Cruz v. New York

Justice White,

with whom The Chief Justice, Justice Powell, and Justice O’Connor join, dissenting.

Bruton v. United States, 391 U. S. 123 (1968), involved a joint trial and the admission of a codefendant’s confession with instructions to the jury not to consider it against the defendant. 1 Concededly, if the jury had followed its instructions there would have been no error, constitutional or otherwise. But the Court held that in “some contexts” — and the Bruton case fell in that category — the chance was “so great” that the jury would not follow its instructions to consider the codefendant’s confession only against him, and the failure to follow such instructions would be so “devastating” *195 to the defendant’s case, that it would be constitutional error to admit the confession even against the codefendant. Id., at 135-136 . The introduction of the codefendant’s confession “posed a substantial threat to petitioner’s right to confront the witnesses against him,” a threat the Court said it could not ignore. Id., at 137 .

In Bruton , the defendant himself had not confessed. Here, it is otherwise: defendant Cruz had confessed and his confession was properly before the jury. Yet the Court’s holding is that the codefendant’s confession was inadmissible even if it completely “interlocked” with that of Cruz himself, that is, was substantially the same as and consistent with Cruz’s confession with respect to all elements of the crime and did not threaten to incriminate Cruz any more than his own confession.

This makes little sense to me. “[T]he defendant’s own confession is probably the most probative and damaging evidence. that can be admitted against him. Though itself an out-of-court statement, it is admitted as reliable evidence because it is an admission of guilt by the defendant and constitutes direct evidence of the facts to which it relates. Even the testimony of an eyewitness may be less reliable than the defendant’s own confession. An observer may not correctly perceive, understand, or remember the acts of another, but the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.” Id., at 139-140 (White, J., dissenting). Confessions of defendants have profound impact on juries, so much that we held in Jackson v. Denno, 378 U. S. 368 (1964), that there is justifiable doubt that juries will disregard them even if told to do so. But a codefen-dant’s out-of-court statements implicating the defendant are not only hearsay but also have traditionally been viewed with special suspicion. Bruton, supra, at 136 ; Holmgren v. *196 United States, 217 U. S. 509, 523-524 (1910); Crawford v. United States, 212 U. S. 183, 204 (1909). And the jury may be so informed. Bruton held that where the defendant has not himself confessed, there is too great a chance that the jury would rely on the codefendant’s confession. But here, Cruz had admitted the crime and this fact was before the jury. I disagree with the Court’s proposition that in every interlocking confession case, the jury, with the defendant’s confession properly before it, would be tempted to disobey its instructions and fail to understand that presumptively unreliable evidence must not be used against the defendant. Nor is it remotely possible that in every case the admission of an interlocking confession by a codefendant will have the devastating effect referred to in Bruton, 2

The Court finds it “impossible to imagine” why the defendant’s interlocking confession could ever make the Bruton rule inapplicable; any such conclusion would be “illogical.” Ante, at 191,193. But many Court of Appeals Judges — as many as embrace the Court’s harmless-error rule — are not so unimaginative; they see nothing illogical, in interlocking confession cases, in adhering to the traditional presumption that juries follow their instructions. 3 Of course, the decision here is not *197 a matter of imagination or logic, but one of common sense and judgment in interpreting the Constitution. Bruton disallowed the codefendant’s confession into evidence, even with an instruction to disregard it as evidence against Bruton, because it posed a “substantial threat” to his Confrontation Clause rights. It does not defy logic to find that in other circumstances, such as where the defendant’s own confession interlocks with his codefendant’s, the threat is not of such magnitude. Even where remorseless logic may seem to justify the extension of what otherwise might be a sound constitutional rule, common sense should prevail. Otherwise, especially in applying prophylactic rules, we may trivialize the principles of prior cases by applying them to situations that in general do not really pose the dangers that the rules were intended to obviate.

The Court states that “[W]e must face the honest consequences” of the Bruton decision. Ante, at 193. But Richardson v. Marsh, post, p. 200, decided today, recognizes that Bruton cannot be followed to the outer limits of its logic without serious disruption of the State’s ability to conduct joint trials. In Richardson, the Court of Appeals held inadmissible a codefendant’s confession even though it had been redacted to eliminate any references to the defendant, the *198 fear being that the jury, if it disobeyed its instructions, could have drawn unfavorable inferences from the challenged confession when considered together with other evidence. Marsh v. Richardson, 781 F. 2d 1201 (CA6 1986). We reversed the Court of Appeals despite this possibility, thus rejecting the Bruton claim, post, at 211, as we should do in this case.

That the error the Court finds may be harmless and the conviction saved will not comfort prosecutors and judges. I doubt that the former will seek joint trials in interlocking confession cases, and if that occurs, the judge is not likely to commit error by admitting the codefendant’s confession. Of course, defendants may be tried separately and Bruton problems avoided. But joint trials “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial,” Bruton, 391 U. S., at 134 , to say nothing of the possibility of inconsistent verdicts and the effect of severance on already overburdened state and federal court systems. See also Richardson v. Marsh, post, at 209-210.

I thus adhere to the views expressed by the plurality in Parker v. Randolph, 442 U. S. 62 (1979). There was no constitutional error here that Bruton sought to avoid, and no occasion to inquire into harmless error. In announcing its prophylactic rule, Bruton did not address the situation where the defendant himself had confessed, and I would not extend its holding to cases where the jury has heard the defendant’s own confession.

Lee v. Illinois, 476 U. S. 530 (1986), and Ohio v. Roberts, 448 U. S. 56 (1980), suggest that a codefendant’s interlocking confession will often be admissible against the defendant, in which event there would not be the Confrontation Clause issue Bruton identified. 4 Here, the codefendant’s confession *199 carries numerous indicia of reliability; and I gather that the Court’s disposition does not deny the state courts, on remand, the opportunity to deal with the admissibility of that confession against Cruz.

The crime with which Bruton and his eodefendant Evans were charged was the robbery of postal funds from a jewelry store that operated a contract branch for the United States Post Office Department. Evans v. United, States, 375 F. 2d 355, 357 (CA8 1967). Evans was readily identified by the store’s owner and another employee, who knew him as a frequent visitor to the store, but the owner could not identify Bruton as Evan’s accomplice. Ibid. The employee did identify Bruton at trial, but admitted that she had failed to identify him at a first lineup of three persons, and had identified him only at a second lineup, at a time when she suspected that he had been part of the previous lineup. App. in Bruton v. United States, O. T. 1967, No. 705, pp. 70-73.

The Court is of the view that “ ‘interlocking’ bears a positively inverse relationship to devastation.” Ante, at 192. In so reasoning, the Court gives no weight whatsoever to the devastating effect that the defendant’s own confession is likely to have upon his case. The majority’s excuse for ignoring this consideration apparently is that the damaging effect of the defendant’s confession may vary somewhat from case to ease. Ibid. But the Bruton rule is prophylactic in nature, and, in view of the fact that it imposes significant burdens on the prosecution, see Richardson v. Marsh , ;post, at 209-210, the rule should be confined to those cases where the jury’s ignoring of limiting instructions is most likely to change the verdict, which is to say, those cases where there is the greatest risk that jury misconduct will lead to the conviction of an innocent defendant. It is self-evident that, as a class, cases where the defendant has not confessed fit that description far better than cases where the defendant has confessed.

As I read the cases, the Second, Seventh, and Eleventh Circuits follow the course the Court rejects. United States ex rel. Catanzaro v. Man- *197 cusi, 404 F. 2d 296, 300 (CA2 1968); United States v. Paternina-Vergara, 749 F. 2d 993, 998-999 (CA2 1984); United States v. Spinks, 470 F. 2d 64 (CA7 1972); United States v. Kroesser, 731 F. 2d 1509 (CA11 1984). The Fourth and Fifth Circuits lean in that direction, United States v. Smith, 792 F. 2d 441, 443 (CA4 1986); Mack v. Maggio, 538 F. 2d 1129 (CA5 1976); United States v. Miller, 666 F. 2d 991, 997-999 (CA5 1982); and the Tenth Circuit’s view is that any difference between the two views is only a legal nicety, Metropolis v. Turner, 437 F. 2d 207 (1971). The Third, Sixth, Eighth, and Ninth Circuits take the harmless-error route. United States v. DiGilio, 538 F. 2d 972 (CA3 1976); Hodges v. Rose, 570 F. 2d 643, 647 (CA6 1978); United States v. Parker, 622 F. 2d 298 (CA8 1980); United States v. Espericueta-Reyes, 631 F. 2d 616, 624, n. 11 (CA9 1980). The Court of Appeals Judges who have addressed the issue are approximately equally divided as to whether to apply Bruton in interlocking confession cases.

As Justice Blackmun commented in dissent in Lee :

“In Bruton v. United States, 391 U. S. 123 (1968), the inadmissibility of the codefendant’s out-of-court statements against the defendant was not contested .... The Bruton rule thus necessarily applies only to sitúa- *199 tions in which the out-of-eourt statements are constitutionally inadmissible against the defendant.” 476 U. S., at 552, n. 5 .