Member Article

In 1968, the Supreme Court held in Bruton v. United States that a defendant was deprived of his rights under the Confrontation Clause when a nontestifying codefendant's confession naming the defendant as a participant in the crime was introduced in their joint trial, regardless of any instruction that the jury should consider the confession only against the confessing defendant. The Bruton Court reasoned that "[t]here 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. The Court explained that "[s]uch 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." Unless the confessing codefendant testifies at trial and is subject to cross-examination, the admission of such a confession violates the Confrontation Clause. In order to avoid a violation of the defendant's constitutional rights, the government was presented with a choice: it could agree to a severance so that it could offer the confession against the confessing defendant only, or it could agree not to offer the confession in a joint trial.

To continue reading Harry Sandick and Nicole Scully's article in For the Defense, please click here.