INTRODUCTION I. DELLI PAOLI AND THE QUESTION OF CONFESSIONS PRIOR TO BRUTON A. Delli Paoli B. The Road to Bruton: Pointer, Douglas, and Jackson 1. Pointer v. Texas 2. Douglas v. Alabama 3. Jackson v. Denno II. BRUTON AND THE CONFRONTATION CLAUSE CONFRONTED A. Bruton v. United States B. Bruton Applied III. REEXAMINING BRUTON: RICHARDSON AND GRAY A. Limiting Bruton: Richardson v. Marsh B. The Difficulties of Applying Richardson C. Answering the Unanswered Questions: Gray v. Maryland D. Reaction to Gray IV. WHAT TO DO WITH "THE GUY": NEUTRAL PRONOUN REDACTION AND THE BRUTON PROBLEM AFTER GRAY A. The Problem of Neutral Pronoun Redaction: A Hypothetical B. Neutral Pronoun Redaction and the Inconsistent Application of Bruton C. The Case for Neutral Pronoun Redaction 1. Neutral Pronouns Are Different, and Should Be Treated as Such 2. A Jury Instruction Is Sufficient D. A New Test 1. Prong 1: Invitation To Speculate 2. Prong 2: The Degree of Inference 3. Administering the Test CONCLUSION INTRODUCTION
Human beings are naturally inquisitive and instinctively seek to complete that which is incomplete. When a word is removed from a sentence and replaced with a blank space, human nature seeks to complete the sentence and determine what belongs in the blank space. The difficulties of attempting to cover up parts of sentences in the hope that people will ignore their human nature and disregard what was removed are clear to anyone familiar with the Watergate scandal. During the presidency of Richard Nixon, conversations held in the Oval Office and over the phone among government officials, including President Nixon himself, were secretly recorded. (1) When the story about the break-in at the Watergate hotel was uncovered, the tapes became evidence linking the President and others to the orchestrated burglary and subsequent cover-up. (2) Some of the tapes were turned over to prosecutors and transcribed for use during the investigation. (3) Parts of the transcripts were altered, however. In place of the foul language that the President and others frequently used, the editors of the transcripts substituted the phrases "expletive removed" or "expletive deleted." (4) Yet, for anyone reading the transcripts, not only was it obvious that something had been removed, it did not take a great deal of effort to determine which words "expletive deleted" may have replaced. (5)
The problems with removing offensive references and finding suitable replacements are not unique to the Watergate recordings. As multiple-defendant criminal trials become more common, especially in drug conspiracy, terrorism, and RICO prosecutions, prosecutors and judges face similar difficulties trying to ensure that defendants receive fair trials. (6) Such problems arise where one defendant in a joint trial confesses to his crime, and in the confession, he implicates his codefendant in some way. Although such a statement is admissible against the confessor, provided it was lawfully obtained and voluntary, it is inadmissible hearsay with regard to his codefendant if the confessor does not testify. (7) If the confession is introduced at their joint trial, the jury will hear the statements that implicate the nonconfessing defendant as well as the confessing defendant. If the confessing defendant does not testify, the nonconfessing defendant has no opportunity to cross-examine the confessor on his statement, thus denying him the right "to be confronted with the witnesses against him." (8) When the jury thus hears evidence that is inadmissible against the codefendant, there is a danger that the jurors will improperly consider this inadmissible evidence when determining the nonconfessing defendant's guilt. This danger is called the "Bruton problem." (9)
There are various ways to avoid the danger that the jury will consider inadmissible evidence like the confession when determining the guilt or innocence of the nonconfessing defendant. The most obvious is to sever the trials and try each defendant separately. (10) The problem can also be avoided altogether by simply choosing not to use the confession. Courts have rejected this "sever or never" approach, however, and have chosen to permit the introduction of confessions in joint trials provided the references to nonconfessing defendants are redacted. (11) As a guard against the dangers that a jury will improperly consider the confession as evidence against the nonconfessing defendants, judges issue limiting instructions, which juries are presumed to follow. (12)
The Supreme Court has held that a limiting instruction alone is not constitutionally sufficient to protect the rights of the nonconfessing defendant in a Bruton situation. (13) The Court held that if the references to the codefendant are fully redacted, however, the introduction of the confession along with a limiting instruction is not a violation of the defendant's rights under the Confrontation Clause. (14) On the question of just how much redaction is required or what method of redaction is permissible, however, the Court has been less than clear. (15) These questions have tormented state and federal courts for years, and the Supreme Court has offered little guidance on the issue.
One method of redaction that some courts have employed in an attempt to comply with the Court's jurisprudence in this area is neutral pronoun redaction. (16) This method of redaction involves substituting neutral pronouns or phrases for the nonconfessing defendant's name. For example, a confession that stated, "Jane, Bob, and I robbed the bank" might be redacted to read, "The others and I robbed the bank." The Supreme Court has not directly addressed the issue of neutral pronoun redaction, though the Court has found similar redaction methods to be unconstitutional. (17) This Note will examine the issue of neutral pronoun redaction and argue that it is an acceptable form of compliance with the Court's Sixth Amendment jurisprudence. In Part I, this Note will discuss the Court's Confrontation Clause jurisprudence prior to Bruton v. United States. Part II will examine the Bruton holding and lower courts' attempts to comply with it. Part III will discuss the Court's attempt to limit Bruton in Richardson and its expansion of the Bruton principle in Gray. This Part will also discuss the confusion these decisions caused among the lower courts. Part IV of this Note will examine the question of neutral pronoun redaction, arguing that it is different from symbol redaction and less likely to prejudice a nonconfessing defendant. A limiting instruction, therefore, would be sufficient to protect a defendant's rights if his codefendant's confession were redacted using the neutral pronoun method. Finally, in an attempt to create uniformity and achieve the finality the Supreme Court has yet to achieve in this area, this Note will suggest a two-pronged test for determining the admissibility of redacted confessions. Under this test, the admissibility of a redacted confession depends on both the likelihood that jurors will speculate as to the identity of the redaction and the strength of the inferential connection between the redaction and the identity of the defendant.
DELLI PAOLI AND THE QUESTION OF CONFESSIONS PRIOR TO BRUTON
The Court first dealt with the issue of codefendant confessions in Delli Paoli v. United States. (18) Orlando Delli Paoli and four other codefendants were convicted in the United States District Court for the Southern District of New York for conspiring to illegally transport alcohol and evade taxes. (19) At the end of the Government's case, the court admitted into evidence the written confession of one coconspirator, Whitley, which he had given in the presence of federal agents and his attorney. (20) The trial court admitted the confession "with an emphatic warning that it was to be considered solely in determining the guilt of Whitley and not in determining the guilt of any other defendant." (21) Delli Paoli was found guilty, and he appealed his conviction. The Second Circuit, in an opinion written by Judge Learned Hand, affirmed Delli Paoli's conviction. (22)
In an opinion written by Justice Burton, the Supreme Court affirmed the lower court's ruling, holding that the admission of the confession into evidence was not error based on the evidentiary rules concerning statements made during a conspiracy. (23) The Court noted that statements made by one conspirator in furtherance of the conspiracy are admissible into evidence against any and all other coconspirators, but any declarations made after the termination of the conspiracy "may be used only against the declarant and under appropriate instructions to the jury." (24) The Court recognized that requiring the jury to consider evidence as against only one person and not with regard to others placed a "heavy burden" on the jurors, (25) but it found that the burden was not so heavy as to make the task impossible. (26)
The Court, noting that the trial court had given multiple limiting instructions before giving the case to the jury, (27) defined the issue in Delli Paoli as "whether, under all the circumstances, the court's instructions to the jury provided petitioner with sufficient protection [with regard to] the admission of Whitley's confession." (28) The resolution of that issue, according to the Court, depended "on whether the instructions were sufficiently clear and whether it was reasonably possible for the jury to follow them." (29) Relying on the "long-standing" presumption that a clear limiting instruction could prevent other defendants from being prejudiced by the introduction of a postconspiracy declaration, (30) the Court determined that the trial court's limiting instructions were sufficiently clear. (31)
Having resolved the question of the sufficiency of the instructions, the Court then considered whether the jury followed those instructions. The Court explained that, in light of the...