Paul Shechtman questions whether the Second Circuit’s “Tutino” test is “the right test” for determining whether a codefendant’s confession may be admitted in evidence without violating a defendant’s confrontation rights. But Mr. Shechtman, in a Nov. 3 Outside Counsel, “Revisiting ‘Bruton’ Issue on Confessions and Limiting Instructions,” does not suggest what the right test might be. The Eleventh Circuit’s test, radically different from the Second Circuit’s, has it right. The “Tutino” test as Mr. Shechtman quotes, permits “a redacted statement, in which the names of codefendants are replaced by neutral pronouns, with no indication to the jury that the original statement contained the actual names [and where] the statement standing alone does not otherwise connect [the] codefendants to the crime.”
But this is nonsense: a so redacted statement “standing alone” will, by definition, never connect a co-defendant to the crime. The problem with the “Tutino” test is not that redactions are ineffective. The problem is that the redacted statement’s likely impact on the jury in determining the guilt of the defendant must be evaluated without reference to any other evidence introduced before the jury which would connect the defendant with statement, no matter how conclusively that evidence identifies the defendant as the person whose name has been redacted. That is crazy.
