Gray v. Maryland
Opinion of the Court
delivered the opinion of the Court.
The issue in this ease concerns the application of Bruton v. United States, 391 U. S. 123 (1968). Bruton involved two defendants accused of participating in the same crime and tried jointly before the same jury. One of the defendants had confessed. His confession named and incriminated the other defendant. The trial judge issued a limiting instruction, telling the jury that it should consider the confession as evidence only against the codefendant who had confessed and not against the defendant named in the confession. Bruton held that, despite the limiting instruction, the Constitution forbids the use of such a confession in the joint trial.
The case before us differs from Bruton in that the prosecution here redacted the codefendant’s confession by substituting for the defendant’s name in the confession a blank space or the word “deleted.” We must decide whether these substitutions make a significant legal difference. We hold that they do not and that Bruton’s protective rule applies.
I
In 1993, Stacey Williams died after a severe beating. Anthony Bell gave a confession, to the Baltimore City police, in which he said that he (Bell), Kevin Gray, and Jacquin “Tank” Vanlandingham had participated in the beating that resulted in Williams’ death. Vanlandingham later died. A Maryland grand jury indicted Bell and Gray for murder. The State of Maryland tried them jointly.
The trial judge, after denying Gray’s motion for a separate trial, permitted the State to introduce Bell’s confession into evidence at trial. But the judge ordered the confession redacted. Consequently, the police detective who read the confession into evidence said the word “deleted” or “deletion” whenever Gray’s name or Vanlandingham’s name appeared. Immediately after the police detective read the redacted confession to the jury, the prosecutor asked, “after he gave you that information, you subsequently were able
When instructing the jury, the trial judge specified that the confession was evidence only against Bell; the instructions said that the jury should not use the confession as evidence against Gray. The jury convicted both Bell and Gray. Gray appealed.
Maryland’s intermediate appellate court accepted Gray’s argument that Bruton prohibited use of the confession and set aside his conviction. 107 Md. App. 311, 667 A. 2d 983 (1995). Maryland’s highest court disagreed and reinstated the conviction. 344 Md. 417, 687 A. 2d 660 (1997). We granted certiorari in order to consider Bruton’s application to a redaction that replaces a name with an obvious blank space or symbol or word such as “deleted.”
II
In deciding whether Bruton’s protective rule applies to the redacted confession before us, we must consider both Bruton and a later ease, Richardson v. Marsh, 481 U. S. 200 (1987), which limited Bruton’s scope. We shall briefly summarize each of these two cases.
Bruton, as we have said, involved two defendants — Evans and Bruton — tried jointly for robbery. Evans did not testify, but the Government introduced into evidence Evans’ confession, which stated that both he (Evans) and Bruton together had committed the robbery. 391 U. S., at 124. The trial judge told the jury it could consider the confession
This Court held that, despite the limiting instruction, the introduction of Evans’ out-of-court confession at Bruton’s trial had violated Bruton’s right, protected by the Sixth Amendment, to cross-examine witnesses. Id., at 137. The Court recognized that in many circumstances a limiting instruction will adequately protect one defendant from the prejudicial effects of the introduction at a joint trial of evidence intended for use only against a different defendant. Id., at 135. But it said:
“[TJhere 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. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a eodefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the in-criminations devastating to the defendant but their credibility is inevitably suspect.... The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.” Id., at 135-136 (citations omitted).
The Court found that Evans’ confession constituted just such a “powerfully incriminating extrajudicial statemen[t],” and that its introduction into evidence, insulated from cross-examination, violated Bruton’s Sixth Amendment rights. Id., at 135.
In Richardson v. Marsh, supra, the Court considered a redacted confession. The ease involved a joint murder trial of Marsh and Williams. The State had redacted the confession of one defendant, Williams, so as to “omit all reference”
The Court held that this redacted confession fell outside Bruton’s seope and was admissible (with appropriate limiting instructions) at the joint trial. The Court distinguished Evans’ confession in Bruton as a confession that was “incriminating on its face,” and which had “expressly impli-eat[ed]” Bruton. 481 U. S., at 208. By contrast, Williams’ confession amounted to “evidence requiring linkage” in that it “became” incriminating in respect to Marsh “only when linked with evidence introduced later at trial.” Ibid. The Court held
“that the Confrontation Clause is not violated by the admission of a nontestifying eodefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Id., at 211.
The Court added: “We express no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” Id., at 211, n. 5.
Originally, the codefendant’s confession in the ease before us, like that in Bruton, referred to, and directly implicated, another defendant. The State, however, redacted that confession by removing the nonconfessing defendant’s name. Nonetheless, unlike Richardson’s redacted confession, this confession refers directly to the “existence” of the noncon-fessing defendant. The State has simply replaced the non-confessing defendant’s name with a kind of symbol, namely, the word “deleted” or a blank space set off by commas. The redacted confession, for example, responded to the question “Who was in the group that beat Stacey,” with the phrase, “Me, , and a few other guys.” See Appendix, infra, at 199. And when the police witness read the confession in court, he said the word “deleted” or “deletion” where the blank spaces appear. We therefore must decide a question that Richardson left open, namely, whether redaction that replaces a defendant’s name with an obvious indication of deletion, such as a blank space, the word “deleted,” or a similar symbol, still falls within Bruton’s protective rule. We hold that it does.
Bruton, as interpreted by Richardson, holds that certain “powerfully incriminating extrajudicial statements of a co-defendant” — those naming another defendant — considered as a class, are so prejudicial that limiting instructions cannot work. Richardson, 481 U. S., at 207; Bruton, 391 U. S., at 135. Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton Court found. Redactions that simply replace a name with an obvious blank space or a word such as “deleted” or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bru-ton’s unredacted statements that, in our view, the law must require the same result.
For another thing, the obvious deletion may well call the jurors’ attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession’s accusation — once the jurors work out the reference. That is why Judge Learned Hand, many years ago, wrote in a similar instance that blacking out the name of a codefendant not only “would have been futile.... [T]here could not have been the slightest doubt as to whose names had been blacked out,” but “even if there had been, that blacking out itself would
Finally, Bruton’s protected statements and statements redacted to leave a blank or some other similarly obvious alteration function the same way grammatically. They are directly accusatory. Evans’ statement in Bruton used a proper name to point explicitly to an accused defendant. And Bruton held that the “powerfully incriminating” effect of what Justice Stewart called “an out-of-court accusation,” 391 U. S., at 138 (concurring opinion), creates a special, and vital, need for cross-examination — a need that would be immediately obvious had the codefendant pointed directly to the defendant in the courtroom itself. The blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to Evans’ use of Bruton’s name or to a testifying codefend-ant’s accusatory finger. By way of contrast, the factual statement at issue in Richardson — a statement about what others said in the front seat of a car — differs from directly accusatory evidence in this respect, for it does not point directly to a defendant at all.
We concede certain differences between Bruton and this case. A confession that uses a blank or the word “delete” (or, for that matter, a first name or a nickname) less obviously refers to the defendant than a confession that uses the defendant’s full and proper name. Moreover, in some instances the person to whom the blank refers may not be clear: Although the followup question asked by the State in this case eliminated all doubt, the reference might not be
IV
The State, in arguing for a contrary conclusion, relies heavily upon Richardson. But we do not believe Richardson controls the result here. We concede that Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially. 481 U. S., at 208. We also concede that the jury must use inference to connect the statement in this redacted confession with the defendant. But inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton’s scope confessions that use shortened first names, nicknames, descriptions as unique as the “red-haired, bearded, one-eyed man-with-a-limp,” United States v. Grinnell Corp., 384 U. S. 563, 591 (1966) (Fortas, J., dissenting), and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Bruton’s protection. See Harrington v. California, 395 U. S. 250, 253 (1969) (assuming Bruton violation where confessions describe codefendant as the “white guy” and gives a description of his age, height, weight, and hair color). The Solicitor General, although supporting Maryland in this case, concedes that this is appropriate. Brief for United States as Amicus Curiae 18-19, n. 8.
Nor are the policy reasons that Richardson provided in support of its conclusion applicable here. Richardson expressed concern lest application of Bruton's rule apply where “redaction” of confessions, particularly “confessions incriminating by connection,” would often “not [be] possible,” thereby forcing prosecutors too often to abandon use either of the confession or of a joint trial. 481 U. S., at 209. Additional redaction of a confession that uses a blank space, the word “delete,” or a symbol, however, normally is possible. Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said,
“Question: Who was in the group that beat Stacey?
“Answer: Me, deleted, deleted, and a few other guys.”
App. 11.
Why could the witness not, instead, have said:
“Question: Who was in the group that beat Stacey?
“Answer: Me and a few other guys.”
The Richardson Court also feared that the inclusion, within Bruton’s, protective rule, of confessions that incriminated “by connection” too often would provoke mistrials, or would unnecessarily lead prosecutors to abandon the confession or joint trial, because neither the prosecutors nor the judge could easily predict, until after the introduction of all the evidence, whether or not Bruton had barred use of the confession. 481 U. S., at 209. To include the use of blanks, the word “delete,” symbols, or other indications of redaction, within Bruton’s protections, however, runs no such risk. Their use is easily identified prior to trial and does not depend, in any special way, upon the other evidence introduced in the case. We also note that several Circuits have interpreted Bruton similarly for many years, see, e. g., United States v. Garcia, 836 F. 2d 385 (CA8 1987); Clark v. Maggio, 737 F. 2d 471 (CA5 1984), yet no one has told us of any significant practical difficulties arising out of their administration of that rule.
For these reasons, we hold that the confession here at issue, which substituted blanks and the word “delete” for the petitioner’s proper name, falls within the class of statements to which Bruton’s protections apply.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
[Typewritten Version of Handwritten Redacted Statement, State’s Exhibit 5B]
(REDACTED STATEMENT)
This is a statement of Anthony Bell, taken on 1-4-94 at 0925 hrs in the small interview room. Statement taken by Det. Pennington and Det. Ritz.
(Q) Is your name Anthony Bell
(A) Yes
(Q) Are 19 years old and your date of Birth is 6-17-74
(A) Yes
(Q) Can you read and write
(A) Yes
(Q) Are you under the influence of alcohol or drugs
(A) No
(Q) You were explained your Explanation of Rights, do you fully understand them
(A) Yes
(Q) Are you willing to answer questions without an attorney present at this time
(A) Yes
Anthony Bell
[Page -2-]
Bell, Anthony -
(Q) Has anyone promised you anything if you answer questions
(A) No
(Q) What can you tell me about the beating of Stacey Williams that occurred on 10 November 1993
(A) An argument broke out between and Stacey in the 500 blk of Louden Ave Stacey got smacked and then ran into Wildwood Parkway. Me , and a few other guys ran after Stacey. We caught up to him on Wild-
(Q) When Stacey was beaten on Wildwood Parkway, how was he beaten
Anthony Bell
[Page -3-]
Bell, Anthony
(Al) Hit, kicked
(Q) Who hit and kicked Stacey
(A) I hit Stacey, he was kicked but I don’t know who kicked him
(Q) Who was in the group that beat Stacey
(A) Me, , and a few other guys
(Q) Do you have the other guys names
(A) , and me, I don’t remember who was out there
(Q) Did anyone pick Stacey up and drop him to the ground
(A) No when I was there.
(Q) What was the argument over between Stacey and
Anthony Bell
[Page -4-]
Bell, Anthony
(A) Some money that Stacey owed
(Q) How many guys were hitting on Stacey
(A) About six guys
(Q) Do you have a black jacket with Park Heights written on the back
(A) Yeh
(Q) Who else has these jacket.
(A)
(A) Yes
Anthony Bell
Det. William F. Ritz Det. Homer Pennington
Dissenting Opinion
with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting.
In Richardson v. Marsh, 481 U. S. 200 (1987), we declined to extend the “narrow exception” of Bruton v. United States, 391 U. S. 123 (1968), beyond confessions that facially incriminate a defendant. Today the Court “eoneedefs] that Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially,” ante, at 195, and “concedéis] that the jury must use inference to connect the statement in this redacted confession with the defendant,” ibid., but nonetheless extends Bruton to confessions that have been redacted to delete the defendant’s name. Because I believe the line drawn in Richardson should not be changed, I respectfully dissent.
The almost invariable assumption of the law is that jurors follow their instructions. Francis v. Franklin, 471 U. S. 307, 324-325, n. 9 (1985). This rule “is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.” Richardson, supra, at 211. We have held, for example, that the state may introduce evidence of a defendant’s prior convictions for the purpose of sentencing enhancement, or statements elicited from a defendant in violation of Miranda v. Arizona, 384 U. S. 436 (1966), for the purpose of impeachment, so long as the jury is instructed that such evidence may not be considered for the purpose of determining guilt. Spencer v. Texas, 385 U. S. 554 (1967); Harris v. New York, 401 U. S. 222 (1971). The same applies to codefendant confessions:
We declined in Richardson, however, to extend Bruton to confessions that incriminate only by inference from other evidence. When incrimination is inferential, “it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” 481 U. S., at 208. Today the Court struggles to decide whether a confession redacted to omit the defendant’s name is incriminating on its face or by inference. On the one hand, the Court “concede[s] that the jury must use inference to connect the statement in this redacted confession with the defendant,” ante, at 196, but later asserts, on the other hand, that “the redacted confession with the blank prominent on its face . . . ‘facially incriminat[es]’” him, ante, at 196. The Court should have stopped with its concession: The statement “Me, deleted, deleted, and a few other guys” does not facially incriminate anyone but the speaker. The Court’s analogizing of “deleted” to a physical description that clearly identifies the defendant (which we have assumed Bruton covers, see Harrington v. California, 395 U. S. 250, 253 (1969)) does not survive scrutiny. By “facially incriminating,” we have meant incriminating independent of other evidence introduced at trial. Richardson, supra, at 208-209. Since the defendant’s appearance at counsel table is not evidence, the description “red-haired, bearded, one-eyed man-with-a-limp,” ante, at 195, would be facially incriminating — unless, of course, the defendant had dyed his hair black and shaved
Of course the Court is correct that confessions redacted to omit the defendant’s name are more likely to incriminate than confessions redacted to omit any reference to his existence. But it is also true — and more relevant here — that confessions redacted to omit the defendant’s name are less likely to incriminate than confessions that expressly state it. The latter are “powerfully incriminating” as a class, Bruton, supra, at 124, n. 1, 135; the former are not so. Here, for instance, there were two names deleted, five or more participants in the crime, and only one other defendant on trial. The jury no doubt may “speculate about the reference,” ante, at 198, as it speculates when evidence connects a defendant to a confession that does not refer to his existence. The issue, however, is not whether the confession incriminated petitioner, but whether the incrimination is so “powerful” that we must depart from the normal presumption that the jury follows its instructions. Richardson, supra, at 208, n. 3. I think it is not — and I am certain that drawing the line for departing from the ordinary rule at the facial identification of the defendant makes more sense than drawing it anywhere else.
The Court’s extension of Bruton to name-redacted confessions “as a class” will seriously compromise “society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U. S. 412, 426
The United States Constitution guarantees, not a perfect system of criminal justice (as to which there can be considerable disagreement), but a minimum standard of fairness. Lest we lose sight of the forest for the trees, it should be borne in mind that federal and state rules of criminal procedure — which can afford to seek perfection because they can be more readily changed — exclude nontestifying-eodefendant confessions even where the Sixth Amendment does not. Under the Federal Rules of Criminal Procedure (and Maryland’s), a trial court may order separate trials if joinder will prejudice a defendant. See Fed. Rule Crim. Proc. 14; Md. Crim. Rule 4-253(e) (1998). Maryland courts have described the term “prejudice” as a “term of art,” which “refers only to prejudice resulting to the defendant from the reception of evidence that would have been inadmissible against that defendant had there been no joinder.” Ogonowski v. State, 589 A. 2d 513, 520, cert. denied, 593 A. 2d 1127 (1991). The Federal Rule expressly contemplates that in ruling on a severance motion the court will inspect “in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.” Fed. Rule Crim. Proc. 14. Federal and most state trial courts (including Maryland’s) also have the discretion to exclude unfairly prejudicial (albeit probative) evidence. Fed. Rule Evid. 403; Md. Rule Evid. 5-403 (1998). Here, petitioner moved for a severance on the ground that the admission of Bell’s confession would be unfairly prejudicial. The trial court denied the motion, explaining that where a confession names two others, and the evidence is that five or six others participated, redaction of petitioner’s name would not leave the jury with the “unavoidable inference” that Bell implicated Gray. App. 8.
The Court is mistaken to suggest that in Richardson v. Marsh, 481 U. S. 200 (1987), we endorsed rewriting confessions as a proper method of redaction. See ante, at 197. There the parties agreed to the method of redaction, App. in Richardson v. Marsh, O. T. 1986, No. 85-1483, pp. 100, 107-108, and we had no occasion to address the propriety of editing confessions without showing the nature of the editing.
The Court does believe, however, that the answer to a “followup question” — “All right, now, officer, after he gave you that information, you subsequently were able to arrest Mr. Kevin Gray; is that correct?” (“That’s correct”) — “eliminated all doubt” as to the subject of the redaction. Ante, at 189, 194. That is probably not so, and is certainly far from dear. Testimony that preceded the introduction of Bell’s confession had already established that Gray had become a suspect in the case, and that a warrant had been issued for his arrest, before Bell confessed. Brief for Respondent 26, n. 10. Respondent contends that, given this trial background, and in its context, the prosecutor’s question did not imply any connection between Bell’s confession and Gray’s arrest, and was simply a means of making the transition from Bell’s statement to the next piece of evidence, Gray’s statement. Ibid. That is at least arguable, and an appellate court is in a poor position to resolve such a contextual question de novo. That is why objections to trial testimony are supposed to be made at the time— so that trial judges, who hear the testimony in full, live context, can make such determinations in the first instance. But if the question did bring the redaction home to the defendant, surely that shows the impropriety of the question rather than of the redaction — and the question was not objected to. The failure to object deprives petitioner of the right to complain of some incremental identifiability added to the redacted statement by the question and answer. Of course the Court’s reliance upon this testimony belies its contention that name-redacted confessions are powerfully incriminating “as a class,” ante, at 195.
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