Abstract

http://ssrn.com/abstract=1787563
 


 



Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine


Colin Miller


University of South Carolina School of Law

March 15, 2011

Brooklyn Law Review , Vol. 77, No. 625, 2012

Abstract:     
The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.

This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.

Number of Pages in PDF File: 67

Keywords: Bruton Doctrine, Crawford, Confrontation Clause

JEL Classification: K14, K42

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Date posted: March 21, 2011 ; Last revised: September 19, 2012

Suggested Citation

Miller, Colin, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine (March 15, 2011). Brooklyn Law Review , Vol. 77, No. 625, 2012. Available at SSRN: http://ssrn.com/abstract=1787563 or http://dx.doi.org/10.2139/ssrn.1787563

Contact Information

Colin Miller (Contact Author)
University of South Carolina School of Law ( email )
Main & Greene Streets
Columbia, SC 29208
United States
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