When a co-defendant squawks – suppressing statements made by the “co-d”.
In criminal defense, it is often the case that more than one person is “nabbed” for the same criminal conduct. In the zeal of the prosecution to charge multiple parties as conspirators and individuals with “constructive” guilt, it is a common problem for the defense to be confronted with statements from one defendant that implicates the other. The proper action is to move to suppress these statements under the Bruton Doctrine.
For example: Frank and Tom are pulled over after being stopped for speeding. The police officer conducting the stop sees one of the two men through an object out the window of the car. It is dark and the windows are tinted. Later, a gun is discovered in the bushes where the car was stopped. The driver, Frank, states that he had the gun, but had given it to Frank when the car was stopped, and it was Frank who throw the weapon from the car. Frank does not make a statement. Both individuals are charged with illegal possession of a firearm, and ammunition. There are no finger prints or DNA evidence recovered on the weapon. Can Tom’s statements be used to convict Frank?
The Bruton Doctrine, named after the Supreme Court case Bruton v. United States, 391 U.S. 123 (1968), was originally aimed at co-conspirators, but subsequently expanded to include co-defendants. The central holding states:
[A]t a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial.
Key elements of the Bruton Doctrine include:
- There must be at least two defendants.
- The statements of one defendant must be used against the other.
- The defendant making the statement must not testify at trial.
The Bruton Doctrine was further refined by subsequent case law limiting the reach of “statements” to testimony by a co-defendant only. See, Johnson v. United States, 17 A.3d 621, 628 (D.C. 2011) where the Court found that statements made by one co-defendant implicating a fellow wrong-doer were not excluded under the Bruton Doctrine because they were not testimony and therefore not subject to the Confrontation Clause.
The next logical question is – what is testimony? If Bruton indicated statements, but current case law limits to testimony, understanding the scope of “testimony” is critical to an effective Bruton argument. In United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004), the Court indicated a statement was testimonial in nature if it “intended to bear testimony against the accused.” Was the statement given for the purposes of convicting the codefendant? In point of fact – the matter is far from clear. While common law has defined testimony, counsel should always file a Bruton motion to suppress co-defendant statements regardless of whether such statements are clearly testimonial in nature or not.
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