BRUTON
v.
UNITED STATES
Certiorari to the United States Court of
Appeals for the Eighth Circuit
No. 705
Argued March 11, 1968
Decided May 20, 1968
391 U.S. 123 (1968)
A joint trial of petitioner and one Evans
resulted in the convictions of both for armed postal robbery. Evans
did not take the stand but a postal inspector testified that Evans
confessed orally that he and petitioner committed the robbery. The
trial judge instructed the jury that although Evans' confession was
competent evidence against him it was inadmissible hearsay against
petitioner and had to be disregarded in determining petitioner's guilt
or innocence. Evans and petitioner both appealed to the Court of
Appeals. That court set aside Evans' conviction on the ground that the
oral confession should not have been received against him but affirmed
petitioner's conviction in view of the trial judge's instructions,
relying on Delli Paoli v. United States, 352 U.S. 232.
Held: Because
of the substantial risk that the jury, despite instructions to the
contrary, looked to the incriminating extrajudicial statements in
determining petitioner's guilt, admission of Evans' confession in the
joint trial violated petitioner's right of cross-examination secured
by the Confrontation Clause of the Sixth Amendment. Delli Paoli
v. United States, supra, overruled.
375 F.2d 355, reversed.
Daniel P. Reardon, Jr.,
argued the cause and filed a brief for petitioner.
Solicitor General Griswold
argued the cause for the United States. With him on the brief were
Assistant Attorney General Vinson, Robert S. Rifkind, and
Beatrice Rosenberg.
MR. JUSTICE BRENNAN delivered the opinion
of the Court.
This case presents the question, last
considered in Delli Paoli v. United States, 352
U.S. 232, whether the conviction of a defendant at a joint trial
should be set aside although the
jury was instructed that a codefendant's confession inculpating the
defendant had to be disregarded in determining his guilt or innocence.
A joint trial of petitioner and one Evans
in the District Court for the Eastern District of Missouri resulted in
the conviction of both by a jury on a federal charge of armed postal
robbery, 18 U.S.C. § 2114. A postal inspector testified that Evans
orally confessed to him that Evans and petitioner committed the armed
robbery. The postal inspector obtained the oral confession, and
another in which Evans admitted he had an accomplice whom he would not
name, in the course of two interrogations of Evans at the city jail in
St. Louis, Missouri, where Evans was held in custody on state criminal
charges. Both petitioner and Evans appealed their convictions to the
Court of Appeals for the Eighth Circuit. That court set aside Evans'
conviction on the ground that his oral confessions to the postal
inspector should not have been received in evidence against him. 375
F.2d 355, 361.
However, the court, relying upon Delli
Paoli, affirmed petitioner's conviction because the trial judge
instructed the jury that although Evans' confession was competent
evidence against Evans it was inadmissible hearsay against petitioner
and therefore had to be disregarded in determining petitioner's guilt
or innocence. 375 F.2d, at 361-363.
We granted certiorari to reconsider Delli Paoli. 389 U.S. 818.
The Solicitor General has since submitted a memorandum stating that
"in the light of the record in this particular case and in the
interests of justice, the judgment below should be reversed and the
cause remanded for a new trial." The Solicitor General states that
this disposition is urged in part because "[h]ere it has been
determined that the confession was wrongly admitted against [Evans]
and his conviction has been reversed, leading to a new trial at which
he was acquitted. To argue, in
this situation, that [petitioner's] conviction should nevertheless
stand may be to place too great a strain upon the [Delli Paoli]
rule — at least, where, as here, the other evidence against
[petitioner] is not strong." We have concluded, however, that Delli
Paoli should be overruled. We hold that, because of the
substantial risk that the jury, despite instructions to the contrary,
looked to the incriminating extrajudicial statements in determining
petitioner's guilt, admission of Evans' confession in this joint trial
violated petitioner's right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment. We therefore overrule
Delli Paoli and reverse.
The basic premise of Delli Paoli
was that it is "reasonably possible for the jury to follow"
sufficiently clear instructions to disregard the confessor's
extrajudicial statement that his codefendant participated with him in
committing the crime. 352 U.S., at 239. If it were true that the jury
disregarded the reference to the codefendant, no question would arise
under the Confrontation Clause, because by hypothesis the case is
treated as if the confessor made no statement inculpating the
nonconfessor. But since Delli Paoli was decided this Court has
effectively repudiated its basic premise. Before discussing this, we
pause to observe that in Pointer v. Texas, 380 U.S. 400,
we confirmed "that the right of cross-examination is included in the
right of an accused in a criminal case to confront the witnesses
against him" secured by the Sixth Amendment, id., at 404; "a
major reason underlying the constitutional confrontation rule is to
give a defendant charged with crime an opportunity to cross-examine
the witnesses against him." Id., at 406-407.
We applied Pointer in Douglas
v. Alabama, 380 U.S. 415, in circumstances analogous to those
in the present case. There two persons, Loyd and Douglas, accused
of assault with intent to murder, were tried
separately. Loyd was tried first and found guilty. At Douglas' trial
the State called Loyd as a witness against him. An appeal was pending
from Loyd's conviction and Loyd invoked the privilege against
self-incrimination and refused to answer any questions. The
prosecution was permitted to treat Loyd as a hostile witness. Under
the guise of refreshing Loyd's recollection the prosecutor questioned
Loyd by asking him to confirm or deny statements read by the
prosecutor from a document purported to be Loyd's confession. These
statements inculpated Douglas in the crime. We held that Douglas'
inability to cross-examine Loyd denied Douglas "the right of
cross-examination secured by the Confrontation Clause." 380 U.S., at
419. We noted that "effective confrontation of Loyd was possible only
if Loyd affirmed the statement as his. However, Loyd did not do so,
but relied on his privilege to refuse to answer." Id., at 420.
The risk of prejudice in petitioner's case was even more serious than
in Douglas. In Douglas we said, "Although the
Solicitor's reading of Loyd's alleged statement, and Loyd's refusals
to answer, were not technically testimony, the Solicitor's reading may
well have been the equivalent in the jury's mind of testimony that
Loyd in fact made the statement; and Loyd's reliance upon the
privilege created a situation in which the jury might improperly infer
both that the statement had been made and that it was true." Id.,
at 419. Here Evans' oral confessions were in fact testified to, and
were therefore actually in evidence. That testimony was legitimate
evidence against Evans and to that extent was properly before the jury
during its deliberations. Even greater, then, was the likelihood that
the jury would believe Evans made the statements and that they were
true — not just the self-incriminating portions but those implicating
petitioner as well. Plainly, the introduction of
Evans' confession added substantial,
perhaps even critical, weight to the Government's case in a form not
subject to cross-examination, since Evans did not take the stand.
Petitioner thus was denied his constitutional right of confrontation.
Delli Paoli
assumed that this encroachment on the right to confrontation could be
avoided by the instruction to the jury to disregard the inadmissible
hearsay evidence.
But, as we have said, that assumption has since been effectively
repudiated. True, the repudiation was not in the context of the
admission of a confession inculpating a codefendant but in the context
of a New York rule which submitted to the jury the question of the
voluntariness of the confession itself. Jackson v. Denno,
378 U.S. 368. Nonetheless the message of Jackson for Delli
Paoli was clear. We there held that a defendant is
constitutionally entitled at least to have the trial judge first
determine whether a confession was made voluntarily
before submitting it to the jury for an
assessment of its credibility. More specifically, we expressly
rejected the proposition that a jury, when determining the confessor's
guilt, could be relied on to ignore his confession of guilt should it
find the confession involuntary. Id., at 388-389.
Significantly, we supported that conclusion in part by reliance upon
the dissenting opinion of Mr. Justice Frankfurter for the four
Justices who dissented in Delli Paoli. Id., at 388, n. 15.
That dissent challenged the basic premise
of Delli Paoli that a properly instructed jury would ignore the
confessor's inculpation of the nonconfessor in determining the
latter's guilt. "The fact of the matter is that too often such
admonition against misuse is intrinsically ineffective in that the
effect of such a nonadmissible declaration cannot be wiped from the
brains of the jurors. The admonition therefore becomes a futile
collocation of words and fails of its purpose as a legal protection to
defendants against whom such a declaration should not tell." 352 U.S.,
at 247. The dissent went on to say, as quoted in the cited note in
Jackson, "The government should not have the windfall of having
the jury be influenced by evidence against a defendant which, as a
matter of law, they should not consider but which they cannot put out
of their minds." Id., at 248. To the same effect, and also
cited in the Jackson note, is the statement of Mr. Justice
Jackson in his concurring opinion in Krulewitch v. United
States, 336 U.S. 440, 453: "The naive assumption that prejudicial
effects can be overcome by instructions to the jury . . . all
practicing lawyers know to be unmitigated fiction. . . ."
The significance of
Jackson for Delli Paoli was suggested by Chief Justice
Traynor in People v. Aranda,
63 Cal.2d 518, 528-529, 407 P.2d 265, 271-272:
"Although
Jackson was directly concerned with obviating any risk that a jury
might rely on an unconstitutionally obtained confession in determining
the defendant's guilt, its logic extends to obviating the risks that
the jury may rely on any inadmissible statements. If it is a denial of
due process to rely on a jury's presumed ability to disregard an
involuntary confession, it may also be a denial of due process to rely
on a jury's presumed ability to disregard a codefendant's confession
implicating another defendant when it is determining that defendant's
guilt or innocence.
"Indeed, the
latter task may be an even more difficult one for the jury to perform
than the former. Under the New York procedure, which Jackson
held violated due process, the jury was only required to
disregard a confession it found to be involuntary. If
it made such a finding, then the confession was presumably out of the
case. In joint trials, however, when the admissible confession of one
defendant inculpates another defendant, the confession is never
deleted from the case and the jury is expected to perform the
overwhelming task of considering it in determining the guilt or
innocence of the declarant and then of ignoring it in determining the
guilt or innocence of any codefendants of the declarant. A jury cannot
'segregate evidence into separate intellectual boxes.'. . . It cannot
determine that a confession is true insofar as it admits that A has
committed criminal acts with B and at the same time effectively ignore
the inevitable conclusion that B has committed those same criminal
acts with A."
In addition to Jackson, our action
in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure
also evidences our repudiation of Delli Paoli's basic premise.
Rule 14 authorizes a severance where it appears that a defendant might
be prejudiced by a joint trial.
The Rule was amended in 1966 to provide expressly that "[i]n ruling on
a motion by a defendant for severance the
court may order the attorney for the government to
deliver to the court for inspection in camera any statements or
confessions made by the defendants which the government intends to
introduce in evidence at the trial." The Advisory Committee on Rules
said in explanation of the amendment:
"A defendant may
be prejudiced by the admission in evidence against a co-defendant of a
statement or confession made by that co-defendant. This prejudice
cannot be dispelled by cross-examination if the co-defendant does not
take the stand. Limiting instructions to the jury may not in fact
erase the prejudice. . . .
"The purpose of
the amendment is to provide a procedure whereby the issue of possible
prejudice can be resolved on the motion for severance. . . ."
Those who have defended reliance on the
limiting instruction in this area have cited several reasons in
support. Judge Learned Hand, a particularly severe critic of the
proposition that juries could be counted on to disregard inadmissible
hearsay,
wrote the opinion for the Second Circuit which
affirmed Delli Paoli's conviction. 229 F.2d 319. In Judge Hand's
view the limiting instruction, although not really capable of
preventing the jury from considering the prejudicial evidence, does as
a matter of form provide a way around the exclusionary rules of
evidence that is defensible because it "probably furthers, rather than
impedes, the search for truth. . . ." Nash v. United States,
54 F.2d 1006, 1007. Insofar as this implies the prosecution ought not
to be denied the benefit of the confession to prove the confessor's
guilt,
however, it overlooks alternative ways of achieving that benefit
without at the same time infringing the nonconfessor's
right of confrontation.
Where viable alternatives do exist, it is deceptive to rely on the
pursuit of truth to defend a clearly harmful practice.
Another reason cited in defense of
Delli Paoli is the justification for joint trials in general, the
argument being that the benefits of joint proceedings should not have
to be sacrificed by requiring separate trials in order to use the
confession against the declarant. Joint trials do conserve state
funds, diminish inconvenience to witnesses and public authorities, and
avoid delays in bringing those accused of crime to trial. But the
answer to this argument was cogently stated by Judge Lehman of the New
York Court of Appeals, dissenting in People v. Fisher,
249 N.Y. 419, 432, 164 N.E. 336, 341:
"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."
Finally, the reason advanced by the
majority in Delli Paoli was to tie the result to
maintenance of the jury system. "Unless we proceed on the basis that
the jury will follow the court's instructions where those instructions
are clear and the circumstances are such that the jury can reasonably
be expected to follow them, the jury system makes little sense." 352
U.S., at 242. We agree that there are many circumstances in which this
reliance is justified. Not every admission of inadmissible hearsay or
other evidence can be considered to be reversible error unavoidable
through limiting instructions; instances occur in almost every trial
where inadmissible evidence creeps in, usually inadvertently. "A
defendant is entitled to a fair trial but not a perfect one."
Lutwak v. United States, 344 U.S. 604, 619; see Hopt
v. Utah, 120 U.S. 430, 438; cf. Fed. Rule Crim. Proc. 52 (a).
It is not unreasonable to conclude that in many such cases the jury
can and will follow the trial judge's instructions to disregard such
information. Nevertheless, as was recognized in Jackson v.
Denno, supra, 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. Compare
Hopt v. Utah, supra; Throckmorton v. Holt, 180 U.S.
552, 567; Mora v. United States, 190 F.2d 749;
Holt v. United States, 94 F.2d 90. Such a context is
presented here, where the powerfully incriminating extrajudicial
statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before the
jury in a joint trial. Not only are the incriminations devastating to
the defendant but their credibility is inevitably suspect, a fact
recognized when accomplices do take the stand and the jury is
instructed to weigh their testimony carefully given the recognized
motivation to shift blame onto others.
The unreliability of such evidence is intolerably compounded when the
alleged accomplice, as here, does not testify and cannot be tested by
cross-examination. It was against such threats to a fair trial that
the Confrontation Clause was directed.
Pointer v. Texas, supra.
We, of course, acknowledge the
impossibility of determining whether in fact the jury did or did not
ignore Evans' statement inculpating petitioner in determining
petitioner's guilt. But that was also true in the analogous situation
in Jackson v. Denno, and was not regarded as militating
against striking down the New York procedure there
involved. It was enough that that procedure posed "substantial threats
to a defendant's constitutional rights to have an involuntary
confession entirely disregarded and to have the coercion issue fairly
and reliably determined. These hazards we cannot ignore." 378 U.S., at
389. Here the introduction of Evans' confession posed a substantial
threat to petitioner's right to confront the witnesses against him,
and this is a hazard we cannot ignore. Despite the concededly clear
instructions to the jury to disregard Evans' inadmissible hearsay
evidence inculpating petitioner, in the context of a joint trial we
cannot accept limiting instructions as an adequate substitute for
petitioner's constitutional right of cross-examination. The effect is
the same as if there had been no instruction at all. See Anderson
v. United States, 318 U.S. 350, 356-357; cf. Burgett
v. Texas, 389 U.S. 109, 115.
Reversed.
MR. JUSTICE BLACK concurs in the result
for the reasons stated in the dissent in Delli Paoli v.
United States, 352 U.S. 232, 246.
MR. JUSTICE MARSHALL took no part in the
consideration or decision of this case.
MR. JUSTICE STEWART, concurring.
I join the opinion and judgment of the
Court. Although I did not agree with the decision in Jackson v.
Denno, 378 U.S. 368 (see id., at 427), I accept its
holding and share the Court's conclusion that it compels the
overruling of Delli Paoli v. United States, 352 U.S.
232.
Quite apart from Jackson v.
Denno, however, I think it clear that the underlying rationale of
the Sixth Amendment's Confrontation Clause precludes reliance upon
cautionary instructions when the highly damaging out-of-court
statement of a codefendant, who is not subject to
cross-examination, is deliberately placed before the jury at a joint
trial. A basic premise of the Confrontation Clause, it seems to me, is
that certain kinds of hearsay (see, e.g., Pointer v. Texas,
380 U.S. 400; Douglas v. Alabama, 380 U.S. 415) 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. See the Court's opinion, ante, at 136, n. 12. It is
for this very reason that an out-of-court accusation is universally
conceded to be constitutionally inadmissible against the
accused, rather than admissible for the little it may be worth. Even
if I did not consider Jackson v. Denno controlling,
therefore, I would still agree that Delli Paoli must be
overruled.
MR. JUSTICE WHITE, dissenting.
Whether or not Evans' confession was
inadmissible against him, nothing in that confession which was
relevant and material to Bruton's case was admissible against Bruton.
As to him it was inadmissible hearsay, a presumptively unreliable
out-of-court statement of a nonparty who was not a witness subject to
cross-examination. Admitting Evans' confession against Bruton would
require a new trial unless the error was harmless.
The trial judge in this case had no
different view. He admitted Evans' confession only against Evans, not
against Bruton, and carefully instructed the jury to disregard it in
determining Bruton's guilt or innocence.
Contrary to its ruling just a decade ago in Delli
Paoli v. United States, 352 U.S. 232 (1957), the Court
now holds this instruction insufficient and reverses Bruton's
conviction. It would apparently also reverse every other case where a
court admits a codefendant's confession implicating a defendant,
regardless of cautionary instructions and regardless of the
circumstances. I dissent from this excessively rigid rule. There is
nothing in this record to suggest that the jury did not follow the
trial judge's instructions. There has been no new learning since
Delli Paoli indicating that juries are less reliable than they
were considered in that case to be. There is nothing in the prior
decisions of this Court which supports this new constitutional rule.
The Court concedes that there are many
instances in which reliance on limiting instructions is justified —
"Not every admission of inadmissible hearsay or other evidence can be
considered to be reversible error unavoidable through limiting
instructions; instances occur in almost every trial where inadmissible
evidence creeps in, usually inadvertently." Ante, at 135. The
Court asserts, however, that the hazards to the defendant of
permitting the jury to hear a codefendant's confession implicating him
are so severe that we must assume the jury's inability to heed a
limiting instruction. This was the holding of the Court with respect
to a confession of the defendant himself in Jackson v. Denno,
378 U.S. 368 (1964). There are good reasons, however, for
distinguishing the codefendant's confession from that of the defendant
himself and for trusting in the jury's ability to disregard the former
when instructed to do so.
First, the defendant's own confession is
probably the most probative and damaging evidence that can be admitted
against him. Though itself an out-of-court statement, it is admitted
as reliable evidence because it is an admission of guilt by the
defendant and constitutes direct
evidence of the facts to which it relates. Even the testimony of an
eyewitness may be less reliable than the defendant's own confession.
An observer may not correctly perceive, understand, or remember the
acts of another, but the admissions of a defendant come from the actor
himself, the most knowledgeable and unimpeachable source of
information about his past conduct. Certainly, confessions have
profound impact on the jury, so much so that we may justifiably doubt
its ability to put them out of mind even if told to do so. This was
the conclusion of the Court in Jackson, and I continue to
believe that case to be sound law.
Second, it must be remembered that a
coerced confession is not excluded because it is thought to be
unreliable. Regardless of how true it may be, it is excluded because
specific provisions of the Constitution demand it, whatever the
consequences for the criminal trial. In Jackson itself it was
stated that "[i]t is now axiomatic that a defendant in a criminal case
is deprived of due process of law if his conviction is founded, in
whole or in part, upon an involuntary confession, without regard for
the truth or falsity of the confession. . . ." 378 U.S., at 376. See
id., at 385-386. In giving prospective effect only to its rules
in Miranda v. Arizona, 384 U.S. 436 (1966), the Court
specifically reaffirmed the principle that coerced confessions are
inadmissible regardless of their truth or falsity, Johnson v.
New Jersey, 384 U.S. 719, 729, n. 9 (1966). The Court
acknowledged that the rules of Miranda apply to situations "in
which the danger [of unreliable statements] is not necessarily as
great as when the accused is subjected to overt and obvious coercion."
Id., at 730. And, in Tehan v. United States ex
rel. Shott, 382 U.S. 406, 416 (1966), holding the rule of
Griffin v. California, 380 U.S. 609 (1965), not
retroactive, the Court quite explicitly stated that "the Fifth
Amendment's privilege against self-incrimination is not
an adjunct to the ascertainment of
truth. That privilege, like the guarantees of the Fourth Amendment,
stands as a protection of quite different constitutional values. . .
." The exclusion of probative evidence in order to serve other ends is
sound jurisprudence but, as the Court concluded in Jackson v.
Denno, 378 U.S., at 382, juries would have great difficulty in
understanding that policy, in putting the confession aside, and in
finding the confession involuntary if the consequence was that it
could not be used in considering a defendant's guilt or innocence.
The situation in this case is very
different. Here we deal with a codefendant's confession which is
admitted only against the codefendant and with a firm instruction to
the jury to disregard it in determining the defendant's guilt or
innocence. That confession cannot compare with the defendant's own
confession in evidentiary value. As to the defendant, the confession
of the codefendant is wholly inadmissible. It is hearsay, subject to
all the dangers of inaccuracy which characterize hearsay generally.
Furthermore, the codefendant is no more than an eyewitness, the
accuracy of whose testimony about the defendant's conduct is open to
more doubt than would be the defendant's own account of his actions.
More than this, however, the statements of a codefendant have
traditionally been viewed with special suspicion. Crawford v.
United States, 212 U.S. 183, 204 (1909); Holmgren v.
United States, 217 U.S. 509, 523-524 (1910). See also Caminetti
v. United States, 242 U.S. 470, 495 (1917); Mathes, Jury
Instruction and Forms for Federal Criminal Cases, 27 F. R. D. 39,
68-69 (1961). Due to his strong motivation to implicate the defendant
and to exonerate himself, a codefendant's statements about what the
defendant said or did are less credible than ordinary hearsay
evidence. Whereas the defendant's own confession possesses greater
reliability and evidentiary
value than ordinary hearsay, the codefendant's confession implicating
the defendant is intrinsically much less reliable.
The defendant's own confession may not be
used against him if coerced, not because it is untrue but to protect
other constitutional values. The jury may have great difficulty
understanding such a rule and following an instruction to disregard
the confession. In contrast, the codefendant's admissions cannot enter
into the determination of the defendant's guilt or innocence because
they are unreliable. This the jury can be told and can understand.
Just as the Court believes that juries can reasonably be expected to
disregard ordinary hearsay or other inadmissible evidence when
instructed to do so, I believe juries will disregard the portions of a
codefendant's confession implicating the defendant when so instructed.
Indeed, if we must pick and choose between hearsay as to which
limiting instructions will be deemed effective and hearsay the
admission of which cannot be cured by instructions, codefendants'
admissions belong in the former category rather than the latter, for
they are not only hearsay but hearsay which is doubly suspect. If the
Court is right in believing that a jury can be counted on to ignore a
wide range of hearsay statements which it is told to ignore, it seems
very odd to me to question its ability to put aside the codefendant's
hearsay statements about what the defendant did.
It is a common experience of all men to be
informed of "facts" relevant to an issue requiring their judgment, and
yet to disregard those "facts" because of sufficient grounds for
discrediting their veracity or the reliability of their source.
Responsible judgment would be impossible but for the ability of men to
focus their attention wholly on reliable and credible evidence, and
jurymen are no less capable of exercising this capacity than other
men. Because I have no doubt
that serious-minded and responsible men are able to shut their minds
to unreliable information when exercising their judgment, I reject the
assumption of the majority that giving instructions to a jury to
disregard a codefendant's confession is an empty gesture.
The rule which the Court announces today
will severely limit the circumstances in which defendants may be tried
together for a crime which they are both charged with committing.
Unquestionably, joint trials are more economical and minimize the
burden on witnesses, prosecutors, and courts. They also avoid delays
in bringing those accused of crime to trial. This much the Court
concedes. It is also worth saying that separate trials are apt to have
varying consequences for legally indistinguishable defendants. The
unfairness of this is confirmed by the common prosecutorial experience
of seeing codefendants who are tried separately strenuously jockeying
for position with regard to who should be the first to be tried.
In view of the practical difficulties of
separate trials and their potential unfairness, I am disappointed that
the Court has not spelled out how the federal courts might conduct
their business consistent with today's opinion. I would suppose that
it will be necessary to exclude all extrajudicial confessions unless
all portions of them which implicate defendants other than the
declarant are effectively deleted. Effective deletion will probably
require not only omission of all direct and indirect inculpations of
codefendants but also of any statement that could be employed against
those defendants once their identity is otherwise established. Of
course, the deletion must not be such that it will distort the
statements to the substantial prejudice of either the declarant or the
Government. If deletion is not feasible, then the Government will have
to choose either not to use the
confession at all or to try the defendants separately. To save time,
money, and effort, the Government might best seek a ruling at the
earliest possible stage of the trial proceedings as to whether the
confession is admissible once offending portions are deleted. The
failure of the Government to adopt and follow proper procedures for
insuring that the inadmissible portions of confessions are excluded
will be relevant to the question of whether it was harmless error for
them to have gotten before the jury. Oral statements, such as that
involved in the present case, will present special problems, for there
is a risk that the witness in testifying will inadvertently exceed
permissible limits. Except for recommending that caution be used with
regard to such oral statements, it is difficult to anticipate the
issues which will arise in concrete factual situations.
I would hope, but am not sure, that by
using these procedures the federal courts would escape reversal under
today's ruling. Even so, I persist in believing that the reversal of
Delli Paoli unnecessarily burdens the already difficult task of
conducting criminal trials, and therefore I dissent in this case.
MR. JUSTICE HARLAN joins this opinion
without abandoning his original disagreement with Jackson v.
Denno, 378 U.S. 368, 427, expressed in his dissenting opinion in
that case.
