The Chief Justice John Roberts-led U.S. Supreme Court will have another opportunity to modify or overrule a longstanding precedent issued by the Court before his tenure as Chief Justice.
The case before the Court, Samia v. United States, involves a fundamental Sixth Amendment issue that a criminal defendant has a right “to be confronted with the witnesses against him.”
In a 1968 precedent ruling, Bruton v. United States, the Supreme Court held that the government may not use any out-of-court statements (or confessions) made by a co-defendant against another defendant when the defendants are being tried together.
The constitutional premise of the Bruton Rule is that such statements do not allow the defendant against whom the statements are made to cross-examine the defendant who made the statements—a clear violation of what is known as the Sixth Amendment’s “Confrontation Clause.”
With the approval of trial courts, government prosecutors immediately began to try to circumvent the Bruton Rule by using redacted statements that only identified the defendant making the statements by a nickname or some other description.
In two subsequent decisions, Harrington v. California (1969) and Gray v. Maryland (1998), the Supreme Court ruled that such redacted statements also violated the Bruton Rule.
Then, in 2004, the Supreme Court in Crawford v. Washington was called upon to balance the interests of the government to use statements under the “hearsay rule” without violating the confrontation protections of the Bruton “testimonial” Rule.
The Court found that a “testimonial hearsay” statement could only be used at trial if the person making the statement is unavailable to testify at trial and the defendant has had an opportunity to cross-examine the person making the statement. In writing for the Court, Justice Scalia said, “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”
What is the difference between testimonial statements (requiring Bruton protection) and non-testimonial statements (not subject to Bruton protection)?
In three subsequent post-Crawford decisions, the Supreme Court under Chief Justice Roberts attempted to clarify the difference:
Melendez-Dias v. Mass. (2009):
- Investigation reports prepared by law enforcement, such as lab reports on drug tests, are testimonial subject to cross-examination under the Burton rule.
- Michigan v. Bryant (2011): Statements given to police identifying a suspect or other providing other information in assisting the police in an “ongoing emergency” to bring about the arrest of a suspect still at large is not testimonial statements.
- Bullcoming v. New Mexico (2011): Lab technicians who perform tests in criminal investigation are subject to cross-examination under Bruton rule.
A testimonial statement within the Bruton Rule under this trilogy of cases then is basically one that would aid the prosecution in presenting its case.
For example, statements that describe the circumstances of the offense being tried, identify the defendant as the perpetrator of the offense, or establish specific elements of the offense.
Within this constitutional framework, the Roberts Court must now decide the Samia case.
In the Samia case, the government had two individuals, Adam Samia, and Carl Stillwell, indicted for the contract killing of one person. The government elected to try them jointly.
The government had statements Stillwell made to a Drug Enforcement agent that he was driving the van with Samia in it when Samia shot and killed the victim. Stillwell also admitted to the DEA agent that he received $20,000 to $30,000 for his role in the contract killing.
The government sought and secured permission to use Stillwell’s statements during their joint trial. However, the trial judge instructed the jury that the statements could not be used against Samia. A legal fiction equivalent to unringing the bell, which flies contrary to human experience.
To avoid the protection Samia enjoyed under the Bruton Rule about co-defendant statements, the government, through the DEA agent testifying at the trial, to Stillwell as the “other person” who made the statement.
The problem inherent with this prosecutorial approach is: the government repeatedly referred to the other person’s confession in its opening statement, and the prosecution presented evidence that made it evident that the “other person” who confessed was Stillwell.
In effect, the jury got testimony against Samia from his co-defendant Stillwell without that testimony being subjected to meaningful cross-examination.
In an amicus curiae brief filed in support of the Samia case, legal scholars and law professors who teach about the Bruton Rule described the damage that will be done to the Bruton Rule if the Court sanctions the government’s prosecutorial tactics used in the Samia case:
“… if this Court were to adopt the government’s stance, it would allow the prosecution to premise its entire case on linking a co-defendant’s confession to another defendant through other evidence. Consider a trial with these two key facts. First, the prosecution introduces a non-testifying co-defendant’s confession: ‘I hacked the computer with my friend Wasp with the dragon tattoo.’ Second, every other witness for the prosecution testifies that ‘Wasp’ is a nickname for the other defendant, Lisbeth Salander. The prosecution also presents photographs prominently displaying the dragon tattoo on Salander’s back. According to the government, the introduction of the confession would not violate the Bruton doctrine because other evidence was required to establish that ‘Wasp’ is Salander’s nickname and that she has a dragon tattoo on her back. But under Gray, the confession would violate Bruton because of the risk that the jury could not follow an instruction directing it to ignore the confession that the prosecution spent the rest of the trial tying to the other defendant through documentary evidence and testimony.”
If the Roberts Court adopts the government’s tactics in Samia, the Bruton Rule will have little constitutional value.
Since the Roberts Court has a renewed zeal for either overturning precedent rulings or modifying them to the point of near extinction, legal scholars, law professors, and criminal defense attorneys have every reason to be concerned about how the Roberts Court will interpret the Samia case. This case vividly illustrates the far-reaching divisions among federal and state courts about dealing with Bruton Rule-type cases since the Supreme Court decided Crawford v. Washington.
We all hold our breath.