Second Circuit on Crawford
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The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:
In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.
Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation - the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.
This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right - although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.
I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.
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The opinion is available here [pdf file]
While the Bruton issue is obvious, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal.
The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn’t conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn’t going to raise a winning argument for the defendant if the defense didn’t.
[quote comment="7256"]The opinion is available here [pdf file]
While the Bruton issue is obviously, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal.
The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn’t conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn’t going to raise a winning argument for the defendant if the defense didn’t.[/quote]
Maybe I misunderstand you, but are you saying there’s no connection between Crawford and Bruton?
I think the problem in the application of Bruton here might be that the facts of Bruton involved a testimonial statement. The principle, however, should apply. How else is the defendant to “confront his accuser”, in this case, the co-defendant?
While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents.
See Confrontation Blog
and Indignant Indigent
[quote comment="7264"]While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents.
See Confrontation Blog
and Indignant Indigent[/quote]
I don’t think I said they were functional equivalents. I think in the case above, both Bruton and Crawford are implicated; why the Court did not address Bruton is the question.
The absence of any discussion of Bruton in the decision makes me think that it was simply not raised by the defendant. The circuit cannot, otherwise, simply dismiss its existence.
I’m not buying any sub silentio incorporation of Bruton into Crawford. It just can’t be.