In 1968, in Bruton v. United States, the Supreme Court interpreted the Confrontation Clause to bar the "the admission of a codefendant's confession that implicate[s] the other defendant at a joint trial."322 Prior to Bruton, federal and state criminal courts had generally assumed that when defendants were tried together, confessions by one defendant that implicated another defendant could be admitted without violating the Confrontation Clause if the judge instructed the jury that the confession was admissible only against the confessing codefendant.323 The Bruton Court found that the admission of the other person's confession "violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment" based on "the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt."324 According to the Court, "[t]he 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."325
The Bruton Court understood the Confrontation Clause to protect defendants from admission of this type of out-of-court harm based on the view that "[a] basic premise of the Confrontation Clause . . . is that certain kinds of hearsay 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 that it deserves."326 Thus, the Court held that prosecutors can admit a nontestifying codefendant's interlocking confession only if it has been effectively redacted or if the defendants' trials are severed and the confession is introduced only against the confessing defendant.
After Bruton, the Court clarified that the Confrontation Clause is violated by the admission of a nontestifying codefendant's confession, even when the defendant's own confession (reciting essentially the same information) has been admitted.327 The justices also distinguished confessions that explicitly and directly incriminate codefendants from those that incriminate codefendants only inferentially when combined with other evidence.328 In cases where a nontestifying codefendant's confession incriminates the defendant only when combined with other incriminating evidence, the Confrontation Clause is not violated if "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence."329 However, the redaction must be full and effective. Thus, the Confrontation Clause is violated if the defendant's name is simply removed and the nontestifying codefendant's confession retains direct and obvious references to "someone" whose name has obviously been deleted.330
Prior to Crawford, courts applied Bruton to confessions and other incriminating statements made to nonstate actors, such as jailhouse informants, because the same prejudice inured to the nonconfessing codefendant.331 Federal and state courts have now begun to...
