Third Circuit Grants Habeas Relief to Prisoner on Confrontation Clause and Ineffective Assistance Claims Based on Trial Court Reading Entire Criminal Information Into the Record of Co-Conspirator Who Pleaded Guilty
by Sam Rutherford
The U.S. Court of Appeals for the Third Circuit affirmed the U.S. District Court for the Middle District of Pennsylvania’s order granting a Pennsylvania prisoner’s habeas corpus petition based on violations of his right to confront an adverse witness and to effective assistance of counsel. Both claims were based on a state court judge’s unchallenged decision to read a non-testifying co-conspirator’s criminal information to the jury, which implicated the prisoner in the charged offense, in violation of the Sixth Amendment.
Background
In 2014, Marcus Ortiz and Keith Crawford were each shot in the head inside a Lebanon, Pennsylvania, apartment complex. Ortiz died while Crawford was seriously wounded. They were shot during a dispute over illegal drug profits.
When police arrived at the scene shortly after the gunshots were reported, they observed Eddie Williams and Rick Cannon jump in a vehicle driven by Akeita Harden and speed off. A high-speed chase ensued, and all three suspects eventually abandon the car to flee on foot. Cannon and Harden were apprehended shortly thereafter. Williams was caught seven months later.
In July 2015, Cannon pleaded guilty to a 20-count criminal information, which included homicide and attempted homicide charges, aggravated assault, robbery, possessing controlled substances with intent to deliver, two firearms charges, flight to avoid arrest, and conspiracy charges related to each. Nine of those charges named Williams as a co-conspirator.
Williams was charged with the same offenses and proceeded to a joint trial with Harden in October 2015.
During opening statements, Williams’ defense attorney stated that Cannon “already said that he did this. He wrote down on a piece of paper under oath, yes, I killed that man. He stood in this very courtroom, put up his hand and took an oath and told Judge Kline, yes, I killed that man.” The prosecutor objected to this characterization during a subsequent sidebar, stating that “it’s a mischaracterization of the facts to say” that Cannon was “the person that pulled the trigger” because the homicide charge he pleaded guilty to accused him of “acting as a principal and/or accomplice” in Ortiz’s death.
In response to this objection, the trial court decided to read the entire contents of Cannon’s criminal information to the jury. The court informed the jury that it was reading the information, so it would know what Cannon “did and what he alleged he pled guilty to.” Nine of the 20 counts specifically named Williams as a co-conspirator, stating that he acted “a principal and/or accomplice” with Harden and Cannon in the crimes.
During closing arguments, defense counsel again mentioned the criminal information, stating that it proved Cannon was the person responsible for Ortiz’s death. Defense counsel explained the “principal and/or accomplice” language as just a “standard in this thing.” The prosecutor responded by pointing out to the jury that defense counsel had made “disingenuous comments” about Cannon’s guilty plea. The prosecutor insisted that the jury should “ascribe importance” to the fact that Cannon pleaded guilty “as a principal or an accomplice to the homicide and the shooting” and had admitted to engaging in a criminal conspiracy with “Akeita Harden and Eddie Williams to commit homicide.”
During deliberations, the jury requested that the trial court re-read Cannon’s criminal information to them. The court did so without objection from defense counsel. Williams was found guilty of all 20 charges, including first-degree murder. He was sentenced to life imprisonment plus a term of 21.5 to 47 years.
In July 2017, Williams filed a postconviction petition in state court, claiming that defense counsel provided ineffective assistance by “deliberately inform[ing] the jury that [Cannon] pled guilty … thus allowing the jury to hear that he pled guilty.” The court ruled that Cannon’s criminal information “never specifically or inferentially identifie[d] [Williams] in the role of principal or accessory” and therefore did not violate the Confrontation Clause. This ruling was affirmed by the state appellate courts.
In June 2020, Williams filed a timely habeas petition in the U.S. District Court, arguing, among other claims, that reading Cannon’s criminal information to the jury violated his right to confront an adverse witness and that defense counsel provided ineffective assistance for participating in and not objecting to this error. The District Court agreed with this claim and granted Williams’ habeas petition. The Commonwealth timely appealed.
Analysis
Federal habeas relief is appropriate only when a state court decision rejecting a prisoner’s federal constitution claim is “contrary to” or an “unreasonable application” of clearly established U.S. Supreme Court precedent. 28 U.S.C. § 2254(d)(1). An unreasonable application occurs when “the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply.” McMullen v. Tennis, 562 F.3d 231 (3d Cir. 2009). There is also a “presumption of correctness” for state court’s determination of a factual issue, which the petitioner has the burden of rebutting by “clear and convincing evidence.” § 2254(e)(1). The petitioner must also demonstrate that any trial error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619 (1993).
The question presented in Williams’ case was whether the District Court properly granted him habeas relief under these demanding standards based on his claim that the state trial court violated his Confrontation Clause rights by reading Cannon’s criminal information to the jury and that defense counsel provided ineffective assistance by not objecting to and instead participating in the error.
The Confrontation Clause provides that criminal defendants “enjoy the right … to be confronted with the witnesses against [them].” U.S. Const. amend. VI. The Clause “prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36 (2004). As the Court explained, “[a]ccomplice confessions to the authorities and plea allocutions are among the statements the Supreme Court has enumerated as ‘plainly testimonial.’” Quoting Crawford.
When Cannon pleaded guilty to the 20-count criminal information, the trial court read aloud each charge and asked him if he wanted to enter a guilty plea to them. Cannon answered “yes,” thereby affirmatively adopting as his own the statements read from the criminal information. The Court characterized the trial court’s presentation of Cannon’s criminal information as a “plea allocution.” Thus, the Court explained that the statements in the charging document became Cannon’s testimony against Williams. In other words, it was “Cannon’s admission of guilt to those charges, together with the description of the charges themselves, as recited by the court, that were therefore testimonial.”
The U.S. Supreme Court has long held that a defendant is denied their right to confront an adverse witness when a non-testifying codefendant’s confession naming them as a participant in the crime is introduced at their joint trial, despite an instruction that the jury consider the statement only as to the codefendant. Bruton v. United States, 391 U.S. 123 (1968). The only exception to this rule is when the codefendant’s confession is admitted with an appropriate limiting instruction and is “redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Richardson v. Marsh, 481 U.S. 200 (1987); see also Samia v. United States, 599 U.S. 635 (2023) (describing types of redactions permissible under Richardson). Cannon’s criminal information was not redacted to eliminate references to Williams, so it plainly violated the Bruton rule, the Court concluded.
The Court ruled that the trial court in Williams’ case unquestionably violated his rights under the Confrontation Clause by reading Cannon’s criminal information to the jury because, in violation of Crawford and Bruton, it was testimonial evidence of a non-testifying co-conspirator implicating Williams in crimes that Williams was unable to challenge through cross-examination. Thus, the Court held that the state appellate courts’ rejection of this claim was plainly “contrary to” clearly established U.S. Supreme Court precedent because no “fairminded jurist” could disagree with this determination. Harrington v. Richter, 562 U.S. 86 (2011).
Clearly established U.S. Supreme Court precedent also guarantees defendants the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Defense counsel’s failure to raise a meritorious objection to evidence offered in violation of a defendant’s Confrontation Clause rights can amount to ineffective assistance. Preston v. Superintendent Graterford SCI, 902 F.3d 365 (3d Cir. 2018); Lambert v. Warden Greene SCI, 861 F.3d 459 (3d Cir. 2017).
The Court determined that Williams’ attorney was plainly ineffective. First, defense counsel misrepresented the content of Cannon’s guilty plea concerning the Ortiz murder and then acquiesced to the trial court reading not just the homicide charge to which Cannon pleaded guilty but also his entire criminal information, including nine counts implicating Williams as a co-conspirator. This plainly violated both Crawford and Bruton. According to the Court, defense counsel should have “objected to its reading, moved to confine the reading to just the first count, or sought a redaction of any information identifying Mr. Williams.”
The state courts’ rejection of this claim was an unreasonable application of Strickland, according to the Court. The state courts rejected Williams’ ineffective assistance claim by ruling that defense counsel’s decision not to object to the reading of Cannon’s criminal information was strategic because it somehow supported counsel’s third-party culpability defense, but this reasoning failed to account for defense counsel’s failure to request the trial court to redact the criminal information to omit any reference to Williams as required under Burton and also failed to account for defense counsel’s misrepresentation of what Cannon actually admitted to, the Court explained. Contrary to defense counsel’s representations, Cannon never admitted to being the sole perpetrator, but instead, he had clearly pleaded guilty as a principal or accomplice. Consequently, the Court concluded that counsel’s decision was not strategic; it was constitutionally deficient.
The state courts’ rejection of Williams’ ineffective assistance claim was also based on an unreasonable determination of the facts presented to them, the Court stated. The postconviction court assumed that only one of the 20 counts against Cannon was read to the jury and that it did not mention Williams, but the record clearly contradicted this assumption. Instead, the trial court read the “entire twenty-count Criminal Information, nine counts of which named Mr. Williams as a coconspirator.”
The Court determined that these errors were sufficiently prejudicial to warrant habeas relief. First, based solely on Cannon’s statements in the criminal information, the Commonwealth encouraged the jury to draw inferences that Williams was guilty of conspiracy despite the lack of any direct evidence of an actual agreement between the two. Second, the jury requested the trial court to reread Cannon’s criminal information, suggesting it placed substantial weight on that evidence. And third, the Commonwealth’s primary witness, Keith Crawford, had been shot in the head and could only communicate to the jury by typing yes or no into a cellphone. He had significant memory problems, and his testimony was at best conflicting and unclear.
“[C]onsidering the quality and not just the quantity of the Commonwealth’s evidence, the introduction and proliferation of Mr. Cannon’s Criminal Information is much more likely to have had the prejudicial effect of ‘improperly corroborating the less-than-credible evidence, making it more likely that the jury would set aside their doubts in favor of a conviction,’” the Court reasoned. Quoting Johnson v. Superintendent Fayette State Corr. Inst., 949 F.3d 791 (3d Cir. 2020) (cleaned up). Thus, the Court held that the District Court did not err in granting Williams habeas relief.
Conclusion
Accordingly, the Court affirmed the judgment of the District Court and remanded the case for it to issue a writ of habeas corpus. See: Williams v. Superintendent Greene SCI, 112 F.4th 155 (3d Cir. 2024).
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Richardson v. Marsh
| Year | 1987 |
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| Cite | 481 U.S. 200 (U.S. Supreme Court 1987) |
481 U.S. 200; 107 S. Ct. 1702; 95 L. Ed. 2d 176
GLORIA RICHARDSON, WARDEN v. CLARISSA MARSH
No. 85-1433
January 14, 1987, Argued
April 21, 1987, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
DISPOSITION: 781 F.2d 1201, reversed and remanded.
SYLLABUS:
Respondent and Benjamin Williams were charged with murder, robbery, and assault. At their joint trial, Williams' confession was admitted over respondent's objection. The confession had been redacted to omit all reference to respondent -- indeed, to omit all indication that anyone other than Williams and a third accomplice participated in the crime. In his confession, Williams described a conversation he had with the third accomplice as they drove to the victims' home, during which the accomplice said that he would have to kill the victims after robbing them. At the time the confession was admitted, the jury was admonished not to use it in any way against respondent. Williams did not testify. Respondent's testimony indicated that she had been in the car with Williams and the third accomplice but had not heard their conversation. Respondent insisted that she had not intended to rob or kill anyone. Respondent was convicted of felony murder and assault to commit murder, and the Michigan Court of Appeals affirmed. The Federal District Court denied respondent's petition for a writ of habeas corpus, but the Court of Appeals reversed, holding that respondent was entitled to a new trial under Bruton v. United States, 391 U.S. 123. Bruton held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. The Court of Appeals held that Bruton requires the same result when the codefendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial.
Held: The Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to her existence. The Bruton Court recognized a very narrow exception to the almost invariable assumption of the law that jurors follow their instructions in the situation when the facially incriminating confession of a nontestifying codefendant is introduced at a joint trial and the jury is instructed to consider the confession only against the codefendant. In that situation, Bruton explained, the risk that the jury will not follow its instructions is so great and the consequences of that failure so vital to the defendant that jurors will be assumed incapable of obeying their instructions. There are two important distinctions between this case and Bruton, which cause it to fall outside the narrow exception Bruton created. First, in Bruton the codefendant's confession expressly implicated the defendant as his accomplice, whereas here the confession was not incriminating on its face, but became so only when linked with evidence introduced later at trial. Where the necessity of such linkage is involved, there does not exist the overwhelming probability of jurors' inability to disregard incriminating inferences that is the foundation of Bruton. Second, evidence requiring linkage differs from evidence incriminating on its face in the practical effects which application of the Bruton exception would produce. If limited to facially incriminating confessions, Bruton can be complied with by redaction. If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance of trial. Compliance with the Court of Appeals' overbroad reading of Bruton could not be achieved without enormous costs to the criminal justice system. Pp. 206-211.
COUNSEL: Timothy A. Baughman argued the cause for petitioner. With him on the briefs was John D. O'Hair.
Lawrence S. Robbins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.
R. Steven Whalen, by appointment of the Court, 478 U.S. 1003, argued the cause and filed a brief for respondent.
JUDGES: Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Powell, and O'Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 211.
OPINION: [*201] [***182] [**1704] JUSTICE SCALIA delivered the opinion of the Court.
In Bruton v. United States, 391 U.S. 123 (1968), we held that HN1a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider [*202] that confession only against the codefendant. Today we consider whether Bruton requires the same result when the codefendant's confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial.
I
Respondent Clarissa Marsh, Benjamin Williams, and Kareem Martin were charged with assaulting Cynthia Knighton and murdering her 4-year-old son, Koran, and her aunt, Ollie Scott. Respondent and Williams were tried jointly, over her objection. (Martin was a fugitive at the time of trial.) At the trial, Knighton testified as follows: On the evening of October 29, 1978, she and her son were at Scott's home when respondent and her boyfriend Martin visited. After a brief conversation in the living room, respondent announced that she had come to "pick up something" from Scott and rose from the couch. Martin then pulled out a gun, pointed it at Scott and the Knightons, and said that "someone had gotten killed and [Scott] knew something about it." Respondent immediately walked to the front door and peered out the peephole. The doorbell rang, respondent opened the door, and Williams walked in, carrying a gun. As Williams passed respondent, he asked, "Where's the money?" Martin forced Scott upstairs, and Williams went into the kitchen, leaving respondent alone with the Knightons. Knighton and [**1705] her son attempted to flee, but respondent grabbed Knighton and held her until Williams returned. Williams ordered the Knightons to lie on the floor and then went upstairs to assist Martin. Respondent, again left alone with the Knightons, [***183] stood by the front door and occasionally peered out the peephole. A few minutes later, Martin, Williams, and Scott came down the stairs, and Martin handed a paper grocery bag to respondent. Martin and Williams then forced Scott and the Knightons into the basement, where Martin shot them. Only Cynthia Knighton survived.
[*203] In addition to Knighton's testimony, the State introduced (over respondent's objection) a confession given by Williams to the police shortly after his arrest. The confession was redacted to omit all reference to respondent -- indeed, to omit all indication that anyone other than Martin and Williams participated in the crime. n1 The confession largely corroborated [*204] Knighton's account of the activities of persons other than respondent in the house. In addition, the confession described a conversation Williams had with Martin as they drove to the Scott home, during which, according to Williams, Martin said that he would have to kill the victims after the robbery. At the time the confession was admitted, the jury was admonished not to use it in any way against respondent. Williams did not testify.
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n1 The redacted confession in its entirety read:
"On Sunday evening, October the 29th, 1978, at about 6:30 p.m., I was over to my girl friend's house at 237 Moss, Highland Park, when I received a phone call from a friend of mine named Kareem Martin. He said he had been looking for me and James Coleman, who I call Tom. He asked me if I wanted to go on a robbery with him. I said okay. Then he said he'd be by and pick me up. About 15 or 20 minutes later Kareem came by in his black Monte Carlo car. I got in the car and Kareem told me he was going to stick up this crib, told me the place was a numbers house. Kareem said there would be over $ 5,000 or $ 10,000 in the place. Kareem said he would have to take them out after the robbery. Kareem had a big silver gun. He gave me a long barrelled [sic] .22 revolver. We then drove over to this house and parked the car across the big street near the house. The plan was that I would wait in the car in front of the house and then I would move the car down across the big street because he didn't want anybody to see the car. Okay, Kareem went up to the house and went inside. A couple of minutes later I moved the car and went up to the house. As I entered, Kareem and this older lady were in the dining room, a little boy and another younger woman were sitting on the couch in the front room. I pulled my pistol and told the younger woman and the little boy to lay on the floor. Kareem took the older lady upstairs. He had a pistol, also. I stayed downstairs with the two people on the floor. After Kareem took the lady upstairs I went upstairs and the lady was laying on the bed in the room to the left as you get up the stairs. The lady had already given us two bags full of money before we ever got upstairs. Kareem had thought she had more money and that's why we had went upstairs. Me and Kareem started searching the rooms but I didn't find any money. I came downstairs and then Kareem came down with the lady. I said, 'Let's go, let's go.' Kareem said no. Kareem then took the two ladies and little boy down the basement and that's when I left to go to the car. I went to the car and got in the back seat. A couple of minutes later Kareem came to the car and said he thinks the girl was still living because she was still moving and he didn't have any more bullets. He asked me how come I didn't go down the basement and I said I wasn't doing no shit like that. He then dropped me back off at my girl's house in Highland Park and I was supposed to get together with him today, get my share of the robbery after he had counted the money. That's all." App. in No. 84-1777 (CA6), pp. 88-90.
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After the State rested, respondent took the stand. She testified that on October 29, 1978, she had lost money that Martin intended to use to buy drugs. Martin was upset, and suggested to respondent that she borrow money from Scott, with whom she had worked in the past. Martin and respondent picked up Williams and drove to Scott's house. During the [***184] drive, respondent, who was sitting in the backseat, "knew that [Martin and Williams] were talking" but could not hear the conversation because "the radio was on and the speaker was right in [her] ear." Martin and respondent were admitted into the home, and respondent had a short conversation with Scott, during which she asked for a loan. Martin then pulled a gun, and [**1706] respondent walked to the door to see where the car was. When she saw Williams, she opened the door for him. Respondent testified that during the robbery she did not feel free to leave and was too scared to flee. She said that she did not know why she prevented the Knightons from escaping. She admitted taking the bag from Martin, but said that after Martin and Williams took the victims into the basement, she left the house without the bag. Respondent insisted that she had possessed no prior knowledge that Martin and Williams were armed, had heard no conversation about anyone's being harmed, and had not intended to rob or kill anyone.
[*205] During his closing argument, the prosecutor admonished the jury not to use Williams' confession against respondent. Later in his argument, however, he linked respondent to the portion of Williams' confession describing his conversation with Martin in the car. n2 (Respondent's attorney did not object to this.) After closing arguments, the judge again instructed the jury that Williams' confession was not to be considered against respondent. The jury convicted respondent of two counts of felony murder in the perpetration of an armed robbery and one count of assault with intent to commit murder. The Michigan Court of Appeals affirmed in an unpublished opinion, People v. Marsh, No. 46128 (Dec. 17, 1980), and the Michigan Supreme Court denied leave to appeal, 412 Mich. 927 (1982).
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n2 The prosecutor said:
"It's important in light of [respondent's] testimony when she says Kareem drives over to Benjamin Williams' home and picks him up to go over. What's the thing that she says? 'Well, I'm sitting in the back seat of the car.' 'Did you hear any conversation that was going on in the front seat between Kareem and Mr. Williams?' 'No, couldn't hear any conversation. The radio was too loud.' I asked [sic] you whether that is reasonable. Why did she say that? Why did she say she couldn't hear any conversation? She said, 'I know they were having conversation but I couldn't hear it because of the radio.' Because if she admits that she heard the conversation and she admits to the plan, she's guilty of at least armed robbery. So she can't tell you that." Id., at 164.
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Respondent then filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254. She alleged that her conviction was not supported by sufficient evidence and that introduction of Williams' confession at the joint trial had violated her rights under the Confrontation Clause. The District Court denied the petition. Civ. Action No. 83-CV-2665-DT (ED Mich., Oct. 11, 1984). The United States Court of Appeals for the Sixth Circuit reversed. 781 F.2d 1201 (1986). The Court of Appeals held that in determining whether Bruton bars the admission of a nontestifying codefendant's confession, a court must assess the confession's "inculpatory [*206] value" by examining not only the face of the confession, but also all of the evidence introduced at trial. 781 F.2d, at 1212. Here, Williams' account of the conversation in the car was the only direct evidence that respondent knew before entering Scott's house [***185] that the victims would be robbed and killed. Respondent's own testimony placed her in that car. In light of the "paucity" of other evidence of malice and the prosecutor's linkage of respondent and the statement in the car during closing argument, admission of Williams' confession "was powerfully incriminating to [respondent] with respect to the critical element of intent." Id., at 1213. Thus, the Court of Appeals concluded, the Confrontation Clause was violated. We granted certiorari, 476 U.S. 1168 (1986), because the Sixth Circuit's decision conflicts with those of other Courts of Appeals which have declined to adopt the "evidentiary linkage" or "contextual implication" approach to Bruton questions, see, e. g., United States v. Belle, 593 F.2d 487 (CA3 1979) (en banc).
II
The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant "to be [**1707] confronted with the witnesses against him." HN3The right of confrontation includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 406-407 (1965). Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.
Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness "against" a defendant if the jury is ins
Strickland v. Washington
| Year | 1984 |
|---|---|
| Cite | 466 U.S. 668 (1984) |
| Level | Supreme Court |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |
Bruton v. U.S.
| Year | 1968 |
|---|---|
| Cite | 391 U.S. 123 (U.S. Supreme Court 1968) |
391 U.S. 123; 88 S. Ct. 1620; 20 L. Ed. 2d 476
GEORGE WILLIAM BRUTON v. UNITED STATES
No. 705
March 11, 1968, Argued
May 20, 1968, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
DISPOSITION: 375 F.2d 355, reversed.
SYLLABUS:
A joint trial of petitioner and one Evans resulted in the convictions of both for armed postal robbery. Evans did not take the stand but a postal inspector testified that Evans confessed orally that he and petitioner committed the robbery. The trial judge instructed the jury that although Evans' confession was competent evidence against him it was inadmissible hearsay against petitioner and had to be disregarded in determining petitioner's guilt or innocence. Evans and petitioner both appealed to the Court of Appeals. That court set aside Evans' conviction on the ground that the oral confession should not have been received against him but affirmed petitioner's conviction in view of the trial judge's instructions, relying on Delli Paoli v. United States, 352 U.S. 232. Held: Because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in the joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. Delli Paoli v. United States, supra, overruled. Pp. 126-137.
COUNSEL: Daniel P. Reardon, Jr., argued the cause and filed a brief for petitioner.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Robert S. Rifkind, and Beatrice Rosenberg.
JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas; Marshall took no part in the consideration or decision of this case.
OPINION: [*123] [***478] [**1621] MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question, last considered in Delli Paoli v. United States, 352 U.S. 232, whether the conviction of a defendant at a joint trial should be set aside [*124] although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.
[***HR1A]
A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U. S. C. § 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges. Both petitioner and Evans appealed their convictions to the Court of Appeals for the Eighth Circuit. That court set aside Evans' conviction on the ground that his oral confessions to the postal inspector should not have been received in evidence against him. 375 F.2d 355, 361. n1 However, [**1622] the court, relying upon Delli [*125] Paoli, affirmed petitioner's conviction because the trial judge instructed the jury that although Evans' confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner's guilt or innocence. 375 F.2d, at 361-363. n2 [***479] We granted certiorari to reconsider Delli Paoli. 389 U.S. 818. The Solicitor General has since submitted a memorandum stating that "in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial." The Solicitor General states that this disposition is urged in part because "here it has been determined that the confession was wrongly admitted against [Evans] and his conviction has been reversed, leading to a new trial at which he was [*126] acquitted. To argue, in this situation, that [petitioner's] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule -- at least, where, as here, the other evidence against [petitioner] is not strong." We have concluded, however, that Delli Paoli should be overruled. We hold that, HN1because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.
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n1 The trial began June 20, 1966, one week after the decision in Miranda v. Arizona, 384 U.S. 436. The Court of Appeals held, 375 F.2d, at 357, that Miranda and its companion cases were therefore applicable and controlling on the question of the admissibility in evidence of the postal inspector's testimony as to Evans' admissions. Johnson v. New Jersey, 384 U.S. 719. On April 8, 1966, St. Louis police officers, without giving Evans preliminary warnings of any kind and in the absence of counsel, obtained an oral confession during an interrogation at the city jail. The police informed the postal inspector, who interrogated Evans at the jail on April 11 and May 4, 1966; he obtained the oral confession expressly implicating petitioner on the latter date. On the merits, the Court of Appeals held, 375 F.2d, at 361, that Evans' admissions to the postal inspector "were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer," and were therefore inadmissible under Westover v. United States, decided with Miranda, 384 U.S., at 494-497. On the retrial, Evans was acquitted.
n2 At the close of the Government's direct case, the trial judge cautioned the jury that Evans' admission implicating petitioner "if used, can only be used against the defendant Evans. It is hearsay insofar as the defendant George William Bruton is concerned, and you are not to consider it in any respect to the defendant Bruton, because insofar as he is concerned it is hearsay."
The instructions to the jury included the following:
"A confession made outside of court by one defendant may not be considered as evidence against the other defendant, who was not present and in no way a party to the confession. Therefore, if you find that a confession was in fact voluntarily and intentionally made by the defendant Evans, you should consider it as evidence in the case against Evans, but you must not consider it, and should disregard it, in considering the evidence in the case against the defendant Bruton.
. . . .
"It is your duty to give separate, personal consideration to the cause of each individual defendant. When you do so, you should analyze what the evidence shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant. Each defendant is entitled to have his case determined from his own acts and statements and the other evidence in the case which may be applicable to him."
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[***HR2] The basic premise of Delli Paoli was that it is "reasonably possible for the jury to follow" sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S., at 239. If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided this Court has effectively [**1623] repudiated its basic premise. Before discussing this, we pause to observe that in Pointer v. Texas, 380 U.S. 400, we confirmed "that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him" secured by the Sixth Amendment, id., at 404; HN2"a major [***480] reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him." Id., at 406-407.
[***HR1B]
We applied Pointer in Douglas v. Alabama, 380 U.S. 415, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused [*127] of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas' trial the State called Loyd as a witness against him. An appeal was pending from Loyd's conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd's recollection the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd's confession. These statements inculpated Douglas in the crime. We held that Douglas' inability to cross-examine Loyd denied Douglas "the right of cross-examination secured by the Confrontation Clause." 380 U.S., at 419. We noted that "effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer." Id., at 420. The risk of prejudice in petitioner's case was even more serious than in Douglas. In Douglas we said, "Although the Solicitor's reading of Loyd's alleged statement, and Loyd's refusals to answer, were not technically testimony, the Solicitor's reading may well have been the equivalent in the jury's mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true." Id., at 419. Here Evans' oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater, then, was the likelihood that the jury would believe Evans made the statements and that they were true -- not just the self-incriminating portions but those implicating petitioner as well. Plainly, the introduction of [*128] Evans' confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.
[***HR3A] Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence. n3 [***481] But, as we have said, [**1624] that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U.S. 368. Nonetheless the message of Jackson for Delli Paoli was clear. We there held that a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily [*129] before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor's guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id., at 388-389. Significantly, we supported that conclusion in part by reliance upon the dissenting opinion of Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli. Id., at 388, n. 15.
[***HR3B]
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n3 We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U.S. 440; Fiswick v. United States, 329 U.S. 211, the problem arising only because the statement was (but for the violation of Westover, supra, n. 1) admissible against the declarant Evans. See C. McCormick, Evidence § 239 (1954); 4 J. Wigmore, Evidence §§ 1048-1049 (3d ed. 1940); Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L. J. 355 (1921). See generally Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159 (1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions, 24 U. Chi. L. Rev. 710 (1957); Note, Criminal Conspiracy, 72 Harv. L. Rev. 920, 984-990 (1959). There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. See Pointer v. Texas, 380 U.S. 400; Barber v. Page, 390 U.S. 719; Mattox v. United States, 156 U.S. 237. See generally McCormick, supra, § 224; 5 Wigmore, supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177 (1948).
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That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt. "The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell." 352 U.S., at 247. The dissent went on to say, as quoted in the cited note in Jackson, "The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds." Id., at 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453: "The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction. . . ." n4
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n4 Several cases since Delli Paoli have refused to consider an instruction as inevitably sufficient to avoid the setting aside of convictions. See, e. g., United States ex rel. Floyd v. Wilkins, 367 F.2d 990; United States v. Bozza, 365 F.2d 206; Greenwell v. United States, 119 U. S. App. D. C. 43, 336 F.2d 962; Jones v. United States, 119 U. S. App. D. C. 284, 342 F.2d 863; Barton v. United States, 263 F.2d 894; United States ex rel. Hill v. Deegan, 268 F.Supp. 580. In Bozza the Court of Appeals for the Second Circuit stated:
"It is impossible realistically to suppose that when the twelve good men and women had Jones' confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks with the keys Kuhle had provided and ask himself the intelligent question to what extent Jones' statement supported Kuhle's testimony, or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind." 365 F.2d, at 215.
State decisions which have rejected Delli Paoli include People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265; State v. Young, 46 N. J. 152, 215 A. 2d 352. See also People v. Barbaro, 395 Ill. 264, 69 N. E. 2d 692; State v. Rosen, 151 Ohio St. 339, 86 N. E. 2d 24.
It has been suggested that the limiting instruction actu
