Dissent in Bruton v. United States
391 U.S. 123 (1968) (1968) · Supreme Court of the United States
Bruton established that in a joint trial, the admission of a non-testifying co-defendant's confession that implicates the defendant violates the defendant's Sixth Amendment right to confrontation, even when the jury is instructed to consider the confession only against the co-defendant. The decision recognized the practical limits of limiting instructions in the face of powerfully incriminating evidence.
What was the dissent in Bruton v. United States?
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Case Overview
Facts
George Bruton and William Evans were tried jointly for armed postal robbery. A postal inspector testified that Evans had orally confessed and stated that both he and Bruton had committed the robbery. Evans did not take the stand at trial. The trial court instructed the jury that Evans's confession was admissible only against Evans and should not be considered against Bruton.
Majority Holding
The Court held that admitting a non-testifying co-defendant's confession that directly implicates the defendant violates the defendant's Confrontation Clause rights, regardless of any limiting instruction. The substantial risk that the jury, despite instructions, would consider the confession against the defendant is too great to permit reliance on a limiting instruction alone.
Majority Reasoning
Justice Brennan, writing for the majority, reasoned that there are some contexts in which the risk that a jury will not or cannot follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. The powerfully incriminating extrajudicial statements of a co-defendant who stands accused side-by-side with the defendant are devastating to the defense and create an overwhelming temptation for the jury to consider them against the defendant despite instructions. The Court drew on its prior recognition that limiting instructions are sometimes inadequate and concluded that confrontation rights cannot be satisfied by a mere instruction.
The Dissenting Opinion
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Key Quotes
“There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”
“The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.”
“The effect is the same as if there had been no instruction at all.”
Impact and Legacy
Bruton has had an enormous practical impact on the conduct of joint criminal trials. Prosecutors must now either sever the defendants' trials, redact the confession to eliminate reference to the non-confessing defendant (as permitted by Richardson v. Marsh), persuade the confessing defendant to testify, or forgo use of the confession. The decision reinforced the importance of the confrontation right and the limits of jury instructions as a curative device.
Exam Relevance
Bruton is a favorite exam topic because it sits at the intersection of hearsay, confrontation, and joint trial procedure. A typical exam question presents a joint trial where one defendant's confession implicates another. Students must identify the Bruton problem and discuss available remedies such as severance, redaction, or having the co-defendant testify.
Study Tips
- Know the core rule: a non-testifying co-defendant's confession naming the defendant cannot be admitted at a joint trial, even with a limiting instruction.
- Study Richardson v. Marsh (redacted confessions may be permissible if they do not directly implicate the defendant) and Gray v. Maryland (obvious redactions like replacing the name with a blank are still Bruton violations).
- Understand the remedies: severance, redaction, or having the co-defendant testify and submit to cross-examination.
- Consider how Bruton interacts with Crawford's testimonial framework.
Read the Full Case Analysis
View the complete brief for Bruton v. United States including full reasoning, doctrine, and study resources.
More Evidence Dissents
Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (1993) (1993)
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
541 U.S. 36 (2004) (2004)
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Davis v. Washington
547 U.S. 813 (2006) (2006)
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
448 U.S. 56 (1980) (1980)
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Tome v. United States
513 U.S. 150 (1995) (1995)
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.
Old Chief v. United States
519 U.S. 172 (1997) (1997)
Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented, arguing that the prosecution has the right to present its case with the richness and power of evidence that allows jurors to make the case their own. She contended the majority's approach improperly interfered with prosecutorial discretion and would create a slippery slope of defendant-forced stipulations.