codefendant who testifies in his own behalf and incriminates the defendant becomes a witness “against” him for Confrontation Clause purposes
How later courts described this case
- codefendant who testifies in his own behalf and incriminates the defendant becomes a witness “against” him for Confrontation Clause purposes
Written by the judges who cited it.
The opinion
WEBSTER, District Judge
(concurring in part and dissenting in part).
I concur in the majority opinion written by Judge SAWTELLE affirming the convictions of Rudolph Bouthellier and Frank Bouthellier, but as to appellant Joseph Brown I respectfully dissent.
After the government had closed its case and the defendants’ several motions for a directed verdict had been denied, Brown announced that he did not intend to introduce any evidence in his behalf. His codefendant, Walter Tooze, took the stand in his own behalf and in the course of his testimony in support of his defense made statements seriously prejudicial to Brown, whereupon counsel for Brown stated: “Let the record show that the defendant Joe Brown announced that he rested upon the motion for directed verdict at the close of the Government’s case and at this time renews his motion to strike out all reference to the defendant Joe Brown which might have been made by some of the witnesses for the other defendants who chose to put in evidence on their behalf. That as far as Joe Brown is concerned any reference thereto should not be binding upon him and should be disregarded by the jury.”
It seems obvious that the testimony of Tooze should not have been eliminated. It was a part of his defense and he had the right to have it considered by the jury in connection with his guilt or innocence, but the portion of the motion which in effect requested the court to limit the testimony to the defense of Tooze and that it should not be considered as affirmative evidence against Brown, in my opinion, should have been granted and that it was reversible error to refuse it. I am unable to see how testimony given by one co-defendant jointly on trial in support of his defense can be regarded as affirmative evidence in behalf of the government against another defendant who elects not to offer any defense after the government has rested its case as to him.