Third Circuit Holds Bruton Is Inapplicable In Bench Trials

In addressing open issue, Third Circuit joins five other circuits, in Johnson v. Tennis, 549 F.3d 296 (3d Cir. Nov. 19, 2008) (No. 07-1968)

In Bruton v. United States, 391 U.S. 123, 135-37 (1968), the Supreme Court held that the admission of a co-defendant’s confession implicating the defendant is reversible error where the codefendant did not testify and the co-defendant and defendant are jointly tried. The limiting instructions to the jury to disregard the confession in considering the guilt of the co-defendant were inadequate to cure the violation of the Confrontation Clause. How does the Bruton rule apply in a bench trial? The Third Circuit is the latest circuit to address this issue.

In the case, co-defendants Johnson and Davis were convicted in a state bench trial for second degree murder and criminal conspiracy. The defendants gave conflicting accounts to the police concerning the murder after a confrontation occurred with the victim at a club. The trial court denied defendant Davis’s motion to suppress his statement but on the request of defendant Johnson ordered that the statement be redacted to substituted “X” for references to defendant Johnson. The statement was admitted at trial solely against defendant Davis. After the conviction, the trial court denied a post-trial motion alleging Bruton error, concluding that the risks of prejudice under Bruton did not apply in a bench trial. The ruling was affirmed on state appeal.

The Third Circuit considered the issue on federal habeas review. Petitioner Johnson claimed his trial counsel rendered ineffective assistance of counsel by failing to move to sever after the redacted statement was admitted. The Third Circuit held:

“The Bruton rule is inapplicable to the incriminating confession of a non-testifying codefendant in a joint bench trial because Bruton applies solely to jury trials. In so deciding, we join the myriad Courts of Appeals that have recognized that the rule and rationale of Bruton do not apply to bench trials…. Because Bruton does not apply to a bench trial, Johnson cannot have been deprived of any constitutional right based on Bruton. Accordingly, trial counsel was not ineffective for failing to make a pretrial motion for severance after the redacted statement of Johnson’s non-testifying codefendant was admitted into evidence, and the Pennsylvania Superior Court’s adjudication of this issue was not contrary to, or an unreasonable determination of, Supreme Court precedent.”

Johnson, 549 F.3d at 301 (footnotes omitted). In so holding, the Third Circuit joined “every United States Court of Appeals that has considered the question,” including the First, Fifth, Sixth, Seventh and Ninth Circuits:

  • United States v. Castro, 413 F.2d 891, 895 & n.7 (1st Cir. 1969) (“A jury may have difficulty in disregarding extrajudicial statements implicating a defendant. We will not presume that a judge suffers from the same disability. Indeed, the presumption is to the contrary.”), cert. denied, 397 U.S. 950 (1970)
  • United States v. Cardenas, 9 F.3d 1139, 1154 (5th Cir. 1993) (“Nothing in Bruton, or in later Supreme Court cases discussing Bruton, suggests that in a bench trial a judge is incapable of disregarding inadmissible extrajudicial statements implicating a defendant.”)
  • Rogers v. McMackin, 884 F.2d 252, 257 (6th Cir. 1989) (“To apply Bruton to bench trials would be to conclude that judges, like jurors, may well be incapable of separating evidence properly admitted against one defendant from evidence admitted against another.”)
  • United States ex rel. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir. 1979) (Bruton “is simply inapplicable in the case of a bench trial.”)
  • Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir. 1969) (“The Bruton rule does not apply to [petitioner] because she was tried by the court and not by a jury. Nothing in Bruton suggests that a judge is incapable of applying the law of limited admissibility which he has himself announced.”)


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