Bruton v. United States , 88 S. Ct. 1620 ( 1968 )

Mr. Justice Brennan

delivered the opinion of the Court.

This case presents the question, last considered in Delli Paoli v. United States, 352 U. S. 232, whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence.

A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U. S. C. § 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges. Both petitioner and Evans appealed their convictions to the Court of Appeals for the Eighth Circuit. That court set aside Evans’ conviction on the ground that his oral confessions to the postal inspector should not have been received in evidence against him. 375 F. 2d 355, 361.¹ However, the court, relying upon Delli Paoli, affirmed petitioner’s conviction because the trial judge instructed the jury that although Evans’ confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner’s guilt or innocence. 375 F. 2d, at 361-363.² We granted certiorari to reconsider Delli Paoli. 389 U. S. 818. The Solicitor General has since submitted a memorandum stating that “in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial.” The Solicitor General states that this disposition is urged in part because “[h]ere it has been determined that the confession was wrongly admitted against [Evans] and his conviction has been reversed, leading to a new trial at which he was acquitted. To argue, in this situation, that [petitioner’s] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule — at least, where, as here, the other evidence against [petitioner] is not strong.” We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.

The basic premise of Delli Paoli was that it is “reasonably possible for the jury to follow” sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U. S., at 239. If it were true that the jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided this Court has effectively repudiated its basic premise. Before discussing this, we pause to observe that in Pointer v. Texas, 380 U. S. 400, we confirmed “that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him” secured by the Sixth Amendment, id., at 404; “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” Id., at 406-407.

We applied Pointer in Douglas v. Alabama, 380 U. S. 415, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd’s recollection the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd’s confession. These statements inculpated Douglas in the crime. We held that Douglas’ inability to cross-examine Loyd denied Douglas “the right of cross-examination secured by the Confrontation Clause.” 380 U. S., at 419. We noted that “effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer.” Id., at 420. The risk of prejudice in petitioner’s case was even more serious than in Douglas. In Douglas we said, “Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” Id., at 419. Here Evans’ oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater, then, was the likelihood that the jury would believe Evans made the statements and that they were true— not just the self-incriminating portions but those implicating petitioner as well. Plainly, the introduction of Evans’ confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.

Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence.³ But, as we have said, that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U. S. 368. Nonetheless the message of Jackson for Delli Paoli was clear. We there held that a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id., at 388-389. Significantly, we supported that conclusion in part by reliance upon the dissenting opinion of Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli. Id., at 388, n. 15.

That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt. “The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.” 352 U. S., at 247. The dissent went on to say, as quoted in the cited note in Jackson, “The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Id., at 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U. S. 440, 453: “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction. . . .”⁴

The significance of Jackson for Delli Paoli was suggested by Chief Justice Traynor in People v. Aranda, 63 Cal. 2d 518, 528-529, 407 P. 2d 265, 271-272:

“Although Jackson was directly concerned with obviating any risk that a jury might rely on an unconstitutionally obtained confession in determining the defendant’s guilt, its logic extends to obviating the risks that the jury may rely on any inadmissible statements. If it is a denial of due process to rely on a jury’s presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury’s presumed ability to disregard a codefendant’s confession implicating another defendant when it is determining that defendant’s guilt or innocence.

“Indeed, the latter task may be an even more difficult one for the jury to perform than the former. Under the Néw York procedure, which Jackson held violated due process, the jury was only required to disregard a confession it found to be involuntary. If it made such a finding, then the confession was presumably out of the case. In joint trials, however, when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case and the jury is expected to perform the overwhelming task of considering it in determining the guilt or innocence of the de-clarant and then of ignoring it in determining the guilt or innocence of any codefendants of the declar-ant. A jury cannot 'segregate evidence into separate intellectual boxes.’ ... It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.” ⁵

In addition to Jackson, our action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure also evidences our repudiation of Delli Paoli’s basic premise. Rule 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial.⁶ The Rule was amended in 1966 to provide expressly that “[i]n ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.” The Advisory Committee on Rules said in explanation of the amendment:

“A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. . . .

“The purpose of the amendment is to provide a procedure whereby the issue of possible prejudice can be resolved on the motion for severance. ...” ⁷

Those who have defended reliance on the limiting instruction in this area have cited several reasons in support. Judge Learned Hand, a particularly severe critic of the proposition that juries could be counted on to disregard inadmissible hearsay,⁸ wrote the opinion for the Second Circuit which affirmed Delli Paoli’s conviction. 229 F. 2d 319. In Judge Hand’s view the limiting instruction, although not really capable of preventing the jury from considering the prejudicial evidence, does as a matter of form provide a way around the exclusionary rules of evidence that is defensible because it “probably furthers, rather than impedes, the search for truth . . . .” Nash v. United States, 54 F. 2d 1006, 1007. Insofar as this implies the prosecution ought not to be denied the benefit of the confession to prove the confessor’s guilt,⁹ however, it overlooks alternative ways of achieving that benefit without at the same time infringing the noncon-fessor’s right of confrontation.¹⁰ Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice.

Another reason cited in defense of Delli Paoli is the justification for joint trials in general, the argument being that the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Joint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. But the answer to this argument was cogently stated by Judge Lehman of the New York Court of Appeals, dissenting in People v. Fisher, 249 N. Y. 419, 432, 164 N. E. 336, 341:

“We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them .... We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.”

Finally, the reason advanced by the majority in Delhi Paoli was to tie the result to maintenance of the jury system. “Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.” 352 U. S., at 242. We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U. S. 604, 619; see Hopt v. Utah, 120 U. S. 430, 438; cf. Fed. Rule Crim. Proc. 52 (a). It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, 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. Compare Hopt v. Utah, supra; Throckmorton v. Holt, 180 U. S. 552, 567; Mora v. United States, 190 F. 2d 749; Holt v. United States, 94 F. 2d 90. 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. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others.¹¹ The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.¹² Pointer v. Texas, supra.

We, of course, acknowledge the impossibility of determining whether in fact the jury did or did not ignore Evans’ statement inculpating petitioner in determining petitioner’s guilt. But that was also true in the analogous situation in Jackson v. Denno, and was not regarded as militating against striking down the New York procedure there involved. It was enough that that procedure posed “substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.” 378 U. S., at 389. Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the con-cededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. See Anderson v. United States, 318 U. S. 350, 356.-357; cf. Burgett v. Texas, 389 U. S. 109, 115.

Reversed.

Mr. Justice Black concurs in the result for the reasons stated in the dissent in Delli Paoli v. United States, 352 U. S. 232, 246. Mr. Justice Marshall took no part in the consideration or decision of this case.

1 The trial began June 20, 1966, one week after the decision in Miranda v. Arizona, 384 U. S. 436. The Court of Appeals held, 375 F. 2d, at 357, that Miranda and its companion cases were therefore applicable and controlling on the question of the admissibility in evidence of the postal inspector’s testimony as to Evans’ admissions. Johnson v. New Jersey, 384 U. S. 719. On April 8, 1966, St. Louis police officers, without giving Evans preliminary warnings of any kind and in the absence of counsel, obtained an oral confession during an interrogation at the city jail. The police informed the postal inspector, who interrogated Evans at the jail on April 11 and May 4, 1966; he obtained the oral confession expressly implicating petitioner on the latter date. On the merits, the Court of Appeals held, 375 F. 2d, at 361, that Evans’ admissions to the postal inspector “were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer,” and were therefore inadmissible under Westover v. United States, decided with Miranda, 384 U. S., at 494-497. On the retrial, Evans was acquitted.

2 At the close of the Government’s direct case, the trial judge cautioned the jury that Evans’ admission implicating petitioner “if used, can only be used against the defendant Evans. It is hearsay insofar as the defendant George William Bruton is concerned, and you are not to consider it in any respect to the defendant Bruton, because insofar as he is concerned it is hearsay.”

The instructions to the jury included the following:

“A confession made outside of court by one defendant may not be considered as evidence against the other defendant, who was not present and in no way a party to the confession. Therefore, if you find that a confession was in fact voluntarily and intentionally made by the defendant Evans, you should consider it as evidence in the case against Evans, but you must not consider it, and should disregard it, in considering the evidence in the case against the defendant Bruton.

“It is your duty to give separate, personal consideration to the cause of each individual defendant. When you do so, you should analyze what the evidence shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant. Each defendant is entitled to have his case determined from his own acts and statements and the other evidence in the case which may be applicable to him.”

3 We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U. S. 440; Fiswick v. United States, 329 U. S. 211, the problem arising only because the statement was (but for the violation of Westover, supra, n. 1) admissible against the declarant Evans. See C. McCormick, Evidence §239 (1954); 4 J. Wigmore, Evidence §§ 1048-1049 (3d ed. 1940); Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L. J. 355 (1921). See generally Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159 (1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions, 24 U. Chi. L. Rev. 710 (1957); Note, Criminal Conspiracy, 72 Harv. L. Rev. 920, 984-990 (1959). There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. See Pointer v. Texas, 380 U. S. 400; Barber v. Page, 390 U. S. 719; Mattox v. United States, 156 U. S. 237. See generally McCormick, supra, § 224; 5 Wigmore, supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177 (1948).

4 Several cases since Delli Paoli have refused to consider an instruction as inevitably sufficient to avoid the setting aside of convictions. See, e. g., United States ex rel. Floyd v. Wilkins, 367 F. 2d 990; United States v. Bozza, 365 F. 2d 206; Greenwell v. United States, 119 U. S. App. D. C. 43, 336 F. 2d 962; Jones v. United States, 119. U. S. App. D. C. 284, 342 F. 2d 863; Barton v. United States, 263 F. 2d 894; United States ex rel. Hill v. Deegan, 268 F. Supp. 580. In Bozza the Court of Appeals for the Second Circuit stated:

“It is impossible realistically to suppose that when the twelve good men and women had Jones’ confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks with the keys Kuhle had provided and ask himself the intelligent question to what extent Jones’ statement supported Kuhle’s testimony, or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind.” 365 F. 2d, at 215.

State decisions which have rejected Delli Paoli include People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265; State v. Young, 46 N. J. 152, 215 A. 2d 352. See also People v. Barbaro, 395 Ill. 264, 69 N. E. 2d 692; State v. Rosen, 151 Ohio St. 339, 86 N. E. 2d 24.

It has been suggested that the limiting instruction actually compounds the jury’s difficulty in disregarding the inadmissible hearsay. See Breeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744, 753-755 (1959).

5 See Pointer v. Texas, supra, at 405: “Indeed, we have expressly-declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.”

6 Joinder of defendants is governed by Rules 8 (b) and 14 of the Federal Rules of Criminal Procedure. “The rules are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Daley v. United States, 231 F. 2d 123, 125. An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. See, e. g., Blumenthal v. United States, 332 U. S. 539, 559-560.

7 34 F. R. D. 419. See generally Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L. J. 553 (1965).

8 Judge Hand addressed the subject several times. The limiting instruction, he said, is a “recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else,” Nash v. United States, 54 F. 2d 1006, 1007; “Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay,” United States v. Gottfried, 165 F. 2d 360, 367; “it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition,” Delli Paoli v. United States, 229 F. 2d 319, 321. Judge Hand referred to the instruction as a “placebo,” medically defined as “a medicinal lie.” Judge Jerome Frank suggested that its legal equivalent “is a kind of ‘judicial lie’: It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.” United States v. Grunewald, 233 F. 2d 556, 574. See also 8 Wigmore, supra, n. 3, § 2272, at 416.

Compare E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956), who suggests that the use of limiting instructions fosters an inconsistent attitude toward juries by “treating them at times as a group of low-grade morons and at other times as men endowed with a superhuman ability to control their emotions and intellects.” See also Shepard v. United States, 290 U. S. 96, 104; Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 326 (1954).

9 In this ease, however, Evans’ conviction was reversed on the ground that his confessions were inadmissible in evidence even against him, and on his retrial he was acquitted. In People v. Aranda, supra, 63 Cal. 2d, at 526, 407 P. 2d, at 270, it was said: “When, however, the confession implicating both defendants is not admissible at all, there is no longer room for compromise. The risk of prejudicing the nonconfessing defendant can no longer be justified by the need for introducing the confession against the one who made it. Accordingly, we have held that the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant.” See also Jones v. United States and Greenwell v. United States, both supra, n. 4.

10 Some courts have required deletion of references to codefendants where practicable. See, e. g., Oliver v. United States, 335 F. 2d 724; People v. Vitagliano, 15 N. Y. 2d 360, 206 N. E. 2d 864; People v. La Belle, 18 N. Y. 2d 405, 222 N. E. 2d 727. For criticisms suggesting that deletions (redaction) from the confession are ineffective, see, e. g., Note, 72 Harv. L. Rev. 920, 990 (1959); Comment, 24 U. Chi. L. Rev. 710, 713 (1957); Note, 74 Yale L. J. 553, 564 (1965).

In this ease Evans’ confessions were offered in evidence through the oral testimony of the postal inspector. It has been said: “Where the confession is offered in evidence by means of oral testimony, redaction is patently impractical. To expect a witness to relate X’s confession without including any of its references to Y is to ignore human frailty. Again, it is unlikely that an intentional or accidental slip by the witness could be remedied by instructions to disregard.” Note, 3 Col. J. of Law & Soc. Prob. 80, 88 (1967).

Some courts have promulgated rules governing the use of the confessions. See n. 4, supra. See also rules suggested by Judge Frank, dissenting in Delli Paoli v. United States, 229 F. 2d 319, 324.

11 See Crawford v. United States, 212 U. S. 183, 204; Caminetti v. United States, 242 U. S. 470, 495; Stoneking v. United States, 232 F. 2d 385.

12 It is suggested that because the evidence is so unreliable the need for cross-examination is obviated. This would certainly seem contrary to the acceptance of the rule of evidence which would require exclusion of the confession as to Bruton as “inadmissible hearsay, a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject to cross-examination.” Post, at 138. “The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrust-worthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of Cross-examination.” 5 Wigmore, Evidence § 1362, at 3. The reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter. Surely the suggestion is not that Pointer v. Texas, for example, be repudiated and that all hearsay evidence be admissible so long as the jury is properly instructed to weigh it in light of “all the dangers of inaccuracy which characterize hearsay generally.” Post, at 141.