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

67 Pages Posted: 21 Mar 2011 Last revised: 19 Sep 2012

Colin Miller

University of South Carolina School of Law

Date Written: March 15, 2011

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.

Keywords: Bruton Doctrine, Crawford, Confrontation Clause

JEL Classification: K14, K42

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: https://ssrn.com/abstract=1787563 or http://dx.doi.org/10.2139/ssrn.1787563

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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