The Bruton Rule

Background: What is a Bruton issue?

• The Bruton rule is another restriction on the admissibility of a hearsay statement by a co-defendant.

• [A Bruton problem occurs when multiple defendants are joined for trial and Defendant A makes an out-of-court confession or other statement that implicates Defendant B. The statement is admissible at trial against the speaker, Defendant A, but normally is hearsay and not admissible against Defendant B. In a joint trial, however, the jury will hear the statement incriminate Defendant B when it is introduced against Defendant A, and unless Defendant A takes the stand on his own behalf, Defendant B will not have the chance to cross-examine this evidence against him, in violation of the Confrontation Clause of the Sixth Amendment.]

Prejudicial Joinder of Defendants—Confessions of a Codefendant, 1A Fed. Prac. & Proc. Crim. § 224 (4th ed.)

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

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

• The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-examination.

Nelson v. O'Neil, 402 U.S. 622, 627 (1971)

• Statements [made by a co-defendant] incriminating the defendant, whether or not specific reference is made, must be deleted. This Court has previously held that the insertion of the word “blank” or “X” for the defendant's name is not an adequate redaction.

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

• A defendant is deprived of his right of confrontation when a non-testifying co-defendant's confession, which on its face incriminates the defendant, is admitted at their joint trial.

Smith v. State, 516 N.E.2d 1055, 1060 (Ind. 1987), cert. denied, 488 U.S. 934 (1988)

• [BUT Note that the IN Supreme Court later found a Bruton violation where the statement did not facially implicate the Defendant. More information can be found below, under the heading titled "Instances where Bruton violation found."]

Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000) [Indiana extends the Bruton rule beyond merely those statements which facially implicate the Defendant.]

[NOTE: The Bruton rule only excludes hearsay evidence that would be inadmissible against the objecting defendant.]

Instances where there was no Bruton violation

• The statement of a co-conspirator during the course and in furtherance of the conspiracy is not hearsay and is admissible against each and every conspirator.

Resnover v. State, 372 N.E.2d 457, 460 (Ind. 1978)

• There is no showing of prejudice to a defendant in a joint trial where, as here, a codefendant/declarant of an extrajudicial statement implicating the defendant takes the stand and is available for cross-examination by the defendant. The Bruton rule was not violated here because both Vasquez and Leon testified at trial and were available for cross-examination.

Castro v. State, 580 N.E.2d 232, 235 (Ind. 1991)

• The Bruton rule does not apply when the confessing co-defendant subjects himself by testifying to full and effective cross examination, although he denies the content of the confession.

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

• No prejudice is shown to a defendant whose motion for separate trial was denied when the codefendant-declarant of an extrajudicial statement implicating the defendant elected to take the witness stand and could be cross-examined.

Underwood v. State, 535 N.E.2d 507, 513-14 (Ind. 1989), cert. denied, 493 U.S. 900 (1989)

• [When a statement is not hearsay because it is not being asserted for its truth, there can be no Bruton violation.]

United States v. Sherlin, 67 F.3d 1208, 1216 (6th Cir. 1995), cert. denied, 516 U.S. 1082 (1996)

Instances where a Bruton violation was found

• [D murders somebody in field near his girlfriend’s house. When police later arrive at girlfriend’s house, she tells the police that “she did not know where Fayson was and had not seen him since seven o'clock that morning.” Then she gives consent to search. Police find D asleep in his bed. (She’s not a criminal master-genius) Girlfriend then tells police that she lied because she didn’t want to see D go to jail.

D and girlfriend are later tried as co-defendants. Prosecutors elicited testimony from the police officer about what girlfriend said--that she lied and then admitted that she didn’t want to see D go to jail. Girlfriend did not testify.

On appeal, D claims that allowing the hearsay statements of girlfriend to come in during trial violated the confrontation clause (he alleged a Bruton violation). The Indiana Supreme Court agreed that this was a Bruton violation.]

“Wright's explanation may not be as devastating to Fayson'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. Nonetheless, a reasonable juror could conclude that it implied that Wright had knowledge that Fayson had committed a crime.”

Fayson v. State, 726 N.E.2d 292, 294 (Ind. 2000) [Indiana extends Bruton rule beyond merely those statements which facially implicate the Defendant.]

[Note: Indiana passed a statute in response to the Bruton decision. That statute is the following:]

• Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one (1) or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect:

(1) a joint trial at which the statement is not admitted into evidence;

(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) a separate trial for the moving defendant.

In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.

IC 35-34-1-11(b)(emphasis added)