Academic journal article Missouri Law Review

Minimizing Confrontation: The Eighth Circuit Uses Crawford to Avoid Bruton for Non-Testimonial Statements

Academic journal article Missouri Law Review

Minimizing Confrontation: The Eighth Circuit Uses Crawford to Avoid Bruton for Non-Testimonial Statements

Article excerpt

United States v. Dale, 614 F.3d 942 (8th Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011).


Holding a joint trial for multiple co-defendants presents numerous advantages. Joint trials are efficient in that they save time and resources by requiring witnesses to testify once instead of multiple times. (1) They also avoid the "scandal and inequity of inconsistent verdicts." (2) It is no wonder, then, that courts have a preference for joint trials over separate trials. (3)

Despite this preference, the Supreme Court has recognized that joint trials can sometimes interfere with the constitutional rights of at least one of the co-defendants. (4) In Bruton v. United States, the Supreme Court determined that a non-testifying defendant's incriminating statement which implicates a co-defendant but is not in furtherance of a conspiracy is inadmissible at a joint trial for two reasons: first, it violates that co-defendant's Sixth Amendment right to confront the witnesses against him; and second, asking juries to use the statement as evidence against one defendant and disregard it for the other is asking them to perform an impossible task. (5)

The Supreme Court reexamined the right to confrontation in the landmark decision Crawford v. Washington. (6) In that case, the Court determined that the right to confrontation applied to statements made in court as well as "testimonial" statements made outside of it. (7) Several Circuit Courts have ironically used this expansion of the Confrontation Clause against defendants wishing to invoke Bruton to avoid joint trials. (8) The Eighth Circuit recently did just that with its decision in United States v. Dale. (9) In Dale, one defendant made a statement that incriminated both himself and a co-defendant to a police informant wearing a wire. (10) The Eighth Circuit determined that because the defendant's incriminating statement was not "testimonial," Bruton's protections did not apply to his co-defendant, and thus a joint trial was still appropriate. (11)

Outside of the Bruton context, this Note also examines the implications of defining "testimonial" statements entirely from the point of view of the speaker as the Eighth Circuit did in Dale. This Note will argue that to ignore the motives of the examiner encourages the police to use unethical and deceptive interrogation techniques. This Note additionally argues that applying Bruton only to testimonial statements ignores Bruton's Due Process concerns in that it allows juries to do what the Supreme Court considers to be an "impossible" task. (12) Finally, this Note questions whether, after Crawford, any remaining constitutional limits remain on the admission of unreliable yet non-testimonial hearsay statements.


Anthony Rios and Olivia Raya were found murdered in their Kansas City home on December 21, 2002. (13) After a search of the home, police found several bricks of marijuana and cocaine. (14) This was explained, in part, by Paul Lupercio, one of the last people to see or speak to the victims while they were alive. (15) Lupercio testified that on December 20, the night before Rios and Raya were found murdered, he had given Rios twenty-thousand dollars for cocaine. (16) Lupercio further testified that he had planned to pick up the cocaine later that evening but was unable to because Rios never answered his phone or called him back. (17)

A search of Rios's phone records revealed that the last person he had talked to on the phone was a man named Dyshawn Johnson. (18) A search of Johnson's home resulted in the discovery of "scales, kilo wrappers and tape with cocaine residue, and ammunition." (19) Several witnesses testified that Johnson was Michael Dale's "source" for cocaine and the two sold drugs together. (20) Furthermore, several witnesses with connections to Dale through the cocaine business testified that Dale had admitted to murdering "the Mexicans. …

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