Avoiding A Confrontation, Take 2: 3rd Circuit Finds Bruton Doctrine Doesn’t Cover Nontestimonial Hearsay

As I noted yesterday,

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant’s statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court’s opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to “testimonial” statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.

The recent opinion of the Third Circuit in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012), is another opinion in this same vein, and it again illustrates with I disagree with what courts have done with the Bruton doctrine.

In Shavers, after a joint jury trial, Glorious Shavers, Andrew White, and Jermel Lewis  were convicted of robbery affecting interstate commerce, conspiracy to commit robbery affecting interstate commerce, witness tampering, and using and carrying firearms during and in relation to a crime of violence. After he was convicted, Shavers appealed, claiming, inter alia, that the trial court erred by allowing a witness to testify about statements made by Lewis, who did not testify at trial.

Specifically, Ebony Gist, an acquaintance of Lewis, testified that

Lewis related to Gist that he had injured his forehead while hiding under a children’s pool the night before. When asked whether Lewis divulged what he had been doing that night, Gist testified that Lewis “didn’t say exactly what he was doing, but he just stated that F [referring to White] and Butts [referring to Shavers] had got locked up. They had got caught trying to rob, I think a speakeasy or something.”

As is par for the course, the Third Circuit quickly dispensed with this argument, finding that

Under Bruton v. United States, using a non-testifying codefendant’s confession violates a defendant’s rights under the Confrontation Clause. 391 U.S. 123, 127–28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Critically, we have asserted that, “because Bruton is no more than a by-product of the Confrontation Clause, the Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.” Berrios, 676 F.3d at 128.

Do I agree that Bruton is a byproduct of the Confrontation Clause? Yes. But does that mean that Davis and Crawford limit Bruton. I don’t think so. Why? Davis and Crawford are just a byproduct of the Confrontation Clause. 

Courts can say that the Confrontation Clause is only concerned with testimonial hearsay until the cows come home, but that doesn’t make it true. Assume that Diego makes a nontestimonial statement incriminating Dan, who has been charged with murder. The government then deports Diego so that he can’t change his tune at Dan’s trial. Will Diego’s statement be admissible at Dan’s trial? No, it will be barred by the doctrine of forfeiture by wrongdoing, which would also apply if Diego made a nontestimonial statement exculpating Dan, who then killed him to prevent him changing his tune the other way at trial.

In the context of forfeiture by wrongdoing, the Confrontation Clause is not concerned with whether the subject statement is testimonial; instead, as the Court noted in Crawford, its testimonial/nontestimonial dichotomy had no effect on the doctrine of forfeiture by wrongdoing because “forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.”

The way, I see it, the same goes for the Bruton doctrine, which also does not purport to be an alternate means of determining reliability. And here’s the thing: The Crawford Court agreed with me. As the Court, noted, Bruton doctrine cases such as Parker v. Randolph and Cruz v. New York did not address the question that was before the Court but instead “addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant’s own confession against him in a joint trial.”

So, why have courts not paid this language any heed?

-CM