GRAY v. MARYLAND
523 U.S. 185 (1998)

JUDGES: BREYER, J., delivered the opinion of the Court, in which STEVENS,
O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a dissenting
opinion, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined.

. . . .

III

Originally, the codefendant's confession in the case before us, like that
in Bruton, referred to, and directly implicated another defendant. The
State, however, redacted that confession by removing the nonconfessing
defendant's name. Nonetheless, unlike Richardson's redacted confession,
this confession refers directly to the "existence" of the nonconfessing
defendant. The State has simply replaced the nonconfessing defendant's
name with a kind of symbol, namely the word "deleted" or a blank space set
off by commas. The redacted confession, for example, responded to the
question "Who was in the group that beat Stacey," with the phrase, "Me,
and a few other guys." And when the police witness read the
confession in court, he said the word "deleted" or "deletion" where the
blank spaces appear. We therefore must decide a question that Richardson
left open, namely whether redaction that replaces a defendant's name with
an obvious indication of deletion, such as a blank space, the word
"deleted," or a similar symbol, still falls within Bruton's protective
rule. We hold that it does.

Bruton, as interpreted by Richardson, holds that certain "powerfully
incriminating extrajudicial statements of a codefendant" -- those naming
another defendant -- considered as a class, are so prejudicial that
limiting instructions cannot work. Unless the prosecutor wishes to hold
separate trials or to use separate juries or to abandon use of the
confession, he must redact the confession to reduce significantly or to
eliminate the special prejudice that the Bruton Court found. Redactions
that simply replace a name with an obvious blank space or a word such as
"deleted" or a symbol or other similarly obvious indications of alteration,
however, leave statements that, considered as a class, so closely resemble
Bruton's unredacted statements that, in our view, the law must require the
same result.

For one thing, a jury will often react similarly to an unredacted
confession and a confession redacted in this way, for the jury will often
realize that the confession refers specifically to the defendant. This is
true even when the State does not blatantly link the defendant to the
deleted name, as it did in this case by asking whether Gray was arrested on
the basis of information in Bell's confession as soon as the officer had
finished reading the redacted statement. Consider a simplified but typical
example, a confession that reads "I, Bob Smith, along with Sam Jones,
robbed the bank." To replace the words "Sam Jones" with an obvious blank
will not likely fool anyone. A juror somewhat familiar with criminal law
would know immediately that the blank, in the phrase "I, Bob Smith, along
with, robbed the bank," refers to defendant Jones. A juror who does not
know the law and who therefore wonders to whom the blank might refer need
only lift his eyes to Jones, sitting at counsel table, to find what will
seem the obvious answer, at least if the juror hears the judge's
instruction not to consider the confession as evidence against Jones, for
that instruction will provide an obvious reason for the blank. A more
sophisticated juror, wondering if the blank refers to someone else, might
also wonder how, if it did, the prosecutor could argue the confession is
reliable, for the prosecutor, after all, has been arguing that Jones, not
someone else, helped Smith commit the crime.

For another thing, the obvious deletion may well call the jurors' attention
specially to the removed name. By encouraging the jury to speculate about
the reference, the redaction may overemphasize the importance of the
confession's accusation -- once the jurors work out the reference. That is
why Judge Learned Hand, many years ago, wrote in a similar instance that
blacking out the name of a codefendant not only "would have been futile. .
. . There could not have been the slightest doubt as to whose names had
been blacked out," but "even if there had been, that blacking out itself
would have not only laid the doubt, but underscored the answer."

Finally, Bruton's protected statements and statements redacted to leave a
blank or some other similarly obvious alteration, function the same way
grammatically. They are directly accusatory. Evans' statement in Bruton
used a proper name to point explicitly to an accused defendant. And Bruton
held that the "powerfully incriminating" effect of what Justice Stewart
called "an out-of-court accusation," 391 U.S. at 138 (Stewart, J.,
concurring), creates a special, and vital, need for cross- examination -- a
need that would be immediately obvious had the codefendant pointed directly
to the defendant in the courtroom itself. The blank space in an obviously
redacted confession also points directly to the defendant, and it accuses
the defendant in a manner similar to Evans' use of Bruton's name or to a
testifying codefendant's accusatory finger. By way of contrast, the
factual statement at issue in Richardson -- a statement about what others
said in the front seat of a car -- differs from directly accusatory
evidence in this respect, for it does not point directly to a defendant at
all.

We concede certain differences between Bruton and this case. A confession
that uses a blank or the word "delete" (or, for that matter, a first name
or a nickname) less obviously refers to the defendant than a confession
that uses the defendant's full and proper name. Moreover, in some
instances the person to whom the blank refers may not be clear: Although
the follow-up question asked by the State in this case eliminated all
doubt, the reference might not be transparent in other cases in which a
confession, like the present confession, uses two (or more) blanks, even
though only one other defendant appears at trial, and in which the trial
indicates that there are more participants than the confession has named.
Nonetheless, as we have said, we believe that, considered as a class,
redactions that replace a proper name with an obvious blank, the word
"delete," a symbol, or similarly notify the jury that a name has been
deleted are similar enough to Bruton's unredacted confessions as to warrant
the same legal results.