Academic journal article American Journal of Criminal Law

Is Bruton on Life Support in the Aftermath of Crawford V. Washington?

Academic journal article American Journal of Criminal Law

Is Bruton on Life Support in the Aftermath of Crawford V. Washington?

Article excerpt

I. Introduction............................................................................................1

II. Bruton and its Progeny...........................................................................3

III. Crawford Changes the Landscape..........................................................7

IV. The Unforeseen Consequence of Crawford on Bruton........................10

V. Conclusion............................................................................................16

I. Introduction

In Bruton v. United States, the Supreme Court of the United States held that the statement of a non-testifying co-defendant, which facially incriminates another co-defendant, is inadmissible on Confrontation Clause grounds.* 1 Bruton was decided in 1968, at a time when the Supreme Court's interpretation of the Confrontation Clause was far different than it is today. In 2004, the Supreme Court in Crawford v. Washington, overruled Ohio v. Roberts' reliance upon the "indicia of reliability" standard when considering the exceptions to the hearsay rule regarding out-of-court statements sought to be admitted for the truth of the matter asserted.2 In Crawford v. Washington, the Supreme Court held that in a criminal trial, testimonial evidence cannot be admitted without the defendant having an opportunity to cross-examine the declarant, unless (a) the declarant is unavailable to testify in court and (b) the defendant had a previous opportunity to cross-examine the declarant.3 Three years later, in Whorton v. Bockting the Court clarified its ruling in Crawford by writing that Ohio v. Roberts has no vitality for non-testimonial statements and their admission is not prohibited under the Confrontation Clause, even if they lack "indicia of reliability."4

When the Supreme Court decided Crawford v. Washington on March 8, 2004, it was immediately evident to prosecutors, defense attorneys, and judges nationwide that the application of the rules of evidence regarding the admissibility of hearsay would forever be altered in criminal trials.5 There were many issues left unanswered and much uncertainty as to what extent the evidentiary rules would be affected. Cross-examination regarding testimonial statements became a procedural mandate and the only constitutionally permissible method to test the reliability of an out-of-court statement. Even where the declarant is unavailable to testify at trial, the demands of Crawford are not satisfied unless the defense had the opportunity to cross-examine the declarant at some prior time.6

These new developments in Confrontation Clause jurisprudence caused an unintended change in the Bruton doctrine; namely, where a nontestifying co-defendant's statement incriminating the defendant is made to a civilian, the statement in most cases will be deemed non-testimonial.7 Thus, the Confrontation Clause does not bar the admission of the out-of-court statement into evidence, and there would be no need to sever the two defendants at trial under the Confrontation Clause.8 Prior to the decision of Crawford v. Washington in 2004, these kinds of statements would be inadmissible under Bruton. At least one commentator has criticized judicial treatment of Bruton in the wake of Crawford,9 The purpose of this article is to determine whether Bruton continues to have any vitality in light of Crawford and subsequent Confrontation Clause decisions.

The first section of this article discusses Bruton and its progeny prior to the Supreme Court's decision in Crawford. The second section of this article will discuss the paradigm shift that Crawford brought with it. The third section of this article will consider cases that present recent Bruton issues in light of Crawford, specifically with respect to a co-defendant's out-of-court declaration spoken to a civilian, with an accompanying discussion of the strength of Bruton today.

II. Bruton and its Progeny

In Bruton v. United States, William J. …

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