John H. Chronister, Public Defender, York, for appellant.
Donald L. Reihart, Dist. Atty., York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.
The potential use or abuse of redaction*fn1 to permit the use of confessions of co-defendants in a joint criminal trial was pointed out in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Counsel for the appellant refers to the absence in this jurisdiction of appellate authority dealing with redaction, and asks the Court to hold that redaction should not be allowed because it can never be done
in such a manner as to protect a defendant. In the alternative, the request is made that we should hold that the manner in which the redaction was done in this case was actually prejudicial.
The appellant had been convicted of murder in the first degree and was sentenced to life imprisonment. In a joint trial the written confession of a co-defendant was admitted in evidence after all its references to defendant were eliminated.
It is well-settled that redaction can be an appropriate method of protecting defendant's rights under the Bruton decision. The possible use of redaction is mentioned in Bruton itself. Other courts have permitted this procedure. United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1974); Coltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131 (1969) and Oliver v. United States, 118 U.S.App.D.C. 302, 335 F.2d 724 (1964). The court in Brown, supra, 160 U.S.App.D.C. at 210, 490 F.2d at 778 stated:
"It has been recognized that an efficient method of avoiding unnecessary prejudice where the declarant's state of mind is otherwise relevant is to delete the offensive portions of the statement. . . . Presumably if the statement could not be so altered without completely losing its sense it must be excluded in toto. . . .
"As with most evidentiary questions, especially those involving 'balancing,' substantial deference to the trial judge's discretion must necessarily be afforded."
We agree. The basic theory of redaction seems sound. If a confession can be edited so that it retains its narrative integrity and yet in no way refers to defendant, then use of it does not violate the principles of Bruton. The practical application of the theory may be difficult and in many cases it may be decided that separate trials ...