By KBK Associate Michael J. McCarthy (June 2023)

Last week, the U.S. Supreme Court chose a simple resolution in addressing a thorny issue involving the use of a co-defendant’s confession in joint trials, which had been the subject of a circuit split.

In Samia v. U.S.,[1] the court took up the question of how to treat a confession by a nontestifying co-defendant that does not superficially identify another defendant, but refers to the existence and even activities of another individual.

To the detriment of the defendant — or “another person,” as the Supreme Court would now sanction — the decision will make an immediate impact on joint criminal trials featuring confessions that undoubtedly have the power to sway juries. In this post-Samia world, context does not matter.

Until the court’s decision on June 23, the clearest principle of introducing a co-defendant’s confession at a joint trial was that it could only be used against the confessor. But line-drawing in the confession’s substance has long been hotly disputed territory.

The Sixth Amendment’s confrontation clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

And while there is an entire line of jurisprudence dedicated to the contours of testimony that implicates this clause in the first place, for the purposes of the co-defendant confession issue, the 1968 Bruton v. U.S. decision is where the Supreme Court’s line of cases picks up.[2]

In Bruton, the court held that in a joint trial featuring the defendant, introduction of a co-defendant’s confession that implicates the defendant in connection with the commission of the crime violates the defendant’s confrontation clause rights.

The reasoning of Bruton is easy enough to understand: Human nature is such that members of the jury, even if instructed to solely analyze the confession in connection with the co-defendant only, may not be capable of fully bifurcating the parties’ guilt in their minds when the one defendant is seated almost next to the confessor.

Two decades later, in its 1987 Richardson v. Marsh decision, the court addressed testimony of a co-defendant confession that omitted all references to the existence of the defendant entirely, but, analyzed in conjunction with the trial evidence, corroborated other evidence against that petitioner.[3]

The court found that such testimony did not implicate Bruton because the “confession was not incriminating on its face” but “became so only linked with other evidence.”

Fast forward 11 years, and the court confronted the other end of the range of Bruton in its 1998 Gray v. Maryland decision,[4] when the confession introduced simply redacted the petitioner’s name and replaced it with “deleted” or a blank space.

The court held that a confession with such an obvious redaction violated Bruton in that the jury need only hear the confession, look across the courtroom to the defendant, and take one small inferential step to insert his name into the testimony. The court noted:

The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.[5]

The court also recognized that a nickname actually used by the defendant is an insufficient replacement, for Bruton purposes.[6]

With Richardson and Gray, the goal posts were set: Full redaction of all references to the existence of another person was acceptable, while replacing the defendant’s name with an obvious redaction, such as a blank space or the word “deletion,” was not.

By way of simple hypothetical example: Defendant Mary’s confession that “John and I killed Tom” would clearly be inadmissible under Bruton, because it would directly implicate John at their joint trial.

Obvious indicators such as physical descriptive terms — Richard Kimble’s One-Armed Man in “The Fugitive” would qualify — fall into the same category; even the strictest limiting instruction that Mary’s confession could not be used against John might prove too difficult to follow when John fits that description and is sitting but 30 feet away next to Mary.

Similarly, “[Deleted] and I killed Tom” would also be excluded for fear of the jury’s realization that the statement had been altered, and its tendency to directly infer that “Deleted” must be John. This was the holding in Gray.

“I killed Tom” is admissible because all reference to John was removed, and the jury would not be left with a placeholder for which they would simply insert John’s name as soon as they were sent to deliberations.

However, left open was a last category of hypothetical nondescriptors, such as “Another person and I killed John.”

Petitioner Adam Samia was tried and convicted alongside two co-defendants in the U.S. District Court for the Southern District of New York for a murder-for-hire plot in the Philippines.

The jury found that Samia had traveled there with his co-defendant, David Stillwell, to commit murder on the orders of an international criminal kingpin.

Upon arrest, Stillwell confessed the pair’s travel and living arrangements and stated that he had been driving a van with Samia as his passenger when Samia shot and killed the victim. He also stated that Samia carried a particular type of firearm.

However, Stillwell did not take the stand at trial, and the confession was instead relayed to the jury via a U.S. Drug Enforcement Administration agent who replaced references to Samia with “other person.”

Thus, the jury heard that Stillwell had traveled with the “other person,” and “the other person” shot the victim while Stillwell was driving.

Without reference to any other evidence, the altered confession would seem to be applicable to pretty much any person on the planet. However, connected with the trial evidence — including that Samia had the same type of gun used for the murder, and had traveled and lived with Stillwell — Samia argued it was clear that the jury could make no other conclusion than that he was “the other person.”

On appeal, the U.S. Court of Appeals for the Second Circuit found that the testimony of the confession did not violate Bruton’s “narrow exception” because on its face — i.e., without referencing any other evidence — no inference could be made that the other person was Samia.

The Supreme Court agreed in a majority opinion authored by Justice Clarence Thomas that examined case law and practice from the late 19th century,[7] and analyzed the Bruton-Richardson-Gray line of cases.

Central to Justice Thomas’ historical underpinning was that: (1) Confessions constitute a critical piece of evidence; (2) joint trials have long played a vital role in prosecutions; and (3) limiting instructions are relied on in other contexts where a confession’s impact may be more credible and inculpatory — such as a defendant’s own confession used for impeachment purposes — and well-grounded in the oft-stated presumption that juries will follow the court’s commands.

On these bases, the majority noted that the Richardson court had already approved of a confession that was — even altered to remove any reference to the third, nonconfessing defendant — nonetheless inculpatory of that individual when viewed alongside other evidence.

The confession in Gray, however, ran afoul of the confrontation clause because the obvious redaction, “deleted,” immediately lent itself to the inference that the redacted name was the co-defendant sitting directly next to the confessor.

As Justice Thomas wrote, Gray was written to be “sufficiently narrow to avoid ‘unnecessarily lead[ing] prosecutors to abandon the [relevant] confession or joint trial.'”[8] However, “the other person” or “another person” are neutral references that would not “directly implicate a defendant.”

In dissent, Justice Elena Kagan disagreed with the majority’s takeaways from Richardson and Gray, and asserted that the proper test post-Bruton had always been to analyze the potential impact of the proposed formulation of the confession rather than focus purely on its form.

Nonetheless, during oral arguments in late March, the line-drawing exercise appeared to present difficulties for all of the justices, who struggled with Samia’s proposed test.

Even Justice Sonia Sotomayor, a former assistant district attorney, sought more clarity from counsel, requesting a simple articulation of the inquiry trial courts could use should the court strike down the Second Circuit’s four-corners approach.

The practical impact of Samia will be witnessed and felt immediately across federal and state courts.

The court’s holding clears the confrontation clause obstacles for the admission of any co-defendant confession at a joint trial as long as it refers to the defendant as a nameless, mostly descriptionless individual. The government need not redact any details that would, in practice, connect the confession to other trial evidence and implicate the defendant, only the name and any description that would identify unique characteristics of the defendant, such as hair color or a physical impairment.

Of course, the government may not replace the defendant’s real name with a nickname actually used, even though in most cases, the jury would only be able to make the connection after receiving other evidence at trial.

As Justice Kagan warned, the decision to solely focus on the superficial aspect of a confession might very well provide an end-around to Bruton entirely.

Consider these two short hypotheticals that demonstrate the lack of limits on a prosecutor’s power to use these confessions after Samia.

If John, the One-Armed Man, Deleted, Another Person and I drove to a bar in my custom-painted Chevrolet Suburban with Mary and killed the bartender after ordering six unique drinks, the assigned detective could obviously testify that Mary confessed that she and “other people” drove to the bar and committed murder.

The effect of Samia — that context does not matter — becomes easy to spot if one simply changes the number of defendants in the above example, which was precisely the concern that Samia’s counsel raised in briefing and at oral argument, and a factor that Justice Sotomayor noted should be incorporated.

Revise the hypothetical crime so that only Mary and myself drove into town in the same custom-painted SUV and then ordered two drinks. Her confession that she and “another person” committed murder would be admissible at our joint trial, even where the jury hears corroborative evidence that I owned the one-of-a-kind SUV and sees a credit card bill showing I bought the two drinks described in Mary’s statement.

All that is needed is a limiting instruction. In other words, so long as the witness utters the words “another person” or “the other person,” and the trial court gives a limiting instruction to the jury, the testimony satisfies Bruton.

In the above example and similar scenarios, it is almost impossible to see how the focus on form over substance will not erode Bruton’s critical constitutional protection, especially in light of the prosecutor’s likely opening statement, which will inevitably tie Mary and me together.

Or as Justice Kagan and Justice Neil Gorsuch — who ultimately joined the majority — commented at oral argument, it is equally difficult to see why a jury is expected to follow a limiting instruction regarding “another person,” but not with respect to “deleted.”

Indeed, the next bridge the court might find itself crossing is an issue that arose during oral argument, but that the dissent believed was foreclosed by the majority’s holding. That issue is whether reference to a “woman” or “man” and the use of gendered pronouns generally trigger a Bruton violation.

On its face, this scenario would seem to be covered by Samia since, as the dissent notes, “a woman” is not an express reference to the individual defendant.

Yet, in Harringon v. California — a case decided in 1969, just a year after Bruton — the court held that the confessions by two Black defendants should have been excluded where they referred to a participant in the crime as a “white guy,” and one of the co-defendants at the joint trial was white.[9]

Given that context is needed to make the inference, why wouldn’t a confession referring to “a woman” at a trial of two male defendants and one female defendant implicate the same concern?

Notably, the justices granted counsel for the petitioner and government an opening to revisit Bruton. Both sides declined. Time will tell if Justice Kagan’s prediction — that the more than 50-year-old case is next on the chopping block — comes to fruition, and the government will one day be free to use unaltered confessions at joint trials.

Until then, prosecutors should have no trouble instructing their agents or officers on the lessons from Samia to easily avoid a Bruton violation.

Michael J. McCarthy is an attorney at Kendall Brill & Kelly LLP. He previously served as an assistant district attorney in the Manhattan District Attorney’s Office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Samia v. United States , No. 22-196, 599 U. S. ____ (2023),

[2] Bruton v. United States , 391 U.S. 123 (1968).

[3] Richardson v. Marsh , 481 U.S. 200 (1987).

[4] Gray v. Maryland , 523 U.S. 185 (1998).

[5] Id. at 196.

[6] Id. at 195.

[7] Justice Barrett wrote separately in concurrence to note that the majority’s historical analysis was not dispositive of this issue because it was confined to a roughly twenty-year period which occurred in the late 19th Century, hardly the Founding era.

[8] Samia, 599 U.S. at ____ (slip op., at 14) (quoting Gray, 523 U. S. 185, at 197).

[9] Harringon v. California , 395 U.S. 250 (1969).

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