In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court of the United States held that when there is a joint trial of co-defendants and the testimonial statement of a co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime or crimes on trial. The admission of a powerfully incriminating out of court statement of a non-testifying co-defendant can pose a substantial threat to a defendant's right to confront the witnesses against him. This harm cannot be fixed or cured by an instruction to the jury to consider the statement only against the co-defendant who made the statement. This is true even if a defendant's confession is admitted against him at trial. Laye v. State, 312 Ga. App. 862 (2011); Davis v. State, 272 Ga. 327 (2000). Evidence that violates Bruton is not admissible.
However, the admission of an out-of-court statement into evidence at a criminal trial comes within the scope of the Confrontation Clause only if the statement was testimonial. A statement is testimonial if its primary purpose was to establish evidence for use in a future prosecution. Testimonial statements include statements made to a government officer, during a police investigation or interrogation, or intended to accuse someone of a crime and produce evidence for a criminal prosecution. Clements v. State, S23A0857 (December 19, 2023).
Also, Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant. Bruton is not violated if a co-defendant's statement does not suggest the involvement of the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial. Smith v. State, 308 Ga. App. 190 (2011).
If the non-testifying co-defendant's statement is redacted to exclude any reference to the defendant or his existence, the statement may be admissible provided the jury is instructed to consider the statement only against the co-defendant who made the statement. Richardson v. Marsh, 481 U.S. 200 (1987). The redaction is not adequate if it merely replaces a defendant's name with a blank space, the word deleted, a symbol, or a reference to the defendant's nickname, or by words such as someone, others, or they. Bray v. Maryland, 523 U.S. 183 (1998); Hanifa v. State, 269 Ga. 797 (1998).
Statements that refer directly to someone, often obviously the defendant, are problematic.
A Bruton violation requires a new trial unless the error was harmless. Schneble v. Florida, 405 U.S. 427 (1972); Collum v. State, 281 Ga. 719 (2007).