By 6-3 vote, SCOTUS rejects Confrontation Clause claim against admission of nontestifying codefendant’s confession

The Supreme Court this morning issued one of its very few constitutional criminal procedures with a decision in Samia v. US, No. 22–196 (S. Ct. June 23, 2023) (available here). Justice Thomas wrote the opinion for the Court, starting this way:

Prosecutors have long tried criminal defendants jointly in cases where the defendants are alleged to have engaged in a common criminal scheme. However, when prosecutors seek to introduce a nontestifying defendant’s confession implicating his codefendants, a constitutional concern may arise. The Confrontation Clause of the Sixth Amendment states that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  And, in Bruton v. United States, 391 U.S. 123 (1968), this Court “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.”  Richardson v. Marsh, 481 U.S. 200, 201–202 (1987).

Here, we must determine whether the Confrontation Clause bars the admission of a nontestifying codefendant’s confession where (1) the confession has been modified to avoid directly identifying the nonconfessing codefendant and (2) the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing codefendant. Considering longstanding historical practice, the general presumption that jurors follow their instructions, and the relevant precedents of this Court, we conclude that it does not.

Justice Barrett wrote a concurrence, and Justice Kagan (joined by Justices Sotomayor and Jackson) authored a dissent, and Justice Jackson also wrote a dissent. Justice Kagan’s dissent concludes this way:

And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections.  Consider once more John’s confession implicating Mary in a robbery — a confession, I’ll now add, bearing a striking resemblance to the one in Bruton. See 391 U. S., at 124 (“A postal inspector testified that Evans orally confessed to him that Evans and [Bruton] committed the armed robbery”). The Bruton rule will still bar the prosecution from using the original version of John’s confession, expressly naming Mary.  So too the rule will prevent the prosecution from swapping out Mary’s name for a blank space or the word “deleted.”  But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal.  It can simply replace Mary’s name with “a woman,” and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains.  Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them.  And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self.  I respectfully dissent.