The Bruton Rule

What is the Bruton rule in criminal cases? Can the prosecution use the entirety of a co-defendant’s confession which names other defendants?

 Well, yes and no. The Bruton rule, established by the U.S. Supreme Court in Bruton v. United States, precludes the admission of a non-testifying co-defendant's confession that implicates another defendant in a joint trial, as it violates the Confrontation Clause of the Sixth Amendment. Pennsylvania has a similar constitutional provision.

This rule is based on the principle that such statements are so powerfully incriminating that a jury is unlikely to follow instructions to consider the confession only against the confessing co-defendant. Over time, the rule has been refined. When the situation arises, it is common to just redact the other defendant’s name from the statement so as to limit the impact of the testimony against a defendant who did not give a statement or confession.

Recently, in Commonwealth v. Jones, 2024 Pa. LEXIS 1578, the Pennsylvania Supreme Court held that the codefendant's confession violated Bruton's prohibition because it identified the defendant by his likeness in a photograph shown to the jury, and the jury was informed it was hearing a redacted statement. The case was remanded to determine if the violation was harmless error.

In Commonwealth v. Daniels, 628 Pa. 193, the court affirmed the PCRA court's decision, noting that redactions using neutral pronouns in co-defendant statements do not obviously identify other co-defendants, thus blunting concerns of incrimination under Bruton

In Commonwealth v. Travers, 564 Pa. 362, the court upheld the use of redacted confessions and cautionary instructions, stating that redactions removing explicit references to the defendant and proper jury instructions sufficed to meet Bruton requirements.

In Commonwealth v. Roney, 622 Pa. 1, the court reiterated that a co-defendant's pretrial confession cannot be admitted against another defendant unless the confessing co-defendant testifies, emphasizing the substantial risk that jurors would use the confession against the non-confessing defendant despite instructions.

In Commonwealth v. James, 2013 PA Super 106, the court held that a redacted confession that does not explicitly implicate the defendant but becomes incriminating when linked with other evidence does not violate Bruton, as jurors are presumed to follow instructions to disregard such evidence.

In Commonwealth v. Whitaker, 2005 PA Super 241, the court held that the use of the term "the other guy" in a redacted confession did not unduly suggest the defendant's identity, and the jury was properly instructed, thus complying with Bruton.

In Commonwealth v. Freeman, the court noted that a non-testifying co-defendant's confession is inadmissible against another defendant unless redacted to eliminate references to the defendant and accompanied by a limiting instruction, consistent with Bruton and subsequent rulings.

Pennsylvania Rule of Evidence 803.1 specifies that certain prior statements by a declarant-witness are not excluded by the hearsay rule if the declarant testifies and is subject to cross-examination, aligning with confrontation clause principles.

It is also important to note that Pennsylvania Rule of Criminal Procedure 573 mandates the disclosure of evidence by the Commonwealth, including any written or oral confessions, ensuring the defendant's right to prepare a defense and confront witnesses. So, if a co-defendant said something and the prosecution did not turn it over, it could be a potential Brady violation.

In addition to the primary laws, supplementary materials provide further insights into the Bruton rule and its implications in joint trials.

The U.S. Supreme Court in Richardson v. Marsh advised prosecutors to redact confessions of non-testifying co-defendants to remove references that expressly implicated the defendant and to issue limiting instructions. However, even properly redacted statements may still implicate Bruton if there is a danger that "contextual implication" or "evidentiary linkage" makes it obvious that the unnamed person in the redacted statement is the defendant.

In Gray v. Maryland, the Court disapproved the procedure in which the defendant’s name is replaced by the word "delete" or "deletion" because that was the "functional equivalent of naming" the defendant. Instead, the Pennsylvania Supreme Court approved the redaction of a non-testifying co-defendant’s confession in a joint trial, which replaced any direct reference to the defendant with the words "the other man," when accompanied by an appropriate cautionary charge.

So, basically, if you are a co-defendant charged with another defendant/person, and the prosecutor is intent on doing a trial with all defendants, you need to be wary of statements your co-defendant may have made to police implicating your involvement. If that co-defendant is not testifying, you need a lawyer versed in criminal practice to object or make a motion to limit the statement. The prosecutor may be required to redact the statement (eliminating your reference).