EULOGIO CRUZ, PETITIONER V. STATE OF NEW YORK

   No. 85-5939

   In The Supreme Court Of The United States

   October Term, 1986

   On Writ Of Certiorari To The Court Of Appeals Of The State Of New
York

   Brief For The United States As Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The admission of the co-defendant's confession at
      the joint trial did not violate petitioner's rights
      under the Confrontation Clause
      A. Because the co-defendant's statements contained
         strong indicia of reliability, petitioner's
         confrontation rights were not violated
      B. The co-defendant's statements were properly
         admitted at the joint trial because they
         interlocked with petitioner's own statement
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether the judgment can be supported on the ground that the
non-testifying co-defendant's confession was sufficiently reliable to
satisfy the Confrontation Clause.

   2. Whether a co-defendant's out-of-court confession can be admitted
at a joint trial, with proper limiting instructions, when the
co-defendant's confession interlocks with petitioner's own confession
on the essential elements of the crime.

                     INTEREST OF THE UNITED STATES

   This case raises important issues under the Confrontation Clause of
the Sixth Amendment.  The case involves out-of-court statements made
by a non-testifying co-defendant to a civilian and later to the
police.  Those statements were admitted solely against the
co-defendant.  Petitioner himself confessed to the same civilian, and
petitioner's confession was factually consistent with the
co-defendant's statements.  Respondent argues that the admission of
the co-defendant's statements was proper on two grounds.  First,
respondent argues that the co-defendant's statements were sufficiently
reliable that they could have been admitted even as substantive
evidence against petitioner without violating the Confrontation
Clause.  Second, respondent argues that the fact that the
co-defendant's confessions interlocked with petitioner's own
confession prevented the co-defendant's statements from having a
devastating effect on petitioner's case, see Bruton v. United States,
391 U.S. 123 (1968).  It was constitutionally permissible, respondent
contends, for the trial court to admit the co-defendant's confession
in the joint trial, subject to limiting instructions from the court.

   The proper application of the Confrontation Clause in joint trials
is a question that arises every day in federal criminal cases.  The
approach taken by the Court in resolving the issues in this case will
significantly affect federal criminal prosecutions.

                               STATEMENT

   1. In the early morning hours of November 29, 1981, gas station
attendant Victoriano Agostini was murdered at his place of employment
in the Bronx.  An autopsy revealed that Agostini died from two gunshot
wounds to the head.  For several months the police had no leads in the
case.  In the spring of 1982, during an investigation of an unrelated
murder of one Jerry Cruz (no relation to petitioner), the police
interviewed Norberto Cruz, Jerry's brother.  Norberto told the police
that on the day of the Agostini murder, petitioner and his brother,
co-defendant Benjamin Cruz, came to Norberto's apartment and told him
that they had killed a gas station attendant in the Bronx.  Pet. App.
A4-A5;  J.A. 32, 52-53;  Tr. 28-29, 35-36, 38-39, 51.  /1/

   On May 3, 1982, the police interviewed Benjamin Cruz about the
Jerry Cruz murder.  While he was being questioned about that murder,
Benjamin spontaneously admitted to the police that he and petitioner
had killed a gas station attendant in the Bronx.  Later that same
evening, Benjamin gave a detailed, videotaped statement admitting his
participation in the gas station murder.  Pet. App. A5;  J.A. 23,
68-69;  Tr. 190-194.  Based on Norberto's statements and Benjamin's
admissions, indictments were returned against both Benjamin and
petitioner for felony murder and related charges (J.A. 1, 3-13).

   2. At trial, Norberto testified in detail about his conversation
with petitioner and Benjamin on November 29, 1981 (J.A. 31-51).  At
about 10:00 a.m. on that day, only hours after the police had
discovered the murder victim, petitioner and Benjamin, both long-time
acquaintances of Norberto's, stopped by Norberto's apartment.  /2/
Petitioner was very nervous and had a blood-stained bandage around his
right arm.  Pet. App. A4;  J.A. 32-33;  Tr. 28-29, 35-36, 38-39, 51.
Norberto asked petitioner what had happened;  petitioner explained
that he and Benjamin "had gone to give a hold up to a gas station."
Petitioner said he started struggling with the gas station attendant.
The attendant then "bent down" and "took out a gun and fired." At that
point, petitioner said, Benjamin "jumped up and fired at the man in
the gas station." J.A. 33.

   Benjamin then added to petitioner's description of the incident.
He told Norberto that petitioner had sent him to search the gas
station attendant but that he "hadn't done it well" (J.A. 34).
Benjamin said that he saw the gas station attendant bend over, take
out a gun, and fire at petitioner, at which point Benjamin shot the
attendant (J.A. 34).  /3/ During his conversation with Benjamin and
petitioner, Norberto offered to take petitioner to the hospital;
petitioner declined, stating that he did not want to go to the
hospital because it was "very dangerous" (J.A. 35).  After about an
hour, petitioner and Benjamin left the apartment along with Jerry
Cruz, who resided with Norberto and who had been asleep during
Norberto's conversation with petitioner and Benjamin (J.A. 35).  /4/
The next day, Benjamin returned to Norberto's apartment.  Benjamin
advised Norberto to clean the blood out of his car, which Norberto had
lent to Jerry Cruz, because it was "very dangerous for Jerry" (J.A.
36).

   Norberto did not inform the police of petitioner's and Benjamin's
statements until April 1982.  /5/ He did so during an interview with
Detective George Wood concerning Jerry's murder.  J.A. 46-47;  Tr.
208.  On May 3, 1982, Benjamin came to the police station after Wood
had left his card at Benjamin's home with a message that he wanted to
discuss Jerry's murder (Tr. 209-210).  Using an interpreter, Wood
asked Benjamin if he knew anything about the murder of Jerry Cruz.
Benjamin said that he did not, but he stated spontaneously that he had
shot someone who shot his brother at a gas station in the Bronx.  J.A.
29-30;  Tr. 95, 191.  /6/ Benjamin was then advised of his Miranda
rights (Tr. 82).

   Later that evening, an Assistant District Attorney took a
videotaped statement from Benjamin (J.A. 61-69;  Tr. 214-215).  In his
videotaped statement, Benjamin indicated that he had shot and killed a
gas station attendant in November 1981 with a .357 magnum after the
attendant had shot petitioner (J.A. 62).  Benjamin correctly
identified the location of the station and stated that after arriving
there, he had pulled out a gun.  Benjamin said that he and petitioner
had told the attendant that "this was a holdup." J.A. 63, 67.
Benjamin and petitioner then asked for money, but the attendant said
it was not his to give away.  Petitioner threatened the attendant,
demanded money, and hit him on the bridge of the nose, whereupon
petitioner and the attendant began fighting.  The attendant fired a
shot at petitioner and hit him in the left arm.  Benjamin told
petitioner to "look out" and then, from close range, shot the
attendant between the eyes and killed him.  J.A. 63-64, 67.  Benjamin
and petitioner took the attendant's money -- a total of $62 -- and
fled (J.A. 65).  /7/

   In addition to the statements by Benjamin and petitioner, /8/ the
government introduced medical and ballistics evidence.  The Associate
Medical Examiner testified that the victim died of two gunshot wounds.
 One shot hit the victim above the right ear.  The other shot -- which
caused most of the damage -- entered the victim's skull through the
left side and traveled, in a downward path, to the right side.  In
addition, the victim had blunt force injuries (due to a blow or a
fall), including a laceration at the bridge of his nose, bruises
around both eyes, and abrasions on his right cheek and left shoulder.
J.A. 52-53;  Tr. 229-231.  A ballistics expert testified that the
bullet recovered from the victim was a .38 caliber bullet, which could
have been fired from a .38 caliber or a .357 magnum revolver.  J.A.
54;  Tr. 234-237.  /9/

   The jury found both Benjamin and petitioner guilty of felony
murder, the only charge submitted for its consideration (Tr. 387).
Petitioner was sentenced to a prison term of 15 years to life (J.A.
2).

   3. On appeal, petitioner contended that the admission of Benjamin's
statement violated petitioner's rights under the Confrontation Clause.
 He maintained that Benjamin's statement did not "interlock" with his
own statement because Benjamin's statement was substantially more
reliable.  The Appellate Division of the New York Supreme Court
affirmed the conviction without opinion (J.A. 71);  petitioner was
later granted leave to appeal to the New York Court of Appeals (J.A.
72).

   The New York Court of Appeals affirmed petitioner's conviction by a
divided vote (Pet. App. A1).  The court of appeals reasoned that there
was no Confrontation Clause violation because the statements by
Benjamin and petitioner were interlocking.  The court noted that
although there were differences between the confessions, they were in
agreement on "the date and target of the crime, the participants in
it, the motive of robbery, and the essential facts of how defendant
was injured and the station attendant killed" (Pet. App. A12).  While
acknowledging that Benjamin's confession was substantially longer than
petitioner's, the court pointed out that "the details included did not
contradict or modify the essential elements of (petitioner's)
statement" (ibid.).  The court rejected petitioner's contention that
the confessions should not be deemed interlocking because they
differed in the degree of their reliability (Pet. App. A14).

   The dissenting judges concluded that Benjamin's confession added
substantial weight to the otherwise weak confession evidence
introduced against petitioner, and that the two confessions were
therefore not interlocking.  In the dissenters' view, the jury must
have considered Benjamin's confession in determining whether
petitioner had in fact confessed to Norberto.  Therefore, they
concluded, the admission of Benjamin's statements in the joint trial
violated the principles of this Court's decision in Bruton v. United
States, 391 U.S. 123 (1968).  Pet. App. A19-A21.

                          SUMMARY OF ARGUMENT

   A. This Court has made it clear that out-of-court statements can be
admitted against a defendant without violating the Confrontation
Clause, even if the defendant has no opportunity to cross-examine the
declarant, as long as the statements contain adequate "indicia of
reliability." See Lee v. Illinois, No. 84-6807 (June 3, 1986), slip
op. 12-13;  Ohio v. Roberts, 448 U.S. 56 (1980).  Although an
accomplice's custodial confession is considered "presumptively
unreliable," the presumption may be rebutted in a particular case if
the circumstances show that the confession is highly likely to be
reliable.  Lee, slip op. 11-13.

   Benjamin's out-of-court statements in this case contained numerous
indicia of reliability.  Specifically, the statements were against
Benjamin's penal interest;  they were corroborated by the physical
evidence at trial and by petitioner's own interlocking confession;
there is nothing to suggest that Benjamin's statements were based on
faulty memory or that Benjamin had any reason to make a false
accusation against petitioner;  petitioner was able to confront
Norberto and the police on whether Benjamin in fact made the
statements and under what circumstances;  and the jury was able to
observe Benjamin's demeanor during the course of his videotaped
confession.  Moreover, even if the Confrontation Clause requires that
an accomplice be shown to be unavailable before his confession can be
admitted against a defendant, Benjamin was unavailable to the
government at the trial in this case, since he was a co-defendant who
could not be called as a witness.  Under these circumstances, the
Confrontation Clause would not have prohibited the State from using
Benjamin's statements as substantive evidence against petitioner.  It
follows, a fortiori, that the admission of those statements solely
against Benjamin could not have violated petitioner's confrontation
rights.

   B. The admission of Benjamin's statements was valid for yet another
reason:  because petitioner gave a confession that "interlocked" with
Benjamin's confessions, Benjamin's statements did not have a
"devastating" effect on petitioner's case, and severance was therefore
not required.  This principle -- that the holding in Bruton v. United
States, 391 U.S. 123, 136 (1968), does not apply to cases involving
interlocking confessions -- was adopted by the plurality in Parker v.
Randolph, 442 U.S. 62 (1979).  The rationale of the Parker plurality
is eminently sound:  a co-defendant's confession can hardly have
devastating consequences for the defendant when the defendant himself
has confessed.  In that situation, there is no reason not to follow
the general rule that juries can understand and apply instructions,
including limiting instructions directing the jurors not to consider
the co-defendant's statements against the defendant.

   In the present case, the confessions interlocked on all the
essential elements of felony murder.  Both petitioner and his
co-defendant admitted that they went to rob a gas station, that the
attendant reached for a gun and shot petitioner in the arm, and that
the co-defendant then shot and killed the attendant.  Although
petitioner claims that Norberto Cruz, the witness who testified about
petitioner's confession, fabricated the whole conversation, Norberto's
testimony was fully corroborated by the physical evidence and by
various details in the co-defendant's later confession.  Under those
circumstances, petitioner's claim that the confessions were not truly
interlocking is without merit.

                               ARGUMENT

 THE ADMISSION OF THE CO-DEFENDANT'S CONFESSION AT THE JOINT TRIAL DID
NOT VIOLATE PETITIONER'S RIGHTS UNDER THE CONFRONTATION CLAUSE

 A. Because The Co-Defendant's Statements Contained Strong Indicia Of
Reliability, Petitioners' Confrontation Rights Were Not Violated

   1. The usual method for ensuring the reliability of a statement is
through cross-examination.  California v. Green, 399 U.S. 149, 158
(1970);  Pointer v. Texas, 380 U.S. 400, 406-407 (1965);  Mattox v.
United States, 156 U.S. 237, 242-243 (1895).  This Court has made it
clear, however, that cross-examination of the declarant is not a
prerequisite to the admission of every out-of-court statement offered
against a defendant at trial.  Instead, a variety of out-of-court
statements are considered to carry sufficient "indicia of reliability"
to be admissible, even in the absence of cross-examination.  See Lee
v. Illinois, No. 84-6807 (June 3, 1986), slip op. 12-13;  Ohio v.
Roberts, 448 U.S. 56, 64-65 (1980);  Mancusi v. Stubbs, 408 U.S. 204,
213-216 (1972);  Dutton v. Evans, 400 U.S. 74 (1970).  When a
particular statement falls within "a firmly rooted hearsay exception,"
the reliability of the statement can be inferred, without more.  Ohio
v. Roberts, 448 U.S. at 66.  Even when a statement does not fall
within a traditional hearsay exception, the Court has held that it
"may nonetheless meet Confrontation Clause reliability standards if it
is supported by a 'showing of particularized guarantees of
trustworthiness.'" Lee v. Illinois, slip op. 13, quoting Ohio v.
Roberts, 448 U.S. at 66;  Dutton v. Evans, 400 U.S. at 88-89.

   Analysis of the "indicia of reliability" accompanying Benjamin
Cruz's confessions leads to the conclusion that Benjamin's statements
were sufficiently trustworthy to be admitted at trial without
offending the Confrontation Clause.  For that reason, there would have
been no constitutional objection if Benjamin's statements had been
admitted as substantive evidence against petitioner.  It follows, a
fortiori, that the admission of the statements solely against
Benjamin, with limiting instructions directing the jury not to
consider them against petitioner, could not have violated petitioner's
confrontation rights.  See Nelson v. O'Neil, 402 U.S. 622, 628-630
(1971).

   In Dutton v. Evans, supra, this Court upheld, over a Confrontation
Clause objection, the admission of an out-of-court statement that did
not fall within a well-settled hearsay exception.  Dutton involved the
admission, at Evans's murder trial, of a statement made by one of
Evans's accomplices to a cellmate named Shaw.  The accomplice,
Williams, had told Shaw that "'(i)f it hadn't been for that dirty
son-of-a-bitch Alex Evans, we wouldn't be in this now'" (400 U.S. at
77).  Williams's statement was introduced at trial against Evans
through the testimony of Shaw.  In an opinion by Justice Stewart, four
members of the Court concluded that the admission of Shaw's testimony
against Evans did not violate Evans's confrontation rights.  /10/

   The plurality concluded that Williams's statement was sufficiently
reliable to be admitted against Evans, even though Williams had not
been subject to cross-examination.  Among the reasons that the Court
listed in support of its finding of reliability were the following:
(1) Williams's personal knowledge of the role played by others in the
murder was sufficiently well established that it was "inconceivable
that cross-examination could have shown that Williams was not in a
position to know whether or not Evans was involved in the murder" (400
U.S. at 88);  (2) it was highly unlikely that Williams's statement was
based on faulty recollection;  and (3) the circumstances under which
Williams made his statement, which was spontaneous and against his
penal interest, made it unlikely that he had fabricated the statement
to inculpate Evans.  400 U.S. 88-89.

   Recently, in Lee v. Illinois, supra, the Court employed a similar
approach to determine the reliability of another out-of-court
statement by an accomplice.  The issue in Lee was whether the trial
court, at a bench trial, had properly considered the co-defendant's
confession as substantive evidence against Lee.  Since the case turned
on its precise facts, those facts bear close examination.

   During questioning about the stabbing deaths of her aunt and her
aunt's friend, Lee confessed to the police that she and her boyfriend,
co-defendant Edwin Thomas, had committed the stabbings.  Thomas
subsequently arrived at the police station for questioning.  At first,
he did not want to answer questions but instead wanted to think about
whether he should talk to the police.  Thomas and Lee asked to see
each other, and they were given permission to do so.  One of the
police officers then asked Lee, in Thomas's presence, "'what was the
statement you had just given us implicating (Thomas).'" Lee then told
Thomas that the police already knew everything and reminded him that
they had agreed not to let one of them take the whole "rap." At that
point, Thomas confessed as well.  Lee, slip op. 2.

   The majority pointed out that Lee's and Thomas's confessions
differed in a number of important respects.  For example, Thomas told
the police that he and Lee had previously discussed killing Lee's
aunt, thus admitting premeditation.  Lee, by contrast, made no mention
of any plan, and indicated that at the time of the murder Thomas had
simply been provoked by the behavior of the aunt.  In addition, Lee
placed the blame on Thomas for the murder of her aunt's friend;  by
contrast, Thomas stated that, pursuant to their plan, Lee had beckoned
the friend into the kitchen so that Thomas could murder her.  Lee,
slip op. 4-6, 15-16.

   In ruling that the trial court had improperly considered Thomas's
confession as substantive evidence against Lee, the Court stated that
"Thomas' statement, as the confession of an accomplice, was
presumptively unreliable and * * * did not bear sufficient independent
'indicia of reliability' to overcome that presumption" (Lee, slip op.
9).  The Court made clear (id. at 12-13) that "the presumption (of
unreliability) may be rebutted" but stated that the prosecution had
simply failed to do so in that case.  Although the Court acknowledged
that the existence of an interlocking confession by the defendant
provides significant support for the reliability of the co-defendant's
statement, the Court found that Thomas's statement differed on too
many key points to be considered "interlocking" with Lee's (id. at
14-16).

   Four justices dissented in Lee.  The dissenters would have found
Thomas's statement to be sufficiently reliable to eliminate any
Confrontation Clause problem.  Thus, while the Court in Lee was split
on the issue of whether Thomas's out-of-court statement was shown to
be sufficiently reliable on the facts of that case, a non-testifying
co-defendant's out-of-court statement may be admitted as substantive
evidence against the defendant.  /11/

   In the present case, there was no Confrontation Clause violation.
Benjamin's statements present none of the problems that troubled the
majority in Lee.  Instead, they bear numerous distinct indicia of
reliability.  When these factors are viewed collectively, they lead to
only one conclusion -- that Benjamin's statements were sufficiently
reliable to justify admission against petitioner even in the absence
of cross-examination.

   To begin with, Benjamin's statements fall "within a firmly rooted
hearsay exception" -- declarations against penal interest.  The
reliability of the statements can therefore "be inferred without more"
(Ohio v. Roberts, 448 U.S. at 66).  /12/ Benjamin's statements were
clearly against his penal interest, since he admitted committing a
murder during the course of a robbery (J.A. 30, 34, 61-69) and thereby
subjected himself to criminal prosecution for felony murder and
related offenses.  He did not attempt to "shift the blame" to
petitioner but took primary responsibility for the incident.  /13/
Moreover, there is nothing to suggest that Benjamin's statements were
made as part of an effort to curry favor with the police.  /14/
Indeed, on the very date of the murder -- long before any conversation
with the police -- Benjamin fully admitted his culpability to
Norberto, in the presence of petitioner.  In addition, Benjamin
spontaneously admitted his role in the gas station murder while he was
being questioned by the police about an unrelated matter and at a time
when he clearly was not in custody and had not been accused of any
crime (Tr. 110).  See Dutton, 400 U.S. at 89 (noting that statement
was spontaneous and against penal interest).  He did so, almost in a
bragging manner, to show the police that he was telling the truth in
claiming that he had nothing to do with Jerry's murder.  See page 4
note 6, supra.  There is no evidence whatsoever to suggest that
Benjamin admitted the murder as a result of prompting by the police or
in the hope that he would win lenient treatment by making the
admission.  The subsequent videotaped statement, which was ruled to be
voluntary (see Tr. 111-113), /15/ was simply an elaboration of what
Benjamin had previously told Norberto and the police.  It in no way
conflicted with his earlier statements.  There is similarly nothing to
show that Benjamin gave the videotaped statement to curry favor with
the police or as a result of police coercion.

   These facts distinguish Benjamin's statements in this case from
Thomas's statement in Lee.  Thomas's statement to the police was not
accompanied by a prior statement to a civilian to corroborate its
reliability, and Thomas's statement, unlike Benjamin's, was not freely
volunteered.  Thomas initially refused to talk to the police, and he
did so only after being told that Lee had already implicated him.
Moreover, the Court in Lee found that Thomas's statement might well
have been influenced by a desire to shift blame to Lee.  There is no
basis for attributing any such motive to Benjamin in this case.  /16/
Because of the circumstances in which Thomas's statement was made, the
Court in Lee did not accept the State's characterization of Thomas's
confession as a "declaration against penal interest" (Lee, slip op. 13
n.5).  /17/ Benjamin's statement, however, suffered from none of the
infirmities the Court found in Thomas's confession.  Under the
approach of both the majority and the dissenting opinions in Lee,
Benjamin's videotaped statement and his prior unrecorded statements to
Norberto and the police fell within the traditional category of
declarations against penal interest.

   Further support for the reliability of Benjamin's statements
derives from the fact that they were fully corroborated by the
physical evidence.  For example, Benjamin stated that he shot the
attendant with a .357 magnum (J.A. 62, 64);  recovered from the victim
was a .38 caliber bullet, which, according to the ballistics expert,
could have been fired from a .357 magnum (J.A. 52-53;  Tr. 234-235).
Benjamin told Norberto that he "jumped up" and shot the attendant
after the attendant "ben(t) over," picked up a gun, and fired it (J.A.
34);  the medical evidence revealed that the bullets entered the
victim's head in a downward trajectory (Pet. App. A6;  J.A. 53).
Benjamin described a physical altercation between petitioner and the
attendant, which resulted in petitioner's striking the attendant on
the nose (J.A. 63);  the autopsy revealed blunt force injuries,
including a laceration in the skin at the bridge of the attendant's
nose (J.A. 52).  Moreover, as the court of appeals noted, the
government introduced photographs showing "substantial damage to the
(gas station) office, inferentially establishing (petitioner's)
struggle with the attendant before the murder" (Pet. App. A5-A6).  As
in Dutton (400 U.S. at 88-89), the corroboration of Benjamin's
statement not only makes it highly likely that the statement was true,
but also makes it virtually inconceivable that cross-examination could
have shown that Benjamin was not in a position to know whether
petitioner was involved in the murder.  Petitioner himself
acknowledged (Pet. 10 n.4) that "Benjamin's videotaped confession
contained detail so realistic and minute that only someone who was
present at the homicide scene could have uttered it."

   Another indication of reliability is that Benjamin's confession was
corroborated on all the essential elements by petitioner's own
confession, and the confessions contained no significant
discrepancies.  Cf. Lee, slip op. 14, 16 (recognizing that an
interlocking confession is a sign of reliability, but finding that
discrepancies between the two confessions in that case went "to the
very issues in dispute at trial" and that the confessions in that case
were therefore not interlocking).

   Furthermore, as in Dutton, it is highly unlikely that Benjamin's
statement was based on an inaccurate memory or on a deliberate
misstatement of the events (see 400 U.S. at 89).  The vivid detail of
the videotaped confession refutes any suggestion of a memory lapse,
and there was nothing to show that Benjamin had any motive for falsely
accusing his brother of being involved in the murder.  Significantly,
no evidence of any hostility between petitioner and Benjamin was
introduced at trial.  /18/

   Finally, petitioner "was not deprived of any right of confrontation
on the issue of whether (Benjamin) actually made the statement(s)"
(Dutton, 400 U.S. at 88).  Norberto and various officers who heard
Benjamin's statements at the police station were witnesses at trial
and subject to cross-examination.  In addition, the jury viewed the
22-minute videotape of Benjamin's confession and thus had the
opportunity to observe Benjamin's demeanor as he described both his
and petitioner's roles in the gas station murder.  Cf. California v.
Green, 399 U.S. at 158 (noting that cross-examination enables jury "to
observe the demeanor of the witness in making his statement, thus
aiding (it) in assessing his credibility").

   2. In addition to being reliable, Benjamin's statements were made
by a declarant uho was unavailable as a witness at trial.  With regard
to one class of hearsay -- prior testimony -- this Court has held that
the Confrontation Clause requires the government to prove that the
declarant is unavailable to testify at the trial before the hearsay
can be admitted.  See Ohio v. Roberts, 448 U.S. at 65-66.  The
"unavailability" requirement has not been imposed with regard to other
out-of-court statements, such as co-conspirator declarations.  See
United States v. Inadi, No. 84-1580 (Mar. 10, 1986).  In particular,
the Court has not ruled on the question whether an accomplice must be
shown to be unavailable before this out-of-court confession can be
admitted as a declaration against penal interest, although the hearsay
rules typically require such a showing (see Fed. R. Evid. 804(b)(3)).
/19/ Even if unavailability must be shown, we submit that
unavailability was established in this case.

   Because Benjamin was a co-defendant at trial, the State could not
call him as a witness.  Under the usual standards employed to assess
unavailability, Benjamin was therefore unavailable to the government
at trial.  See United States v. Lieberman, 637 F.2d 95, 103 (2d Cir.
1980);  United States v. Zurosky, 614 F.2d 779, 792-793 (1st Cir.
1979), cert. denied, 446 U.S. 967 (1980);  Phillips v. Wyrick, 558
F.2d 489, 494 (8th Cir. 1977), cert. denied, 434 U.S. 1088 (1978);
Fed. R. Evid. 804(a)(1).  As Justice Blackmun pointed out in his
dissenting opinion in Lee, slip op. 3-4, the State should not be
required to immunize one co-defendant in order to make him available
for cross-examination by another.  The costs to the State and the
judicial system of requiring such a procedure would outweigh any
possible benefit to the defense of making the declarant available.
See United States v. Inadi, slip op. 8-12.

   In sum, under the analysis employed both in Dutton and Lee,
Benjamin's confessions constituted highly reliable statements by an
unavailable declarant.  Therefore, the Confrontation Clause would not
have forbidden the admission of Benjamin's statements, even if they
had been offered as substantive evidence against petitioner.  For that
reason, petitioner certainly cannot complain about the introduction of
the statements at the joint trial, where they were admitted solely
against Benjamin.

 B. The Co-Defendant's Statements Were Properly Admitted At The Joint
Trial Because They Interlocked With Petitioner's Own Statement

   In Bruton v. United States, 391 U.S. 123 (1968), the Court held
that a co-defendant's confession that implicated the defendant could
not be admitted at a joint trial, even solely against the
co-defendant.  /20/ The Court based its decision on its conclusion
that the co-defendant's confession had a "devastating" impact on the
defendant's case and that the jury therefore could not be expected to
follow the court's limiting instructions.  In Parker v. Randolph,
supra, the issue was whether Bruton applied even where the defendant
himself had also confessed.  In an opinion for four members of the
Court, Justice Rehnquist concluded that the principle announced in
Bruton does not apply in the case of "interlocking" confessions.  The
plurality concluded that where a defendant himself has confessed, "the
incriminating statements of a co-defendant will seldom, if ever, be of
the 'devastating' character referred to in Bruton" (442 U.S. at 73).
For the same reason, "(s)uccessfully impeaching a codefendant's
confession on cross-examination would likely yield small advantage to
the defendant whose own admission of guilt stands before the jury
unchallenged" (ibid.).  The plurality concluded that "when the
defendant's own confession is properly before the jury, * * * (t)he
possible prejudice resulting from the failure of the jury to follow
the trial court's instructions is not so 'devastating' or 'vital' to
the confessing defendant to require departure from the general rule
allowing admission of evidence with limiting instructions" (id. at
74-75 (footnote omitted)).

   Justice Blackmun concurred in the judgment.  He refused to endorse
the plurality's per se approach.  He concluded, however, that the
Bruton violation in that case was harmless beyond a reasonable doubt,
and that it would likely be harmless in most other interlocking
confession cases as well (442 U.S. at 77-81).

   1. Petitioner argues (Pet. Br. 21-26) that the Court should reject
the approach taken by the plurality in Parker v. Randolph, supra, and
hold that the admission of a co-defendant's confession violates the
principles of Bruton, even when the co-defendant's confession
interlocks with the defendant's own confession.  He maintains that
even when the defendant has confessed, cross-examination would not
necessarily be futile.  The right of confrontation must be enforced,
he asserts, even if "exercising (that) right would have 'yield(ed)
small advantage.'" Pet. Br. 22.

   We submit that the analysis in the plurality opinion in Parker was
correct.  When a defendant himself has confessed, the co-defendant's
confession will almost never be "devastating" to the defendant's case.
 It does not disparage Confrontation Clause values to hold that a jury
is likely to be able to follow a court's limiting instructions where
the impact of a co-defendant's confession is blunted by the
defendant's own admissions of guilt.  In addition, the plurality's
approach in Parker permits joint trials in cases in which the risk of
prejudice to the defense is low.  As the Court has noted, joint trials
"conserve state funds, diminish inconvenience to witnesses and public
authorities, and avoid delays in bringing those accused of crime to
trial" (Bruton, 391 U.S. at 134).  Although the government can avoid
severances simply by not using confessions in multidefendant cases,
that approach exacts a very high price, since a confession is
"probably the most probative and damaging evidence that can be
admitted against (a defendant)" (Bruton, 391 U.S. at 139 (White, J.,
dissenting)).  /21/

   The "harmless error" approach urged by petitioner is not a
satisfactory alternative.  The harmless error approach instructs trial
courts that they are constitutionally required, even in interlocking
confession cases, either to sever the cases or to exclude all
statements by non-testifying co-defendants.  As Justice Blackmun has
observed, the failure to grant such relief in interlocking confession
cases will usually be harmless (Parker, 442 U.S. at 79 (opinion of
Blackmun, J.)).  Yet in every interlocking confession case, including
those in which any error would be virtually certain to be regarded as
harmless on appeal, the "harmless error" approach would compel the
trial judge to grant a severance or to prohibit the use of both
defendants' confessions at trial.  The better approach, we submit, is
to permit joint trials in interlocking confession cases, subject to
the discretion of trial courts to grant relief in particular instances
if a serious risk of prejudice appears.

   2. Petitioner further argues (Pet. 10-14;  Pet. Br. 30-32) that
even if a majority of this Court adopts the plurality approach in
Parker, it should nonetheless reverse petitioner's conviction because
the confessions in this case were not "interlocking." While he
apparently concedes that the confessions were "factually interlocking"
(Pet. 12), /22/ petitioner asserts that they were not sufficiently
interlocking to satisfy the Parker test because of their "gross
disparity in reliability" (Pet. 14).  According to petitioner (Pet. 10
& n.4, 14), Benjamin's statements were highly reliable, whereas the
reliability of Norberto's testimony about petitioner's confession was
suspect.  That argument is not persuasive.

   In our view, the issue of whether statements are "interlocking"
should be determined by the trial court, based on all the
circumstances and subject to review only for abuse of discretion.
Statements should be deemed interlocking if they are "'substantially
the same and consistent on the major elements of the crime involved.'"
Tamilio v. Fogg, 713 F.2d 18, 20 (2d Cir. 1983), cert. denied, 464
U.S. 1041 (1984) (quoting United States ex rel. Stanbridge v. Zelker,
514 F.2d 45, 49 (2d Cir.), cert. denied, 423 U.S. 872 (1975)).  The
central focus of the inquiry should be whether the differences between
the confessions are so fundamental that, despite the defendant's own
confession, the admission of the co-defendant's confession will
nonetheless have a "devastating" effect on the defendant (Bruton, 391
U.S. at 136).  /23/ Where the confessions interlock on the key facts,
each defendant's confession will almost never have a devastating
impact on the other defendant.  While differences in the reliability
of the statements may be relevant to the trial court's inquiry, those
differences ordinarily should matter only when they are so fundamental
that there is a serious doubt as to whether the defendant confessed at
all.  Absent such a grave divergence in reliability, the presence of a
confession by each defendant will help ensure that the jury will be
able to follow the court's instruction to consider the evidence
against each defendant separately.  For that reason, purported
differences in reliability ordinarily should not prevent the
application of the interlocking confession rule articulated by the
Parker plurality.  /24/

   Under this approach, petitioner's confrontation rights were not
violated by the admission of Benjamin's statements.  Both the trial
court and the court of appeals correctly ruled that the confessions
were factually interlocking (Pet. App. A12;  J.A. 23, 27-28).  Each
confession established all the elements of felony murder, and Benjamin
and petitioner were in full agreement about their respective roles in
the crime.

   Petitioner claims that Norberto's testimony was unreliable for the
following reasons:  (1) Norberto had a "prior record";  (2) he
received welfare payments while working "on the street" as a mechanic;
 (3) he accepted money from his brother without inquiring about its
source;  (4) at the prior trial Norberto testified that Benjamin, not
petitioner, had confessed to him;  (5) Norberto waited several months
before reporting the incriminating statements to the police;  and (6)
Norberto was seeking revenge because he thought petitioner had
murdered his brother (Pet. 11;  Pet. Br. 27-28).

   These points do not withstand analysis.  Norberto's criminal record
consisted solely of an eight-year-old traffic conviction for driving
without a license (J.A. 36-37);  thus, except for one minor traffic
offense, Norberto had a clean record.  His receipt of welfare payments
while he was performing occasional work on the street as a mechanic
does not in any way suggest dishonesty or unreliability on Norberto's
part (see 1st Tr. 194).  Similarly, the money Norberto received from
Jerry was simply Jerry's contribution to the upkeep of the household
(J.A. 40-41).  It is probative of nothing that Norberto did not
interrogate Jerry as to where he got the money to pay his share of the
expenses.  Petitioner's claim that Norberto, at the first trial,
maintained that Benjamin alone had confessed is incorrect;  Norberto
clearly testified that both petitioner and Benjamin had told him about
the murder.  /25/ As to Norberto's reasons for not going to the police
sooner, Norberto's testimony (J.A. 45) suggests that, given Jerry's
involvement in the incident, he did not want to report the statements
and risk getting his brother in trouble.  In any event, it is hardly
surprising that a person would fail to come forward with evidence of a
crime, but then report that evidence when approached by the police, as
was the case with Norberto.  Finally, petitioner was unsuccessful at
trial in his effort to show that Norberto was attempting to implicate
petitioner in a crime he did not commit in order to avenge Jerry's
death.  As the court of appeals noted (Pet. App. A13 n.2), there is
nothing in the record to support that claim.

   To the contrary, a number of factors underscore the reliability of
Norberto's testimony.  To begin with, his testimony (J.A. 33) that
petitioner said the attendant "bent down" and that Benjamin then
"jumped up and fired" is confirmed by the medical evidence that the
bullets entered the victim traveling in a downward path (J.A. 53).
/26/ Norberto's recollection of petitioner's description of the events
-- that Benjamin was the one who killed the attendant, that petitioner
was wounded by the attendant, and that the murder occurred during a
holdup -- was fully consistent with Benjamin's statement to the
police. /27/ And Norberto gave unimpeached testimony about an easily
verifiable fact -- that he remembered the date of his conversation
with petitioner and Benjamin because his wife had been released from
the hospital that day (Pet. App. A5;  J.A. 44).  In addition, as the
first trial court noted (J.A. 23), "Norberto was not a suspect in this
or any other crime at that time and there is no claim that he was
offering these revelations in return for lenient treatment from the
police." In the end, Norberto's testimony was corroborated by the
physical evidence and by Benjamin's statements, and Norberto was not
impeached in any significant way.  /28/

   Petitioner has therefore failed to show why the principle
articulated by the plurality in Parker should not apply in this case.
The confessions interlocked on all of the key facts, as the courts
below found (Pet. App. A11-A12;  J.A. 23).  And petitioner's assertion
that Norberto's testimony was unreliable is factually unfounded.
Admission of Benjamin's statements at the joint trial, in the face of
petitioner's own complete confession to felony murder, therefore did
not have the "devastating" consequences to his case that are required
for the principles of Bruton to apply.

                              CONCLUSION

   The judgment of the New York Court of Appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROBERT H. KLONOFF

      Assistant to the Solicitor General

   SEPTEMBER 1986

   /1/ "Tr." refers to the transcript of the second trial in this case
(the first trial ended in a mistrial as a result of juror misconduct).
 The transcript of the first trial is referred to as "1st Tr." The
transcript of the pretrial suppression hearing is referred to as
"5/25/83 Tr."

   /2/ Norberto had known Benjamin for 15 years and petitioner for 25
years (J.A. 31-32).  Norberto remembered the date of the visit because
his wife had been discharged from the hospital that day (Pet. App. A5;
 J.A. 44).

   /3/ Benjamin did not say how petitioner got hurt or why he and
petitioner had gone to the gas station in the first place (J.A. 34).
Those facts had previously been discussed by petitioner, however, in
Benjamin's presence (J.A. 33).

   /4/ As the police later learned from Benjamin, Jerry Cruz was also
a participant in the gas station holdup (Pet. App. A4;  J.A. 65).

   /5/ When Norberto was asked at trial why he had not told the police
about the statements earlier, he responded, through the court
interpreter, that it was "(b)ecause (his) brother had the event" (J.A.
45).  What Norberto apparently was trying to say was that he did not
want to say anything because his brother, Jerry Cruz, was one of the
perpetrators.  Jerry was murdered in March 1982 (Tr. 207).

   /6/ The evidence at the suppression hearing revealed that Benjamin
referred to the gas station murder to convince the police that he was
telling the truth when he denied having anything to do with Jerry's
murder.  Benjamin told Detective Wood that "(i)f it was me, I would
tell you." He then stated:  "I have big balls.  I killed the guy at a
gas station at 149th Street and Southern Boulevard, who shot my
brother clean into the arm.  I shot him in the head with a 357
Magnum." 5/25/83 Tr. 7.

   /7/ According to Benjamin, petitioner also fired a shot -- "he shot
him like to burn the clothes very close" (J.A. 68).  Benjamin said
that four individuals were involved in the robbery.  The driver, Jerry
Cruz, remained in the car (J.A. 65).  Benjamin did not describe the
specific role of the fourth participant, whom he called "Pacho" (J.A.
66).  Benjamin also stated that after the incident, he and the other
participants bandaged petitioner's arm (J.A. 67-68).  Throughout his
statement Benjamin referred to petitioner as "Chino" (see J.A. 65).

   /8/ When the statements were introduced at trial, and again during
final jury instructions, the trial court instructed the jury that each
defendant's statements were to be considered only against that
defendant (J.A. 30-31, 33-34, 36, 59).

   /9/ Petitioner did not put on any evidence (Tr. 292).  Benjamin put
on testimony by his mother that he was mentally slow for his age (Tr.
282-284).

   /10/ Justice Harlan concurred in the result.  Viewing the case as
involving due process, not the Confrontation Clause, he concluded that
there was no due process violation.  See 400 U.S. at 93-100.

   /11/ Following the decision in Lee, this Court vacated and remanded
for further proceedings a decision by the Supreme Court of New Mexico
holding that the admission of a non-testifying co-defendant's
statement violated the defendant's rights under the Confrontation
Clause.  New Mexico v. Earnest, No. 85-162 (June 27, 1986).  In a
concurring opinion, Justice Rehnquist wrote for four members of the
Court (slip op. 2) that "the State is entitled to an opportunity to
overcome the weighty presumption of unreliability attaching to
codefendant statements by demonstrating that the particular statement
at issue bears sufficient 'indicia of reliability' to satisfy
Confrontation Clause concerns."

   /12/ A hearsay exception for declarations against penal interest is
recognized in most jurisdictions, including the federal system (see
Fed. R. Evid. 804(b)(3)) and New York (see, e.g., People v. Johnson,
66 N.Y.2d 398, 488 N.E.2d 439, 497 N.Y.S.2d 618 (1985)).  That
exception "rests upon 'the principle of experience that a statement
asserting a fact distinctly against one's interest is unlikely to be
deliberately false or heedlessly incorrect'" (Lee, slip op. 5
(Blackmun, J., dissenting), quoting 5 J. Wigmore, Evidence Section
1457, at 329 (J. Chadbourn rev. 1974) (footnote omitted)).  See also
United States v. Harris, 403 U.S. 573, 583 (1971) ("Admissions of
crime * * * carry their own indicia of credibility.");  Donnelly v.
United States, 228 U.S. 243, 278 (1913) (Holmes, J., dissenting)
("(N)o other statement is so much against interest as a confession of
murder.").  The exception for declarations against penal interest
covers not only statements implicating the maker but also statements
implicating, and sought to be admitted against, the defendants.  See,
e.g., United States v. Riley, 657 F.2d 1377, 1382 (8th Cir. 1981),
cert. denied, 459 U.S. 1111 (1983);  United States v. Palumbo, 639
F.2d 123, 129-130 (3d Cir.) (Adams, J., concurring), cert. denied 454
U.S. 819 (1981);  United States v. Sarmiento-Perez, 633 F.2d 1092,
1098 (5th Cir. 1981), cert. denied, 459 U.S. 834 (1982).

   /13/ Petitioner is simply wrong in asserting (Pet. Br. 20) that
"Benjamin heaped substantial blame on petitioner" and "minimiz(ed) his
own culpability." Benjamin at all times took responsibility for
actually killing the attendant.

   /14/ When a defendant is attempting to curry favor with the police,
his statements may be unreliable, particularly when the defendant
attempts to shift the blame to someone else.  A number of courts have
therefore been reluctant to find that custodial statements to the
police that implicate third parties are declarations against penal
interest.  See, e.g., Fuson v. Jago, 773 F.2d 55, 60-61 (6th Cir.
1985);  Olson v. Green, 668 F.2d 421, 426-428 (8th Cir.), cert.
denied, 456 U.S. 1009 (1982);  United States v. Riley, 657 F.2d at
1384-1385;  United States v. Palumbo, 639 F.2d at 127-128.  On the
other hand, when there is nothing to suggest that defendant was
motivated by a desire to ingratiate himself with the police or to
shift the blame, the courts have upheld the admissibility of
confessions as being against the declarant's penal interest.  See,
e.g., United States v. Robinson, 635 F.2d 363, 364-365 (5th Cir.),
cert. denied, 452 U.S. 916 (1981);  United States v. Garris, 616 F.2d
626, 630-632 (2d Cir.), cert. denied, 447 U.S. 926 (1980).

   /15/ See Lee, slip op. 10 (Blackmun, J., dissenting) (noting that a
finding of voluntariness supports the conclusion that the statement is
reliable).

   /16/ The absence of any apparent motivation or effort on Benjamin's
part to shift blame to petitioner distinguishes this case from Douglas
v. Alabama, 380 U.S. 415 (1965).  See Lee, slip op. 10-11;  id. at 6-7
(Blackmun, J., dissenting).

   /17/ The four dissenting justices in Lee considered Thomas's
statement to be a declaration against penal interest within the
meaning of the firmly established hearsay exception for such
statements (Lee, slip op. 4-5 (Blackmun, J., dissenting)).

   /18/ Even if Benjamin had testified at trial, the circumstances
strongly suggest that his testimony would not have helped petitioner;
it is more likely that he would have tried to shift more blame to
petitioner and away from himself.  Benjamin did just that at his
pretrial suppression hearing, where he testified that he was not
involved in the murder or robbery, but that he learned about it when
petitioner and others arrived home and described what had happened
(5/25/83 Tr. 81-83, 105).  Benjamin further testified that his earlier
statement, in which he had implicated himself, was false.  He said he
had made that statement to protect his family and because petitioner
had threatened him (id. at 84, 97-98).

   /19/ The dissenters in Lee assumed that unavailability would have
to be shown before an accomplice's statement could be admitted against
a defendant.  Lee, slip op. 2 n.2 (Blackmun, J., dissenting).  The
majority found it unnecessary to address the point.  Lee, slip op. 9.

   /20/ The Court acknowledged that (391 U.S. at 128 n.3) "(t)here is
not before us * * * any recognized exception to the hearsay rule * * *
and we intimate no view whatever that such exceptions necessarily
raise questions under the Confrontation Clause."

   /21/ Another solution is to redact the confessions to omit any
references in each defendant's confession to the other defendant.
However, it is not always possible to redact statements in that manner
without gravely distorting their meaning.  The Court now has before it
the question whether redaction that simply omits all specific
references to the other defendant is constitutionally sufficient.  See
Richardson v. Marsh, cert. granted, No. 85-1433 (June 9, 1986).

   /22/ Petitioner does contend (Pet. 11;  Pet. Br. 27 n.12) that
Benjamin's statements filled in "gaps" in the case against petitioner
because only Benjamin's statements revealed (1) that petitioner and
Benjamin went to Norberto's house to pick up Jerry Cruz, (2) that
Jerry was involved in the robbery, and (3) that it was because of
Jerry's involvement in the robbery that Norberto failed to inform the
police earlier about the confessions.  These claims are erroneous.
Norberto clearly testified that Jerry left with petitioner and
Benjamin at the end of the visit on November 29, 1981 (J.A. 41).
Moreover, in response to the question why he did not tell the police
about the statements earlier, Norberto replied, through an
interpreter, that it was because Jerry "had the event" (J.A. 45).
That response suggests that Norberto did not go to the police because
Jerry was a participant in the offense.  That explanation is
consistent with Norberto's informing the police about the statements
only after Jerry's death.

   /23/ The approach we suggest addresses Justice Blackmun's concern
in Parker (442 U.S. at 80) that if the plurality "is willing to
abandon the factual inquiry that accompanies a harmless-error
determination, it should be ready, at least, to substitute an inquiry
into whether there is genuine interlocking * * * ."

   /24/ In his dissenting opinion in Parker, Justice Stevens posed a
hypothetical situation (442 U.S. at 84-85) in which a co-defendant
confesses on television about how he and the defendant planned and
carried out a murder, while the defendant's statement is "the
testimony of a drinking partner, a former cellmate, or a divorced
spouse of (defendant) who vaguely recalls (defendant) saying that he
had been with (co-defendant) at the approximate time of the killing."
Justice Stevens uses the disparity in the quality and contents of the
statements in the hypothetical to demonstrate what he believes to be
the problem with the plurality's approach in Parker.  That
hypothetical, however, is inapposite here.  The defendant's statement
in the hypothetical did not constitute a confession;  it was merely a
statement that the defendant had been with the co-defendant at the
approximate time of the offense.  The two statements therefore would
not be interlocking at all.  In this case, by contrast, the two
defendants' statements interlocked on all the essential facts of the
offense.  In addition, unlike in the hypothetical, Norberto had a
clear memory of petitioner's statements, not simply a vague
recollection of petitioner's remarks.

   /25/ Petitioner bases his contention on the fact that at one point
Norberto testified that when he asked petitioner what happened,
Benjamin spoke (Pet. 11;  see J.A. 50).  Petitioner overlooks
Norberto's testimony that petitioner, as well as Benjamin, had told
him about the robbery (1st Tr. 151-152):

         Q:  (By the prosecutor):  Did you ask (petitioner) how he got
      hurt?

         A:  (By Norberto):  Yes.  I asked him what had happened.

         Q:  And what did he say how he got hurt?

         A:  To (sic) the guy in the gas station had taken out a gun
      and had shot him.

         Q:  And what happened -- Did he tell you what happened to the
      guy who shot him?

         A:  Yes.  That they were wrestling, and when he bent over, he
      took out the revolver and fired and then, jumped, Benjamin
      jumped and fired.

         Q:  Who fired?  I'm sorry.  Who fired at who?

         A:  Benjamin.

         Q:  Fired at who?

         A:  The guy in the gas post.

         Q:  And when (petitioner) told you that, where was Benjamin?

         A:  He was present.

   /26/ Photographs of the murder scene that were admitted at trial
(reproduced in the State's Brief in the New York Court of Appeals at
15-16) show that the gas station had a counter.  Since the area behind
the counter was covered with blood (as the photographs show), it is
likely that the victim was shot while he was behind the counter.
Because Benjamin was probably in front of the counter when he shot the
attendant, it is understandable why Benjamin had to jump up when the
attendant bent down.

   /27/ Petitioner finds it significant (Pet. Br. 5, 28-29 & n.14)
that Norberto said that petitioner's right arm was injured while
Benjamin said it was the left one.  The important point, however, is
that both Norberto and Benjamin testified that petitioner was wounded
by the gas station attendant and had a bandage on one of his arms.

   /28/ Norberto withstood vigorous cross-examination by two defense
attorneys at two trials in this case -- the first trial having ended
in a mistrial because of juror misconduct.  Defense counsel also had
potential impeachment material in the form of Norberto's grand jury
testimony.  A reading of Norberto's testimony at both trials reveals
that defense counsel scored few points -- and certainly no major ones
-- in their lengthy cross-examinations.