Amicus Curiae Brief — Adam Samia, aka Sal, aka Adam Samic, Petitioner v. United States

Supreme Court briefMar 3, 2023

Ask Donna

What actually matters in this document.

Text

No. 22-196

________________________________________________________

In the United States Supreme Court

_____________________________

ADAM SAMIA, aka Sal, aka Adam Samic,

Petitioner

UNITED STATES OF AMERICA,

Respondent

________________________________

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

____________________________________________

BRIEF FOR PENNSYLVANIA, ALABAMA, ALASKA,

ARKANSAS, COLORADO, CONNECTICUT, DELAWARE,

FLORIDA, GEORGIA, IDAHO, IOWA, KENTUCKY,

LOUISIANA, MAINE, MARYLAND, MICHIGAN,

MINNESOTA MISSISSIPPI, NEVADA, NEW

HAMPSHIRE, NEW JERSEY, NORTH CAROLINA,

NORTH DAKOTA, OHIO, OKLAHOMA, OREGON, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

VERMONT AND VIRGINIA

AMICI CURIAE IN SUPPORT OF RESPONDENT

________________________________________________

MICHELLE A. HENRY

Acting Attorney General

JAMES A. DONAHUE, III

First Dep. Attorney General

1600 Arch Street

Philadelphia, PA 19103

(267) 940-6676

reisenberg@attorneygeneral.gov

RONALD EISENBERG

Chief Deputy Attorney General

Appeals Section

(Counsel of Record)

SUSAN E. AFFRONTI

Senior Deputy Attorney General

MICHELE K. WALSH

Executive Deputy Attorney General

Criminal Law Division

Table of Contents

Table of Citations

Interest of Amici Curiae

Summary of Argument

Argument

Petitioner’s “surrounding context” rule is

just the “contextual implication” rule that

this Court rejected in Richardson, rejected

in Gray, and should reject again now.

II. The Constitution is satisfied when neutral

redaction de-identifies the defendant as a

participant in the crime.

III. Even a properly redacted statement may

(like many other forms of evidence) permit

some risk of an improper inference; that is

why we have jury instructions.

IV. Petitioner’s “modest” proposal is a false

promise.

a) application will not be “simple”

b) cases will not be “few”

c) results will not be “fair”

Conclusion

Table of Citations

Cases

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

1, 2, 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 17, 21, 23, 25, 26

Clark v. Maggio, 737 F.2d 471 (1984)

Crawford v. Washington, 541 U.S. 36 (2004) 3, 17, 20

Gray v. Maryland, 523 U.S. 185 (1998)

i, 1, 2, 4, 7, 8, 11, 12, 15, 16, 25, 26

Harris v. New York, 401 U.S. 222 (1971)

17, 19

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

i, 2, 4, 5, 6, 7, 8, 12, 13, 16, 17, 23, 24, 25, 26, 27

Tennessee v. Street, 471 U.S. 409 (1985)

16, 17, 19

United States v. Garcia, 836 F.2d 385 (1987)

Constitution and Rules

U. S. CONST., amend. VI

3, 10, 16, 20

Fed. R. Evid. 105

Fed. R. Evid. 404(b)

Fed. R. Evid. 412

iii

Fed. R. Evid. 610

Fed. R. Evid. 801(d)(1)(A)

Other Authority

Brendan O’Flaherty & Rajiv Sethi, Witness

Intimidation, 39 J. Legal Stud. 399 (2010)

Court Statistics Project,

National Center for State Courts

https://www.courtstatistics.org/court-statistics/

state-versus-federal-caseloads

Court Statistics Project,

National Center for State Courts

https://www.courtstatistics.org/courtstatistics/interactive-caseload-data-displays/

csp-stat-nav-cards-first-row/csp-stat-criminal

Margaret O’Malley, Witness Intimidation in the

Digital Age, The Prosecutor (2014)

https://pceinc.org/wpcontent/uploads/2015/06/Witness-Cooperationand-Intimidation-Witness-Intimidation-In-theDigital-Age.pdf

Witness Intimidation, U.S. Dep’t of Justice,

Community Oriented Policing Services (2006)

https://cops.usdoj.gov/ric/Publications/cops-p112pub.pdf

Interest of Amici Curiae

Almost all criminal jury trials occur in the state

courts. Over the past decade, the number likely

exceeds half a million. Of these jury trials there have

been thousands involving multiple defendants, at

least one of whom gave a statement to police. Thus the

Bruton rule has been of considerable impact.

In some jurisdictions, interpretation of Bruton has

been inconsistent. But most States have managed to

accommodate both the public interest and the confrontation rights of the accused, often by redacting codefendant confessions in accord with this Court’s

instructions in Gray v. Maryland. This case threatens

to break that balance. Petitioner’s bid to require “contextual analysis,” although this Court has specifically

rejected it, would typically make redaction impossible.

Severance would be the general rule.

The costs to the States would be high, but these are

not money costs. When caseloads rise, expenditures

don’t keep pace. Retrials just displace new trials.

Defendants wait longer for resolution of their charges,

often in pre-trial detention. Victims of these multidefendant crimes cannot move forward. And witnesses, many of whom are for good reason reluctant to

testify at all, must return to court repeatedly, risking

social media scorn and physical safety. The amici

States therefore have an interest in the proper

disposition of this case.

The amici States are Pennsylvania, Alabama,

Alaska, Arkansas, Colorado, Connecticut, Delaware,

Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana,

Maine, Maryland, Michigan, Minnesota, Mississippi,

Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South

Carolina, South Dakota, Tennessee, Utah, Vermont,

and Virginia.

Summary of Argument

Petitioner’s argument rests on an adverb error. He

and his supporters use modifiers from the Court’s

precedents – words like “directly” accusatory and

“immediately” inculpatory – as if they mean the

amount of accusation or inculpation. So if other evidence would likely enough lead a jury to infer that a

cohort’s redacted confession refers to the defendant’s

conduct, even though it never names him, then the

confession becomes “directly” accusatory. And a confession that is directly accusatory, says petitioner,

violates Bruton.

But that is not how the Bruton cases use these

adverbs at all. They are qualifiers, not quantifiers:

they describe a particular class of incrimination, not

its strength. In Richardson, and again in Gray, the

Court held that incrimination implicating the Bruton

rule arises from the language of the confession on its

face, not from the “context” of the entire trial. While

Bruton itself spoke of powerful incrimination, the

later holdings make clear that the inquiry is

categorical, not case-by-case. A confession that reveals

neither identity nor the fact of redaction is, by

definition, not “directly” accusatory.

Petitioner complains that such confessions may be

unreliable. But as the Court recognized in Crawford,

the Sixth Amendment contains no per se Reliability

Clause. The right in question is confrontation and,

absent facial incrimination, the way to enforce that

provision in a joint trial is by instructing jurors to

consider confessions only against their maker.

We use instructions for far harder evidentiary

distinctions. We expect jurors, for example, to consider

even a defendant’s own, un-Mirandized confession

only for impeachment purposes, and not for its substance. We expect them to consider even a defendant’s

own prior crimes only as to motive, and not character.

These and many other instructions might by some be

disregarded and, if so, to devastating effect. But the

principle that juries follow the law is not merely a

presumption or a proof; it is an axiom without which

there could be no jury trials.

Bruton is a rare and limited departure from this

principle, and petitioner would take the limits off. His

“inferential” incrimination standard assumes that

juries ignore instructions and that virtually all statements are too “powerful” for them to resist. Any confession, however emended, can be said to incriminate,

because the statement of a co-defendant always

describes the criminal activity for which the defendant

is on trial, and the other evidence always establishes

the defendant’s participation in that activity. The

actions of each can always be imputed to the other.

But even if petitioner’s “surrounding context” rule

could distinguish between powerful and “un”-powerful

incrimination in theory, it couldn’t in practice. Petitioner says courts can discern the difference, before

the trial even starts, by looking at “controllable”

factors like the number of defendants and the order of

witnesses. But his test is really neither cardinal nor

ordinal. As he shows in discussing his own case,

contextual implication depends on exactly what the

prosecution says in its arguments and examinations,

exactly how witnesses respond in their answers, and

exactly when all these words are uttered. In real trials

there are no advance scripts for all that.

The ineluctable if not intended outcome will be

severance. The casualties will, in some cases, be other

defendants, and in all cases the victims and witnesses

who must run the gamut through trial and retrial.

That is not a result required by the Constitution.

Argument

Petitioner’s “surrounding context” rule is

just the “contextual implication” rule that

this Court rejected in Richardson, rejected

in Gray, and should reject again now.

We have been here before. The Sixth Amendment

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

bars admission of the statement of a non-testifying codefendant if the statement names the defendant as a

participant in the crime. Petitioner contends that the

exclusion applies even when the statement does not

identify the defendant, as long as the other evidence

in the case does. Petitioner treats this position as a

modern synthesis of the Court’s Bruton precedents,

but in fact it is their antithesis. His arguments are the

arguments this Court has already rightly refused.

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

Court expressly disapproved petitioner’s “surrounding

context” approach, which the Court variously referred

to as “contextual implication,” “evidentiary linkage,”

and “inferential incrimination.” Id. at 206, 208, 209.

The court of appeals had addressed Marsh’s Bruton

claim by “examining not only the face of the confession, but also all of the evidence introduced at trial.”

Id. at 206. That was improper, held this Court. A codefendant’s statement falls within the Bruton exclusion only if it incriminates the defendant “on its face,”

by identifying him. Other evidence of his guilt is not

relevant. Id. at 208.

Yet petitioner insists that Richardson, which

explicitly rejected contextual implication, actually

requires it. He notes the Court’s comment that the

confession there was altered to “eliminate not only the

defendant’s name, but any reference to his or her

existence.” Id. at 211. He says this means, as a general

rule, that all statements must be redacted that way,

to remove not just the defendant’s identity, but any

reference to the role he played in the crime. Otherwise,

petitioner says, the jury can use the other evidence in

the case to link him to the confession. Linking, he

says, means incrimination, and incrimination means

a Bruton violation.

That assertion misses Richardson’s actual meaning. It isn’t about whether a confession, when linked

to other evidence, is likely to incriminate. It is about

whether that kind of incrimination – inferential

incrimination – is remedied by exclusion, or by jury

instructions.

The answer is plain: instructions, not exclusion.

The Court was well aware that inferential incrimination is still incrimination. But it concluded that

this kind of incrimination is simply not exempt from

the rule that limiting instructions perform their

purpose. “The very premise of our discussion is that

respondent would have been harmed by Williams’

confession if the jury had disobeyed its instructions.”

Id. at 208 n.3. It was one thing to reverse in Bruton

itself, where the confession explicitly named the

defendant. But, where identity is inferred from

context outside the confession, the cure is a limiting

instruction. “[E]vidence requiring linkage differs from

evidence incriminating on its face,” explained the

Court. “[T]he calculus changes when confessions that

do not name the defendant are at issue.” Id. at 208,

211 (emphasis supplied).

The dissenting justices in Richardson surely saw

what the Court was saying, and it was contrary to

petitioner’s reading. “Today,” they acknowledged, “the

Court draws a distinction of constitutional magnitude

between those confessions that directly identify the

defendant and those that rely for their inculpatory

effect on … other evidence before the jury.” Id. at 212

(Stevens, J., dissenting) (emphasis supplied). And

they specified what was meant by “directly identified”:

“Today the Court … draws a line between codefendant

confessions that expressly name the defendant and

those that do not.” Id. at 213 (emphasis supplied). As

everyone on the Court understood, the question after

Richardson isn’t whether the statement may

inferentially incriminate in a particular case. The

question is whether the statement “facially”

incriminates, on its language alone.

And in the next case, that is exactly the question

the Court addressed. In Gray v. Maryland, 523 U.S.

185 (1998), the Court applied just the same

distinction: between statements that incriminate on

their face – i.e., without consulting the “surrounding

context” – and statements that do not. The Court held

that “obvious” redaction with X’s is like the statement

in Bruton, where the defendant was directly identified

in the statement itself. The Court held that such

redaction is unlike the statement in Richardson,

which bore no signs of editing, and “became” incriminating only when linked with other, properly

admitted evidence outside the statement. Id. at 196.

Yet petitioner insists that Gray, which barred

redaction that is obvious on its face, actually bars

redaction that is not obvious on its face, and which

becomes incriminating only by inference from outside

evidence. He notes the Court’s comment that its ruling

depends on “the kind of, not the simple fact of,

inference.” Id. He says this means that “inference” is

back on the table.

That assertion misses Gray’s actual meaning. The

Court was quite specific about the kind of inference

that counts for Bruton purposes, and it is not the kind

petitioner wants. The kind of inference that triggers

the Bruton bar is the kind that is “obvious” on the face

of the statement. The Court made this point not just

once, or twice, but at least ten different times. 1 Such

a statement is immediately inculpatory not because of

the “surrounding context,” but because the jury will

instantly know, from the language itself, that the

statement was tampered with in order to disguise the

defendant’s identity. When they’re confessing to a

crime, no one says “I did it with deleted and blank

space.”

A statement redacted that way, said Gray, “facially

incriminates.” Id. at 196 (emphasis in original). But a

statement that inculpates only by inference from

other evidence does not facially incriminate, and is

thus “outside the scope of Bruton’s rule.” Id. at 195. In

case there was doubt on this point, the Court restated

it in concluding its opinion: Bruton “does not depend,

in any special way, upon the other evidence

introduced in the case.” Id. at 197. Confessions are

assessed on their content, not against the “surrounding context.”

The rule of Gray, which is the rule of Richardson,

should remain the rule – because petitioner’s pre1 “an obvious blank space or symbol or word such as ‘deleted,’” id.

at 189; “an obvious indication of deletion, such as a blank space,

the word ‘deleted,’ or a similar symbol,” id. at 192; “an obvious

blank space or a word such as ‘deleted’ or a symbol or other similarly obvious indications of alteration,” id.; “an obvious blank,”

id. at 193; “the obvious deletion,” id.; “devices … so obvious,” id.

at 194; “a blank or some other similarly obvious alteration,” id.;

“[t]he blank space in an obviously redacted confession,” id.; “an

obvious blank, the word ‘delete,’ [or] a symbol,” id. at 195.

ferred replacement is just circular reasoning. He says

a co-defendant statement may inferentially incriminate the defendant if the “surrounding context”

confirms that he participated with the co-defendant in

the crime. But it always does. The prosecution always

has sufficient evidence to prove the defendant’s

involvement, or the court would not advance the case

to trial.

Under petitioner’s theory, the stronger and more

detailed that other evidence, the more likely the jury

is to “link” it to the co-defendant’s confession, despite

redaction. Perversely, then, the probability of reversible error is inversely related to the strength of the

prosecution’s case. The more certain the defendant’s

guilt, the more entitled he becomes to exclude the codefendant’s statement. And yet, on petitioner’s logic,

the converse is also true. The sparser the case against

the defendant, the more salient the statement may

appear.

So the “surrounding context” standard can easily

be applied by the defendant either way. If the other

evidence against him is compelling, the statement

becomes “inferentially incriminating”; if the other evidence against him is thin, the statement also becomes

“inferentially incriminating.” “Inferential incrimination” is inevitable.

But a purported legal test that always yields the

same result is no test at all. The flaw in the proposed

standard is its premise. In a joint prosecution, the

“surrounding context” always suggests that the defendants on trial took part in the crime; they are the

ones sitting in the courtroom. The Sixth Amendment

issue arises not from the context, but from the

unconfronted evidence, which is the statement itself.

The proper focus is on the content of the statement the

jury will hear. That is the subject of the following

section.

II. The Constitution is satisfied when neutral

redaction de-identifies the defendant as a

participant in the crime.

The Confrontation Clause provides that “the

accused shall be afforded the right … to be confronted

with the witnesses against him.” When a cohort’s confession is admitted only against himself and does not

identify the defendant, or is redacted to remove his

identity, the confessor is no longer a witness against

him. That is where Sixth Amendment analysis should

end.

We say “identity” rather than “name” because it is

identity that constitutes the accusation. Many people

are as identifiable by a particular nickname, or by

specific physical characteristics, as by the name on

their birth certificate. As long as such identity information is removed and the jury is properly instructed,

it is not the statement that is doing the accusing. It is

the independent evidence of the defendant’s guilt,

which must be proven beyond a reasonable doubt.

For redaction to work, of course, it must be

invisible. If the jurors know the statement has been

stripped of identifying information, they will know

why – to mask someone’s identity. The mask, as this

Court recognized in Gray, 523 U.S. at 193, is itself a

form of identification. And identification, whether by

a legal name, an a/k/a, a physical hallmark, or a selfevident redaction, is “directly accusatory,” and therefore a Bruton violation. Id. at 194.

Accordingly, the redactions must be natural, and

neutral. New language should blend with the old.

Generic terms should be used: “We.” “Another guy.”

“The kid I was with.” In cases where redaction in

verbatim, first-person form would be too awkward, the

statement can be presented in the third person,

through paraphrase.

These guidelines are not all that complicated. They

are certainly not new. This is exactly what the Court

told prosecutors to do in Gray. The prosecution there

had redacted the co-defendant’s statement to say “Me,

deleted, deleted, and a few other guys.” The Court

explained that the statement should have been

redacted to say, instead, “Me and a few other guys.”

Id. at 196. For clarity the Court then provided two

contrasting examples: a proper redaction, in which the

defendant’s name was simply replaced with the word

“someone”; and an improper redaction, which replaced

the names with the phrase: [identified the names of

the two other individuals]. Id. at 197, citing United

States v. Garcia, 836 F.2d 385 (8th Cir. 1987), Clark v.

Maggio, 737 F.2d 471 (5th Cir. 1984).

Petitioner nowhere acknowledges Gray’s instructions for proper redaction. But he has numerous complaints about the practice nonetheless.

His primary protest is that only “role” redaction,

not identity redaction, is sufficient to prevent incrimination by inference. Redaction, he says, must

remove any reference to the fact that the defendant

even exists. That’s legally wrong, as discussed above:

Richardson rejected the use of inferential incrimination period, whether the inference is based on a roleredacted statement or an identity-redacted statement.

And we also know from Gray that role-redaction isn’t

required, because otherwise that opinion could have

been short and sweet: “deleted” and “blank space”

reveal the existence of someone; that is not allowed;

case closed.

But petitioner’s claim about role-redaction isn’t

just legally wrong; it’s also factually wrong. Role

redaction doesn’t prevent inferential incrimination.

Richardson shows that. The victim identified Marsh,

the defendant, and testified that Marsh took part in

every stage of the crime. The co-defendant’s

confession, even after removing any reference to

Marsh’s existence, “largely corroborated [the victim’s]

account.” 481 U.S. at 202-04. Marsh later chose to take

the stand, in an effort to explain away the confession;

but she did that precisely because the link to her was

already evident. Even before she testified, the jurors

knew full well how the crime went down, and that

Marsh was intimately involved. Had they wished to

violate their instructions, they could easily have

inferred that everything the confessor said about his

own actions also applied to her. All they needed in

order to make that inference was the victim’s

testimony and the co-defendant’s redacted statement.

And what was true in Richardson is always true.

The evidence against the defendant will always

correlate with the content of the confession, no matter

how it is redacted, because both are describing the

same events. In some cases there will be more overlap;

in some cases less; in some cases there will even be

contradictions. But in every case a jury could (but for

its instructions) use the confession either to validate

corresponding testimony or to “fill in the blanks” for

any points not covered by the other evidence. No form

of redaction can prevent that and under Bruton it

doesn’t have to. All it has to do is de-identify in order

to avoid facial incrimination.

But, says petitioner, identity redaction doesn’t

accomplish that. Even the most neutral, generic

redactions, he claims – like “the other guy” – will still

be obvious to the jury. He contends that any such

phrase will “jump out” as artificial because officers

would have asked the suspect who the other guy was

and the suspect would have answered. Pet. Br. at 30.

If only that were the case. It would be preferable if

perpetrators always identified their accomplices, but

reality is otherwise. Sometimes criminals commit

crimes with “friends of friends” whose names they

don’t even know. And even when they do know, they

are often unwilling to say so – whether from fealty to

a code, or fear of retaliation. It is the same with

civilian witnesses. Jurors live in the real world; they

have heard the words “stop snitching.” They realize

that people who talk to the police often get hazy when

it comes to naming names.

Petitioner says that neutral redaction is still bad

because it conceals the defendant’s identity, but not

the total number of participants in the crime. Pet. Br.

at 34-35. Whatever that number may be, though, an

identity-redacted confession is not directly accusatory,

and raises no Bruton issue. “Three other guys” could

be any three guys in the world. The only way the

prosecution can convict the defendant is by proving,

through evidence outside the redacted statement, that

he was one of those three.

That’s not sufficient, asserts petitioner. He says

numbers are incriminating because jurors need only

lift their eyes to see three accused people sitting at the

defense table. But that is true in any trial, even

against a single defendant. If jurors can count to

three, they can surely count to one. They know, merely

by lifting their eyes, that police and prosecutors have

determined the defendant is guilty, and that they

must have their reasons for that determination. That

reality raises concerns that judges must of course

address, in every trial. But not by invoking Bruton.

Petitioner says that neutral redaction is bad in another way. Redaction, he claims, gives the prosecution

“free reign” to unmask the edits by explicitly arguing

that “the other person” in the confession is the

defendant. Pet. Br. at 33-34. But of course it doesn’t –

any more than suppression of an illegally seized gun

gives the prosecution free reign to tell the jury about

the gun. If the judge has ordered redaction to remove

the fact that the confession named the defendant, the

prosecution is of course not permitted to tell the jury

that the confession named the defendant.

But that’s apparently not petitioner’s real claim.

His real claim is apparently that the prosecution

shouldn’t be able to talk about the other evidence that

serves to identify the defendant, because then the jury

might “infer” that he was “the other guy” in the

confession. That suggestion is insupportable. The

prosecution has every right to present proper evidence

of the defendant’s guilt, and to lay that evidence out

both in its opening and in its closing. All it cannot do

is ask the jury to convict the defendant based on the

co-defendant’s confession, any more than it can ask the

jury to convict the defendant based on any other

evidence that is not admissible against him.

The flaw in all these arguments is their premise.

Petitioner contends, throughout his brief, that the

jury must never be “allowed” to make any improper

inferences from a co-defendant’s confession. The problem is that Bruton was never designed to do all that

work itself. It addresses, as petitioner acknowledges,

only a specific “kind of, not the simple fact of, inference.” Gray, 523 U.S. at 196. The rest is a matter for

the same mechanisms we use with every other type of

potentially prejudicial evidence, as discussed in the

section below.

III. Even a properly redacted statement may

(like many other forms of evidence) permit

some risk of an improper inference; that is

why we have jury instructions.

“Ordinarily, a witness whose testimony is

introduced at a joint trial is not considered to be a

witness ‘against’ a defendant if the jury is instructed

to consider that testimony only against a codefendant.”

Richardson, 481 U.S. at 206 (emphasis supplied).

The reminder is especially relevant here.

Petitioner would overrule Richardson and Gray and

require exactly the “evidentiary linkage” the Court

has previously rejected. He would do so on the claim

that co-defendant statements, even when properly redacted in accordance with Gray, are so incomparably

incriminating that they must be made a unique exception to the ordinary rule.

But that claim falls flat. Courts rely on limiting

instructions all the time to distinguish between proper

and improper uses of the same piece of evidence. They

do it in enforcing constitutional rights; they do it to

implement evidentiary rules; they do it for proofs with

at least as much potential for prejudicial misuse as the

statements in question here.

The most striking example, for present purposes,

is co-defendant confessions themselves. In Tennessee v.

Street, 471 U.S. 409 (1985), the prosecution introduced

a co-defendant’s confession to rebut the defendant’s

claim that his own statement had been fabricated by

police, modeled on his cohort’s. “If the jury had been

asked to infer that Peele’s confession proved that

respondent participated in the murder, then the

evidence would have been hearsay,” said the Court,

“and because Peele was not available for crossexamination, Confrontation Clause concerns would

have been implicated. The jury, however, was pointedly instructed by the trial court ‘not to consider the

truthfulness of [Peele’s] statement in any way whatsoever.’” Id. at 414-15. The limiting instruction did the

trick, even for a completely unredacted co-defendant

confession.

Petitioner never mentions Street. He may consider

it too old, and no longer good law. But it was decided

after Bruton, so the Court was surely mindful of the

“powerfully incriminating” possibilities of codefendant confessions, yet still found jury instructions

sufficient. In fact in Richardson itself, the Court cited

Street as an exemplar of the efficacy of instructions.

481 U.S. at 207. And since then the Court has

reaffirmed Street yet again – in its most recent and

comprehensive treatment of the constitutional provision at issue here. Crawford v. Washington, 541 U.S.

36, 59 n.9 (2004).

But instructions don’t just suffice for co-defendant

statements; they work even for a defendant’s own

confession. In Harris v. New York, 401 U.S. 222 (1971),

the prosecution used the defendant’s un-Mirandized

confession, in which he freely admitted selling drugs,

to rebut his trial testimony, in which he flatly denied

it. The jury, however, was instructed by the trial judge

to consider the statement only for impeachment, and

not to consider it in deciding on the defendant’s guilt

of the crimes he had confessed to. This Court found no

Fifth Amendment violation: the limiting instruction

eliminated it.

These are far from the only constitutional fair

trial rights that depend entirely on jury instructions.

We exhort jurors to bring their everyday common

sense into the courtroom, and then we tell them they

can’t consider the defendant’s failure to testify in

answer to the charges against him. We enjoin them

not to look at media coverage, and then we send them

home with their smartphones. We expect them to

convict only upon proof beyond a reasonable doubt –

and yet the concept, so vital, is so abstruse that even

trying to define it may be dangerous. No one would say

these instructions are easy. But still we count on the

jury to carry them out.

The same is the subtext of an entire range of

evidentiary rules. There is a proper purpose, and an

improper purpose, and all that separates them is the

limiting instruction. The rape shield bars evidence of

the victim’s sexual predisposition, but permits jurors

to consider prior sexual behavior relative to injury or

consent. Fed. R. Evid. 412. A witness’s religion is

never relevant to her credibility, but may be used to

show bias. Fed. R. Evid. 610. Unsworn prior inconsistent statements are fine, for impeachment; but do

not think about counting them as “substantive”

evidence. Fed. R. Evid. 801(d)(1)(A). Even a defendant’s prior record of similar crimes is admissible to

show opportunity or intent – but certainly not as evidence of his propensity to commit such a crime. Fed.

R. Evid. 404(b). And a special rule exists for joint

trials, so that any type of evidence against just one

defendant, however powerful it may be, is not

considered against any other defendant. Fed. R. Evid.

105.

In all of these situations, jury instructions are not

merely incidental; everything depends on them. With-

out limiting instructions, the distinctions drawn by

the rules would be literally meaningless.

But none of that matters here, says petitioner; on

this one thing, juries cannot be trusted. No instruction

will dissuade them from entering the path of inference

and using it to convict the defendant based on

evidence they were warned not to consider. Co-defendant statements, we are told, are “uniquely” prejudicial, even when they have been properly redacted to

remove any language identifying the defendant as a

participant.

But this “uniqueness” claim is overblown. A redacted confession is not more prejudicial than an

unredacted confession, yet the unredacted confession

is admissible with limiting instructions under Street.

A redacted confession is not more prejudicial than the

defendant’s own confession, which is admissible with

limiting instructions under Harris. And it is hard to

imagine any evidence more damaging to a defendant

than a lengthy recitation of prior crimes that match

the current offense, yet these are admissible too, with

limiting instructions.

Still, say petitioner and his amici, a co-defendant’s

statement is different, because it may be “unreliable.”

Criminals, they contend, sometimes try to shift blame

to their cohorts. Yes, they do sometimes, and sometimes they don’t. Some confessions are more reliable,

and others less.

But the purpose of a limiting instruction here is

not to temper the jury’s consideration of potentially

unreliable evidence. If it were, then the instruction to

be given would be a cautionary instruction, such as

corrupt source, not a limiting instruction. Limiting

instructions are often needed most in precisely those

situations where the evidence is reliable. Voluntary

but un-Mirandized confessions are not untrustworthy;

prior inconsistent statements are frequently more

credible than trial testimony; prior crimes evidence is

often highly probative.

So the reason for limiting instructions when a codefendant gives a statement is not that the statement

lacks inherent indicia of reliability. The reason for the

instruction is that the Confrontation Clause applies.

As Crawford teaches, reliability vel non is irrelevant.

541 U.S. at 63. No matter how reliable the co-defendant’s confession may be, no matter how thoroughly it

is corroborated by other evidence, it remains

inadmissible against the defendant unless the codefendant chooses to take the stand.

When he doesn’t, and instructions are given, they

are no different than most other limiting instructions,

and no less effective. We tell the jury it can consider

certain evidence for one purpose but not another, no

matter how tempting it might be to intermingle them.

The temptation is not greater for identity-redacted

confessions than it is for other kinds of evidence such

as powerful impeachment material, or records of prior

crimes. If anything it is less, because in these other

cases, no “inference” is necessary. The improper purpose is apparent on the face of the evidence; we just

tell jurors to put it aside. If they can do it there they

can do it here.

IV. Petitioner’s “modest” proposal is a false

promise.

But, suggests petitioner, why take the chance?

Why rely on neutral redaction and limiting

instructions when we can conduct a pretrial hearing

at which the trial court will assess, inter alia, the

prosecution’s arguments to the jury, its questions to

witnesses, and the content of its evidence? The court

can then decide, in advance, whether to let the

prosecution use the statement at all.

Petitioner says this is a “modest price to pay” in

order to effectuate his “surrounding context” approach

to Bruton analysis. Pet. Br. at 17. He and his

colleagues assure us that the process will mostly be

“simple.” In any event, they say, it will be needed in

only a relatively “few” cases. And it is the only way,

they assert, to achieve “basic fairness.” None of those

claims are correct.

a) application will not be “simple”

Petitioner says this pretrial “surrounding context”

review would be “a common-sense and administrable

rule.” Pet. Br. at 4. His amicus says it would generally

be a “simple” undertaking. Former Judges Br. at 7.

But a glance at petitioner’s application of the

process to his own case shows that this is false.

Petitioner employs “surrounding context” to mean not

just the total number of defendants, but the phrasing

of any questioning related to the confession, the exact

answers to those questions, the substance of all the

other evidence in the case-in-chief, the order of its

presentation, and the prosecution’s “theory of the

case,” as expressed in the specific language of its

opening and closing arguments. He quotes punctiliously from particular passages throughout the trial

transcript to make his points. Pet. Br. at 39-44.

Petitioner asserts that all such material can,

somehow, be reviewed before trial – and without

requiring the prosecution to have “precisely mapped

out” what it will do and say as the case progresses.

Pet. Br. at 39. But petitioner’s amicus is more

realistic, admitting that the judge would have to

“review[] drafts of the prosecution’s proposed questions.” Former Judges Br. at 7. And it’s not just the

questions: there would have to be “drafts” of everything – the questions, the answers, the opening and

closing arguments. Only that kind of “drafting” could

come close to duplicating the post-trial review that

petitioner engages in for himself.

But trials are not TV shows. There is no roomful

of writers crafting a screenplay to be acted out before

the jury. Things happen – especially in short-staffed

cases on crowded state dockets. Civilian witnesses

often fail to appear at the appointed time. Experts are

away on other business. Police officers are called out

on emergencies. Judges do not say: “Take your time.

We’ll put the jury on ice.” They say: “Next witness.”

When those witnesses do get to the stand, they

seldom testify exactly as anticipated, no matter how

well prepped. And when all its witnesses are done, and

the prosecution rests, it never knows for sure what

will happen next. Will the defendant call witnesses?

Will he testify himself? Or will the defense rest? Final

decisions on these matters are often reserved until

after the case-in-chief, because defense lawyers know

that the actual evidence many times differs from the

expected evidence.

As a result, pretrial review of the “surrounding

context” is a contradiction in terms. The context, says

petitioner, means the complete record, but the record

doesn’t exist yet. This Court has already recognized as

much in Richardson. “Bruton can be complied with by

redaction” before trial, held the Court, but only “[i]f

limited to facially incriminating confessions.” Once

“extended to confessions incriminating by connection”

with other evidence, however, “that [is] not possible.”

An assessment “in light of the all the evidence” could

be done only “at the end of each trial,” 481 U.S. at 20809 – not before it even begins.

b) cases will not be “few”

Petitioner and his allies, though, suggest we need

not worry too much about how to conduct these

pretrial hearings, because we won’t need very many.

Bruton issues, they claim, just don’t come up that

often. One amicus believes there are “relatively few”

joint trials, “much less” joint trials involving

confessions. NACDL Br. at 20. Another says only 2%

of federal criminal cases even get to trial, because the

rest plead. N.Y. Lawyers Br. at 21.

But that statistic leaves something out: the state

courts. The Court Statistics Project of the National

Center for State Courts reports that, “[b]etween 2012

and 2021, an average of 98.5% of U.S. Court cases

were filed in state courts. Only 1.5% were filed in

federal courts.” 2

Most of these 98.5% of all cases, of course, were

not criminal and did not result in jury trials. But the

Center supplies relevant information on that point.

The Court Statistics Project has compiled a decadeworth of data. From 2012 to 2021, the number of

criminal jury trials in the reporting states – which was

less than half of the states – was 338,066. 3

Most of these 338,000 criminal jury trials, of

course, were not joint trials. But this Court has

supplied relevant information on that point, in the

Richardson case. In the five years previous to that

decision, reported the Court, joint trials accounted for

almost one third of federal criminal trials. 481 U.S. at

209. There is no obvious reason the rate would be

2 https://www.courtstatistics.org/court-statistics/state-versus-

federal-caseloads, last visited March 2, 2023.

3 https://www.courtstatistics.org/court-statistics/interactive-

caseload-data-displays/csp-stat-nav-cards-first-row/csp-statcriminal, last visited March 2, 2023.

The total represents data from approximately twenty states;

the other 30, including large jurisdictions such as Illinois,

Pennsylvania, and New York, supplied no data for most of this

period. The actual number of criminal jury trials in state courts

was therefore likely over 500,000, even with many fewer trials in

2020 and 2021 due to the pandemic.

significantly lower in state court, but even assuming

it is much lower, say 10%, then the number of state

criminal trials involving multiple defendants was, for

the pre-pandemic period in the reporting states,

approximately 34,000.

Some of these 34,000 joint trials, of course, did not

involve confessions. But petitioner’s partners supply

relevant information on that point. An amicus reports

that data demonstrate “the sheer ubiquity of confessions,” with studies showing that 65% to 80% of

criminal suspects make statements to police. N.Y.

Lawyers Br. at 8 n.2. Even assuming the actual rate

is much lower, say 50%, then the total number of jury

trials involving multiple defendants and confessions,

during the relevant period in the reporting states, was

at least 17,000. And that number is artificially low,

given the limited state dataset and the conservative

assumptions applied. The true national figure would

of course be much higher.

That is a significant number of Bruton cases: more

than a “few,” and certainly enough to warrant a

genuinely workable way to apply the Court’s precedent. Identity redaction of the confession “on its face,”

Richardson, 481 U.S. at 208; Gray, 523 U.S. at 196,

provides such a method. Pretrial “surrounding

context” review does not.

c) results will not be “fair”

Ultimately, says petitioner, it doesn’t really

matter whether it would be difficult to manage his

rule. What matters is “basic fairness,” which he says

can be secured only by adoption of his proposed constraints on the use of confessions in joint trials. Pet.

Br. at 31. But the unfairness actually runs the other

way.

Petitioner says it is unjust that a defendant must

face the possibility of inferential incrimination merely

because he happens to be tried together with his accomplices. But that does not just “happen.” It happens

because he was shown upon probable cause to have

acted in concert with others to commit a criminal act.

If, as is often the case, he is less culpable than his

cohort, or the evidence against him is less strong, he

may well benefit from being tried jointly rather than

apart. In any case, the limited purpose for which a

confession may be introduced at a joint trial is no more

unjust to him than the limited purpose for which other

evidence may be introduced. The prosecution does not

receive a “windfall” because it offers evidence that the

rules permit it to use.

The only windfall here would be to petitioner.

Richardson and Gray rejected contextual implication

precisely because it would blow wide open the very

limited exception, crafted in Bruton, to the cardinal

rule of the criminal justice system: that juries follow

instructions. Petitioner wants to reverse that rule and

establish a contrary presumption that, if jurors can

draw an improper inference from a confession, they

will draw that inference, duty be damned. The effect

of such a rule (as petitioner and his supporters no

doubt know) would be a surge in severance orders and

a spate of separate trials.

Petitioner says that’s acceptable, because a loss of

joint trials would just be a loss of “efficiency.” To

further play down this concern, he places the word

“efficiency” inside quotation marks, as if to imply that

penny-pinching prosecutors are just trying to save a

buck. Pet. Br. at 31. But of course it’s not about the

money; it’s about the squandering of scarce justice

resources. The effects will fall on everyone, including

the accused.

When multiple participants in the same criminal

offense are tried separately, the winners are few, and

random. Earlier-tried defendants, as this Court noted

in Richardson, will be without the advantage of prior

transcripts that map out the prosecution’s case and

the weaknesses of its witnesses. 481 U.S. at 210.

Later-tried defendants may get lucky if witnesses

become unavailable, but they will sit in jail for many

extra weeks and months waiting their turn. Other

defendants on the docket will also be denied their

timely day in court. And the public will bear the risk

of inconsistent justice when different defendants are

tried on different evidence before different fact finders

for the same crimes. Id.

And then there are the victims and witnesses, who

hold no place in petitioner’s analysis. Multi-defendant

offenses are often more serious and more violent than

the norm; that is why conspiracy is a crime. These are

frequently gang- and drug-related cases, sometimes

sex crimes. Trial transcripts wind up posted on social

media. Witnesses are without recourse; in most cases

there is no “federal witness protection program”

promising a new life in a new locale. Often it is

possible to do no more than relocation to a different

neighborhood, and then only for a few weeks or

months. 4

It is struggle enough to bring witnesses into court

for one trial in such circumstances, let alone for

“[W]itness intimidation is pervasive and increasing….

Prosecutors estimate that witness intimidation plays a role in 75

to 100 percent of violent crime committed in gang-dominated

neighborhoods…. The time between a suspect’s arrest and trial

is the most dangerous; repeated and lengthy trial delays expand

the opportunities available to a motivated intimidator.” Witness

Intimidation, U.S. Dep’t of Justice, Community Oriented Policing Services, at 5, 9 (2006), https://cops.usdoj.gov/ric/Publications

/cops-p112-pub.pdf.

“Police in many cities … describe chronic difficulties with

witnesses who refuse to step forward and witnesses who change

their testimony at the last minute.” Brendan O’Flaherty & Rajiv

Sethi, Witness Intimidation, 39 J. Legal Stud. 399, 400 (2010).

Witness intimidation is common in “major urban areas [such

as] Baltimore, Philadelphia, Newark, Chicago, Oakland and Los

Angeles,” but also occurs “with surprising frequency in

communities such as Portland, Santa Fe, Pottstown, Buffalo,

Denver, Charleston and Chattanooga…. [I]ntimidation pervades

serious and violent felonies, domestic violence and gang crimes”

but “also occurs in lesser felony, misdemeanor and even traffic

cases.” Margaret O’Malley, Witness Intimidation in the Digital

Age, The Prosecutor, at 15 (2014), https://pceinc.org/wp-content/

uploads/2015/06/Witness-Cooperation-and-Intimidation-Wit

ness-Intimidation-In-the-Digital-Age.pdf.

reruns. When accomplices are tried together, victims

can at least be given some assurance that the ordeal

will be done and the perpetrators, if proven guilty beyond a reasonable doubt, punished. No such promises

can be made when witnesses must testify at many

trials in seriatim.

Multiple trials, therefore, multiply uncertainties

for defendants, danger and distress to witnesses, and

pressures on the justice system. These are not consequences that add up to “basic fairness.” Petitioner’s

arguments should be rejected.

Conclusion

For these reasons, the State amici curiae respectfully request that this Court affirm the court of

appeals and reaffirm its prior holdings on facial versus

inferential incrimination.

Respectfully submitted,

MICHELLE A. HENRY

Acting Attorney General

Pennsylvania

JAMES A. DONAHUE, III

First Deputy

Attorney General

MICHELE K. WALSH

Executive Deputy

Attorney General,

Criminal Law Division

RONALD EISENBERG

Chief Deputy Attorney

General, Appeals Section

(Counsel of Record)

SUSAN E. AFFRONTI

Senior Dep. Attorney General

1600 Arch Street

Philadelphia, PA 19103

(267) 940-6676

reisenberg@attorneygeneral.gov

Additional Counsel on following pages

Steve Marshall

Attorney General

Alabama

Treg Taylor

Attorney General

Alaska

Tim Griffin

Attorney General

Arkansas

Phil Weiser

Attorney General

Colorado

Patrick J. Griffin

Chief State’s Attorney

Connecticut

Kathleen Jennings

Attorney General

Delaware

Ashley Moody

Attorney General

Florida

Christopher M. Carr

Attorney General

Georgia

Raúl R. Labrador

Attorney General

Idaho

Brenna Bird

Attorney General

Iowa

Daniel Cameron

Attorney General

Kentucky

Jeff Landry

Attorney General

Louisiana

Aaron M. Frey

Attorney General

Maine

Anthony G. Brown

Attorney General

Maryland

Dana Nessel

Attorney General

Michigan

Keith Ellison

Attorney General

Minnesota

Lynn Fitch

Attorney General

Mississippi

Aaron D. Ford

Attorney General

Nevada

John M. Formella

Attorney General

New Hampshire

Matthew J. Platkin

Attorney General

New Jersey

Josh Stein

Attorney General

North Carolina

Drew H. Wrigley

Attorney General

North Dakota

Dave Yost

Attorney General

Ohio

Gentner F. Drummond

Attorney General

Oklahoma

Ellen F. Rosenblum

Attorney General

Oregon

Alan Wilson

Attorney General

South Carolina

Marty J. Jackley

Attorney General

South Dakota

Jonathan Skrmetti

Attorney General

Tennessee

Sean D. Reyes

Attorney General

Utah

Charity R. Clark

Attorney General

Vermont

Jason S. Miyares

Attorney General

Virginia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.