The Bruton Rule and Redacted Codefendant Confessions
A federal prosecutor may seek to introduce one defendant’s confession during a joint trial involving several defendants. A serious Confrontation Clause problem arises when the confession incriminates a codefendant, but the person who made the statement does not testify and cannot be cross-examined.
The government may attempt to solve the problem by removing the codefendant’s name and replacing it with a neutral phrase. Whether the redaction is constitutionally sufficient depends on the exact language, the structure of the statement, and whether it directly identifies the defendant on its face.
If prosecutors intend to use a nontestifying codefendant’s confession in your federal trial, contact federal criminal defense attorney Michael J. Petro immediately. The statement may support exclusion, further redaction, severance, or another protective remedy.
What Is the Bruton Rule?
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that admitting a nontestifying codefendant’s confession that directly implicated the defendant violated the Sixth Amendment right to confrontation.
The trial court instructed the jury to consider the confession only against the person who made it. The Supreme Court concluded that the limiting instruction was insufficient because the confession powerfully and directly incriminated the other defendant.
Bruton applies most clearly when:
• Defendants are tried together
• One defendant made a testimonial confession
• The confession incriminates another defendant
• The government introduces the confession for its truth
• The person who made the confession does not testify
• The implicated defendant has no opportunity for cross examination
Bruton Generally Concerns Testimonial Statements
The Confrontation Clause primarily restricts testimonial statements by absent witnesses.
A formal statement made by a codefendant during a custodial police interrogation is ordinarily testimonial. If the codefendant does not testify, admission of that confession may create a Bruton problem.
Statements made during and in furtherance of a conspiracy are ordinarily considered nontestimonial and may instead be analyzed under Federal Rule of Evidence 801(d)(2)(E).
The classification of the statement must be examined before deciding whether Bruton applies.
When the Codefendant Testifies
Bruton does not prevent admission when the codefendant takes the stand and is available for meaningful cross examination about the statement.
The constitutional problem arises because the government presents an accusation from a person whom the defendant cannot question.
A codefendant’s theoretical availability is not enough. If the codefendant invokes the Fifth Amendment and refuses to answer questions, the defendant has not received the required opportunity for cross-examination.
Richardson v. Marsh
In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court approved a confession redacted to eliminate not only the defendant’s name but also any direct reference to the defendant’s existence.
The redacted statement did not incriminate the defendant on its face. It became incriminating only when the jury connected it with other evidence introduced during trial.
The Court concluded that a limiting instruction could adequately address that type of inferential incrimination.
Gray v. Maryland
In Gray v. Maryland, 523 U.S. 185 (1998), the prosecution replaced the defendant’s name with an obvious blank or the word “deleted.”
The redaction called the jury’s attention to the missing name and effectively invited jurors to fill in the blank with the defendant sitting in the courtroom.
The Supreme Court held that this type of transparent redaction remained directly accusatory and violated Bruton.
Other obvious substitutes, symbols, nicknames, or descriptions may create the same problem when they operate as unmistakable stand-ins for a particular defendant.
Samia v. United States
In Samia v. United States, 599 U.S. 635 (2023), the Supreme Court considered a confession redacted by replacing the defendant’s name with neutral references to an “other person.”
The Court held that the redacted confession did not violate the Confrontation Clause because it did not directly incriminate Samia on its face. The trial court also repeatedly instructed the jury to consider the confession only against the codefendant who made it.
Other trial evidence allowed the jury to infer that Samia was the “other person.” But the confession itself did not name, describe, or obviously identify him.
Samia confirms that courts generally distinguish between a statement that directly identifies the defendant and one that becomes incriminating only after the jury links it with other evidence.
Neutral Words Are Not Automatically Safe
The government cannot guarantee compliance with Bruton merely by inserting the phrase “another person.”
A supposedly neutral term may remain an obvious reference when:
• Only one other defendant is on trial
• The statement describes a unique characteristic belonging to the defendant
• The substituted phrase identifies a specific role assigned only to the defendant
• The surrounding language reveals the removed name
• The prosecutor connects the neutral phrase directly to the defendant
• The number of unnamed participants corresponds exactly with the defendants
• The redaction distorts the original statement or creates an obvious deletion
The complete statement must be reviewed in the context in which the jury will hear it.
United States v. Braziel
Attorney Michael J. Petro represented Alonzo Braziel at trial and on appeal in a federal mortgage fraud prosecution in Chicago.
The government introduced a confession from Donald Thomas, a codefendant who did not testify. Thomas’s original statement identified Braziel as the purchaser of a particular property. Prosecutors replaced Braziel’s name with the phrase “straw buyer.”
Other evidence identified Braziel as the buyer of that same property. The jury could therefore connect Braziel with the “straw buyer” mentioned in Thomas’s statement.
The defense objected and moved for a mistrial, arguing that the substituted phrase still identified Braziel and violated Bruton.
Why the Seventh Circuit Found No Bruton Violation
The Seventh Circuit described the issue as close but concluded that “straw buyer” was not an obvious stand-in for Braziel’s name.
The phrase could have referred to any person acting in that role. The redacted confession did not identify Braziel when considered on its own. Jurors had to compare the statement with separate mortgage and bank evidence before they could connect the phrase to him.
The court treated that process as inferential incrimination permitted under Richardson, rather than direct identification prohibited by Gray. It affirmed the conviction.
The decision was issued in the consolidated appeal captioned United States v. Green, Nos. 09-3098, 09-3482, and 09-3681 (7th Cir. Aug. 9, 2011). The Seventh Circuit’s complete opinion contains the full Bruton analysis.
Samia later reinforced the distinction the Seventh Circuit applied in Braziel’s case.
Limiting Instructions
When a redacted confession is not facially incriminating, the court may instruct the jury that the statement can be considered only against the defendant who made it.
Courts generally presume that jurors follow those instructions. Bruton recognizes a narrow exception when the confession directly and powerfully incriminates another defendant.
Defense counsel should request an instruction when appropriate but should not rely on an instruction to cure a statement that remains directly accusatory.
Possible Remedies for a Bruton Problem
A court may address a Bruton issue by:
• Excluding the confession
• Requiring a constitutionally sufficient redaction
• Severing the defendants for separate trials
• Using separate juries
• Limiting the portions of the statement introduced
• Permitting the statement only if the declarant testifies
• Granting a mistrial if the violation occurs during trial
A motion to sever under Federal Rule of Criminal Procedure 14 may be appropriate when the confession cannot be redacted without prejudicing the defendant or distorting the statement.
Preserving a Bruton Objection
Defense counsel should demand the precise confession and proposed redaction well before trial. A summary of the government’s intended evidence may not reveal whether the substituted words identify the defendant.
Counsel should:
• Review the original and redacted versions side by side
• Evaluate the statement in the context of the government’s other evidence
• Identify language that points directly to the defendant
• Object before the statement is presented to the jury
• Request severance or exclusion when redaction is inadequate
• Renew the objection if the government’s trial presentation makes the reference more obvious
• Request an appropriate limiting instruction without waiving the constitutional objection
Attorney Michael J. Petro represents individuals in federal criminal trials and appeals in Tampa, Florida, and Chicago, Illinois. Contact federal criminal defense attorney Michael J. Petro today if prosecutors intend to introduce a codefendant’s confession against you at a joint trial.