Page:Samia v. United States.pdf/26

2 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?