§ 8.03 Evidence Admissible Against One Party

• Jurisdiction: United States

§ 8.03 Evidence Admissible Against One Party

Under Rule 105, when evidence is admissible against one party but not another,¹⁰ a limiting instruction must be given upon request, directing the jury to only use the evidence against the proper party.

This issue often arises in joint trials in criminal cases and may raise confrontation issues.¹¹ For example, suppose upon arrest Schmedlap told the police that "Me and Botz killed Jones." Schmedlap's statement would be admissible against Schmedlap but not against Botz.¹²

In Bruton v. United States,¹³ the Supreme Court ruled that a limiting instruction in a joint trial was insufficient to protect against improper jury use of one defendant's confession that implicated a codefendant. According to the Court,

there 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 codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.¹⁴

Once the Court concluded that there existed a "substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining Bruton's guilt,"¹⁵ it held that Bruton had been denied his Sixth Amendment right of confrontation because his right to cross-examine the codefendant about the statement had been foreclosed.¹⁶

There are several ways in which the Bruton issue can be obviated.

[A] Severance

First, separate trials avoid the problem raised in Bruton. If the codefendants have been properly joined for trial under Criminal Rule 8(b),¹⁷ the proper remedy is a motion to sever for prejudice pursuant to Criminal Rule 14.¹⁸ The trial court has discretion to grant such a motion.¹⁹

[B] Redaction

Second, the prosecution can delete (redact) all references in the confession that relate to the codefendant.²⁰ The Supreme Court sanctioned the redaction procedure in Richardson v. Marsh.²¹ Redaction, however, is not always effective. "There are, of course, instances in which such editing is not possible; the references to the codefendant may be so frequent or so closely interrelated with references to the maker's conduct that little would be left of the statement after editing."²² For example, in Gray v. Maryland,²³a codefendant's confession in a joint trial had been edited by replacing Gray's name with a blank space or the word "deleted." The Supreme Court found a Bruton violation, holding that the revisions were transparent. By using the word "deleted" and by asking the detectives if Gray's arrest was based on the confession, the content of the deletions became clear. "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 leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result."²⁴

[C] Codefendant's Testimony

Third, the Bruton problem may be avoided if the codefendant testifies at trial. Under these circumstances, the defendant has the opportunity to cross-examine the codefendant on the accuracy of the out-of-court statement, thereby obviating the confrontation issue. The Supreme Court took this position in Nelson v. O'Neil.²⁵ The Nelson rationale does not apply when one attorney represents both defendants because cross-examination of the testifying codefendant would present a conflict of interests.²⁶

[D] Recognized Hearsay Exception

Finally, the codefendant's confession in Bruton was clearly inadmissible hearsay as to Bruton.²⁷ In contrast, if a codefendant's statement falls within a recognized hearsay exception, such as the exemption for co-conspirator admissions,²⁸ there is no confrontation...