BRUTON v. UNITED STATES
No. 705
SUPREME COURT OF THE UNITED STATES
391 U.S. 123
May 20, 1968, Decided
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question, last considered in Delli Paoli v. United
States, 352 U.S. 232, whether the conviction of a defendant at a joint
trial should be set aside although the jury was instructed that a codefendant's
confession inculpating the defendant had to be disregarded in determining his
guilt or innocence.
A joint trial of petitioner and one Evans in the District Court for the Eastern
District of Missouri resulted in the conviction of both by a jury on a federal
charge of armed postal robbery, 18 U. S. C. § 2114. A postal inspector
testified that Evans orally confessed to him that Evans and petitioner
committed the armed robbery. The postal inspector obtained the oral confession,
and another in which Evans admitted he had an accomplice whom he would not
name, in the course of two interrogations of Evans at the city jail in St.
Louis, Missouri, where Evans was held in custody on state criminal charges.
Both petitioner and Evans appealed their convictions to the Court of Appeals
for the Eighth Circuit. That court set aside Evans' conviction on the ground
that his oral confessions to the postal inspector should not have been received
in evidence against him. 375 F.2d 355, 361. However, the court, relying upon Delli Paoli, affirmed
petitioner's conviction because the trial judge instructed the jury that
although Evans' confession was competent evidence against Evans it was
inadmissible hearsay against petitioner and therefore had to be disregarded in
determining petitioner's guilt or innocence. 375 F.2d, at 361-363. We granted certiorari to reconsider Delli
Paoli. 389 U.S. 818. The Solicitor General has since submitted a
memorandum stating that "in the light of the record in this particular
case and in the interests of justice, the judgment below should be reversed and
the cause remanded for a new trial." The Solicitor General states that
this disposition is urged in part because "here it has been determined
that the confession was wrongly admitted against [Evans] and his conviction has
been reversed, leading to a new trial at which he was acquitted. To argue, in
this situation, that [petitioner's] conviction should nevertheless stand may be
to place too great a strain upon the [Delli Paoli] rule -- at least,
where, as here, the other evidence against [petitioner] is not strong." We
have concluded, however, that Delli Paoli should be overruled. We hold
that, because of the substantial risk that the jury, despite instructions to
the contrary, looked to the incriminating extrajudicial statements in
determining petitioner's guilt, admission of Evans' confession in this joint
trial violated petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment. We therefore overrule Delli
Paoli and reverse.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 At the close of the Government's direct case, the trial judge cautioned the
jury that Evans' admission implicating petitioner "if used, can only be
used against the defendant Evans. It is hearsay insofar as the defendant George
William Bruton is concerned, and you are not to consider it in any respect to
the defendant Bruton, because insofar as he is concerned it is hearsay."
The instructions to the jury included the following:
"A confession made outside of court by one defendant may not be considered
as evidence against the other defendant, who was not present and in no way a
party to the confession. Therefore, if you find that a confession was in fact
voluntarily and intentionally made by the defendant Evans, you should consider
it as evidence in the case against Evans, but you must not consider it, and
should disregard it, in considering the evidence in the case against the
defendant Bruton.
. . . .
"It is your duty to give separate, personal consideration to the cause of
each individual defendant. When you do so, you should analyze what the evidence
shows with respect to that individual, leaving out of consideration entirely
any evidence admitted solely against some other defendant. Each defendant is
entitled to have his case determined from his own acts and statements and the
other evidence in the case which may be applicable to him."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The basic premise of Delli Paoli was that it is "reasonably
possible for the jury to follow" sufficiently clear instructions to
disregard the confessor's extrajudicial statement that his codefendant
participated with him in committing the crime. 352 U.S., at 239. If it were
true that the jury disregarded the reference to the codefendant, no question
would arise under the Confrontation Clause, because by hypothesis the case is
treated as if the confessor made no statement inculpating the nonconfessor. But
since Delli Paoli was decided this Court has effectively repudiated
its basic premise. Before discussing this, we pause to observe that in Pointer
v. Texas, 380 U.S. 400, we confirmed "that the right of
cross-examination is included in the right of an accused in a criminal case to
confront the witnesses against him" secured by the Sixth Amendment, id.,
at 404; "a major reason underlying
the constitutional confrontation rule is to give a defendant charged with crime
an opportunity to cross-examine the witnesses against him." Id.,
at 406-407.
We applied Pointer in Douglas v. Alabama, 380 U.S.
415, in circumstances analogous to those in the present case. There two
persons, Loyd and Douglas, accused of assault with intent to murder, were tried
separately. Loyd was tried first and found guilty. At Douglas' trial the State
called Loyd as a witness against him. An appeal was pending from Loyd's
conviction and Loyd invoked the privilege against self-incrimination and
refused to answer any questions. The prosecution was permitted to treat Loyd as
a hostile witness. Under the guise of refreshing Loyd's recollection the prosecutor
questioned Loyd by asking him to confirm or deny statements read by the
prosecutor from a document purported to be Loyd's confession. These statements
inculpated Douglas in the crime. We held that Douglas' inability to
cross-examine Loyd denied Douglas "the right of cross-examination secured
by the Confrontation Clause." 380 U.S., at 419. We noted that
"effective confrontation of Loyd was possible only if Loyd affirmed the
statement as his. However, Loyd did not do so, but relied on his privilege to
refuse to answer." Id., at 420. The risk of prejudice in
petitioner's case was even more serious than in Douglas. In Douglas
we said, "Although the Solicitor's reading of Loyd's alleged statement,
and Loyd's refusals to answer, were not technically testimony, the Solicitor's
reading may well have been the equivalent in the jury's mind of testimony that
Loyd in fact made the statement; and Loyd's reliance upon the privilege created
a situation in which the jury might improperly infer both that the statement had
been made and that it was true." Id., at 419. Here Evans' oral
confessions were in fact testified to, and were therefore actually in evidence.
That testimony was legitimate evidence against Evans and to that extent was
properly before the jury during its deliberations. Even greater, then, was the
likelihood that the jury would believe Evans made the statements and that they
were true -- not just the self-incriminating portions but those implicating
petitioner as well. Plainly, the introduction of Evans' confession added
substantial, perhaps even critical, weight to the Government's case in a form
not subject to cross-examination, since Evans did not take the stand.
Petitioner thus was denied his constitutional right of confrontation.
Delli Paoli assumed that this encroachment on the right to confrontation could
be avoided by the instruction to the jury to disregard the inadmissible hearsay
evidence. But, as we have said, that assumption has since been effectively
repudiated. True, the repudiation was not in the context of the admission of a
confession inculpating a codefendant but in the context of a New York rule
which submitted to the jury the question of the voluntariness of the confession
itself. Jackson v. Denno, 378 U.S. 368. Nonetheless the
message of Jackson for Delli Paoli was clear. We there held
that a defendant is constitutionally entitled at least to have the trial judge
first determine whether a confession was made voluntarily before submitting it
to the jury for an assessment of its credibility. More specifically, we
expressly rejected the proposition that a jury, when determining the
confessor's guilt, could be relied on to ignore his confession of guilt should
it find the confession involuntary. Id., at 388-389. Significantly, we
supported that conclusion in part by reliance upon the dissenting opinion of
Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli.
Id., at 388, n. 15.
That dissent challenged the basic premise of Delli Paoli that a
properly instructed jury would ignore the confessor's inculpation of the
nonconfessor in determining the latter's guilt. "The fact of the matter is
that too often such admonition against misuse is intrinsically ineffective in
that the effect of such a nonadmissible declaration cannot be wiped from the
brains of the jurors. The admonition therefore becomes a futile collocation of
words and fails of its purpose as a legal protection to defendants against whom
such a declaration should not tell." 352 U.S., at 247. The dissent went on
to say, as quoted in the cited note in Jackson, "The government
should not have the windfall of having the jury be influenced by evidence
against a defendant which, as a matter of law, they should not consider but
which they cannot put out of their minds." Id., at 248. To the
same effect, and also cited in the Jackson note, is the statement of
Mr. Justice Jackson in his concurring opinion in Krulewitch v. United
States, 336 U.S. 440, 453: "The naive assumption that prejudicial
effects can be overcome by instructions to the jury . . . all practicing
lawyers know to be unmitigated fiction. . . ."
The significance
of Jackson for Delli Paoli was suggested by Chief Justice
Traynor in People v. Aranda, 63 Cal. 2d 518, 528-529, 407 P.
2d 265, 271-272:
"Although Jackson was directly concerned with obviating any risk
that a jury might rely on an unconstitutionally obtained confession in
determining the defendant's guilt, its logic extends to obviating the risks
that the jury may rely on any inadmissible statements. If it is a denial of due
process to rely on a jury's presumed ability to disregard an involuntary
confession, it may also be a denial of due process to rely on a jury's presumed
ability to disregard a codefendant's confession implicating another defendant
when it is determining that defendant's guilt or innocence.
"Indeed, the latter task may be an even more difficult one for the jury to
perform than the former. Under the New York procedure, which Jackson
held violated due process, the jury was only required to disregard a confession
it found to be involuntary. If it made such a finding, then the confession was
presumably out of the case. In joint trials, however, when the admissible
confession of one defendant inculpates another defendant, the confession is
never deleted from the case and the jury is expected to perform the overwhelming
task of considering it in determining the guilt or innocence of the declarant
and then of ignoring it in determining the guilt or innocence of any
codefendants of the declarant. A jury cannot 'segregate evidence into separate
intellectual boxes.' . . . It cannot determine that a confession is true
insofar as it admits that A has committed criminal acts with B and at the same
time effectively ignore the inevitable conclusion that B has committed those
same criminal acts with A."
In addition to Jackson, our
action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure
also evidences our repudiation of Delli Paoli's basic premise. Rule 14
authorizes a severance where it appears that a defendant might be prejudiced by
a joint trial. n6 The Rule was amended in 1966 to provide expressly that
"in ruling on a motion by a defendant for severance the court may order
the attorney for the government to deliver to the court for inspection in
camera any statements or confessions made by the defendants which the
government intends to introduce in evidence at the trial." The Advisory
Committee on Rules said in explanation of the amendment:
"A defendant may be prejudiced by the admission in evidence against a
co-defendant of a statement or confession made by that co-defendant. This
prejudice cannot be dispelled by cross-examination if the co-defendant does not
take the stand. Limiting instructions to the jury may not in fact erase the
prejudice. . . .
"The purpose of the amendment is to provide a procedure whereby the issue
of possible prejudice can be resolved on the motion for severance. . . ."
Those who have defended reliance on the limiting instruction in this area have
cited several reasons in support. Judge Learned Hand, a particularly severe
critic of the proposition that juries could be counted on to disregard
inadmissible hearsay, wrote the opinion for the Second Circuit which affirmed
Delli Paoli's conviction. 229 F.2d 319. In Judge Hand's view the limiting
instruction, although not really capable of preventing the jury from
considering the prejudicial evidence, does as a matter of form provide a way
around the exclusionary rules of evidence that is defensible because it
"probably furthers, rather than impedes, the search for truth . . .
." Nash v. United States, 54 F.2d 1006, 1007. Insofar as
this implies the prosecution ought not to be denied the benefit of the
confession to prove the confessor's guilt, however, it overlooks alternative ways of achieving that benefit
without at the same time infringing the nonconfessor's right of confrontation. Where viable
alternatives do exist, it is deceptive to rely on the pursuit of truth to
defend a clearly harmful practice.
Another reason cited in defense of Delli Paoli is the justification
for joint trials in general, the argument being that the benefits of joint
proceedings should not have to be sacrificed by requiring separate trials in
order to use the confession against the declarant. Joint trials do conserve
state funds, diminish inconvenience to witnesses and public authorities, and
avoid delays in bringing those accused of crime to trial. But the answer to
this argument was cogently stated by Judge Lehman of the New York Court of
Appeals, dissenting in People v. Fisher, 249 N. Y. 419, 432,
164 N. E. 336, 341:
"We still adhere to the rule that an accused is entitled to confrontation
of the witnesses against him and the right to cross-examine them . . . . We
destroy the age-old rule which in the past has been regarded as a fundamental
principle of our jurisprudence by a legalistic formula, required of the judge,
that the jury may not consider any admissions against any party who did not
join in them. We secure greater speed, economy and convenience in the
administration of the law at the price of fundamental principles of
constitutional liberty. That price is too high."
Finally, the reason advanced by the majority
in Delli Paoli was to tie the result to maintenance of the jury
system. "Unless we proceed on the basis that the jury will follow the
court's instructions where those instructions are clear and the circumstances
are such that the jury can reasonably be expected to follow them, the jury
system makes little sense." 352 U.S., at 242. We agree that there are many
circumstances in which this reliance is justified. Not every admission of
inadmissible hearsay or other evidence can be considered to be reversible error
unavoidable through limiting instructions; instances occur in almost every
trial where inadmissible evidence creeps in, usually inadvertently. "A
defendant is entitled to a fair trial but not a perfect one." Lutwak
v. United States, 344 U.S. 604, 619; see Hopt v. Utah,
120 U.S. 430, 438; cf. Fed. Rule Crim. Proc. 52 (a). It is not unreasonable to
conclude that in many such cases the jury can and will follow the trial judge's
instructions to disregard such information. Nevertheless, as was recognized in Jackson
v. Denno, supra, there are some contexts in which the risk that the
jury will not, or cannot, follow instructions is so great, and the consequences
of failure so vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored. Compare Hopt v. Utah, supra;
Throckmorton v. Holt, 180 U.S. 552, 567; Mora v. United
States, 190 F.2d 749; Holt v. United States, 94 F.2d 90.
Such a context is presented here, where
the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial. Not only
are the incriminations devastating to the defendant but their credibility is
inevitably suspect, a fact recognized when accomplices do take the stand and
the jury is instructed to weigh their testimony carefully given the recognized
motivation to shift blame onto others. The unreliability of such evidence is
intolerably compounded when the alleged accomplice, as here, does not testify
and cannot be tested by cross-examination. It was against such threats to a
fair trial that the Confrontation Clause was directed. Pointer v. Texas,
supra.
We, of course, acknowledge the impossibility of determining whether in fact the
jury did or did not ignore Evans' statement inculpating petitioner in
determining petitioner's guilt. But that was also true in the analogous
situation in Jackson v. Denno, and was not regarded as
militating against striking down the New York procedure there involved. It was
enough that that procedure posed "substantial threats to a defendant's
constitutional rights to have an involuntary confession entirely disregarded
and to have the coercion issue fairly and reliably determined. These hazards we
cannot ignore." 378 U.S., at 389. Here the introduction of Evans'
confession posed a substantial threat to petitioner's right to confront the
witnesses against him, and this is a hazard we cannot ignore. Despite the
concededly clear instructions to the jury to disregard Evans' inadmissible
hearsay evidence inculpating petitioner, in the context of a joint trial we
cannot accept limiting instructions as an adequate substitute for petitioner's
constitutional right of cross-examination. The effect is the same as if there
had been no instruction at all. See Anderson v. United States,
318 U.S. 350, 356-357; cf. Burgett v. Texas, 389 U.S. 109,
115.
Reversed.