WPIC 6.42 Admissions or Incriminating Statement by Codefendant

Use this instruction only in cases in which two or more defendants are being tried together and an out-of-court admission or incriminating statement by one defendant has been admitted as evidence, and then only when the statement in question is not admissible for any purpose against other co-defendants.

The instruction has its roots in a line of decisions by the United States Supreme Court, holding that as a general rule, a confession by Codefendant 1 that implicates Codefendant 2 in some way is admissible against Codefendant 1 but inadmissible against Codefendant 2. The rule applies only when Codefendant 1 chooses not to testify at trial. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

These and similar holdings are often referred to in a short-hand way as the Bruton rule. The usual reasoning is that the statement by Codefendant 1 is likely to be unreliable because of the incentive for Codefendant 1 to try to shift blame to Codefendant 2, together with Codefendant 2's inability to cross-examine Codefendant 1 about the statement. The rule is based on the Sixth Amendment right to confrontation.

Over the years, the Bruton rule has been modified and, in some ways, limited. As a result, underlying issues of admissibility have become more complex and in some instances less restrictive from the State's point of view. Tegland, 5C Washington Practice: Evidence Law and Practice § 1300.29 (6th ed.). This area of law is still evolving.

The Bruton rule is also incorporated into the rules of criminal procedure. Under CrR 4.4(c), in a case with multiple defendants, the trial court may order a severance to avoid issues under Bruton. Short of a severance, the trial court may accept the State's redaction of the statement by Codefendant 1 to eliminate all references to other codefendants. Washington has a line of cases deciding whether the State's redactions were, or were not, sufficient.

As a result of the rules just summarized, the proper use of WPIC 6.42 assumes that several events have already occurred: (a) the trial court has ruled under CrR 4.4(c) that a severance is not required, and that the two codefendants can be tried together; (b) the trial court has resolved issues of admissibility in a way that allows the State to present an out-of-court statement by Codefendant 1 and the jury needs to be cautioned not to consider the statement as evidence against Codefendant 2; and (c) Codefendant 1 has declined the opportunity to testify at trial.

When Codefendant 1's out-of-court statement is admissible as substantive evidence against Codefendant 2 (for example, as a statement in furtherance of a conspiracy), this instruction should not be given. State v. Rice, 120 Wn.2d 549, 844 P.2d 416 (1993) (Codefendant 1's statement against interest and statement in furtherance of conspiracy admissible against Codefendant 2).