Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.
Samia and 2 co-defendants were tried for murder of a real estate agent in the Philippines. The co-defendants admitted that they particpated in the murder, but Samia maintained his innocence. The district court refused to sever the trials and then admitted into evidence the out-of-court confession by one of the co-defendants. The confession identified Samia as the person who pulled the trigger. In general, the admission of such evidence violates the 6th Amendment’s Confrontation Clause. See Bruton v. United States, 391 U.S. 123 (1968)
To address this problem, the district court required the government to replace Samia’s name with “other person.” This procedure is approved by Richardson v. Marsh, 481 U.S. 200 (1987) and Gray v. Maryland, 523 U.S. 185 (1998).
In Samia’s case, the government referred to the co-defendant’s confession in its opening statement as its “most crucial” evidence, it questioned a witness about the “other person” (i.e. Samia), and it elicited additional details about Samia’s role in the murder. The district court and the 2nd Circuit Court of Appeals held that the redactions were sufficient to avoid a 6th Amendment violation.
In determining whether a redacted confession incriminates a defendant, the 2nd, 4th, 8th, and 10th Circuits consider the redacted statement in isolation from other evidence. The 1st, 3rd, 7th, 9th, 11th, and D.C. Circuits hold that the redacted statement must be considered in the context in which the government offers the statement. See Samia’s cert. petition listing all of the cases from the various circuits.
SCOW addressed a similar situation in 2017. State v. Raymond L. Nieves, 2017 WI 69, 376 Wis. 2d 300, 897 N.W.2d 363. It refused to find a Confrontation Clause violation on the theory that the statement at issue was “nontestimonial.” Therefore, Bruton did not apply. See our post here. Given this holding, SCOW did not address the issue in Samia. However, the Nieves court of appeals decision appears to have followed the 7th Circuit’s approach, which requires a court to determine whether a statement is incriminating by considering it in the context in which it is offered.