GRAY v. MARYLAND
In 1993, the State of Maryland tried Anthony Bell and Kevin Gray jointly for the murder of Stacy Williams. The State entered Bell's confession into evidence at trial. According to the trial judge's order, the police detective who read the confession said the word "deleted" or "deletion" whenever Gray's name appeared. Subsequently, the prosecutor asked the detective if Bell's confession led to Gray's arrest. The detective answered that it did. Ultimately, Gray testified and Bell did not. When instructing the jury, the trial judge specified that the confession was evidence only against Bell. The jury convicted both Bell and Gray. Setting aside Gray's conviction, Maryland's intermediate appellate court applied Bruton v. United States, 391 U.S. 123, in which the Court held that, despite a limiting instruction that the jury should consider the confession as evidence only against the confessing codefendant, the introduction of such a confession at a joint trial violates the nonconfessing defendant's Sixth Amendment right to cross-examine witnesses. Maryland's highest court reinstated the conviction.
Does Bruton v. United States apply to a redaction that replaces a name with an obvious blank space or a symbol or a word such as "deleted?"
Yes. In a 5-4 opinion delivered by Justice Stephen G. Breyer, the Court held that the confession, which substituted blanks and the word "delete" for the respondent's proper name, falls within the class of statements to which Bruton's protections apply. Applying Bruton, Justice Breyer wrote that a jury will often react to an unredacted confession and a confession redacted with the word "delete" similarly by realizing that the confession refers to the defendant. Justice Anton Scalia, joined by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Clarence Thomas, dissented. Justice Scalia argued that Bell's confession could constitutionally have been admitted with a limiting instruction to the jury.
Argument of Arthur A. Delano, Jr.
Chief Justice Rehnquist: We'll hear argument next in Number 96-8653, Kevin D. Gray v. Maryland.
We'll wait just a minute.
Mr. Delano: Mr. Chief Justice, and may it please the Court:
In this case the prosecution was entitled to use codefendant Bell's confession to prove Bell's guilt and nothing more.
Bell's confession contained two admissions that completely and fairly accomplished this purpose.
In his confession, Bell admitted both hitting and beating Stacey Willams.
The remaining portion of Bell's confession, which focused exclusively on establishing the role of and the identity of Bell's alleged accomplices, served no legitimate purpose.
The remaining portions of Bell's confession were nothing more than unreliable hearsay.
The remaining portions of Bell's confession should not have been admitted, because they created for petitioner a totally unnecessary risk of prejudice for petitioner.
The use of the terms, deleted and deletion in this case did not, in the words of the trial judge, sanitize Bell's confession.
The words, if anything, drew the jury's attention to the fact that a name had been omitted.
They in a sense acted as a red flag to the jury.
Unknown Speaker: Mr. Delano, do you take the view that if this had been redacted a little differently, so that it didn't show deletion and so that it said, for example, who was in the group that beat Stacey... if it just said, me and a few other guys, for example, that would be okay?
Mr. Delano: I do not take that position, Your Honor.
Unknown Speaker: You don't think there's any way this could have been redacted that would satisfy you.
Mr. Delano: Oh, I disagree.
It could have been redacted--
Unknown Speaker: What do you disagree with?
Mr. Delano: --I disagree that it could have been redacted to allow in the simple statement that I hit and I struck the victim.
That is the only part--
Unknown Speaker: But you don't think it could be redacted to say, me and a few other guys.
Mr. Delano: --I don't believe that is necessary, Your Honor.
Unknown Speaker: Well, I'm not asking whether it's necessary.
I'm asking whether it can be permitted constitutionally--
Mr. Delano: It should not be--
Unknown Speaker: --and it looks to me like that doesn't point to anybody, if you say, me and a few other guys.
Mr. Delano: --It does not point to a specific person.
Unknown Speaker: No.
Mr. Delano: What it does--
Unknown Speaker: And the evidence in this case showed there was quite a gang of men who were involved, somehow, or who at least confronted Stacey at one point.
Mr. Delano: --In this case it would not--
Unknown Speaker: Only two were charged.
Mr. Delano: --In this case, Justice O'Connor, it would not have been extremely prejudicial.
Unknown Speaker: No.
Mr. Delano: But the point I'm trying to make is, that evidence served no legitimate purpose.
Since it served no legitimate purpose, it should not have been admitted.
Unknown Speaker: What evidence served no legitimate purpose?
Mr. Delano: That several other witnesses were... several other persons were involved.
In other words, there's no reason that Bell's confession needed to include that information.
That information was not in dispute at the trial.
Unknown Speaker: Well, don't you think it would unduly favor your client if all they introduce is a statement that, you know, I beat him up, so it looks as though there wasn't a crowd of people, and the jury looks at your client, or at the other defendant and says, gee, I guess he did it, and looks at your client and says, according to this fellow there was nobody else there.
Does the court have to let it in on that basis?
Mr. Delano: Justice Scalia, my position would have to be that it is unnecessary.
If it were admitted for... solely for the purpose of putting the statement in context--
Unknown Speaker: Mr. Delano, why must it... must your position--
--why do you put this in terms of has to be?
I thought you were emphasizing that when the transcript... that when what the jury sees says, delete, blank space, that that juts out.
Isn't there a difference whether you're wrong about the other of a... something that shows delete, blank, and something that says, and a couple of other guys?
Mr. Delano: --Under the facts of this case, Justice Ginsburg, it doesn't make a difference.
Unknown Speaker: It doesn't, you say?
Mr. Delano: --It's not a significant difference, no.
Under the facts of this case I believe that the thrust of my argument is the use of the term, deleted and deletion, which drew the attention--
Unknown Speaker: But you said a moment ago that if some... the... it wasn't necessary for the statement.
Mr. Delano: --It is not.
Unknown Speaker: And where does that figure into the Bruton Marsh calculus?
I don't recall those cases first analyzing whether the evidence was "necessary" for the prosecution.
Mr. Delano: Under Bruton and Marsh the attention seems to be focused towards the end of the process in terms of using a limiting instruction to--
Unknown Speaker: There was no analysis at all of necessity.
Mr. Delano: --There is... in those particular cases there is no analysis of necessity, that is correct, Your Honor.
Unknown Speaker: So why do you bring it up here?
Are you asking us to extend Bruton?
Mr. Delano: No, I'm not asking... I'm trying to put it in a context that's... that would show that although in this case it may not be necessary for the resolution of this case, because the thrust of my argument is the use of the term deleted and deletion, that the use of what this... the respondent refers to as neutral pronouns is very misleading.
There are... for example, in this case had there been no other witnesses and we were simply looking at Bell's statement, and Bell said that I hit the victim, but he beat the victim, he dropped the victim on his head, on its face that statement is neutral, but in that context the prosecution is unnecessarily benefiting from a statement that they should not receive any benefit.
Unknown Speaker: Well, why do you say, unnecessarily?
I mean, ordinarily evidence is admissible, and you know, you have to show some reason why it isn't.
This certainly sounds like relevant evidence.
Mr. Delano: It's unnecessary because it serves really no legitimate purpose.
Unknown Speaker: Well, but where do you get that analysis from?
It doesn't come out of Bruton, it doesn't come out of Marsh, and yet that is the basis on which the Maryland Court of Appeals decided this case.
Mr. Delano: --As I understand... the reason for my position is that the parts that are properly admitted are admitted because they incriminate the maker of the statement.
The other parts of the statement that are... serve no purpose other than to perhaps put the statement in some sort of a context.
Since context is not in dispute in this case, they seem to me to be superfluous.
Unknown Speaker: Well, but you can't make it--
--Let me ask you something else.
Bell's statement strikes me as maybe a declaration against Bell's penal interest.
Is that possible?
Mr. Delano: Only a limited--
Unknown Speaker: And admissible as a result on that basis.
Mr. Delano: --Your Honor's opinion in Williamson with a declaration of penal interest was very careful to limit it strictly to declarations against the interest of the party making the statement.
To the extent that he admitted, I hit the victim, I beat the victim, it is a declaration against interest.
Beyond that, it is not a declaration against interest.
As in Williamson, I believe Justice Ginsburg in her concurring opinion was... pointed out the confusion that exists where a declaration of interest is really not a declaration against interest, and I think that's what we have in this situation.
We only have a very small portion of Bell's confession that actually deals with his involvement.
Unknown Speaker: Well, certainly some of it does, and I would assume, at least to that extent, it's admissible on that basis.
Mr. Delano: That is correct.
I have no quarrel with the parts that are incriminating only to Bell.
The bulk of the statement, however, is focused on establishing the role of the other participants.
There is no need for that evidence.
It allowed that evidence to be used for one purpose and one purpose only, to incriminate petitioner.
Unknown Speaker: I would like to go back to the very first question that Justice O'Connor had, because I want to be clear about your answer, and I'm not sure I understood it.
The statement is altered so that it says, who was in the group that beat Stacey, and the redacted statement does not use the word delete, deleted, it does not have wite out, it just says, me and a few other guys.
Should that be admitted by the trial judge, and if not, why not?
Mr. Delano: In... my position is, it should not be admitted by the trial judge.
If it is, as in this case, admitted by the trial judge, it would perhaps be harmless error in light of the other evidence presented at trial.
Unknown Speaker: But does the admission of the statement, as I have described it, violate the Confrontation Clause?
Mr. Delano: The admission does, in my opinion, violate the Confrontation Clause because it incriminates other persons.
It does not strictly incriminate the person who made the statement.
Unknown Speaker: But the test is not whether it incriminates other persons.
It's whether there's an inevitable inference that inculpates the nonconfessing codefendant.
Mr. Delano: In--
Unknown Speaker: Not other persons.
There are no other persons here before us who are making that argument.
We're not concerned about them.
We're concerned about the codefendant, aren't we?
Mr. Delano: --Yes, Your Honor.
Unknown Speaker: That's the only one.
So I don't understand your answer.
Mr. Delano: My answer is that the substantial risk of prejudice arose from the use of the terms, deleted and deletion.
Unknown Speaker: Prejudice to whom?
Mr. Delano: Prejudice to the petitioner.
The use of the terms deleted and deletion.
Unknown Speaker: Okay, and you agree that the risk of prejudice is a world apart, a world of difference, depending upon whether you use the word deleted or whether you use a generic term like, me and some other guys.
There's a big difference, isn't there?
Mr. Delano: Absolutely, Your Honor.
Unknown Speaker: Okay.
Mr. Delano: In this case, I think common experience, there's no other reason for the use of the term, deleted, other than to point to the other defendant.
Unknown Speaker: Why is that?
I must say, I don't understand why there's a world of difference.
Mr. Delano: Well, Your Honor--
Unknown Speaker: Don't these other guys have names?
Mr. Delano: --The common experience, I think, of most people today is that whenever there's... as on television, there's the blip that censors a word.
Immediately you focus in on the blip.
You immediately think, what was omitted.
In this case... in that case there may be five or six possible words that were omitted, but in this case--
Unknown Speaker: But don't you... if you're talking about redacting it to, instead of putting in the blip you're putting in a brackets, and some other guys, or is this the actual statement we're talking about?
Mr. Delano: --This... in the statement, there were wited out spaces--
Unknown Speaker: Yes.
Mr. Delano: --and then comma, wited out spaces and then the other information.
Unknown Speaker: Well, no one suggests that instead of witing them out you could put in, bracket, and some other guys, close bracket.
Mr. Delano: No, Your Honor.
Unknown Speaker: You don't know of any redactions--
Mr. Delano: No, I do not.
Unknown Speaker: --I mean, redactions... that's not an option, so you either use the statement blanking out stuff, or you don't use the statement.
You can't recreate the statement with brackets.
Mr. Delano: That is correct.
Unknown Speaker: Or there's a--
--In this case--
--No, there's a third option that Justice O'Connor questioned.
The statement as we have it is me, deleted, deleted, and a few other guys.
The question put to you was, suppose it just said, me and a few other guys, without showing any deletion, so that's a third option.
Mr. Delano: That is correct, Your Honor.
I do not want to have the Court left with the impression that my case rises or falls on the several other guys.
The extreme prejudice in this case comes from the use, deleted and deletion.
In context, several other guys is consistent with other testimony at trial.
Unknown Speaker: Was Marsh different in that respect?
Did Marsh have the delete, wite out--
Mr. Delano: Marsh... in Marsh the... from the reading of the statement itself you would have no idea of the... even the existence of another person, so it is quite different from this.
This case is not that much different from Bruton in that it... the word deleted is not that much different from the use of a person's actual name, and again focusing on the use of deleted and several other witnesses, I think the juxtaposition of those terms aggravates the situation, because had it been redacted to just say, several other witnesses, the jury's attention would not have been drawn to the fact that names were omitted.
Unknown Speaker: --Well, what do you say the jury would likely infer from the word deleted?
Mr. Delano: I think the jury would be left with no other conclusion than that it was petitioner's name and Tank's name.
Now, which deleted referred to petitioner and which deleted referred to Tank is some... a matter that they could speculate on.
Unknown Speaker: And why is that?
Why do you say the jury would most likely have reached that conclusion?
Mr. Delano: If... it calls to the jury's attention that a name has been removed.
In the context of this trial, there's no need to remove any other name, other than the defendant's name.
Unknown Speaker: Well, but certainly there was evidence that other people, other than those who were indicted, had participated, was there not?
Mr. Delano: Correct, but there was no reason to delete the names of those other persons.
The only name--
Unknown Speaker: Well, but the jury doesn't know that.
The jury isn't apprised of the Bruton rule.
Mr. Delano: --The jury I think, Mr. Justice Rehnquist, is aware of common usage of the word deleted, common usage of blipping on television... it's the same as when you receive... or, at least, when I receive a letter and something is blacked out on a letter.
Your attention is drawn immediately to the blacked out portion of the letter, and you try to figure out what is there.
That is the problem we have here.
Unknown Speaker: But here, if the jurors do sit and try to figure out what is there, they could have come to not just one but it seems to me several conclusions.
It could have referred to any one of the people whom testimony indicated had participated in this thing, some of whom were not the codefendant.
Mr. Delano: The only testimony that referred to specific... there were two witnesses in this case, and both only identified... there were only two names ever used at trial, other than the... Bell, the name of petitioner, and the name of Tank.
No other names were mentioned by any other witnesses.
Unknown Speaker: But wasn't there testimony that other people, although perhaps not by name, had participated?
Mr. Delano: There was other testimony that several other witnesses were involved, that is correct.
But the jury, I believe, with the term deleted would be left to draw no other conclusion than, why put this term in here if we're not trying to keep something from us.
Unknown Speaker: Mr. Delano, would you tell us what you think the test is for determining a Bruton violation in these circumstances?
As I understand it, the court below applied a test to the effect that a Bruton violation occurs when a codefendant's confession, either facially or by compelling and inevitable inference, inculpates a nonconfessing defendant.
Are you satisfied with that test?
Mr. Delano: I'm not satisfied with that test.
I believe that test is too stringent.
I don't believe that the defense should have the burden, or that there should be an inevitable to that conclusion.
I think if a juror could reasonably draw the conclusion, that is sufficient, because then, if the jury can reasonably draw that conclusion, that creates a substantial risk.
Unknown Speaker: Have we adopted a test here?
I mean, what do you rely on as pointing us to the proper test to be used?
Mr. Delano: The test that the court has thus far used is the language whether it creates a substantial risk of prejudice to the other defendant.
Unknown Speaker: And you think that's not as strict as compelling and inevitable inference.
Mr. Delano: --Clearly not.
The Court of Special Appeals adopted what I would consider the proper test, which is the, paraphrasing the test that the Court used in Bruton, and referred to that there existed in this case a substantial risk that the jury would be forced to the conclusion that deleted and deletion referred to petitioner, and I think that is the test that should be used.
The introduction of the peti... codefendant's redacted confession clearly had a devastating effect on petitioner's case.
As I earlier observed, there were only two witnesses in this case.
There was only one eye witness to the actual beating.
The other witness saw the parties running towards the scene, and that witness' testimony was consistent with petitioner's defense.
The statement as admitted provided corroboration for that witness' testimony as to the parties involved.
I think prejudice from that was clear.
In addition, in the State in prosecution, whether it was a deliberate or... deliberate or unintentional sort of drew together the statement that was used and the arrest of petitioner to sort of make it very clear to the jury that this statement actually led to petitioner's arrest, so in that sense it was also prejudicial.
If the Court has no further questions, I would reserve the remainder of my time for rebuttal.
Unknown Speaker: Very well, Mr. Delano.
Ms. Shepard, we'll hear from you.
Argument of Carmen M. Shepard
Mr. Shepard: Mr. Chief Justice, and may it please the Court:
The statement, who was in the group that beat Stacey, me, deleted, deleted, and other guys, communicates only that Mr. Bell and others committed a crime.
Unknown Speaker: Then why are they bothering to delete it?
Mr. Shepard: I'm not entirely clear why they bothered to delete it.
It was one of the many options.
Certainly, no one asked for the option, me, and then delete everything until you get to other guys.
Unknown Speaker: No, but isn't the juror's reasonable reaction, on hearing that, to ask the question, why are they placing this word deletion in place of whatever it was he spoke, and isn't the likely answer to that question, because it refers to this other guy in the other chair here?
Mr. Shepard: I disagree, Your Honor.
I believe that the natural conclusion is, something is missing here.
Beyond that, it is possible a juror might say--
Unknown Speaker: But the juror would never say, gee, I wonder what it is?
Mr. Shepard: --A juror very well might even say, I wonder what it is.
Unknown Speaker: And if he did, what would he be likely to conclude?
Mr. Shepard: We think that what the juror would be likely to conclude is what the Court noted in Richardson, which is, maybe it is the name of a person, but I can't even use that--
Unknown Speaker: Well, they take it that it's the name of a person, don't they?
Mr. Shepard: --Well, it could be--
Unknown Speaker: I mean, doesn't the context make that clear beyond doubt?
Mr. Shepard: --Perhaps in this case, Your Honor--
Unknown Speaker: This is a really slow jury if they can't figure out these are names of people.
Mr. Shepard: --But let me give you an example.
Towards the end of the statement, who has Park Heights jackets, it simply says... as read by the detective it just said, deleted.
In that instance, for example, there's not even a mention of whether it's one, two, three, four names--
Unknown Speaker: Well, isn't that... I mean, what's a jury supposed to think, that they deleted it because of John Smith, who's not in the courtroom, his name is in there?
I mean, what is a jury supposed to think?
Mr. Shepard: --I think... I think, Your Honor, that the jury thinks much like it thinks when there's an objection that's sustained that evidence doesn't come in.
There is something here that we're not allowed to consider as evidence.
It is possible that a juror might go on to conclude, and that could be a specific name.
It could be a specific person.
But there's nothing necessarily in simply the fact of a redaction or the fact of a deletion that would necessarily lead a juror to conclude, (a) that it's the identity of someone and, even further, that it has to be the identity of this one other person.
Unknown Speaker: Well, let me ask you something else.
I mean, I think your inference isn't as generous as it has to be, but what if the deletion in the one statement that we're going back to made it read in answer, me and a few other guys, without deletion and deletion in there.
Is that less likely that the jury would draw the inference that the petitioner was one of the people?
Mr. Shepard: I don't think so, Your Honor.
Unknown Speaker: No?
Mr. Shepard: I think that would exalt form over substance.
That is, the statement, me and a few other guys, me, and then followed maybe by six blanks, five blanks, both communicate the same thing, or a mixture thereof, two blanks and then some other guys, or even three blanks and some other guys.
Unknown Speaker: Well, the one communicates simply there were some other guys.
The other communicates not just that there were some other guys, but that there's some reason why you can't name one of those guys.
It surely communicates that to the jury.
Mr. Shepard: It--
Unknown Speaker: And what do you think the reason probably is?
Mr. Shepard: --Well, Your Honor--
Unknown Speaker: That it was the other defendant.
Mr. Shepard: --Not necessarily.
It could be--
Unknown Speaker: No, not necessarily--
Mr. Shepard: --a confidential informant.
It could be someone who's awaiting trial.
There are many--
Unknown Speaker: --Ms. Shepard, there was a very fine jurist who once said on this subject, the temptation to fill in the blanks is nigh irresistible.
I don't think you have to have a legal mind to see that.
The natural... when one is faced with a blank one thinks, well, which one was it?
Mr. Shepard: --I wouldn't disagree with you, Your Honor.
That is, we don't need to resolve this case by concluding that a juror would not speculate as to what could be there.
That is, we would concede that a juror might speculate, that a juror might even speculate there's a name, and that a juror might even wonder--
Unknown Speaker: And that that speculation would be nigh irresistible.
Mr. Shepard: --Perhaps.
Unknown Speaker: And if the Government could get across the same information without having, name deleted, or wite out, why isn't that the appropriate way to proceed?
Mr. Shepard: I think, Your Honor, because ultimately the question of how a statement needs to be redacted is one that requires a balancing of a great many factors.
Whether in one case it's better in some way to use a Richardson redaction, or to use a deletion, might change from statement to statement to statement.
Unknown Speaker: May I interrupt with just one question, if I may?
Mr. Shepard: Yes, Your Honor.
Unknown Speaker: The... on one side of the scale is, you want to get all of the statement in that tends to incriminate the maker of the statement, Bell, and you have no right to put anything in that doesn't incriminate him, isn't that correct?
And you have a statement here, who else has these jackets, answer, deletion.
What possible purpose could that question serve in terms of the proper purpose for the confession, namely, incriminating Bell?
Mr. Shepard: Your Honor, I wouldn't argue that that statement is necessary.
It simply wasn't redacted.
No one requested that it be redacted.
The identities were redacted.
Unknown Speaker: There was no objection to it.
Mr. Shepard: There was no objection to the form of the redaction in this particular instance.
Unknown Speaker: Really?
They accepted this without objection?
Mr. Shepard: Correct, Your Honor.
They did not suggest... I'm not meaning to suggest that they did not object to the confession coming in, but they did not object to this form of redaction, that is, that the use of blanks or deleted versus a retyping, versus the use of pseudonyms, for example, there was no suggestion as to that.
Unknown Speaker: Ms. Shepard, did the trial court charge the jury in this case at the time Bell's... that it was to be used only against him?
Mr. Shepard: And did so, Your Honor, in very clear and unmistakable terms.
Unknown Speaker: So if the jury followed that instruction it would not have used it against Mr. Gray.
Mr. Shepard: That's correct, Your Honor, and that is precisely our argument.
Unknown Speaker: Well, I guess the instruction was given in the Bruton case, too, wasn't it?
Mr. Shepard: True, Your Honor.
Unknown Speaker: Yes, but the Court nonetheless held in that case there was a violation of the Confrontation Clause.
Mr. Shepard: Because, Your Honor, that confession on its face expressly inculpated the defendant.
That is, there is a significance--
Unknown Speaker: Yes.
Well, then I guess this Court left open in Marsh whether a redacted confession would be okay, didn't it?
Mr. Shepard: --Correct, Your Honor.
Unknown Speaker: So that's what we're trying to decide here.
Would you help us with what test you think we ought to use?
Mr. Shepard: Yes, Your Honor.
I believe the issue of redaction, what to redact, how to redact, should be left in the first instance to the trial court based on the feasibility of redaction.
In some instance that will be the practical visibility.
Is it a video, for example?
It may make it very difficult to redact without indicating there has been a deletion.
Unknown Speaker: Well, so if it's too difficult to redact, the whole thing comes in?
Is that what you're arguing?
Mr. Shepard: I would be arguing against that.
For example, I'm using a video as a way to suggest that redactions that indicate there's a deletion are perhaps inevitable... for example, through the use of video... unless, of course, the cost were not to allow video confessions, which--
Unknown Speaker: Excuse me.
I thought you were going to help us with an articulation of what the test is.
The Maryland court below applied this either facially or by compelling an inevitable inference inculpates the nonconfessing defendant.
Mr. Shepard: --Yes.
Unknown Speaker: Is that the right test?
The petitioner says no, that it should be whether there's a substantial risk that it would inculpate the codefendant, which is drawn from language of our earlier opinions.
What is the test?
What should it be?
Mr. Shepard: Your Honor, we share the view of the Maryland Court of Appeals and the view that you previously expressed as to the test.
It should focus on whether the confession expressly implicates, identifies the defendant, or does the equivalent of identifying the defendant.
Unknown Speaker: Why should we adopt anything other than the most rigorous of tests?
I mean, what's the big deal?
If you're worried about the redaction you could try the other individuals separately.
Mr. Shepard: Well, Your Honor, there is--
Unknown Speaker: Then you can get the whole thing in in its full term.
It seems to me that... I'm not very sympathetic to your insistence that we have to allow the redaction unless there's a certainty that the jury's going to fill it in with the name of the other defendant.
Try the two separately, then you get the whole thing in, word for word.
Mr. Shepard: --The reason for that, Your Honor, is the judgment, we believe correct in our case, that this Court has recognized before, that joint trials are of vital importance to our system, that there is a cost of foregoing a joint trial, a cost to society, a cost to the administration of the criminal justice system, sometimes a cost to one of the codefendants, whose best shot at a defense is to stand side by side with someone who's more culpable.
Those are very real costs that this Court has previously recognized.
Unknown Speaker: And those arguments would have even greater weight if Bruton itself were somehow questionable, if we were using this rule because Bruton was too harsh.
I have seen nothing in the commentary or in the briefs to suggest that latter proposition, though.
It is a given, is it not, or maybe I'm incorrect, that Bruton is absolutely correct.
There was a cardinal violation of confrontation when you cannot examine a witness who implicates you by a previous statement, or am I incorrect about that?
Mr. Shepard: Let me answer it this way, Justice Kennedy.
I believe in some ways that is incorrect.
That is, Bruton does rest on a value judgment: What do we think jurors will do?
It is an issue of fact that is unprovable and unknowable in all likelihood.
Unknown Speaker: Well, does it rest on what you call a value judgment after everyone adopts the premise that there would be a confrontation problem, that there is a confrontation violation if the statement comes in and there can be no cross examination?
Mr. Shepard: If one assumes that the jury cannot follow the instruction not to use this evidence against a particular defendant.
Unknown Speaker: Was there statistical evidence in Bruton indicating juries don't follow instructions like that?
Mr. Shepard: There was not, and there still is not.
That is, the statistics, or the studies, to the extent they're even capable of divining jury behavior, indicate that jurors try to follow instructions, that where the instructions are clear, that's what they will endeavor to do.
And we do know this much from our practical experience, that day after day in trial courts jurors are told, not even by a codefendant but by the prosecutor, we believe, we the State believe this person is guilty of a crime in opening statements and closing statements.
Those jurors are told that is not evidence, and juries are capable of making decisions based on the evidence.
Unknown Speaker: Well, you didn't--
--I guess Bruton is wrong, then.
Is that... I mean, if all that is true, Bruton was wrong.
Mr. Shepard: We don't need to decide--
Unknown Speaker: And we've assumed the opposite of what you're saying.
Mr. Shepard: --We don't need to decide that issue, Your Honor.
Unknown Speaker: Well, and Maryland didn't cross petition and bring that here, did it?
Mr. Shepard: We did not, and that issue is not before the Court.
We're not urging the Court to--
Unknown Speaker: But you certainly could have.
Given your view, it's rather surprising that you didn't, isn't it?
Mr. Shepard: --Well, Your Honor, I--
Unknown Speaker: How do you explain that?
Mr. Shepard: --I explain that, Your Honor, to this extent.
That is, we understand Bruton.
Bruton lays down a rule that can be followed.
What we are here today for is to make... is to argue that that area, that area where the Court has said juries cannot be trusted, is not expanded beyond the statement, this codefendant committed the crime, to an area where the statement is simply, and all it communicates is, someone else committed the crime.
That is, a group of people committed the crime.
That is not the kind of statement that Bruton--
Unknown Speaker: It isn't just someone else, it's someone else whose name I am not allowed to tell you in this trial committed the crime.
Mr. Shepard: --Even if you go that far, Justice Scalia--
Unknown Speaker: Yes, okay.
Mr. Shepard: --Someone else--
Unknown Speaker: But even beyond that, the next question by the prosecutor after reading the statement, all right, now officer, after he gave you that information you subsequently were able to arrest Mr. Kevin Gray, is that correct, didn't that pretty much create an inference that they'd been talking about Gray?
Mr. Shepard: --I think not, Your Honor, and let me answer that question in two ways.
One is, there was no objection to that at that point in the defense, so that had to have been preserved.
Unknown Speaker: Perhaps it might not have been very wise tactics to get up and start screaming right at that point, I don't know.
Mr. Shepard: We think the reason for the lack of objection--
The reason for the lack of objection was another.
That is, as we pointed out in our brief, in the context of the questioning, what actually happened was, they asked the detective, what information did you develop?
I went, interviewed witnesses.
Based on that, what did you do?
I got an arrest warrant.
What did you do then?
I went to look for Mr. Bell and Mr. Gray.
I found Mr. Bell.
I could not find Mr. Gray.
So what did you do next?
I brought Mr. Bell in, I got his statement.
Were you subsequently able to arrest Mr. Gray?
There is no tying in at all of Mr. Gray to the statement of Mr. Bell.
It was simply understood in its context.
It's a chronology, and in fact the decision on the arrest warrant had been made before Mr. Bell's confession was obtained.
Your Honor, we believe that the trial courts need the discretion to determine what redaction best can balance the concerns of the Sixth Amendment and the needs of the trial.
In any given case, a court might conclude that a Richardson redaction is appropriate.
Unknown Speaker: There is something disturbing about giving to the jury a statement which is, in a sense, fictional, and in some courts counsel and the judge even agree that there is a completely fictional statement.
They have it made at a different place, when the defendant was alone in the police car when he really wasn't.
This is at some level somewhat offensive to the system, it seems to me.
Mr. Shepard: I agree, Your Honor, and that is one of the factors that ought to be considered in determining whether a deletion in a particular case should be used, as opposed to a rewrite of the confession.
Unknown Speaker: Or whether the confession ought to come in at all in the joint trial.
Mr. Shepard: --Well, that is ultimately, Your Honor, also a possibility, certainly, whether the confession comes in at all, but certainly we should respect the desire to include confessions in trials, and we should respect the importance of joint trials.
Beyond that, what a trial court may use in determining how best to redact is both matters of the practicality of the redaction, matters of the substantive communication, does it so distort the meaning.
A court may also take into account the interests of the defendant, the interests of the codefendant, the interest of the State, and in any given confession and in any given statement, that balance may result in one form of redaction or another.
Unknown Speaker: Ms. Shepard, one problem with leaving it all up to the discretion of the trial judge is, I've given you the response of one judge, nigh irresistible inference.
Another one should say, no, there's not any necessary inference.
It could be anybody, Mr. X, could be Mr. White, Mr. Gray.
So it just... there's a tremendous amount of disparity if you just say, well, it's up to the trial judge, and given that range, that one would say, perfectly okay to have blanks, and the other one says the jury is going to make that inference, I know they are, so I'm going to keep it from them.
Mr. Shepard: I think I understand your question.
I'm not sure, beyond giving the trial courts, that is, the ultimate rule and the ultimate goal.
That is, the responsibility here is to make sure that a statement or a confession that comes in does not directly or by compelling or inevitable inference identify the defendant.
It is possible the trial courts might have a different judgment in a particular statement, but that is almost impossible to anticipate or correct, and the judgment may change, depending on the nature of the statement, too.
I believe it might... it would not be possible to give more firm guidance than simply making sure that at the end when a confession is admitted it does not, in fact, expressly incriminate or inculpate--
Unknown Speaker: Well, you certainly could adopt a rule saying, in redacting we're not going to use the fill in the blank form of redaction.
That would be simple enough, wouldn't it?
Mr. Shepard: --It would, Your Honor, but it would not accomplish the purposes of the Sixth Amendment, necessarily, that is, and again--
Unknown Speaker: Well, it would go a step in that direction, wouldn't it?
Mr. Shepard: --Not necessarily, Your Honor, because it will come perhaps... for example, in this case, it might change the evidence as to Mr. Bell.
Mr. Bell's best defense may have been here, well, I had a part in it, but it was really a small part, all I did was this, and so a codefendant might have an interest in making sure that the fullness of the story be told, and that the redaction--
Unknown Speaker: But not a sufficient interest to get on the witness stand.
Mr. Shepard: --Absolutely, Your Honor, and we can't require him to sacrifice that, but he nevertheless has an interest in making sure that as much of his confession--
Unknown Speaker: Well then, you're really saying this statement was not a statement against the interest of the declarant.
You're sort of describing it as a self serving statement that ought to get in to prove that he's not as guilty as the other guy.
Mr. Shepard: --I believe the defendant, whether the statement is truthful or not, certainly has an interest in deciding and determining that as much as possible of the statement in the form that he gave it comes in in that fashion, so to avoid, for example, the prejudice that might occur from a statement that communicates I and Mr. Bell and only Mr. Bell cause this harm to the victim.
That's a legitimate interest, and that's one that could be balanced out and perhaps might better be balanced out by use of a deletion or some form of redaction.
Unknown Speaker: Well, would you agree that this is... would... If the case turned on the admissibility of this statement as to whether or not it was against the declarant's penal interest, would you agree that it probably does not meet that test, because there are substantial exculpatory or mitigating reasons why he might want to make that statement?
Mr. Shepard: That's a little difficult for me to answer, Justice Kennedy.
I suspect because we are the State we would be in a position to argue that much of that statement would come in as a declaration--
Unknown Speaker: Well, was any objection ever made on the ground, not the Bruton ground but on the ground that it was not a permissible exception to the Confrontation Clause otherwise?
Mr. Shepard: --Not otherwise, Your Honor.
Unknown Speaker: So the Bruton ground was the only one asserted?
Mr. Shepard: Yes, Your Honor.
The benefits... I'm sorry, Your Honor.
Unknown Speaker: I think your time has expired, Ms. Shepard.
Mr. McLeese, we'll hear from you.
Argument of Roy W. McLeese
Mr. McLeese: Mr. Chief Justice, and may it please the Court:
In Richardson, the Court rejected a Confrontation Clause challenge to one category of redacted confession, those which make no mention at all of the existence of the complaining defendant.
Our submission in the present case is that the Court should reach the same conclusion as to a second category of redacted confession, those which do not name or describe the complaining defendant.
Such confessions do not vividly and facially incriminate the complaining defendant, and thus are quite different from the confession at issue in Bruton.
In addition, the costs of expanding Bruton--
Unknown Speaker: Oh, I think we're really talking about the fill in the blank sort of approach here for redaction.
Mr. McLeese: --To answer that question--
Unknown Speaker: Why don't we just eliminate that?
Mr. McLeese: --Well, there would be costs to that if what you mean is a manner of redaction that would not be apparent to the jury at all, so the jury would not know that there had been any redaction at all.
Unknown Speaker: To the extent that it's possible you avoid fill in the blanks.
It was sure possible here.
You easily could have redacted this one so that you didn't leave it deletion, deletion, with an obvious fill in the blank sort of effect.
Mr. McLeese: One could have deleted... one could have redacted this confession so that you didn't have the obvious blanks.
I think it would have been impossible, while still using the signed confession, to redact it in a way so that it would not have been apparent to the jury that there had been some kind of redaction that took place.
But to use this case as an example, I don't think that the fact that the redaction was achieved here by using deletion, something that was not the subject of an objection, sufficiently or significantly increased the risks that the jury would infer that Bell named petitioner.
There were a number of deletions.
There were a number of names that were deleted, so the jury would not have, had it been inclined to speculate, had it been inclined to disregard its instructions not to do that, it would not have reached the natural conclusion that these deletions must be driven by the fact that petitioner must have... that declarant must have named petitioner, because a number of names were deleted.
The jury, had it speculated, could have concluded only--
Unknown Speaker: Well, it was the... Bell and Tank I think is all that we're talking about.
Mr. McLeese: --I don't think the jury here, had it been inclined to speculate, would have had any reason to speculate that the names in Bell's confession happened to map on to Bell and Tank as opposed to other names in this group.
Unknown Speaker: Except there would have been no reason to delete the names of third parties who were not involved in the courtroom, right?
Mr. McLeese: Tank was not involved in this courtroom, either, and the jury, again had it been inclined to speculate and disregard instructions, would have had no reason to surmise that... had no reason to think that Tank's name would need to be deleted.
I think if the jury had been speculating it would have been speculating only that whoever Bell named, there must be some rule that says that all those names don't come in, and the jury would have had no reason to guess that among the people Bell named was petitioner.
There would have been... on the facts of this case, that deletion would not have been a red flag that would have taken the jury anywhere even if the jury had been inclined to try to follow that up.
Unknown Speaker: If we find that there's a powerful, compelling inference that defendant is a person named in the confession, disagreeing with your analysis, and if we were writing on a clean slate, no Bruton, would there be any way to admit this statement?
Mr. McLeese: --I think that... I don't think that even with a slate that includes Bruton the conclusion you describe would dictate an unfavorable answer for the State here, and what I mean by that is the following.
I think that Richardson, for example, makes clear that this area does not turn on the mere, even certainty that the jury will end up through a chain of inference reaching a conclusion that evidence is incriminating but must be set aside.
What Richardson says is, even where, through a chain of inference, the jury may get to that point, we can trust juries, as we trust them to set aside other things, many other things, to set that aside, that Bruton is a very narrow exception to that rule that arises in circumstances where as a self contained unit the confession comes in in a form that says this person committed the offense with me, so it's not... I don't think that even if one were to conclude that the inference is one that the jury would have drawn in a particular case eventually, had it sat down and done everything, I don't think that supports the conclusion there was a Bruton violation.
Unknown Speaker: Mr. McLeese, what's the worst kind of a different situation in which we trust the jury to obey an instruction from the judge not to consider what it has just heard.
Mr. McLeese: Two cases come--
Unknown Speaker: --Give me another example that's as bad as this.
Mr. McLeese: --Well, two come to mind.
Spencer v. Texas is a case in which, at the defendant's murder trial, the jury is informed that the defendant has a prior murder conviction and is told, do not consider that in determining guilt or innocence.
Set that aside when you determine guilt or innocence.
Consider it solely for purposes of the appropriate sentence that you will later impose in a single guilt and sentencing proceeding.
Another comparable example is Harris v.--
Unknown Speaker: That may not be as persuasive as it might have been, because most States after that have taken a different view on separating sentencing from guilt just because of the obvious risk of prejudice in that very situation, so you sort of have a general consensus that that case, maybe there was no constitutional violation, but there was obvious unfairness there.
Mr. McLeese: --But the relevant inquiry here is whether the risk of jury inability to set aside incriminating evidence is a constitutional violation, and what Spencer v. Texas said, whatever jurisdiction--
Unknown Speaker: Well, if they do... no doubt about the fact, if they did treat this as admissible against the codefendant it would be a blatant constitutional violation.
You would agree with that?
Mr. McLeese: --I do agree with that.
The other answer to your question, Justice Scalia, is Harris v. New York, where statements that are taken illegally, in violation of Miranda, are admitted to the jury and the jury is told, you may consider this confession, this statement solely for purposes of assessing the credibility, the testimonial credibility of the defendant.
You must set it aside as it might be considered substantive evidence of the defendant's guilt, and I--
Unknown Speaker: So what is the... you can't substitute for the defendant's name a concrete description.
You couldn't say, the man with the red hair and the limp.
Mr. McLeese: --No.
The rule that we--
Unknown Speaker: All right.
So what is the rule, in your opinion, about when a blank separated by commas or some other pictorial depiction in a written confession is equivalent to the red eyed man, or red haired man with the limp?
What's the... how would you decide that one?
Mr. McLeese: --The rule we propose is limited to confessions which do not contain additional descriptive information of the kind that you suggest.
Unknown Speaker: Why, in fact... I think one argument is that a blank separated by commas in the circumstance is quite close to a particular description because it sets the jury to thinking, and they see blank, blank, and some other guys, and they know who that is just as if it said, the red haired man with the limp.
Mr. McLeese: In this case--
Unknown Speaker: So what's the test to decide whether they're right or not?
How would you formulate the test that would distinguish the blanks, or however you want to--
Mr. McLeese: --With respect to confessions, confessions that are... even as redacted contain additional descriptive information.
When that descriptive information is so vividly and obviously linked to the defendant... the example that comes to mind is this Court's decision in Harrington--
Unknown Speaker: --Vivid and obvious, and if not that, if we accepted their view, are there many, many retrials that would be necessary throughout the country?
That is to say, if this interpretation of the Constitution of the United States is... in other words, has it been a habit of prosecutors simply to redact through the use of a blank with a comma?
Mr. McLeese: --I think that that is a widely... redaction that would be apparent to the jury, perhaps, but that deletes the names, is a relatively common practice in the State and Federal system.
Unknown Speaker: Well, where you say, physically, deletion, deletion, as opposed to simply leaving it out--
Mr. McLeese: That is less clear.
Unknown Speaker: --so that it says me and other guys, instead of me, deletion, deletion, and a bunch of other guys?
Mr. McLeese: That is less clear.
I think it's very hard--
Unknown Speaker: We don't know.
Mr. McLeese: --It's very hard to tell how common a practice that is.
Unknown Speaker: I would assume... is it fair to assume that if you thought this practice were common you would have told us that?
You would have gotten complaints--
Mr. McLeese: If I were aware that it were common, I certainly would have.
Unknown Speaker: --So people haven't been complaining to you about it.
I mean, the case is well publicized, and people know about it, prosecutors know about it.
Is it a fair assumption from the fact that you don't know about it that this is not a common practice?
Mr. McLeese: That is... when you say this is not a common practice--
Unknown Speaker: The use of the word deletion, deletion.
Mr. McLeese: --In the Federal system there certainly is not a lot of lower court case law addressing that particular method of redaction.
Unknown Speaker: Could that be because of the warning that this Court gave in Marsh, the footnote that says, we express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol?
Mr. McLeese: --I should be clear that, on the other hand, redactions that continue to describe the role of the unnamed other participants by use of terms other than deletion, like the other guy, or him, that is an extremely common practice in the Federal courts areas and has met widespread acceptance in the lower Federal courts.
In fact, the overwhelming weight of authority in the Federal courts is to approve that practice.
Unknown Speaker: But I think when Justice O'Connor started reading how this might have been presented and she said, me and a few other guys, that is a distinction from me and delete, delete.
Mr. McLeese: That's true.
We don't think the constitutional answer turns on that distinction.
Unknown Speaker: Thank you, Mr. McLeese.
Mr. Delano, you have 11 minutes remaining.
Rebuttal of Arthur A. Delano, Jr.
Mr. Delano: Your Honor, in answer to--
Unknown Speaker: Is the proper pronunciation of your name Delano, or Delano?
Mr. Delano: --That's a source of confusion even within my own family, but--
--we use the pronunciation Delano.
Unknown Speaker: Delano.
Mr. Delano: In answer to the Court's question about whether this was preserved or not, counsel at the end of the hearing on the admissibility of the statement clearly indicated that they objected to this statement as admitted, and clearly pointed out to the court that the statement as redacted strengthened the case of... against petitioner.
Unknown Speaker: But was objection made on the non Bruton ground that it just was a violation of, perhaps the Confrontation Clause on some other basis?
Mr. Delano: No, Your Honor.
The only objection was on the Bruton ground, and at trial petitioner was granted a continuing objection to any testimony concerning the statement and it was clear that this point was preserved, and I would also point out that the preservation argument had never been presented in any Maryland court and was not presented to this Court in the brief in opposition, so I really don't believe that issue is properly before the Court.
In answer to Justice Breyer's question concerning the use of deletions, in my brief I cited five State courts that have condemned the practice and three circuit courts, including Judge Friendly's opinion where they condemned the practice of deletion.
Even in those States that have adopted the so called facial implication doctrine I could find no cases in which--
Unknown Speaker: How are they supposed to do it?
Presumably there's a physical document with some writing on it, and the physical document then has some names on it, and so how in your opinion is the... is this piece of paper supposed to be presented into evidence?
Mr. Delano: --I would suppose that the piece of paper would have to be retyped or rewritten.
Unknown Speaker: But then you can't submit the original.
Mr. Delano: Perhaps you might not be able to submit the original.
Unknown Speaker: Well, what do you... when you say perhaps, I mean--
Mr. Delano: Well--
Unknown Speaker: --what precisely do you think is supposed to happen?
Mr. Delano: --If it showed a blank space, you would not be able to present the original.
The prosecution has the option of substituting a typewritten, but more importantly the prosecution has the option at trial of testifying as to what the actual statement said, so that it's not that they're not going to get what the statement has in evidence.
They might not get the actual statement in.
Unknown Speaker: Who would testify?
Mr. Delano: The officer... as in this case, the officer who took the statement.
He's the one who testified as to what was in the statement, and he's the one who offered the statement into evidence.
Unknown Speaker: And he would testify and slightly modify what he actually heard.
Mr. Delano: Yes.
As in this case, he modified what he heard by saying, deleted and deletion.
He could have modified and omitted the deleted and deletion.
Unknown Speaker: Is it the case, going to be the case when we get into this record and so forth we'll find that you didn't... there's no one suggesting that the way to do this is to simply read the confession and leave the names out?
Mr. Delano: That is correct, Your Honor.
Unknown Speaker: How are we supposed to deal with that, that this alternative wasn't presented to the judge?
Mr. Delano: Under Maryland evidentiary law the Court of Special Appeals and the Court of Appeals were of the mind that this issue had been preserved and again, the issue had not been presented by respondent in any form of a cross petition, so I don't believe that that's necessary for the Court to reach that issue.
I think it's been reached by the Maryland courts and decided that this was preserved as far as Maryland evidentiary law was concerned.
Unknown Speaker: You're telling us that when we go to the objection what we will find is something that says in so many words the confession ought to be kept out because this is not good enough under Bruton, something like that, is that what--
Mr. Delano: The objection was entirely under Bruton.
Richardson was not mentioned, and at the end... I may be paraphrasing slightly, but the language was that this clearly strengthens the case that the redactions are not sufficient, but it still, under Bruton, incriminates the petitioner, and it strengthens the case against petitioner.
Unknown Speaker: --So that the only thing you didn't do was get up and say, I'll tell you how to do it right.
Mr. Delano: That is correct.
The counsel, defense counsel did not suggest an alternative, but I don't believe the defense counsel had that absolute responsibility under Maryland law.
And without trying to lessen the significance of the deletions, because I agree entirely with the Court that that is the most damaging part in this case, I would point out that the way that the deletions were done in this case, they used the term deletion and, in juxtaposition to the term, several other witnesses.
That language basically paralleled the testimony at trial.
It was always, name, name, and several other guys, so we're not here strictly with a case of deletion.
We're here with a case of deletion plus several other guys, and I think that only aggravates the... or increases the potential for prejudice.
Unless the Court has any other questions, I would submit.
Chief Justice Rehnquist: Thank you, Mr. Delano.
The case is submitted.