# Samia v. United States/Opinion of Justice Kagan

SUPREME COURT OF THE UNITED STATES
No. 22–196
ADAM SAMIA, AKA SAL, AKA ADAM SAMIC, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 23, 2023]
Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, dissenting.
Imagine a criminal case involving two defendants—John and Mary. John and Mary are arrested for robbing Bill. Before trial, John confesses to the robbery in an interview with police. But John does more than admit his own involvement; he also points a finger at Mary. John says to the police: “Mary and I went out Saturday night and robbed Bill.” Mary, on the other hand, never confesses to the robbery. She maintains that she wasn’t involved—in fact, that she never left her home on the night in question. The government tries John and Mary together. At trial, it introduces a copy of John’s confession into evidence, and has it read to the jury by the interviewing officer. But John elects not to take the stand, leaving Mary’s attorney without an opportunity to cross-examine him about his confession.
This Court’s precedent bars the government from using John’s confession in that way. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against” her, which includes the right to cross-examine those witnesses. See Pointer v. Texas, 380 U. S. 400, 404 (1965). So when two defendants are tried jointly, the pretrial confession of one identifying the other as involved in the crime cannot be admitted unless the confessing defendant takes the stand. ​That is true, we held in Bruton v. United States, 391 U. S. 123 (1968), regardless of whether a judge instructs the jury to consider the evidence only against the confessor (John), and not against his co-defendant (Mary). Even with that kind of instruction, a “substantial risk” exists that the jury will impermissibly rely on John’s confession when determining Mary’s guilt. Id., at 126.
Suppose, though, that the government redacts the confession to eliminate Mary’s name. Mary still sits in the courtroom alongside John. But the version of the confession admitted into evidence now includes a blank space where Mary’s name belongs. And when the interviewing officer reads the confession to the jury, he says “deleted” in place of Mary’s name. So instead of “Mary and I went out Saturday night and robbed Bill,” what the jury hears is “deleted and I went out Saturday night and robbed Bill.”
That confession, too, is inadmissible under our precedent. Though the confession no longer identifies Mary by name, the implication is obvious: A juror “need only lift his eyes to [Mary], sitting at counsel table,” to realize to whom “deleted” refers. Gray v. Maryland, 523 U. S. 185, 193 (1998). The redacted confession thus presents the same risk as the unredacted one—that the jury will consider it as evidence against Mary even if instructed not to. Because the confessions “so closely resemble” each other, we have held, “the law must require the same result.” Id., at 192.
Now consider one last option. The government again modifies the confession to avoid the express reference. But this time, instead of swapping Mary’s name out for “deleted,” the government replaces it with the words “a woman.” The line read to the jury thus becomes: “A woman and I went out Saturday night and robbed Bill.” In the face of precedent that would bar the government from using either of the first two versions of John’s confession, a judge must decide what to do about this one. Would its admission, too, violate Mary’s right of confrontation?
​The answer should be obvious. A jury is still going to recognize that John is talking about Mary—for who else could the mystery “woman” be? This last version of the confession thus presents the same risk as the first two: that jurors will rely on John’s confession when assessing Mary’s guilt. Yet in today’s decision, the Court draws a line of constitutional significance between the first two examples and the third. Confessions that use a defendant’s name or a symbol of omission—clear Confrontation Clause violation. Confessions that replace a defendant’s name with another placeholder—no Sixth Amendment problem, no matter how obvious the reference to the defendant. In so elevating form over substance, the majority permits an end-run around our precedent and undermines a vital constitutional protection for the accused.
I
Start with Bruton, the foundation of this Court’s precedent on the introduction of confessions at joint trials. The government, we held in that case, cannot introduce a confession by a non-testifying defendant that names a co-defendant as an accomplice. Admitting the confession against the co-defendant would violate her Sixth Amendment right to cross-examine witnesses. See 391 U. S., at 126. And an instruction to the jury to disregard the confession when assessing the co-defendant’s guilt cannot remove the constitutional problem. That is because of the effect that such a “powerfully incriminating extrajudicial statement” is likely to have on a jury. Id., at 135–136. In this context, “the risk that the jury will not, or cannot, follow [the instruction] 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.” Id., at 135.
The Bruton rule applies even when an accusatory confession does not expressly name the co-defendant. Bruton, we have held, bars the use of confessions “that replace a ​name with an obvious blank space or symbol or word such as ‘deleted.’ ” Gray, 523 U. S., at 189. (So the Bruton rule extends beyond the first John-and-Mary hypothetical to the second.) And similarly, Bruton bars the admission of “confessions that use shortened first names, nicknames, [and] descriptions as unique as the ‘red-haired, bearded, one-eyed man-with-a-limp.’ ” Gray, 523 U. S., at 195; accord, ante, at 14. The Court assumed, for example, that at a joint trial of four defendants—three Black, one white—Bruton required the exclusion of two of the Black defendants’ confessions because they referred to the “white guy” as a participant in the crime. Harrington v. California, 395 U. S. 250, 252–253 (1969); see Gray, 523 U. S., at 195. Though confessions of that kind do not expressly name a non-confessing defendant, they still point directly at him. See id., at 194. They thus raise the same constitutional concern—that jurors will consider the confession’s accusation in evaluating the non-confessing defendant’s guilt.
Until today, Bruton’s application turned on the effect a confession is likely to have on the jury, as a comparison of two of our decisions shows. In Richardson v. Marsh, 481 U. S. 200, 211 (1987), we approved the admission of a confession “redacted to eliminate not only [a co-defendant’s] name, but any reference to his or her existence.” Despite that complete redaction, the confession served to incriminate the co-defendant later in the trial, when her own testimony placed her in a car ride that the confession described. See id., at 206, 208. But we thought that a confession that incriminated only “by connection” with subsequent evidence was neither so “vivid” nor so “powerful” as a confession that “incriminat[ed] on its face.” Id., at 208–209. For that reason, we thought, the jury was more “likely [to] obey the instruction” to disregard the confession as to the co-defendant. Id., at 208. But we held in Gray that the calculus is different when a confession “refers directly to the ‘existence’ of the nonconfessing defendant,” even though not ​by name. 523 U. S., at 192. Such a confession itself points a finger at a co-defendant, so that the jury can “immediately” and “vivid[ly]” grasp how it implicates her. Id., at 196. The impact is so similar to naming the defendant that “the law must require the same result.” Id., at 192. In both situations, the confession’s “powerfully incriminating” effect “creates a special, and vital, need for cross-examination”—just as if “the codefendant pointed directly to the defendant in the courtroom.” Id., at 194.
Consider against that backdrop the facts of this case. Petitioner Adam Samia was tried jointly with two co-defendants—Joseph Hunter and Carl David Stillwell—on charges related to a murder committed in the Philippines. According to the prosecution’s theory of the case, Paul LeRoux, the head of a transnational criminal organization, ordered the killing; and Hunter, one of LeRoux’s managers, hired Samia and Stillwell as hitmen. Before trial, Stillwell confessed to federal agents that both he and Samia were present at the murder, but told them that Samia was the triggerman. On that version of events, Samia shot the victim in a van that Stillwell was driving. App. 42–43, 45. At trial, one of the agents testified about Stillwell’s confession, replacing Samia’s name with placeholders like “somebody else” and “the other person.” Id., at 75. So, for example, when the prosecutor asked the agent what Stillwell had said about his arrival in the Philippines, the agent answered: “He stated that he had met somebody else over there.” Ibid. And when asked whether Stillwell had recounted the crime, the agent testified: “Yes. He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.” Id., at 76.
From the jury’s perspective, the identity of the triggerman would have been obvious. The jury knew from the start of trial that there were just three defendants. It knew based on the prosecutor’s opening statement that those defendants were on trial for offenses related to a death in the ​Philippines. And it knew the role that each defendant allegedly played in the crime: Hunter had hired Stillwell and Samia as hitmen, and those two men carried out the murder. In fact, the prosecutor began his opening statement with the exact sequence of events Stillwell had described in his interview: The prosecutor told jurors that Samia “shot [the victim] twice in the face” while the victim “was riding in the backseat of a van driven” by Stillwell. Id., at 52. So when the federal agent took the stand on day two of the trial, it didn’t make a lick of difference that he didn’t identify the shooter by name, but instead used placeholder terms. Any reasonable juror would have realized immediately—and without reference to any other evidence—that “the other person” who “pulled the trigger” was Samia.
That fact makes Stillwell’s confession inadmissible under our Bruton precedent. The agent’s testimony about the confession pointed a finger straight at Samia, no less than if the agent had used Samia’s name or called him “deleted.”
II
So how does the majority reach a contrary result? The nomenclature it adopts isn’t the problem: In describing Bruton’s scope, the majority distinguishes “between confessions that directly implicate a defendant and those that do so indirectly.” Ante, at 10, 14–15. That distinction roughly tracks the one this Court has recognized between confessions that themselves incriminate a co-defendant (directly implicate) and those that become incriminating only when linked with later-introduced evidence (indirectly implicate). See supra, at 4–5. But the majority distorts that distinction beyond recognition when applying it to the facts of this case. In one blink-and-you-miss-it paragraph of analysis, the majority holds that Stillwell’s confession does not “directly” implicate Samia for two reasons. It “was redacted to avoid naming Samia.” Ante, at 15. And the redaction was “not akin to an obvious blank or the word ‘deleted.’ ” Ibid.
​That analysis altogether fails to capture what our Bruton cases care about. This Court has already made clear that the first fact relied on—that Stillwell’s confession did not use Samia’s name—is not dispositive. See supra, at 3–4. A confession redacted with a blank space, after all, also avoids naming the defendant; yet Gray held that it falls within Bruton’s scope. So today’s decision must rest on the second feature of the confession: that the placeholder used (e.g., “the other person”) was neither a blank space nor the word “deleted.” But that distinction makes nonsense of the Bruton rule. Bruton’s application has always turned on a confession’s inculpatory impact. See, e.g., Cruz v. New York, 481 U. S. 186, 193 (1987) (considering “the likelihood that [a limiting] instruction will be disregarded” and “the probability that such disregard will have a devastating effect”). And as the John-and-Mary examples make clear, a confession that swaps in a phrase like “the other person” for a defendant’s name may incriminate just as powerfully as one that swaps in a blank space. See supra, at 1–3. So the majority warps our Bruton precedent by categorically putting the two on opposite sides of the constitutional line. As the Court remarked in another case about Bruton, “[t]he law cannot command respect” if we apply such “inexplicable”—and indeed unprincipled—line-drawing to a “constitutional imperative.” Cruz, 481 U. S., at 193.
Contrary to the majority’s claim, Gray repudiates rather than supports the distinction adopted today. In holding that Bruton’s protections extend beyond confessions with names to confessions with blanks, Gray explained that what should matter is not a confession’s form but its effects. A jury, Gray noted, “will often react similarly” to the two kinds of confessions; the blank space (rather than name) is “not likely [to] fool anyone.” 523 U. S., at 193. Ignoring Gray’s forest for one tree, the majority points to a passage in which the Court described how a confession in the case could have been further redacted: Instead of saying “[m]e, ​deleted, deleted, and a few other guys,” the witness could have said “[m]e and a few other guys.” Id., at 196. But on Gray’s particular facts, the latter version was unproblematic. The crime was a gang assault involving six perpetrators, while only one other person was on trial with the confessing defendant. The “[m]e and a few other guys” phrase thus did not point a finger directly at the co-defendant, as “the other person” phrase here did at Samia. The more relevant reference discussed in Gray was to the “white guy” in a trial with only one white defendant, as described above. Id., at 195; see supra, at 4. Gray left no doubt that the confession with that phrase should have been excluded—and for the same reason as the confession with “deleted.” When a modified confession has an “accusatory” effect “similar” to one with names, the Court reasoned, the law “require[s] the same result.” Id., at 192, 194. Gray could not have cared less whether the modification takes the form of a blank space or of a different, but no less accusatory, placeholder.
The practical concerns the majority cites in support of its decision are equally flimsy. On the majority’s view, a ruling for Samia would require courts to conduct “extensive pretrial hearings” reviewing “the Government’s case in its entirety.” Ante, at 16. But that charge is a strawman—and one that Gray already knocked down. See 523 U. S., at 197. The Bruton rule—whether applying to confessions with names, with blanks, or with other placeholders—demands only that a court consider “in advance of trial” such matters as the content of the confession, the number of defendants, and the prosecution’s general theory of the case. Cruz, 481 U. S., at 193; see Gray, 523 U. S., at 197; cf. Richardson, 481 U. S., at 209 (noting that a more demanding inquiry would be needed if Bruton applied to confessions incriminating only “by connection” with later-introduced evidence). ​Courts have long considered those basic factors when applying Bruton. And the Government has proved unable to cite a single case—including in Circuits applying Bruton to confessions like Stillwell’s—in which doing so created “administrability” issues, much less “fewer joint trials.” Tr. of Oral Arg. 93–96. In any event, greater “convenience in the administration of the law,” as Bruton noted, cannot come at the expense “of fundamental principles of constitutional liberty.” 391 U. S., at 135. “That price,” we recognized then, “is too high.” Ibid.
With nothing else to support it, the majority reaches for two props inconsistent with Bruton itself. One is the “presumption that jurors follow limiting instructions.” Ante, at 8–9. The majority correctly describes that presumption; it just forgets that the presumption does not apply when the evidence at issue is an accusatory co-defendant confession. Bruton could not have been clearer on the point: “[W]e cannot accept limiting instructions as an adequate substitute for [a defendant’s] constitutional right of cross-examination.” 391 U. S., at 137; see Gray, 523 U. S., at 192 (stating that co-defendant confessions are “so prejudicial that limiting instructions cannot work”); Richardson, 481 U. S., at 208 (noting “the overwhelming probability of [jurors’] inability” to follow instructions to disregard co-defendant confessions); see supra, at 3. And the majority does no better in invoking “historical evidentiary practice.” See ante, at 6–8. One point here is Justice Barrett’s: There just isn’t much ​history helping the majority. See ante, at 1–3 (opinion concurring in part and concurring in judgment). But assume for a moment to the contrary: Suppose with the majority that at some relevant time, courts conducting joint trials admitted unredacted co-defendant confessions subject only to limiting instructions. Ante, at 6–8. If that history controlled, Bruton itself would have been wrongly decided. The majority’s real views thus come into focus. The point of its opinion is not to distinguish the confession here from the one in Bruton. The point is to say why Bruton should go. *** And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections. Consider once more John’s confession implicating Mary in a robbery—a confession, I’ll now add, bearing a striking resemblance to the one in Bruton. See 391 U. S., at 124 (“A postal inspector testified that Evans orally confessed to him that Evans and [Bruton] committed the armed robbery”). The Bruton rule will still bar the prosecution from using the original version of John’s confession, expressly naming Mary. So too the rule will prevent the prosecution from swapping out Mary’s name for a blank space or the word “deleted.” But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal. It can simply replace Mary’s name with “a woman,” and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains. Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them. And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self. I respectfully dissent.
* ↑ See, e.g., United States v. Straker, 800 F. 3d 570, 595–601 (CADC 2015); United States v. Hardwick, 544 F. 3d 565, 573 (CA3 2008); United States v. Vega Molina, 407 F. 3d 511, 520–521 (CA1 2005); United States v. Williams, 429 F. 3d 767, 773–774 (CA8 2005); United States v. Hernandez, 330 F. 3d 964, 973–974 (CA7 2003).
* ↑ Seriously, the Government’s only proffered complaint when asked to expound on administrability issues was with one appellate decision that took “six double-column F. 3d pages” to review the trial court’s Bruton ruling. Tr. of Oral Arg. 96.