Constitutional law and the rights afforded to criminal defendants in the Confrontation Clause of the Sixth Amendment to the U.S. Constitution — a defendant’s right to confront and cross-examine witnesses who testify against him during his criminal trial — are complex and often unapproachable. For example, the Confrontation Clause prohibits a prosecutor from introducing “testimonial hearsay” to convict a defendant unless the defendant has had a prior opportunity to cross-examine the declarant. Yikes. Jargon and loaded terms abound.
Yet a simple, digestible take about a specific issue — the use of testimonial hearsay from a non-testifying co-defendant as evidence in a joint criminal trial — was gifted to the reading public by Justice Elena Kagan today in a dissenting opinion in Samia v. United States, Case No. 22-196, 599 U.S. ___ (2023). The full opinion, including the majority, a concurrence, and two dissents, can be read here:
Justice Kagan wrote as follows:
Imagine a criminal case involving two defendants—John and Mary. John and Mary are arrested for robbing Bill. Before trial, John confesses to the robbery in an interview with police. But John does more than admit his own involvement; he also points a finger at Mary. John says to the police: “Mary and I went out Saturday night and robbed Bill.” Mary, on the other hand, never confesses to the robbery. She maintains that she wasn’t involved—in fact, that she never left her home on the night in question. The government tries John and Mary together. At trial, it introduces a copy of John’s confession into evidence, and has it read to the jury by the interviewing officer. But John elects not to take the stand, leaving Mary’s attorney without an opportunity to cross-examine him about his confession.
This Court’s precedent bars the government from using John’s confession in that way. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against” her, which includes the right to cross-examine those witnesses. See Pointer v. Texas, 380 U. S. 400, 404 (1965). So when two defendants are tried jointly, the pretrial confession of one identifying the other as involved in the crime cannot be admitted unless the confessing defendant takes the stand.That is true, we held in Bruton v. United States, 391 U. S. 123 (1968), regardless of whether a judge instructs the jury to consider the evidence only against the confessor (John), and not against his co-defendant (Mary). Even with that kind of instruction, a “substantial risk” exists that the jury will impermissibly rely on John’s confession when determining Mary’s guilt. Id., at 126.
Suppose, though, that the government redacts the confession to eliminate Mary’s name. Mary still sits in the courtroom alongside John. But the version of the confession admitted into evidence now includes a blank space where Mary’s name belongs. And when the interviewing officer reads the confession to the jury, he says “deleted” in place of Mary’s name. So instead of “Mary and I went out Saturday night and robbed Bill,” what the jury hears is “deleted and I went out Saturday night and robbed Bill.”
That confession, too, is inadmissible under our precedent. Though the confession no longer identifies Mary by name, the implication is obvious: A juror “need only lift his eyes to [Mary], sitting at counsel table,” to realize to whom “deleted” refers. Gray v. Maryland, 523 U. S. 185, 193 (1998). The redacted confession thus presents the same risk as the unredacted one—that the jury will consider it as evidence against Mary even if instructed not to. Because the confessions “so closely resemble” each other, we have held, “the law must require the same result.” Id., at 192.
Now consider one last option. The government again modifies the confession to avoid the express reference. But this time, instead of swapping Mary’s name out for “deleted,” the government replaces it with the words “a woman.” The line read to the jury thus becomes: “A woman and I went out Saturday night and robbed Bill.” In the face of precedent that would bar the government from using either of the first two versions of John’s confession, a judge must decide what to do about this one. Would its admission, too, violate Mary’s right of confrontation?
The answer should be obvious. A jury is still going to recognize that John is talking about Mary—for who else could the mystery “woman” be? This last version of the confession thus presents the same risk as the first two: that jurors will rely on John’s confession when assessing Mary’s guilt. Yet in today’s decision, the Court draws a line of constitutional significance between the first two examples and the third. Confessions that use a defendant’s name or a symbol of omission—clear Confrontation Clause violation. Confessions that replace a defendant’s name with another placeholder—no Sixth Amendment problem, no matter how obvious the reference to the defendant. In so elevating form over substance, the majority permits an end-run around our precedent and undermines a vital constitutional protection for the accused.
Samia, 599 U.S. at ___, slip op. of dissent by Kagan, J., at 1-3.
Justice Kagan’s concise and accessible hypothetical illustrates the metes and bounds of the Confrontation Clause: it is a right the protects a defendant from being convicted by testimony given outside the courtroom that cannot be attacked or questioned on cross-examination. And it highlights the total lunacy of the majority opinion.
The majority, written by Justice Thomas and joined by Chief Justice Roberts as well as Justices Alito, Gorsuch, Kavanaugh, and Barrett (with Justice Barrett declining to join Part II-A), held that if an out-of-court confessional statement by a co-defendant who declines to testify at a joint trial is modified/redacted/altered to remove any direct identification of the other co-defendant and is subjected to a limited instruction (the judge makes the jury pinky-promise to only use this testimony against one co-defendant, but not both!), then the use of this testimony is constitutional.
Apply this logic to Justice Kagan’s dissent: John and Mary are on trial. John’s confession, which implicates Mary, is modified to say: “A woman and I went out Saturday night and robbed Bill.” A third-party law enforcement officer in a crisp navy-blue uniform, with a shiny badge, and a service pistol on his hip is allowed to tell the jury about this modified confessional statement. The judge tells the jury: “You cannot use this statement against Mary. Remember you pink promised!.” The U.S. Supreme Court just said, that’s cool. But why?
Justice Thomas, for the majority, wrote, “the Confrontation Clause applies only to witnesses ‘against the accused.’ And, ‘[o]rdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.'” Justice Thomas also reasoned that, if a statement implicating a defendant is modified so that the implication can only be gleaned indirectly or inferentially, that dilution of the confession plus the jury instructions resolves any constitutional issue. In the actual case underlying the appeal, prosecutors swapped the co-defendant’s actual name (Samia) for “somebody else” and “the other person.” For example, a federal agent testified like this: “And when asked whether Stillwell had recounted the crime, the agent testified: ‘Yes. He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.'”
From the jury’s perspective, the identity of the triggerman would have been obvious. The jury knew from the start of trial that there were just three defendants. It knew based on the prosecutor’s opening statement that those defendants were on trial for offenses related to a death in the Philippines. And it knew the role that each defendant allegedly played in the crime: Hunter had hired Stillwell and Samia as hitmen, and those two men carried out the murder. In fact, the prosecutor began his opening statement with the exact sequence of events Stillwell had described in his interview: The prosecutor told jurors that Samia “shot [the victim] twice in the face” while the victim “was riding in the backseat of a van driven” by Stillwell. Id., at 52. So when the federal agent took the stand on day two of the trial, it didn’t make a lick of difference that he didn’t identify the shooter by name, but instead used placeholder terms. Any reasonable juror would have realized immediately—and without reference to any other evidence—that “the other person” who “pulled the trigger” was Samia.
Samia, 599 U.S. at ___, slip op. of dissent by Kagan, J., at 5-6.
Let’s turn back to Justice Kagan for clarification and a response:
So how does the majority reach a contrary result? The nomenclature it adopts isn’t the problem: In describing Bruton’s scope, the majority distinguishes “between confessions that directly implicate a defendant and those that do so indirectly.” Ante, at 10, 14–15. That distinction roughly tracks the one this Court has recognized between confessions that themselves incriminate a co-defendant (directly implicate) and those that become incriminating only when linked with later-introduced evidence (indirectly implicate). See supra, at 4–5. But the majority distorts that distinction beyond recognition when applying it to the facts of this case. In one blink-and-you-miss-it paragraph of analysis, the majority holds that Stillwell’s confession does not “directly” implicate Samia for two reasons. It “was redacted to avoid naming Samia.” Ante, at 15. And the redaction was “not akin to an obvious blank or the word ‘deleted.’” Ibid.
That analysis altogether fails to capture what our Bruton cases care about. This Court has already made clear that the first fact relied on—that Stillwell’s confession did not use Samia’s name—is not dispositive. See supra, at 3–4. A confession redacted with a blank space, after all, also avoids naming the defendant; yet Gray held that it falls within Bruton’s scope. So today’s decision must rest on the second feature of the confession: that the placeholder used (e.g., “the other person”) was neither a blank space nor the word “deleted.” But that distinction makes nonsense of the Bruton rule. Bruton’s application has always turned on a confession’s inculpatory impact. See, e.g., Cruz v. New York, 481 U. S. 186, 193 (1987) (considering “the likelihood that [a limiting] instruction will be disregarded” and “the probability that such disregard will have a devastating effect”). And as the John-and-Mary examples make clear, a confession that swaps in a phrase like “the other person” for a defendant’s name may incriminate just as powerfully as one that swaps in a blank space. See supra, at 1–3. So the majority warps our Bruton precedent by categorically putting the two on opposite sides of the constitutional line. As the Court remarked in another case about Bruton, “[t]he law cannot command respect” if we apply such “inexplicable”— and indeed unprincipled—line-drawing to a “constitutional imperative.” Cruz, 481 U. S., at 193.
Contrary to the majority’s claim, Gray repudiates rather than supports the distinction adopted today. In holding that Bruton’s protections extend beyond confessions with names to confessions with blanks, Gray explained that what should matter is not a confession’s form but its effects. A jury, Gray noted, “will often react similarly” to the two kinds of confessions; the blank space (rather than name) is “not likely [to] fool anyone.” 523 U.S., at 193. Ignoring Gray’s forest for one tree, the majority points to a passage in which the Court described how a confession in the case could have been further redacted: Instead of saying “[m]e, deleted, deleted, and a few other guys,” the witness could have said “[m]e and a few other guys.” Id., at 196. But on Gray’s particular facts, the latter version was unproblematic. The crime was a gang assault involving six perpetrators, while only one other person was on trial with the confessing defendant. The “[m]e and a few other guys” phrase thus did not point a finger directly at the co-defendant, as “the other person” phrase here did at Samia. The more relevant reference discussed in Gray was to the “white guy” in a trial with only one white defendant, as described above. Id., at 195; see supra, at 4. Gray left no doubt that the confession with that phrase should have been excluded—and for the same reason as the confession with “deleted.” When a modified confession has an “accusatory” effect “similar” to one with names, the Court reasoned, the law “require[s] the same result.” Id., at 192, 194. Gray could not have cared less whether the modification takes the form of a blank space or of a different, but no less accusatory, placeholder.
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And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections. Consider once more John’s confession implicating Mary in a robbery—a confession, I’ll now add, bearing a striking resemblance to the one in Bruton. See 391 U. S., at 124 (“A postal inspector testified that Evans orally confessed to him that Evans and [Bruton] committed the armed robbery”). The Bruton rule will still bar the prosecution from using the original version of John’s confession, expressly naming Mary. So too the rule will prevent the prosecution from swapping out Mary’s name for a blank space or the word “deleted.” But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal. It can simply replace Mary’s name with “a woman,” and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains. Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them. And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self. I respectfully dissent.
Samia, 599 U.S. at ___, slip op. of dissent by Kagan, J., at 6-8, 10.
So, in the end, what is the primary takeway here?
First, fire up your state constitutional claims about confrontation rights in joint trials with co-defendant statements involved and litigate them fully. The Sixth Amendment’s Confrontation Clause will provide no real refuge. But do keep a close eye on sloppy prosecutors who do not follow Samia to the letter. Hit them over failing to modify/redact the co-defendant’s statement and improper instructions to the jury.
Second, move for separate trials. Do not consent to joinder.
Justice for Cowboys 