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RICHARDSON v. MARSH

SUPREME COURT OF THE UNITED STATES


decided: April 21, 1987.

RICHARDSON, WARDEN
v.
MARSH

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Powell, and O'Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 211.

Author: Scalia

[ 481 U.S. Page 201]

 JUSTICE SCALIA delivered the opinion of the Court.

In Bruton v. United States, 391 U.S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his non-testifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider

[ 481 U.S. Page 202]

     that confession only against the co-defendant. Today we consider whether Bruton requires the same result when the co-defendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial.

I

Respondent Clarissa Marsh, Benjamin Williams, and Kareem Martin were charged with assaulting Cynthia Knighton and murdering her 4-year-old son, Koran, and her aunt, Ollie Scott. Respondent and Williams were tried jointly, over her objection. (Martin was a fugitive at the time of trial.) At the trial, Knighton testified as follows: On the evening of October 29, 1978, she and her son were at Scott's home when respondent and her boyfriend Martin visited. After a brief conversation in the living room, respondent announced that she had come to "pick up something" from Scott and rose from the couch. Martin then pulled out a gun, pointed it at Scott and the Knightons, and said that "someone had gotten killed and [Scott] knew something about it." Respondent immediately walked to the front door and peered out the peephole. The doorbell rang, respondent opened the door, and Williams walked in, carrying a gun. As Williams passed respondent, he asked, "Where's the money?" Martin forced Scott upstairs, and Williams went into the kitchen, leaving respondent alone with the Knightons. Knighton and her son attempted to flee, but respondent grabbed Knighton and held her until Williams returned. Williams ordered the Knightons to lie on the floor and then went upstairs to assist Martin. Respondent, again left alone with the Knightons, stood by the front door and occasionally peered out the peephole. A few minutes later, Martin, Williams, and Scott came down the stairs, and Martin handed a paper grocery bag to respondent. Martin and Williams then forced Scott and the Knightons into the basement, where Martin shot them. Only Cynthia Knighton survived.

[ 481 U.S. Page 203]

     In addition to Knighton's testimony, the State introduced (over respondent's objection) a confession given by Williams to the police shortly after his arrest. The confession was redacted to omit all reference to respondent -- indeed, to omit all indication that anyone other than Martin and Williams participated in the crime.*fn1 The confession largely corroborated

[ 481 U.S. Page 204]

     Knighton's account of the activities of persons other than respondent in the house. In addition, the confession described a conversation Williams had with Martin as they drove to the Scott home, during which, according to Williams, Martin said that he would have to kill the victims after the robbery. At the time the confession was admitted, the jury was admonished not to use it in any way against respondent. Williams did not testify.

After the State rested, respondent took the stand. She testified that on October 29, 1978, she had lost money that Martin intended to use to buy drugs. Martin was upset, and suggested to respondent that she borrow money from Scott, with whom she had worked in the past. Martin and respondent picked up Williams and drove to Scott's house. During the drive, respondent, who was sitting in the backseat, "knew that [Martin and Williams] were talking" but could not hear the conversation because "the radio was on and the speaker was right in [her] ear." Martin and respondent were admitted into the home, and respondent had a short conversation with Scott, during which she asked for a loan. Martin then pulled a gun, and respondent walked to the door to see where the car was. When she saw Williams, she opened the door for him. Respondent testified that during the robbery she did not feel free to leave and was too scared to flee. She said that she did not know why she prevented the Knightons from escaping. She admitted taking the bag from Martin, but said that after Martin and Williams took the victims into the basement, she left the house without the bag. Respondent insisted that she had possessed no prior knowledge that Martin and Williams were armed, had heard no conversation about anyone's being harmed, and had not intended to rob or kill anyone.

[ 481 U.S. Page 205]

     During his closing argument, the prosecutor admonished the jury not to use Williams' confession against respondent. Later in his argument, however, he linked respondent to the portion of Williams' confession describing his conversation with Martin in the car.*fn2 (Respondent's attorney did not object to this.) After closing arguments, the judge again instructed the jury that Williams' confession was not to be considered against respondent. The jury convicted respondent of two counts of felony murder in the perpetration of an armed robbery and one count of assault with intent to commit murder. The Michigan Court of Appeals affirmed in an unpublished opinion, People v. Marsh, No. 46128 (Dec. 17, 1980), and the Michigan Supreme Court denied leave to appeal, 412 Mich. 927 (1982).

Respondent then filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. ยง 2254. She alleged that her conviction was not supported by sufficient evidence and that introduction of Williams' confession at the joint trial had violated her rights under the Confrontation Clause. The District Court denied the petition. Civ. Action No. 83-CV-2665-DT (ED Mich., Oct. 11, 1984). The United States Court of Appeals for the Sixth Circuit reversed. 781 F.2d 1201 (1986). The Court of Appeals held that in determining whether Bruton bars the admission of a non-testifying co-defendant's confession, a court must assess the confession's "inculpatory

[ 481 U.S. Page 206]

     value" by examining not only the face of the confession, but also all of the evidence introduced at trial. 781 F.2d, at 1212. Here, Williams' account of the conversation in the car was the only direct evidence that respondent knew before entering Scott's house that the victims would be robbed and killed. Respondent's own testimony placed her in that car. In light of the "paucity" of other evidence of malice and the prosecutor's linkage of respondent and the statement in the car during closing argument, admission of Williams' confession "was powerfully incriminating to [respondent] with respect to the critical element of intent." Id., at 1213. Thus, the Court of Appeals concluded, the Confrontation Clause was violated. We granted certiorari, 476 U.S. 1168 (1986), because the Sixth Circuit's decision conflicts with those of other Courts of Appeals which have declined to adopt the "evidentiary linkage" or "contextual implication" approach to Bruton questions, see, e. g., United States v. Belle, 593 F.2d 487 (CA3 1979) (en banc).

II

The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant "to be confronted with the witnesses against him." The right of confrontation includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 406-407 (1965). Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.

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 co-defendant. This accords with the almost invariable assumption of the law that jurors follow their instructions, Francis v. Franklin, 471 U.S. 307, 325, n. 9 (1985), which we have applied in many varying contexts. For example, in Harris v. New York, 401 U.S. 222 (1971),

[ 481 U.S. Page 207]

     we held that statements elicited from a defendant in violation of Miranda v. Arizona, 384 U.S. 436 (1966), can be introduced to impeach that defendant's credibility, even though they are inadmissible as evidence of his guilt, so long as the jury is instructed accordingly. Similarly, in Spencer v. Texas, 385 U.S. 554 (1967), we held that evidence of the defendant's prior criminal convictions could be introduced for the purpose of sentence enhancement, so long as the jury was instructed it could not be used for purposes of determining guilt. Accord, Marshall v. Lonberger, 459 U.S. 422, 438-439, n. 6 (1983). See also Tennessee v. Street, 471 U.S. 409, 414-416 (1985) (instruction to consider accomplice's incriminating confession only for purpose of assessing truthfulness of defendant's claim that his own confession was coerced); Watkins v. Sowders, 449 U.S. 341, 347 (1981) (instruction not to consider erroneously admitted eyewitness identification evidence); Walder v. United States, 347 U.S. 62 (1954) (instruction to consider unlawfully seized physical evidence only in assessing defendant's credibility). In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a non-testifying co-defendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the co-defendant. We said:

"There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extra-judicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. . . ." 391 U.S., at 135-136 (citations omitted).

[ 481 U.S. Page 208]

     There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the co-defendant's confession "expressly implicat[ed]" the defendant as his accomplice. Id., at 124, n. 1. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." Id., at 135. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony).*fn3

Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that "the defendant helped me commit the crime" is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton 's exception to the general rule.

Even more significantly, evidence requiring linkage differs from evidence incriminating on its face in the practical effects which application of the Bruton exception would produce. If

[ 481 U.S. Page 209]

     limited to facially incriminating confessions, Bruton can be complied with by redaction -- a possibility suggested in that opinion itself. Id., at 134, n. 10. If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance of trial. The "contextual implication" doctrine articulated by the Court of Appeals would presumably require the trial judge to assess at the end of each trial whether, in light of all of the evidence, a non-testifying co-defendant's confession has been so "powerfully incriminating" that a new, separate trial is required for the defendant. This obviously lends itself to manipulation by the defense -- and even without manipulation will result in numerous mistrials and appeals. It might be suggested that those consequences could be reduced by conducting a pretrial hearing at which prosecution and defense would reveal the evidence they plan to introduce, enabling the court to assess compliance with Bruton ex ante rather than ex post. If this approach is even feasible under the Federal Rules (which is doubtful -- see, e. g., Fed. Rule Crim. Proc. 14), it would be time consuming and obviously far from foolproof.

One might say, of course, that a certain way of assuring compliance would be to try defendants separately whenever an incriminating statement of one of them is sought to be used. That is not as facile or as just a remedy as might seem. Joint trials play a vital role in the criminal justice system, accounting for almost one-third of federal criminal trials in the past five years. Memorandum from David L. Cook, Administrative Office of the United States Courts, to Supreme Court Library (Feb. 20, 1987) (available in Clerk of Court's case file). Many joint trials -- for example, those involving large conspiracies to import and distribute illegal drugs -- involve a dozen or more co-defendants. Confessions by one or more of the defendants are commonplace -- and indeed the probability of confession increases with the number

[ 481 U.S. Page 210]

     of participants, since each has reduced assurance that he will be protected by his own silence. It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability -- advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.*fn4 The other way of assuring compliance with an expansive Bruton rule would be to forgo use of co-defendant confessions. That price also is too high, since confessions "are more than merely 'desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Moran v. Burbine, 475 U.S. 412, 426 (1986) (citation omitted).

[ 481 U.S. Page 211]

     The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate. As our discussion above shows, the calculus changes when confessions that do not name the defendant are at issue. While we continue to apply Bruton where we have found that its rationale validly applies, see Cruz v. New York, ante, p. 186, we decline to extend it further. We hold that the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.*fn5

In the present case, however, the prosecutor sought to undo the effect of the limiting instruction by urging the jury to use Williams' confession in evaluating respondent's case. See supra, at 205, and n. 2. On remand, the court should consider whether, in light of respondent's failure to object to the prosecutor's comments, the error can serve as the basis for granting a writ of habeas corpus. See Wainwright v. Sykes, 433 U.S. 72 (1977).

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Disposition

781 F.2d 1201, reversed and remanded.

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

The rationale of our decision in Bruton v. United States, 391 U.S. 123, 135-136 (1968), applies without exception to all

[ 481 U.S. Page 212]

     inadmissible confessions that are "powerfully incriminating." Today, however, 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 the factual and legal relationships of their contents to other evidence before the jury. Even if the jury's indirect inference of the defendant's guilt based on an inadmissible confession is much more devastating to the defendant's case than its inference from a direct reference in the co-defendant's confession, the Court requires the exclusion of only the latter statement. This illogical result demeans the values protected by the Confrontation Clause. Moreover, neither reason nor experience supports the Court's argument that a consistent application of the rationale of the Bruton case would impose unacceptable burdens on the administration of justice.

I

It is a "basic premise" of the Confrontation Clause that certain kinds of hearsay "are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give."*fn1

[ 481 U.S. Page 213]

     This constitutionally mandated skepticism undergirds the Bruton holding and is equally applicable to this case. The Court framed the issue in Bruton as "whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a co-defendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence." 391 U.S., at 123-124. We answered that question in the affirmative, noting that the Sixth Amendment is violated "where the powerfully incriminating extra-judicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Id., at 135-136.

Today the Court nevertheless draws a line between co-defendant confessions that expressly name the defendant and those that do not. The Court relies on the presumption that in the latter category "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." Ante, at 208. I agree; but I do not read Bruton to require the exclusion of all co-defendant confessions that do not mention the defendant.*fn2 Some such confessions may not have any significant impact on the defendant's case. But others will. If we presume, as we must, that jurors give their full and vigorous attention to every witness and each item of evidence, the very acts of listening and seeing will sometimes lead them down "the path of inference." Indeed, the Court tacitly acknowledges this point; while the Court speculates that the judge's instruction may dissuade the jury

[ 481 U.S. Page 214]

     from making inferences at all, it also concedes the probability of their occurrence, arguing that there is no overwhelming probability that jurors will be unable to "disregard an incriminating inference." Ibid. Bruton has always required trial judges to answer the question whether a particular confession is or is not "powerfully incriminating" on a case-by-case basis; they should follow the same analysis whether or not the defendant is actually named by his or her co-defendant.

Instructing the jury that it was to consider Benjamin Williams' confession only against him, and not against Clarissa Marsh, failed to guarantee the level of certainty required by the Confrontation Clause. The uncertainty arose because the prosecution's case made it clear at the time Williams' statement was introduced that the statement would prove "powerfully incriminating" of the respondent as well as of Williams himself. There can be absolutely no doubt that spreading Williams' carefully edited confession before the jury intolerably interfered with the jury's solemn duty to treat the statement as nothing more than meaningless sounds in its consideration of Marsh's guilt or innocence.

At the time that Williams' confession was introduced, the evidence already had established that respondent and two men committed an armed robbery in the course of which the two men killed two persons and shot a third. Ante, at 202. There was a sharp dispute, however, on the question whether respondent herself intended to commit a robbery in which murder was a foreseeable result, or knew that the two men planned to do so. The quantum of evidence admissible against respondent was just sufficient to establish this intent and hence to support her conviction. As the Court of Appeals explained:

"The issue is whether the evidence was sufficient to show that Marsh aided and abetted the assault with the specific intent to murder Knighton or with the knowledge that Martin had this specific intent . . . . Marsh's case presents a much closer question on this issue than

[ 481 U.S. Page 215]

     does Williams'. There was no testimony indicating she harbored an intent to murder Knighton, nor was there any showing that she heard Martin's statements regarding the need to 'hurt' or 'take out' the victims. There was, in addition, no testimony placing her in the basement, the scene of the shootings. The evidence does indicate, viewed in the light most favorable to the prosecution, that she was aware that Williams and Martin were armed, that she served as a guard or 'lookout' at the door, that she prevented an attempted escape by Knighton, and that she was given the paper bag thought to contain the proceeds of a robbery. The evidence also indicates that Marsh knew Scott, supporting the inference that it was Marsh who allowed Martin to gain entrance. While it is a close question, we believe the evidence presented at the time of the motion was sufficient to survive a motion for directed verdict." 781 F.2d 1201, 1204 (CA6 1986) (emphasis omitted).

In the edited statement that the jury was instructed not to consider against Marsh, Williams described the conversation he had with Kareem Martin while they were in a car driving to their victims' residence. In that conversation, Martin stated that "he would have to take them out after the robbery." See ante, at 203, n. 1. The State's principal witness had testified that Martin and Marsh arrived at the victims' house together. The jury was therefore certain to infer from the confession that respondent had been in the car and had overheard the statement by Martin. Viewed in the total context of the trial evidence, this confession was of critical importance because it was the only evidence directly linking respondent with the specific intent, expressed before the robbery, to kill the victims afterwards.*fn3 If Williams had taken

[ 481 U.S. Page 216]

     the witness stand and testified, respondent's lawyer could have cross-examined him to challenge his credibility and to establish or suggest that the car radio was playing so loudly that Marsh could not have overheard the conversation between the two men from the backseat. An acknowledgment of the possibility of such facts by Williams would have done much more to eliminate the certainty beyond a reasonable doubt that Marsh knew about the murder plan than could possibly have been achieved by the later testimony of respondent herself. Moreover, the price respondent had to pay in order to attempt to rebut the obvious inference that she had overheard Martin was to remind the jury once again of what he had said and to give the prosecutor a further opportunity to point to this most damaging evidence on the close question of her specific intent. See ante, at 205, n. 2.

The facts in this case are, admittedly, different from those in Bruton because Williams' statement did not directly mention respondent. Thus, instead of being "incriminating on its face," ante, at 208, it became so only when considered in connection with the other evidence presented to the jury. The difference between the facts of Bruton and the facts of this case does not eliminate their common, substantial, and constitutionally unacceptable risk that the jury, when resolving

[ 481 U.S. Page 217]

     a critical issue against respondent, may have relied on impermissible evidence.*fn4

II

The facts that joint trials conserve prosecutorial resources, diminish inconvenience to witnesses, and avoid delays in the administration of criminal justice have been well known for a long time. See United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Bruton, 391 U.S., at 134). It is equally well known that joint trials create special risks of prejudice to one of the defendants, and that such risks often make it necessary to grant severances. See Bruton, 391 U.S., at 131; Fed. Rule Crim. Proc. 14 (Relief from Prejudicial Joinder). The Government argues that the costs of requiring the prosecution to choose between severance and not offering the co-defendant's confession at a joint trial outweigh the benefits to the defendant. Brief for United States as Amicus Curiae 22. On the scales of justice, however, considerations of fairness normally outweigh administrative concerns.

In the Bruton case the United States argued that the normal "benefits of joint proceedings should not have to be sacrificed

[ 481 U.S. Page 218]

     by requiring separate trials in order to use the confession against the declarant." See 391 U.S., at 134. The Court endorsed the answer to this argument that Judge Lehman of the New York Court of Appeals had previously made in his dissenting opinion in People v. Fisher, 249 N. Y. 419, 432, 164 N. E. 336, 341 (1928):

"We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them . . . . We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high."

The concern about the cost of joint trials, even if valid, does not prevail over the interests of justice. Moreover, the Court's effort to revive this concern in a state criminal case rests on the use of irrelevant statistics. The Court makes the startling discovery that joint trials account for "almost one-third of federal criminal trials in the past five years." Ante, at 209. In the interest of greater precision, the Court might have stated that there were 10,904 federal criminal trials involving more than one defendant during that 5-year period.*fn5 The Court might have added that the data base from which that figure was obtained does not contain any information at all to show the number of times that confessions were offered in evidence in those 10,904 federal cases.*fn6 The

[ 481 U.S. Page 219]

     relevance of this data is also difficult to discern because all of the cases in this Court that involved joint trials conducted after Bruton was decided, in which compliance with the rule of that case was at issue, appear to have originated in a state court. Federal prosecutors seem to have had little difficulty, in conducting the literally thousands of joint trials to which the Court points, in maintaining "both the efficiency and the fairness of the criminal justice system" that the Court speculates will occur if Bruton 's reasoning is applied to this case. See ante, at 210. Presumably the options of granting immunity, making plea bargains, or simply waiting until after a confessing defendant has been tried separately before trying to use his admissions against an accomplice have enabled the Federal Government to enforce the criminal law without sacrificing the basic premise of the Confrontation Clause.*fn7

[ 481 U.S. Page 220]

     The Court also expresses concern that trial judges will be unable to determine whether a co-defendant's confession that does not directly mention the defendant and is inadmissible against him will create a substantial risk of unfair prejudice. In most such cases the trial judge can comply with the dictates of Bruton by postponing his or her decision on the admissibility of the confession until the prosecution rests, at which time its potentially inculpatory effect can be evaluated in the light of the government's entire case. The Court expresses concern that such a rule would enable "manipulation by the defense," see ante, at 209, by which the Court presumably means the defense might tailor its evidence to make sure that a confession which does not directly mention the defendant is deemed powerfully incriminating when viewed in light of the prosecution's entire case. As a practical matter, I cannot believe that there are many defense lawyers who would deliberately pursue this high-risk strategy of "manipulating" their evidence in order to enhance the prejudicial impact of a co-defendant's confession. Moreover, a great many experienced and competent trial judges throughout the Nation are fully capable of managing cases and supervising counsel in order to avoid the problems that seem insurmountable to appellate judges who are sometimes distracted by illogical distinctions and irrelevant statistics.

I respectfully dissent.*fn8


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