"So I Says to 'The Guy,' I Says ...": The Constitutionality of Neutral Pronoun Redaction in Multidefendant Criminal Trials

Article excerpt

INTRODUCTION
  I. DELLI PAOLI AND THE QUESTION OF CONFESSIONS
     PRIOR TO BRUTON
     A. Delli Paoli
     B. The Road to Bruton: Pointer, Douglas, and Jackson
        1. Pointer v. Texas
        2. Douglas v. Alabama
        3. Jackson v. Denno
 II. BRUTON AND THE CONFRONTATION CLAUSE CONFRONTED
     A. Bruton v. United States
     B. Bruton Applied
III. REEXAMINING BRUTON: RICHARDSON AND GRAY
     A. Limiting Bruton: Richardson v. Marsh
     B. The Difficulties of Applying Richardson
     C. Answering the Unanswered Questions:
        Gray v. Maryland
     D. Reaction to Gray
 IV. WHAT TO DO WITH "THE GUY": NEUTRAL PRONOUN
     REDACTION AND THE BRUTON PROBLEM AFTER GRAY
     A. The Problem of Neutral Pronoun Redaction:
        A Hypothetical
     B. Neutral Pronoun Redaction and the Inconsistent
        Application of Bruton
     C. The Case for Neutral Pronoun Redaction
        1. Neutral Pronouns Are Different, and Should Be
           Treated as Such
        2. A Jury Instruction Is Sufficient
     D. A New Test
        1. Prong 1: Invitation To Speculate
        2. Prong 2: The Degree of Inference
        3. Administering the Test
CONCLUSION

INTRODUCTION

Human beings are naturally inquisitive and instinctively seek to complete that which is incomplete. When a word is removed from a sentence and replaced with a blank space, human nature seeks to complete the sentence and determine what belongs in the blank space. The difficulties of attempting to cover up parts of sentences in the hope that people will ignore their human nature and disregard what was removed are clear to anyone familiar with the Watergate scandal. During the presidency of Richard Nixon, conversations held in the Oval Office and over the phone among government officials, including President Nixon himself, were secretly recorded. (1) When the story about the break-in at the Watergate hotel was uncovered, the tapes became evidence linking the President and others to the orchestrated burglary and subsequent cover-up. (2) Some of the tapes were turned over to prosecutors and transcribed for use during the investigation. (3) Parts of the transcripts were altered, however. In place of the foul language that the President and others frequently used, the editors of the transcripts substituted the phrases "expletive removed" or "expletive deleted." (4) Yet, for anyone reading the transcripts, not only was it obvious that something had been removed, it did not take a great deal of effort to determine which words "expletive deleted" may have replaced. (5)

The problems with removing offensive references and finding suitable replacements are not unique to the Watergate recordings. As multiple-defendant criminal trials become more common, especially in drug conspiracy, terrorism, and RICO prosecutions, prosecutors and judges face similar difficulties trying to ensure that defendants receive fair trials. (6) Such problems arise where one defendant in a joint trial confesses to his crime, and in the confession, he implicates his codefendant in some way. Although such a statement is admissible against the confessor, provided it was lawfully obtained and voluntary, it is inadmissible hearsay with regard to his codefendant if the confessor does not testify. (7) If the confession is introduced at their joint trial, the jury will hear the statements that implicate the nonconfessing defendant as well as the confessing defendant. If the confessing defendant does not testify, the nonconfessing defendant has no opportunity to cross-examine the confessor on his statement, thus denying him the right "to be confronted with the witnesses against him." (8) When the jury thus hears evidence that is inadmissible against the codefendant, there is a danger that the jurors will improperly consider this inadmissible evidence when determining the nonconfessing defendant's guilt. This danger is called the "Bruton problem." (9)

There are various ways to avoid the danger that the jury will consider inadmissible evidence like the confession when determining the guilt or innocence of the nonconfessing defendant. …