Split on Admissibility of Redacted Statements Concealing Co-Defendants Name Noted

From U.S. v. Reyes, 384 F.Supp.2d 926 (E.D. Va. Aug. 29, 2005):

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court held that the admission of a defendant's confession, accompanied by a limiting instruction, does not violate a co-defendant's confrontation right if "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S.Ct. 1702. And this is so even when other evidence properly admitted at trial otherwise links the co-defendant to the statement. See id. at 208-211, 107 S.Ct. 1702. In other words, under Richardson, a defendant's statement redacted to eliminate the co-defendant's name and any reference to his or her existence does not run afoul of Bruton even if there is other evidence in the case linking the co-defendant to the statement.

Notably, Richardson raised, but did not resolve, another question left open in Bruton, namely whether a statement redacted such that the co-defendant's name is replaced with a neutral pronoun, such as "person," "individual," or "associate," may be admitted under Bruton. See Richardson, 481 U.S. at 208-09, 107 S.Ct. 1702; Bruton, 391 U.S. at 134 n. 10, 88 S.Ct. 1620. One aspect of this question was addressed in Gray v. Maryland. There, the Supreme Court concluded that it is not enough to replace the co-defendant's name "with an obvious blank, the word 'delete,' a symbol, or similarly notify the jury that a name has been deleted," such that it is nonetheless "facially incriminatory" and "directly accusatory"; such a redacted statement still falls within the Bruton rule and is inadmissible. Id. at 193-95, 88 S.Ct. 1620. Gray did not, however, address whether redactions that replace the co-defendant's name with a neutral pronoun, instead of a deletion or blank space, might, in some circumstances, be constitutionally permissible where other independent evidence might permit the jury to conclude that the co-defendant is the person referenced in the redacted statement.

While the circuits are split on this question, current Fourth Circuit authority interpreting Bruton, Richardson, and Gray teaches that a defendant's statements are admissible if the co-defendant's name is redacted and replaced with a neutral pronoun or phrase such as "person" or "individual," or even "friend," "partner," "associate," or "client," provided there is reasonable assurance that use of such a neutral phrase does not result in a statement that is "directly accusatory" or "facially incriminatory" in the same manner as an unredacted or unrevised statement. United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.1999) Thus, the Fourth Circuit, like the majority of circuits, has explicitly extended the Bruton line of cases to permit admission of redacted statements that replace a co-defendant's name with "a symbol or neutral pronoun" such that the statement is not facially incriminatory, "even though the statement's application to [the co-defendant] is linked up by other evidence properly admitted against the defendant."