Acts or Words of a Co-Defendant

Statements made by a party's coconspirator during and in furtherance of the conspiracy

• For information about statements made by a party’s coconspirator during and furtherance of the conspiracy, please review Statements by an Opposing Party.

Statements against interest

• For information about statement against interest, please review Statements Against Interest.

Confessions and admissions of a co-defendant: Holding in Bruton v. United States

• We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [the defendant’s] guilt, admission of [the co-defendant’s] confession in this joint trial violated [the defendant’s] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.

Bruton v. United States, 391 U.S. 123, 126 (1968)

Confessions and admissions of a co-defendant: Interpretations of the holding in Bruton v. United States

• In Bruton v. United States, 391 U.S. 123, 124-26 (1968), the United States Supreme Court held that in a joint trial, admission of one defendant's confession that implicates another defendant is a violation of the second defendant's Sixth Amendment right to confront witnesses. The confessing defendant cannot be required to take the stand, and the result is a denial of the other defendant's right to cross-examine.

Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000)

See Allen v. State, 562 N.E.2d 39, 42 (Ind. Ct. App. 1990)(quoting Ortiz v. State, 356 N.E.2d 1188, 1193 (Ind. 1976))(“In Bruton v. United States, the United States Supreme Court ‘held that introduction of extra-judicial statements of a co-defendant at a joint trial denied the defendant an opportunity to cross-examine the co-defendant as to his statement and thereby deprived him of his right to confront a witness against him.’”)

See also Phillips v. State, 673 N.E.2d 1200, 1203 (Ind. 1996)(“In Bruton, the U.S. Supreme Court held that the introduction of extrajudicial statements of a co-defendant at a joint trial denied the defendant an opportunity to cross-examine the co-defendant as to his statement, thereby depriving the defendant of his right to confront a witness against him.”)

• The prototypical Bruton problem is a confession by a co-defendant that details the commission of the crime and the objecting defendant's role in it.

See Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000)(“[The co-defendant’s] explanation may not be as devastating to [the defendant’s] case as the prototypical Bruton problem—a confession by a co-defendant that details the commission of the crime and the objecting defendant's role in it.”)

Confessions and admissions of a co-defendant: Holding in Nelson v. O’Neil

• We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.

Nelson v. O'Neil, 402 U.S. 622, 629-30 (1971)

Confessions and admissions of a co-defendant: Interpretation of the holding in Nelson v. O’Neil

• A defendant's Sixth Amendment right of confrontation is violated when a codefendant's extrajudicial statement implicating the defendant is admitted into evidence and the defendant has no opportunity to cross-examine the codefendant. However, when the confessing codefendant subjects himself by testifying to full and effective cross-examination, the defendant's Sixth Amendment right is not violated even if the codefendant denies the content of the confession.

Rondon v. State, 534 N.E.2d 719, 727 (Ind. 1989), reh’g denied, cert. denied, 493 U.S. 969 (1989)(citing Jenkins v. State, 409 N.E.2d 591, 593 (Ind. 1980))(emphasis added)

E.g., McChristian v. State, 396 N.E.2d 356, 358 (Ind. 1979)(citing Gutierrez v. State, 386 N.E.2d 1207, 1208-09 (Ind. 1979))(“In this case, however, [the co-defendant] took the stand in his own defense and was available for cross-examination. Thus, the admission of [the co-defendant’s] out-of-court statement was not improper and the defendant was not denied his right to confrontation.”)

E.g., Gutierrez v. State, 395 N.E.2d 218, 221 (Ind. 1979)(citing Bruton v. United States, 391 U.S. 123, 126 (1968))(“In the case before us, however, [one co-defendant] did testify on his own behalf at trial. Therefore, he was subject to cross-examination concerning the confession, and [the other two co-defendants] were not denied their Sixth Amendment confrontation rights by the admission of [that one co-defendant’s] confession.”)

Confessions and admissions of a co-defendant: Holding in Cruz v. New York

• We hold that, where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him.

Cruz v. New York, 481 U.S. 186, 193 (1987)

Confessions and admissions of a co-defendant: Holding in Richardson v. Marsh

• We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

Richardson v. Marsh, 481 U.S. 200, 211 (1987)

Confessions and admissions of a co-defendant: Interpretations of the holding in Richardson v. Marsh

• In Richardson the Court considered the confession of a non-testifying co-defendant from which references to other defendants had been adequately redacted. Other evidence introduced at trial nevertheless linked the other defendants to the written confession. The Court held that while the confrontation clause does not totally bar the admission of such a redacted confession made incriminatory through linkage by other evidence, as it does a confession which makes a specific reference to a codefendant, the clause does bar the admission of such a redacted, yet linked, confession in the absence of a limiting jury instruction, namely an instruction which advises the jury that the confession is limited in applicability to the confessor.

Taggart v. State, 595 N.E.2d 256, 258 (Ind. 1992)(internal citation omitted)

• The United States Supreme Court has declined to extend the Bruton rule to apply beyond facially incriminating declarations.

Smith v. State, 516 N.E.2d 1055, 1060 (Ind. 1987), cert. denied, 488 U.S. 934 (1988)(citing Richardson v. Marsh, 481 U.S. 200, 211 (1987))

See Brock v. State, 540 N.E.2d 1236, 1240 (Ind. 1989), reh’g denied(“The United States Supreme Court, however, has declined to extend Bruton to situations such as this one, which do not involve facially incriminating declarations.”)

See also Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000)(“On appeal the State correctly contends that a co-defendant's statements present a Bruton problem only if they ‘facially incriminate’ another defendant.”)

See also Norton v. State, 772 N.E.2d 1028, 1032 (Ind. Ct. App. 2002), trans. denied(citing Richardson v. Marsh, 481 U.S. 200, 208 (1987))(“When a statement from a co-defendant is offered as evidence at trial, it is generally true that a redacted version of the statement, which does not implicate the defendant, may be properly admitted.”)

Confessions and admissions of a co-defendant: General rule, in light of the aforementioned holdings

• In a joint trial, a statement of one co-defendant that facially incriminates another co-defendant may not be introduced against the other co-defendant, when the co-defendant providing the statement does not testify at trial or is not otherwise subject to cross-examination.

Nicholson v. State, 768 N.E.2d 1043, 1048 (Ind. Ct. App. 2002)(citing Bruton v. United States, 391 U.S. 123, 136 (1968))

Garland v. State, 719 N.E.2d 1184, 1186 (Ind. 1999), reh’g denied(citing Bruton v. United States, 391 U.S. 123, 136 (1968))(“The U.S. Supreme Court has clearly established that, in a joint trial, statements of one co-defendant that facially incriminate another co-defendant may not be introduced against the other co-defendant, when the co-defendant providing the statement does not testify at trial or is not otherwise subject to cross-examination.”)

Confessions and admissions of a co-defendant: Rationale

• “The unreliability of [the testimony of a co-defendant] is intolerably compounded when the alleged accomplice . . . 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.”

Garland v. State, 719 N.E.2d 1184, 1186 (Ind. 1999), reh’g denied(quoting Bruton v. United States, 391 U.S. 123, 136 (1968))(alteration in the original)

Confessions and admissions of a co-defendant: The prosecution’s options when a Bruton problem arises

• When the co-defendant who made the statement seeks admission of the entire statement, and the other defendant invokes his Bruton protection, the State must either seek a severance, forfeit the ability to enter any of the statement into evidence, or redact all portions of the statement which refer to the objecting defendant.

Norton v. State, 772 N.E.2d 1028, 1033 (Ind. Ct. App. 2002), trans. denied(citing IC 35-34-1-11)

See Carter v. State, 361 N.E.2d 145, 147 (Ind. 1977)(“[I]n cases where the state has an extrajudicial statement admissible in evidence as to one co-defendant but not as to the other, the court shall require the prosecutor to elect (1) a joint trial at which the statement is not admitted, (2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted, or (3) separate trials for the defendants.”)

• For information about severance under IC 35-34-1-11, please review Joinder/Severance.

• This Court has previously held that the insertion of the word “blank” or “X” for the defendant's name is not an adequate redaction. Sims v. State, 358 N.E.2d 746, 748 (Ind. 1977), reh’g denied. The statement with such an alteration may be rendered nonsensical or may cause the jury to associate the defendant with the excision or substitute pronoun. Carter v. State, 361 N.E.2d 145, 148 (Ind. 1977)

Jenkins v. State, 409 N.E.2d 591, 593 (Ind. 1980)

• There is the possibility though . . . that the defendant will agree with the co-defendant who made the statement that the entire statement should be entered into evidence. In such a situation, the trial court then must look to the doctrine of completeness to determine whether it is proper to admit the whole statement.

Norton v. State, 772 N.E.2d 1028, 1033 (Ind. Ct. App. 2002), trans. denied

• For information about the doctrine of completeness, please review Doctrine of Completeness.

• [T]he basis for the Supreme Court's decision in Bruton was the defendant's constitutional right to confront and cross-examine witnesses. However, it is a well settled principle of law that a defendant may waive his right to confront and cross-examine witnesses.

Norton v. State, 772 N.E.2d 1028, 1031 (Ind. Ct. App. 2002), trans. denied

Confessions and admissions of a co-defendant: When Bruton violations do not require reversal

• A Bruton error may be harmless beyond a reasonable doubt.

Taggart v. State, 595 N.E.2d 256, 258 (Ind. 1992)(citing Harrington v. California, 395 U.S. 250, 254 (1969))

• Violations of the right of cross-examination do not require reversal if the State can show beyond a reasonable doubt that the error did not contribute to the verdict. The same is true of Bruton violations, which are a species of the denial of the right of cross-examination.

Fayson v. State, 726 N.E.2d 292, 294-95 (Ind. 2000)

• Indiana cases have consistently held that it is harmless error to admit a codefendant's confession where the defendant's own confession has been admitted and does not differ substantially from that of his confederate.

Townsend v. State, 533 N.E.2d 1215, 1225 (Ind. 1989), reh’g denied, cert. denied, 494 U.S. 1020 (1990)(citing Zachary v. State, 469 N.E.2d 744, 748 (Ind. 1984))(emphasis added)

Carrington v. State, 678 N.E.2d 1143, 1147 (Ind. Ct. App. 1997), trans. denied(citing Zachary v. State, 469 N.E.2d 744, 748 (Ind. 1984))

• This conclusion is further strengthened when there exists corroborating testimony and evidence of [the defendant’s] guilt in addition to the similar confessions.

Townsend v. State, 533 N.E.2d 1215, 1225 (Ind. 1989), reh’g denied, cert. denied, 494 U.S. 1020 (1990)(citing Gutierrez v. State, 388 N.E.2d 520, 526-28 (Ind. 1979))

Carrington v. State, 678 N.E.2d 1143, 1147 (Ind. Ct. App. 1997), trans. denied(citing Townsend v. State, 533 N.E.2d 1215, 1225 (Ind. 1989), reh’g denied, cert. denied, 494 U.S. 1020 (1990))

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