For the Defense - Vol. 8, Issue 3 - 8

The dissents observed
that despite resolving a
constitutional question about
the Sixth Amendment, the
majority's analysis relied very
little on the Confrontation
Clause itself. Justice Jackson's
dissent highlighted that the
majority's
approach
starts
from the presumption that " a
nontestifying codefendant's
incriminating
confession
is
admissible, so long as it is
accompanied by a limiting
instruction. " 36
But, as Justice
Jackson reasoned, that has never
been the Court's interpretation
of the Confrontation Clause-
and Bruton itself declined to
adopt such an exception to
the Confrontation Clause.37
Rather,
the
" Government's
introduction of an inculpatory
confession during a joint
trial poses a substantial
constitutional problem, " and
the Court should have started
its analysis from " the default
presumption . . . that Stillwell's
confession was not admissible
at his and Samia's joint
trial, because the statement
implicated Samia on its face,
and Samia could not crossexamine
the declarant. " 38
The
Court should have proceeded to analyze whether potential
cures to the constitutional problem exist rather than " skip[]
over the first question today [by assuming] there is no Sixth
Amendment problem in the first place. " 39
By doing so, Justice
Jackson argued, the majority made an " unwarranted expansion
of what should be a narrow exception to the default principle
of exclusion. " 40
Moreover, the majority opinion failed to meaningfully
grapple with the circumstances under which a redacted
inculpatory confession points the finger at the nonconfessing
defendant. In Samia's case, Justice Kagan explained that it
would have been obvious to the jury that the " other person "
in Stillwell's confession was Samia.41
By the time Agent Stouch
even took the stand to recount Stillwell's confession, the jury
had already heard in opening statements from the prosecutor
stating that Samia shot Lee while Lee was in the backseat
of a van being driven by Stillwell.42
" Any reasonable juror
would have realized immediately-and without reference to
any other evidence-that 'the other person' who 'pulled the
trigger' was Samia. " 43
Justice Kagan criticized the majority for declining to consider
any context surrounding Stillwell's redacted confession. The
majority simply concluded that Stillwell's redacted confession
did not directly implicate Samia because it was redacted to
remove Samia's name and that redaction was not something
obvious, like a blank space or the word 'deleted.'44
general theory of the case " when analyzing whether a
redacted confession inculpates the nontestifying defendant.45
The majority's decision purports to instruct lower courts that
no such contextual pretrial analysis is necessary, facilitating
carte blanche admission of redacted accomplice confessions.
Samia v. United States: Effect
Samia makes it less likely that courts will protect a
defendant's rights under the Confrontation Clause by forcing
the government to choose between offering the challenged
statement after severance or agreeing not to offer the
confession. Some courts, such as the Second Circuit, discussed
above, have long been using a test similar to the one endorsed
by Samia that analyzes the admissibility of a redacted confession
of a codefendant without considering the context in which the
jury will weigh the confession.46
A recent review of case law
in the Second Circuit found that, when only considering the
" four corners " of the confession and disregarding the other
trial evidence, defendants' objections or relief sought (such
as severance) were overwhelmingly denied.47
Whether Samia
is the first step in overruling Bruton, or whether it renders
Bruton so weakened that overruling is unnecessary, the
decision represents a step backwards in protecting the rights
of the accused.
In practice, an analysis drained of context allows prosecutors
to use out-of-court statements to point the same " accusatory
finger " disallowed by Bruton and its progeny. After the
statement is admitted, on the premise that the jury will
hear it only as proof of the declarant's guilt, prosecutors
can-and do-rely on the confession to point the finger
at the nonconfessing defendant to such a degree that it is
unreasonable to believe that the jury will follow the instruction
not to consider the confession as part of the proof of the
nontestifying defendant's guilt. This prejudice can arise in a
number of ways. When the group of alleged participants or
defendants is small (or in some cases, a twosome), it is more
likely that the jury will conclude that the " other " person is the
nonconfessing defendant. If the redacted confession identifies
attributes of the role of the " other " -as confessions that refer
to an accomplice in any way are likely to do-it introduces an
even greater risk that the jury will infer that the confessing
defendant identified his codefendant. This is precisely what
happened in Samia when Stillwell's confession identified the
" other person " in the van as the triggerman, and then the
government effectively identified Samia as the " other person "
by offering statements and testimony that Samia was traveling
and living with Stillwell, that Samia owned the same type of
gun that shot Lee, and by arguing in closing that Samia shot
Lee while Stillwell drove the car.
Prior to the Court's decision in Samia, certain Circuits
had utilized a contextual analysis that considered other
trial evidence when assessing the admissibility of redacted
accomplice confessions.48
This includes the Third Circuit,
which takes " a holistic approach when considering redacted
confessions, by viewing the redaction in the context of the
entire record. " 49
Due to Samia, that is likely to change, with
This
approach of merely looking to the form of the confession
fails to consider the effect of the confession or its inculpatory
impact. Justice Kagan noted that the Court's precedents
required courts to consider factors such as " the content of the
confession, the number of defendants, and the prosecution's
8 For The Defense l Vol. 8, Issue 3
prosecutors urging that a holistic approach is unnecessary in
light of the " four corners " approach endorsed by the Samia
majority. In those Circuits, courts took steps to protect the
defendants from the " accusatory finger, " such as severance.
Although this might lead to some additional trials, it is often the
case that the Constitution imposes burdens on prosecutors that
otherwise might not exist. In any event, the clear trend in the
number of federal criminal trials over the last quarter century
For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3
