Skip to content


By: Mark Hager, Volume 108 Staff Member

On June 23, 2023, the Supreme Court issued its opinion in Samia v. United States, the latest in a line of cases regarding the use of non-testifying co-defendant confessions in joint criminal trials.[1] Together, these cases operate as a loophole to the Confrontation Clause of the Sixth Amendment.[2] This Post will explain the body of law that Samia contributes to, scrutinize the Court’s reasoning, and question the constitutionality of the rule it sets.


A. The Joint Trial Loophole

The Court has long endorsed the practice of using a non-testifying co-defendant’s confession in a joint trial.[3] At first glance, this would appear to violate the Confrontation Clause of the Sixth Amendment, which bars the admission of out-of-court statements without the opportunity to cross-examine or “confront” the declarant.[4] Say you have two co-defendants, A and B, tried together in a joint trial. Before trial, A confesses, incriminating B in the process. During their trial, the prosecution introduces A’s confession, but A does not testify.[5] As an out-of-court statement is being used against B, where B has no chance to cross-examine A, this would typically be excluded under the Sixth Amendment.[6]

But the Court created a way around the Constitution. A’s confession can still be entered in B’s joint trial, primarily because the confessor (A) is also on trial himself.[7] To address the Confrontation Clause issue this raises for B, the Court has required a limiting instruction, ordering the jury to only consider the confession as evidence against A, but not B.[8] However, in Bruton v. United States, the Court took action to protect defendants’ Sixth Amendment rights, recognizing the insufficiency of jury instructions in this context.[9]

B. Bruton Shrinks the Loophole

In Bruton, a non-testifying co-defendant’s confession, which directly implicated Bruton in the crime, was admitted in his joint trial while instructing the jury to not consider the confession against Bruton.[10] The Supreme Court, criticizing past practice, found that the “risks” and “consequences” in these situations are so severe that jury instructions cannot provide sufficient protection.[11] Accordingly, admitting the confession without opportunity to cross-examine was improper as it violated Bruton’s Confrontation Clause rights.[12] While Bruton severely cut back the practice of entering co-defendant confessions, the Court left the door open for alternative practices which could comply with its rule—a door which subsequent cases would take advantage of.[13]

C. Compliance via Redaction

Richardson v. Marsh considered the method of redacting confessions to avoid “confronting” the non-confessor.[14] In Richardson, the Court blew Bruton wide open, calling it a “narrow exception” which only applied to co-defendant confessions that are “facially incriminating.”[15] Here, the confession was distinguished because it did not “expressly implicate” co-defendant Marsh, as it did in Bruton.[16] Accordingly, the Court held the non-testifying co-defendant’s confession, which had been redacted to omit any reference to Marsh, was properly admitted.[17]

Eleven years later, in Gray v. Maryland, the Court found that not all redactions are sufficient to avoid the “express incrimination” prohibited by Bruton.[18] In particular, those which “obviously indicate alteration” violate the Confrontation Clause because the jury can still easily link the confession to the defendant.[19] Following Gray, courts experimented with different redaction replacements, inevitably raising the new practice to the Supreme Court in Samia v. United States.[20]


Samia arose out of a conviction for several charges related to a murder in the Philippines.[21] In a joint trial, the district court admitted a non-testifying co-defendant’s confession redacted to replace Samia’s name with “other person.”[22] The Supreme Court found that because the confession no longer mentioned Samia by name, it avoided the “express implication” prohibited by Bruton.[23] Furthermore, the “other person” language did not obviously indicate that the confession had been altered, satisfying Gray.[24] Thus, admitting the confession, redacted and replaced with “other person,” did not violate Samia’s Confrontation Clause rights.[25]

A. Inconsistency with Precedent

The holding in Samia represents a marked departure from the Court’s stance since Bruton. Prior to Samia, the Court’s Bruton inquiry had always turned on the confession’s “powerfully incriminating effect.”[26] But Samia’s brief assertion, that a confession satisfies Bruton simply by not naming the defendant,[27] seems to come out of nowhere. In fact, the holding in Gray expressly contradicts this, finding that even a redacted confession was “facially incriminating” as prohibited by Bruton.[28]

The Court instead asserts that Gray confirmed the application of the Bruton rule only to confessions which are “directly accusatory.”[29] But this mischaracterizes the opinion in Gray. While Gray did note that the confessions of Bruton and Gray were both “directly accusatory,” it went on to cite the “powerfully incriminating effect” of those confessions as the reason for the Bruton-Gray rule.[30] Indeed, the “powerfully incriminating” language is found in Bruton, Richardson, and Gray, but conspicuously absent in Samia.[31] Silently, the Court dropped its main rationale for the Bruton test. And the reason is clear. If the Court had considered the “powerfully incriminating effect,” as Justice Kagan did in her dissent, it would have found that a confession which references the “other person,” allows the jury to obviously identify the non-confessing co-defendant as the “other person.”[32] As this clearly has a “powerfully incriminating effect,” the confession should have been excluded.[33]

B. A Hit to Constitutional Rights

Even ignoring its inconsistency with precedent, Samia has profound consequences for criminal defendants’ Sixth Amendment rights.[34] It is undeniable that the practice raises constitutional issues, as the Court has spent over fifty years and four opinions sorting out the implications. And when the stakes are as high as a criminal defendant’s constitutional rights, such controversy begs the question: Why not just require separate trials? In fact, Rule 14 of the Federal Rules of Criminal Procedure contemplates this very scenario, allowing a judge to sever a joint trial when joinder “appears to prejudice a defendant.”[35]

However, in Richardson and Samia, the Court found that severance would be “too high a price to pay,” citing the “vital role” joint trials play in the criminal justice system.[36] But even assuming the efficiency, convenience, and fairness they provide,[37] these interests should not prevail over a defendant’s constitutionally protected rights. As far back as Bruton, the Court recognized that the benefits of joint trials cannot outweigh the “fundamental principles of constitutional liberty.”[38]

Bruton and its progeny continue to permit a longstanding loophole in the Confrontation Clause’s protection. Now, the Samia Court has ignored precedent to widen this loophole even further and deal a devastating blow to the constitutional rights of criminal defendants.


[1] 599 U.S. 635 (2023).

[2] See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”).

[3] See Sparf v. United States, 156 U.S. 51, 58 (1985) (finding co-defendant statements inadmissible against other co-defendants); Ball v. United States, 163 U.S. 662, 672 (1986) (admitting co-defendant statements which incriminate other co-defendants if accompanied by a jury instruction limiting consideration to the declarant).

[4] See Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”).

[5] This is quite common as defendants often assert their Fifth Amendment right against self-incrimination.

[6] See Crawford, 541 U.S. at 68.

[7] See Ball, 163 U.S. at 672.

[8] See id.; Samia v. United States, 599 U.S. 635, 645 (2023) (describing the Court’s history of admitting non-testifying co-defendant confessions with a limiting instruction).

[9] 391 U.S. 123 (1968).

[10] Id. at 125–26.

[11] Id. at 135 (“[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”); cf. Delli Paoli v. United States, 352 U.S. 232, 239 (1957) (holding sufficiently clear jury instructions were adequate to protect a defendant’s Confrontation Clause rights), overruled by Bruton, 391 U.S. 123.

[12] Id. at 127–28 (“Plainly, the introduction of 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.”).

[13] See id. at 133–134 (acknowledging the existence of “alternative ways” to use a confession without “infringing the nonconfessor’s right of confrontation”); see also id. at 134, n. 10 (discussing some courts’ practice of redacting confessions to comply with the Sixth Amendment).

[14] 481 U.S. 200 (1987).

[15] Id. at 207 (“In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.”).

[16] Id. at 208 (“In Bruton, the codefendant’s confession ‘expressly implicat[ed]’ the defendant as his accomplice. . . . By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).” (quoting Bruton, 391 U.S. at 124, n.1)).

[17] Id. at 211 (“We hold that 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 his or her existence.”).

[18] 523 U.S. 185, 192 (1998) (“[T]he prosecutor . . . must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton Court found.”).

[19] Id. (“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.”).

[20] 599 U.S. 635 (2023).

[21] Id. at 640–41.

[22] Id. at 641–42.

[23] Id. at 653.

[24] Id.

[25] Id. at 655.

[26] See id. at 660 (Kagan, J., dissenting) (“Until today, Bruton’s application turned on the effect a confession is likely to have on the jury . . . .”); see also Sixth Amendment–Confrontation Clause–Samia v. United States, 127 Harv. L. Rev. 320, 324 (2023) (describing Kagan’s criticism of the majority’s failure to consider the confession’s “inculpatory impact”).

[27] See Samia, 599 U.S. at 653 (“Stillwell’s confession was redacted to avoid naming Samia, satisfying Bruton’s rule.”).

[28] Gray, 523 U.S. 185, 196 (1998) (“Moreover, the redacted confession with the blank prominent on its face, in Richardson’s words, ‘facially incriminat[es]’ the codefendant.” (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987))) (emphasis in original).

[29] Samia, 599 U.S. at 652–53 (“Gray qualified, but confirmed this legal standard, reiterating that the Bruton rule applies only to ‘directly accusatory’ incriminating statements . . . .” (quoting Gray, 523 U.S. at 194)).

[30] Gray, 523 U.S. at 194 (“Bruton held that the ‘powerfully incriminating’ effect of . . . ‘an out of court accusation,’ creates a special, and vital, need for cross-examination . . . .” (quoting Bruton v. United States, 391 U.S. 123, 138 (1968))) (citation omitted).

[31] See Bruton, 391 U.S. at 135; Richardson, 481 U.S. at 206–09; Gray, 523 U.S. at 194; Samia, 599 U.S. 635.

[32] Samia, 599 U.S. at 662 (Kagan, J., dissenting) (considering the effect of the confession on the jury).

[33] Id.

[34] See id. at 659 (Kagan, J., dissenting) (“[T]he majority permits an end-run around our precedent and undermines a vital constitutional protection for the accused.”).

[35] Fed. R. Crim. Pro. 14(a).

[36] Samia, 599 U.S. at 654 (quoting Richardson v. Marsh, 481 U.S. 200, 210, 209 (1987)) (internal quotation marks omitted).

[37] See id. (finding joint trials preserve government resources and prevent inconsistent verdicts); Richardson, 481 U.S. at 209–10 (finding the same).

[38] Bruton v. United States, 391 U.S. 123, 135 (1968) (quoting People v. Fisher, 164 N.E. 336, 341 (N.Y. 1928)).