction could not alleviate the resultant substantial threat fair trial the Confrontation Clause was Id., designed protect. at 136-137.
In Harrington
California,
depart from this harmless-error approach analysis to hold that Bruton simply does not apply in a case involving inter- locking confessions. It concludes that in circumstances where one defendant has confessed, the interlocking confession of a codefendant “will if seldom, be of ever, 'devastating’ character referred into Ante, Bruton.” at 73. it Similarly, finds that the fact the confession of a codefendant is “inevitably suspect” weight little where interlocking are evidence. Ibid. Thus, it holds that right protected by Bruton, e., i. the Confrontation Clause right of cross-examination, “has practical far less value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence.” Ibid. Accord- ingly, concludes “that admission of interlocking confessions with proper limiting instructions conforms to the require- ments” of the Constitution. at 75. Ante,
The Court has not departed heretofore from harmless- error approach in Bruton cases. It is unclear where the present analysis will lead in where cases interlocking con- fessions are issue, but where any Bruton error appears harmless under Chapman; for where the Bruton error is harmless, error admitting the nontestifying codefend- ant’s confession will be far from I devastating. would be unwilling to depart from the traditional harmless-error anal- *15 ysis the straightforward Bruton-error situation. Neither I depart would from the approach harmless-error in inter- locking confession cases. The fact in- may that confessions terlock degree some a per matter, se does not ensure, as that their admission will not a prejudice defendant so sub- stantially a that limiting instruction will be curative. not The two may confessions interlock in part only. they Or may cover only portion a of the events in issue trial. at the Although two interlocking may confessions not be internally may one inconsistent, go far beyond the other in implicating the confessor’s codefendant. In such the ad- circumstances, mission of the confession of the codefendant who does take the stand very could well serve to prejudice defend- ant who is incriminated the confession, notwithstanding that the defendant’s own confession is, to an extent, inter- I locking. fully recognize that interlocking-con- most any fession cases, error in admitting the confession of a codefendant nontestifying will be beyond harmless rea- a sonable doubt. I Even so, would not adopt rigid per se a rule that forecloses court from weighing all circum- stances in order to determine whether the defendant in fact unfairly prejudiced by the admission of even an inter- locking confession. Where was unfairly he prejudiced, mere fact prejudice that was caused an interlocking con- fession ought not to override the important interests that the Confrontation protects. Clause
It is possible, course, the new approach will result in no more in analysis. than shift Instead of focusing on whether the error was harmless, defendants and courts will be forced, instead, inquire whether the confessions were sufficiently interlocking so permit as to a conclusion that apply. does not And I suppose making after determination that the confessions did not interlock ato suffi- cient the court degree, then would have to make a harmless-
error determination anyway, adding thus another step process.
Unfortunately, not clear approach the new man- dates an even inquiry whether interlock. Respondents argued have the confessions in this case, in fact, did not interlock. Respondents Brief for 3-U38. principal opinion, however, simply assumes interlock. It thus comes close to saying that so long all the defendants *16 have made type some of confession which in placed evi- is dence, Bruton is inapplicable without into inquiry whether actually interlock and the If thereof. extent it willing is to abandon the inquiry accompanies factual a harmless-error determination, it should be ready, at least, substitute an inquiry into whether there genuine is interlock- ing before it application casts the of Bruton, and the under- lying Confrontation Clause right, aside. completely
I case, merely add in Bruton any this my error, view, clearly was harmless. The principal concerning issue respondents at was whether three Negro males identified by a number of witnesses as been having at the murder scene were indeed respondents. Each placed confessing respondent at the scene of killing. Each confession implicated the confessor in the plan Woods’ to rob poker game. Each confession largely overlapped with cumulative to the others. testimony Corroborative from who witnesses were in apartment placed respondent Hamilton at the scene of the murder and tentatively iden- respondent tified Randolph as one Negroes who re- ceived a share of proceeds apartment Hamilton’s immediately after the killing. testimony of five wit- nesses to the events apartment outside the strongly corrobo- rated the confessions. these circumstances, considering the confession of each respondent against I him, be- cannot lieve that “there ais reasonable- possibility that the im- properly admitted evidence contributed to the conviction.” Florida, Schneble at 432. Reversal on the S., is issue, required. therefore, with whom
Mr. Justice Mr. Justice Brennan Stevens, join, dissenting. Mr. Justice Marshall 77-78, As Mr. clear, ante, makes Justice Blackmun analysis proper of this that we differentiate requires case between (1) a conclusion that no error under the there was rule of Bruton v. United a con- (2) clusion that even if error was committed, constitutional possibility that inadmissible evidence contributed to the con- may error as viction so remote that we characterize the properly rejects harmless. Because Justice Blackmun Mr. my him is conclusion, disagreement the first area of with In my view, findings narrow. but not in the concurrent his, Appeals of the District Court the Court of that the error preclude here was not harmless1 Court from reaching this Judge noted, writing Appeals: for the Court of 1 As Edwards question evaluating ease, in this “In harmless error it is im- jury’s portant point might out factors which affect a verdict *17 Bruton separate to trials the rule relation these three defendants where was observed:
“1) Randolph, gambling and Pickens Hamilton were not involved in the Wood, game Douglas, Vegas gambler, the between Las and Robert the gambler hometown cheated. got who
“2) They originating plan recouping not the for were involved Robert losses. Wood’s
“3) They (and in the room had been) were not not when Robert Wood Douglas. killed
“4) Indeed, could conclude from the evidence in this admissible original pulled pistol, plan that when Joe Wood out his for three case poker game ‘unknown’ blacks to rob the all-white was aborted and that subsequent petitioners’ entry into the room did not them in the involve crime of murder. joint
“Additionally, trial, if to consideration of we return charged by judge responsibility determining state court had the as any by Memphis police three confessions to whether or not testified voluntarily Assuming given. of the three confessions had was two 82 Immi Berenyi g., E. issue. kind this on result
different Co. Mfg. &Tank Graver 635; S. Director, gration opinion see But 271, 275. Co., S. Products Air Linde ante, 80-81. at Blackmun, of Mr. Justice far is opinion plurality with the disagreement area of My plurality remarks. extended more prompts wider error no constitutional above —that conclusion first adopts respondents three of all when committed Without trial. joint at their evidence into admitted were of a use precluding rule modify the to purporting a admissions extrajudicial nontestifying codefendant’s conclu- this reaches plurality trial, the in a defendant for exception defined vaguely a create to attempting sion has also the defendant which there cases repudiate he does which statements inculpatory made at trial.2 would exception an such Court, by the adopted
If ever
find it
Bruton, we
to
by adherence
jury consciousness
from
removed
been
would,
verdict
ultimate
jury finding
impossible
conclude
been the same.
have
‘beyond reasonable doubt/
Cali
Harrington v.
from
this
distinguish
case
serve to
factors
"These
427,]
Florida,
U. S.
[405
250,]
Schneble
fornia, [395
(as
Judge cannot
by the District
Bruton errors found
us that
convince
doubt.”
beyond reasonable
harmless
held)
be
determined to
be
also
he
2d
1182-1183.
F.
unclear
78-79, it is
ante,
out,
at
points
Mr. Justice
As
BlacemuN
confessions,
“interlocking”
analysis to
its
plurality restricts
whether
an
so,
(and,
what
ante,
if
at
RehNQUist,
of Mr.
opinion
Justice
for all
exception is established
“broader”
is),
or whether
“interlock”
explain
in-
how
opinion does not
Indeed, its
Ante, at 72.
confessions.
“confession,” an
qualifies as
must be before
culpatory a statement
blame
heaping
. . .
guilt,"
“statement]
“extrajudicial admission
variously states
plurality
Moreover, the
Ante,
onto [oneself].”
has [once]
defendant
incriminated
“when
applicable
[ever]
its test
*18
inno
not “maintained
he has
(i. e.,
guilt”
whenever
his own
admitted
confessed and
has once
only
he
when
beginning”), from the
cence
any
unchallenged”
. . . before
guilt
his “admission
left
Ante,
72, 73.
invalidity.
at
of its
evidence
seriously undercut
the Court’s decision in
limiting
its effect to a small and arbitrarily selected class of cases.
Indeed,
adoption
its
would squarely overrule holdings in four
decisions of this Court that applied the rule of Bruton.3
3In Roberts
Russell,
293, petitioner
U. S.
and a eodefendant
jointly
were
tried and convicted of
robbery,
armed
to which the eode-
fendant had confessed, implicating petitioner.
In addition, petitioner’s
cousin testified
petitioner
made
inculpatory
certain
statements to him
concerning
robbery
Supreme
State
—statements
Court relied
upon heavily in upholding
jury finding
petitioner’s
guilt. App. to
Brief in Opposition,
1967,
O. T.
920,
No.
Misc., pp. 4, 6. That court
also held that
the redaction of the codefendant’s confession to omit the
petitioner
references to
as well as a cautionary
instruction to the
consider the confession as
the codefendant alone was
sufficient
any
to avoid
problem under the Confrontation Clause. On
corpus,
habeas
the District Court and the Court Appeals
agreed. This
granted
Court
the writ of certiorari
summarily
vacated the conviction
and remanded for
light
reconsideration in
of Bruton.
In
doing,
so
established both that the Bruton
applied
rule
to the States and that it was
retroactive.
S.,
at 294-295.
Similarly, Hopper
v. Louisiana,
658,
392 U. S.
the Court vacated the
convictions of two defendants both of whom had made full confessions
that were
introduced at their
trial with the
cautionary
usual
in-
structions. See 251
104,
77,
La.
222,
203 So. 2d
232-233
On
remand, the
Supreme
Louisiana
Court held
Bruton errors as to
both defendants
beyond
were harmless
light
reasonable doubt in
overwhelming untainted evidence inculpating both,
439,
253 La.
218 So.
551 (1969),
2d
and this Court denied certiorari.
Evidence unchallenged,” the before which “stands guilt” mission of him depriving for reason acceptable an ante, 73, at is 74, witnesses the to confront right constitutional of his the “to cast striving contrary, In arguing him.4 parties of any the than form” “in a broader ... presented issue” ante, plurality the 72, at case, the dispose of necessary to felt are erroneous. Both assumptions. on two necessarily relies a code- disregard ability to jury’s the it assumes First, highly prejudicial inadmissible and fendant’s corroborating state- aof existence by the invariably increased all unchal- it assumes Second, the defendant. ment Aside reliable. equally are by a defendant lenged the Bruton, however, dissent from the quotations from two nothing more than with assumptions supports these plurality variability infinite But assertions. force of its own by defendants made (whether inculpatory of statements those juries, on makes likely effect of their codefendants), example is instructive. hypothetical A untenable. assertions tending to of' evidence 10 prosecutor a Suppose items guilty Y are X and codefendant defendant prove that a tele- tape The first is public figure. assassinating a X he and Y detail how describing in vised interview with through 2 9 involve crime. Items executed planned X and between past association circumstantial expressed wish victim, and' an hostility for the Y, a shared very might itself well early demise —evidence for his testimony 10 is X. Item convict be insufficient spouse aor divorced former cellmate, drinking partner, Y he had been with saying X recalls vaguely Xof who People Barbaro, (SDNY 1967); Ill. 395 Deegan, Supp. 680 268 F. People Fisher, 249 164 (1946); N. Y. E. 2d 69 N. (Lehman, J., dissenting). (1928) 336, N. E. provides: Constitution Amendment States The Sixth enjoy right accused ... to be shall prosecutions, all “In criminal against him with witnesses confronted the approximate killing. time Neither X nor Y takes the stand.
If Y’s placed jury- televised confession were before *20 while Y was immunized from cross-examination, it would undoubtedly have the “devastating” effect on X that the Bruton was designed rule to avoid. at 128. As S.,U. characteristically explanation concise Mr. Justice Stewart’s underlying rationale that case it demonstrates, would also plainly violate X’s Amendment right Sixth to confront his accuser.5 Nevertheless, plurality’s under the first remark- able the assumption, prejudice to X—and the violation of his constitutional right entirely be cured the sub- —would sequent use of evidence of his own ambiguous statement. my judgment, such dubious corroboration would enhance, rather than the that reduce, danger rely the would on Y’s televised confession evaluating when guilt. X’s See United Bozza, States v. 2d (CA2 1966) 365 F. (Friendly, quoted in I J.), n. Even if am wrong, 13, infra. however, there is no reason to conclude that the prosecutor’s reliance on item 10 would obviate harm flowing the from the of use item 1. of dubiousness X’s confession example this in—as
any case in which the defendant’s inculpatory statement is
5 “I underlying think it the clear that rationale of the Sixth Amendment's precludes upon cautionary Confrontation Clause reliance instructions when highly damaging out-of-court statement of a codefendant, who is not subject cross-examination, deliberately placed is before the at a premise trial. A basic of Clause, the Confrontation it me, seems to hearsay (see, is that certain kinds g., Texas, of e. Pointer 400; v. 380 U. S. Douglas Alabama, 415) 380 U. S. are at damaging, suspect, once so so yet discount, jurors so difficult to give cannot be trusted to such weight evidence the minimal logically it deserves, whatever instructions judge might give. the trial See the opinion, S.,] Court’s at 136 [391 very n. 12. It is for this reason that an out-of-court accusation uni is versally constitutionally conceded to be inadmissible accused, rather may than for the admissible little it S., be worth.” (Stewart, J., concurring). 137-138 or influences, coercive of result incomplete, ambiguous, untrust often well-recognized product simply inaccuracy 6—illustrates confess” “urge worthy true no doubt is It .assumption. crucial second plurality’s constitute will defendant’s cases in some violation his guilt evidence convincing such doubt. a reasonable beyond harmless rights constitutional Florida, Schneble 223; Brown g.,E. convincing. so is not many cases, But incriminating more inherently is not Moreover, such finger such of evidence kinds other than more reliable or these if testimony. Yet, eyewitness photographs, prints, effect absolute same are given corroboration types would rule confessions, accord would plurality *21 apply.7 never almost of X’s the relevance to understand loss at a
I also am at 73. Ante, trial. confession his “challenge” to failure own his say about or not say could nothing he there is For damning dramatically the dispel would that alleged rule general from the apart even Furthermore, Y’s. effect exercising one for penalized be should not a defendant intro- or to the stand take not right to the this case (in right (in this away another taken having evidence) by other duce States g., United e. accuser), confront one’s to right case to failure why X’s unclear it is 570, Jackson, 390 U. S. self- reliability of a necessarily enhances it repudiate above. hypothesized as the such one “confession” impeaching J., 343-344 (Stevens, 435 Oregon, Lakeside Cf. dissenting). DePaul Syndrome, House 18 the Station Foster, g., 6 E. Confessions Psychology of Interrogation and the Sterling, (1969); Police Eev.
L. Compul Reik, The T. (1965). generally See L. 25 Confession, Pub. 14 J. Confess to sion perpetrator an as the at trial was identified George Indeed, Bruton States, O. T. robbery. App. in eyewitness to the p. 70. No. I
In. short, logic proposed exception see no commend the to to the rule of Bruton perhaps, purpose to save, limit effect of that rule to the largely irrelevant set of facts case If that announced it. present at all in the relevant plurality the factors relied on context, support prop- osition no one has remotely even advocated in this case— the corroborated evidence used in this case was so trust- worthy fully it should have been admissible against all of the defendants, instructed as much. Conceiv- ably, corroborating other circumstances other- surrounding wise inadmissible hearsay may so reliability enhance its its admission in justified evidence is in some situations.8 But before allowing such a rule to defeat a defendant’s funda- mental right confront surely this Court should accusers, upon insist a strong showing only of reliability hearsay in particular case but also of the impossibility, or at least difficulty, making the accusers available for cross- examination.9 And, most prosecution cases the will be pressed hard to make the light latter showing ability its try the defendant and separately codefendant af- and to each immunity ford from the use him testimony of his at the Kastigar other’s trial. See v. United
Absent
admissibility
codefendants’
against respondents,
therefore,
controlling question must
be whether
realistic to assume that
followed the
*22
judge’s instructions to disregard those confessions when it was
8
(b) (3)
(“A
Cf. Fed. Rule Evid. 804
tending
statement
expose
to
liability
declarant
to criminal
and
exculpate
offered to
the accused is
admissible
corroborating
clearly
unless
circumstances
indicate
trust
statement”);
worthiness of the
Mississippi,
Chambers v.
As sys jury] underlying [the assumption “crucial by the plied them given the instructions follow will juries . . . tem argued, is assumption, it This at 73. judge.” Ante, by the trial re Court” of this decisions “numerous applied been citing 6, and n. Ante, confessions. codefendants’ garding Blumenthal States, S. v. United Opper ad reasoning was this But 539. U. S. United Bruton overruled— in the forcefully case just as vanced “numerous” same on the relied incidentally, case, analysis. its favor of resurrects plurality decisions What States, Paoli Delli See plu reasoning despite this to response said — less no ante, at 70-73 — is see contrary assertions, rality’s context: present in the applicable the risk that in which contexts some
“[Tjhere are great, is so follow instructions cannot, not, jury will defendant, so vital failure consequences and the sys- limitations human practical that the presented is a context . Such ignored. . be . tem cannot extrajudicial incriminating powerfully where here, side- accused who stands of a codefendant statements before deliberately spread are defendant, with the by-side incriminations only are the trial. Not in a in- credibility is but their devastating the defendant to do accomplices when recognized evitably a fact suspect, their weigh jury is instructed and the the stand take motivation recognized carefully given the testimony evi- unreliability such others. The blame onto shift alleged ac- intolerably compounded when dence *23 here, testify as does not and cannot tested be complice, by cross-examination. against It was such threats to fair trial the Confrontation Clause was directed.” (citations at 135-136 S., omitted). and footnotes falling Rather than back on once but numerous now dis- I prefer credited decisions, by to stand the observations about this of question by jurists sort like Felix Learned Frankfurter, Wiley Hand,10 Rutledge,11 Robert Jackson,12 Henry opinion dissenting In his States, Delli Paoli v. United 352 U. S. recurring Mr. Justice Frankfurter commented on the arising difficulties persons the trial of collaborating two or more accused of in a criminal enterprise incriminating when declarations one or more of defend against not ants are admissible others. He observed: usually by admitting “The dilemma is resolved against such evidence jury cautioning against declarant but its use in determining the guilt of the others. The fact of the matter is that too often such admoni- against intrinsically tion misuse is ineffective that the effect of such a wiped nonadmissible declaration jurors. cannot be from the brains of the The admonition therefore becomes a futile collocation of words fails purpose legal protection of its against as to defendants such whom declaration should not tell. enforcing admitting While the rule of solely against a admonishing jury declaration declarant and not to against consider it defendants, Judge other Hand, Learned in a series of cases, recognized psychological feat this solution juries. problem: dilemma demands of He stated thus “ effect, 'In however, probably furthers, the rule impedes, rather than truth, perhaps for search and this excuses the device which satisfies form substance; is, while violates the recommendation to the of a gymnastic beyond, only mental which is their powers, anybody but States, else’s.’ Nash United 1006, 1007. 2dF. “. . . The Government should not having have the windfall of be which,
influenced a defendant they as a matter law, they should not consider but put which cannot Id., out of their minds.” at 247-248. 11Writing for the Court in Blumenthal v. 559-560, Rutledge Mr. Justice said: grave danger case, any, “The in this if arose not from the trial court’s upon rulings admissibility jury. or from its instructions to As we said, adequate might reasonably have these were as required be in a *24 90 Morgan.14 Wigmore like by scholars
Friendly,13 jury will that odds the theirs, I think as my judgment, confession15— a codefendant’s ignore to a command obey jury, in disre- the in the risk that rather danger rested trial. unconsciously, consciously transfer, direction, would court’s gard of the against Gold- made the as from case admissions the excluded of effect the three the to other the of exclusion the barrier across and Weiss smith defendants. any conspiracy likely to arise It is one danger real. “That charged together in- persons number likely as the to occur more rulings on by clear provided safeguards Perhaps at best even creases. particular as bearing of evidence admissibility, limitations off to ward instructions, are adequate insufficient individuals, and safeguards extremely that those important entirely. It is therefore danger possible.” impregnable as as be made 12 preceding in the quoted from Blumenthal passage Referring to the quoted frequently observation: his Jackson made footnote, Mr. Justice by instruc overcome prejudicial effects be assumption can naive “The 559, all States, 332 U. S. v. United jury, Blumenthal cf. to tions United Krulewitch unmitigated lawyers to be fiction.” know practicing opinion). (concurring States, 440, 453 336 U. S. 13 really expected be so naive judges can be to appellate “Not even Judge performing L. jurors succeeded in what twelve believe all only beyond, not their gymnastic which is aptly 'a mental called Hand 1006, 1007 F. 2d anybody’s United 54 else.’ Nash v. powers, but realistically suppose when the impossible (2 1932). It Cir. in the good and women had men [the codefendant’s] twelve yielded tempta room, nigh not one irresistible privacy of the by the of the defendants’ the blanks redaction names] to fill in tion [caused keys provided and ask himself other evidence] [to] with [the supported question Jones’ statement evi intelligent to what extent [that yield, colleagues effectively persuaded anyone did dence], or that if Bozza, 365 dismiss answers from his mind.” States him to F. 2d 14 2272, p. (3d 1940); Morgan, Wigmore, 416 ed. See J. Evidence E. § Anglo-American System Litigation Some Problems Proof Under 15 Indeed, judge’s ignore may command to the confession well as any juror happened to miss sure who the connection to defend ant at first will nonetheless have made the time he enters Oregon, J., dissenting). Lakeside (Stevens, room. whether or not the defendant himself confessed—are no less stacked against the defendant than was the deck of cards that William Douglas used to Wood’s, ultimately Robert to his downfall in the game chance own, arranged Woppy Gaddy. In contests like the risk this, that one player may be confused with another is not insubstantial.
I respectfully dissent.