McClaran, Joe W.

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 39 | Issue 4 Article 101949Admissibility of an Accomplice's Confessionagainst a Non-Confessing DefendantJoe W. McClaranFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationJoe W. McClaran, Admissibility of an Accomplice's Confession against a Non-Confessing Defendant, 39 J. Crim. L. & Criminology498 (1948-1949)CRIMINAL LAW COMMENTSlimited aspect and leaves the grand jury and the court free to indictand convict on the basis of any constitutional evidence in the posses-sion of the state.Since prior cases had established the concept that due process of lawincludes the right to freedom from secret trial by the "third degree,"it therefore may be concluded from the other cases considered, not onlythat the federal district court in Refoule v. Ellis was within its consti-tutional power in making available damages and injunctive remediesagainst state police officers, but also that the action "at law or in equity"given by the Civil Rights Act of 1871 may be extended to include thesuppression of confessions obtained by coercion.CHARLES W. CORCORANThe Admissibility of an Accomplice's Confession Against aNon-confessing DefendantA rule of evidence recognized by the English Courts as early as 16641was recently reaffirmed by the United States Circuit Court of Appeals,Second Circuit, in United States v. Gottfried,2 wherein it was held thata confession of one of several defendants, on trial jointly, is evidenceonly against the person who made it and will not be admitted to affectadversely others accused of participating in the crime. Judge LearnedHand, in delivering the opinion of the court, further ruled that it isnot erroneous to admit the confession at the joint trial if a cautionaryinstruction is given by the court that it is to be considered only againstthe declarant.Concerning the problem of admissibility of confessions of a co-defend-ant, the Gottfried case reflects the majority view that the confession isreceivable only against the confessor.3 This view is a derivative of thehearsay rule which dictates that only if the confessor reiterates his ac-cusatory statement in court, and thus is subject to cross-examination,can it be admitted against his accomplice. The rule is also supportedby the theory that the mere testimony of accomplices should not be ofsufficient weight to convict an accused, since the temptation for self-absolution by means of perjury is too great to permit such a statementto be regarded seriously.4tion issued against further arrests, indictments or prosecutions, on ground thatwhere federal rights were shown, they were paramount to state laws and policy,and that plaintiff need not sustain damage by waiting -to simply defend himselfin the state prosecutions); Alesna v. Rice, 69 F. Supp. 897 (D.C. Hawaii 1947)(injunction issued against criminal contempt prosecution), case cited note 31 supra;Ex parte Young, 209 U.S. 123 (1908) (enforcement of penal provisions of railroadrate statute enjoined where unconstitutional deprivation of property was threatened).1 Tong's Case, Kelyng 18 (1664).2 165 F. (2d) 360 (C.C.A. 2d 1948).3 Madigan v. United States, 23 F. (2d) 180 (C.C.A. 8th, 1927); State v. Gargano,99 Conn. 103, 121 A. 657 (1923) (confession made by a plea of guilty not admissibleagainst a co-defendant) ; Blanco v. State, 150 Fla. 98, 7 So. (2d) 333 (1942); Commv. Epps, 298 Pa. 377, 148 A. 523 (1930).4 The scope of this article does not include a discussion of confessions made in theprosecution of the common enterprise and during its existence. However, some modifi-cations of the general rule are to be noted in the following cases: State v. Williams,62 Wash. 288, 113 Pac. 780 (1911) (held that the admissions or confessions of adefendant could be admitted in evidence against a co-defendant in order to provethe plan or conspiracy to commit the crime charged). This rule was reviewed and[Vol. 391948] CRIMINAL LAW COMMENTS 499Chief among the exceptions to this rule is found where the co-defend-ant acknowledges the confession, in which case the confession becomesadmissible, not as evidence or statements of his accomplices, but as hisown statement of facts. This may be done by voluntary affirmance,5 orunder some conditions by silence as an admission of acquiescence. 6 Adefendant will be deemed to have assented to his co-defendant's con-fession, by his silence, when it is read in his presence under conditionsand circumstances which would normally bring forth a denial from aninnocent person and he makes no reply or otherwise fails to deny.7However, if the confession of the accomplice is referred to the defendantunder circumstances such that he is in no position to deny it, or if hissilence is of such character that it does not justify the inference thathe should have spoken, or if in any way he is restrained from speaking,either by fear, doubt of his rights, instructions given him by his attor-ney, or'a reasonable belief that it would be better or safer for him ifhe kept silent, the statement itself and the fact that the accused keptsilent are not admissible in evidence against him.8 Many jurisdictionsgo further and do not recognize the principle of assent by silence whenin custody, some holding that it must be assumed that the maintenanceof silence is the best strategic policy for one accused of crime,9 otherssupporting exclusion of evidence of silent assent with the argumentthat if, when under arrest, the mere silence of the defendant should beheld to constitute evidence of his guilt, he would actually be compelledto enter into a discussion of his innocence or guilt and thus his consti-tutional right against self-incrimination would be violated.10discarded in State v. Goodwin, 186 P. (2d) 935 (Wash., 1947), as it in effect resultedin allowing confessions of a co-defendant to be admitted for all purposes. See alsoState v. Meyers, 198 Mo. 225, 94 S.W. 242 (1906) (when counsel for defendant, oncross examination of an accomplice who had been convicted, read to the accompliceportions of his alleged confession the court then allowed the state to read the entireconfession, including portions damaging to defendant); Goins v. State, 46 Ohio St.457, 21 N.E. 476 (1889) (admissible when a prima facie case of conspiracy has beenmade); Scrivener v. State, 32 Ohio App. 433, 168 N.E. 142 (1929) (confessionadmitted when made by two defendants against all jointly where the conspiracy hadbeen clearly established).5 Allen v. State, 49 Okl. Crim. 195, 293 Pae. 271 (1930); Comm. v.. Oreszak, 328 Pa.65, 195 A. 45 (1937); Comm. v. Wood, 142 Pa. Super. 340, 16 A. (2d) 319 (1940);4 Wigmore, Evidence (3rd ed. 1940) 117. "There may also be a joint confessionwhere two or more participants after answering questions at an interview, unite insigning, or otherwise adopting, a single document in which case the statements areadmissible against all."6 Clark v. State, 240 Ala. 65, 197 So. 23 (1940) ; People v. Bringhurst, 192 Cal. 748,221 Pac. 897 (1923).7 Edwards v. State, 155 Fla. 550, 20 So. (2d) 916 (1945); People v. Lehne, 359 Ill.631, 195 N.E. 468 (1935); Inbau, Lie Detection and Criminal Interrogation (2d ed.1948) 181.8 People v. Hanley, 317 Ill. 39, 147 N.E. 400 (1925); People v. Koslowski, 368Ill. 124, 13 N.E. (2d) 174 (1938); People v. Conrow, 200 N.Y. 356, 93 N.E. 943(1911) (under instruction given by his attorney). In Anderson c. State, 197 Ark. 600,124 S.W. (2d) 216 (1939), the court applied to confessions of a co-defendant the ruleconcernihg the requisites to admissibility of admissions set forth in Meriwether v.Comm., 118 Ky. 870, 82 S.W. 592 (1904). These requisites are that the person to bebound by the statement heard it, understood it, had an opportunity to express himselfconcerning it, and was called upon to act upon or reply to it.9 Comm. v. McDermott, 123 Mass. 440, 25 Am. Rep. 120 (1877) (declared the"Massachusetts view" that co-defendant is not called upon to contradict statementsprejudicial to him); People v. Dolce, 261 N.Y. 108, 184 N.E. 690 (1933).10 U.S. Const. Amend. 5 "No person... shall be compelled in any criminal case tobe a witness against himself ... "; Johnson v. State, 151 Ga. 21, 105 S.E. 603 (1921)Ellis v. State, 8 Okl. Crim. 522, 128 Pac. 1095 (1913).CBIMINAL LAW COMMENTSThe reasons for admitting the confession in the joint trial are clear.It should be admissible against the confessor just as any competentevidence tending to prove his guilt. The mere fact that the evidenceis a confession, subsequently repudiated by the confessor, is not suffi-cient to change this principle even though the confession may tend toimplicate a co-defendant. 11 If the court determines that the confessionis to be admitted against the non-confessing defendant, his guilt mustnevertheless be clearly established by independent evidence. 12 If it isdetermined that the confession shall not be used in evidence againstthe non-confessing defendant as was determined in the Gottfried case,the problem of how the confession can be admitted against the confessorand yet not prejudice the rights of his co-defendant then arises. Thisis the precise problem which is here treated.The most obvious means of precluding prejudice would be to grant aseparate trial to those defendants who have not confessed. Yet theright to a severance must rest upon the ground that the defense to beoffered by one of the defendants is so antagonistic to the defense to beoffered by the remaining defendants, that severance is necessary toinsure a fair trial.13 Generally all defendants who are jointly indictedshould be tried jointly and the matter of granting a separate trial restswithin the sound discretion of the court and cannot be assigned as errorin the absence of an abuse of that discretion.14 It is not, in most cases,an abuse of discretion to refuse severance when it is known that aconfession in writing made by one of the defendants, implicating theothers, will probably be introduced at the trial.15 However a smallminority of courts have held that a severance should be ordered whenthere is no evidence, other than the accomplice's confession, connectingthe defendant with the crime, unless the State's Attorney declares thatthe confession will not be offered in evidence, or unless there be elimi-nated from the confession any reference to the non-confessing defend-ant. 16 This latter rule, which demands that greater deference be paidthe rights of the non-confessing joint indictee by requiring trial courtscrutiny of the nature and scope of the evidence to be presented bythe state in addition to the confession, seems highly desirable.11 Randazzo v. United States, 300 F. 794 (C.C.A. 8th 1929); State v. Fox, 133Ohio St. 154, 12 N.E. 413 (1938).12 Markley v. State, 173 Md. 304, 196 A. 95 (1938) ; People v. Fisher, 249 N.Y. 419,164 N.E. 336 (1928).13 People v. Payne, 359 Ill. 246, 194 N.E. 539 (1935).14 Ginsberg v. United States, 96 F. (2d) 433 (C.C.A. 5th, 1938) (severance in theFederal courts is not a right but rests in the court's discretion) ; Cantaneo v. UnitedStates, 167 F. (2d) 820 (C.C.A. 4th, 1948); Federal Rules of Criminal Procedure,Rules 8(b), 14, 18 U.S.C.A. following §687.1' Accord: People v. King, 30 Cal. App. (2d) 185, 85 P. (2d) 928 (1938); Comm.v. Borasky, 214 Mass. 313, 101 N.E. 377 (1913); State v. Guerzon, 23 Wash. (2d)242, 160 P. (2d) 603 (1945). Contra: Flamme v. State, 170 Wis. 501, 177 N.W. 596(1920) (in charge of adultery the confession of one defendant must inevitablyoperate to the prejudice of the other defendant's rights).16 People v. Fisher, 340 Ill. 216, 172 N.E. 743 (1930) ; People v. Bolton, 339 Ill.229, 171 N.E. 152 (1930) ; People v. Serritello, 385 Ill. 554, 53 N.E. (2d) 581 (1944)(reversed because there was little evidence other than co-defendant's confession con-necting defendant with the crime); People v. Barbaro, 395 Ill. 264, 69 N.E. (2d) 692(1946) (reversed because co-defendant's confessions were highly important in con-tributing to conviction). Cf. People v. Feolo, 282 N.Y. 276, 26 N.E. (2d) 256 (1940)(denial of severance was error where it appeared that without the confession of onedefendant, the conviction of the other three defendants would have been far from acertainty).[Vol. 39CRIMINAL LAW COMMENTSIf severance is denied and thus a joint trial becomes necessary, it is im-perative to look to the less effective means of insuring that the co-defendant's confession will be considered only against himself. Whenthis problem first arose in England, the courts held that the names ofother co-indictees mentioned in a confession used and read against theparty making it were to be omitted.17 Although the courts of the UnitedStates have not favored this remedy, there are decisions to that effect.'8This rule is objected to as not being sufficient in most instances, theinference created by the omission of names in the text being too clearto the jury to be mistaken.A few courts have gone a step further and held that where part ofa confession of one defendant, affecting another defendant, was readilyseparable and unnecessary to completeness of the confession or admissionas to the defendant who made it, expunging of parts which implicatedanother defendant was permissible.19 However this remedy is objection-able in a jurisdiction requiring a statement to be introduced in itsentirety.20The most widely accepted of these means of precluding prejudice tothe co-defendant, and the one adopted in the Gottfried case, is theadmission of the confession of the accomplice with instructions to thejury to consider it only against the declarant. 21 It is presumed thatthe jury will follow the court's instructions and thus any prejudicialeffect which the admission of the confession might reflect on the non-confessing defendant is thought to be obviated. However it seemsapparent to many that this is pure fiction and that actually the jurywill not and cannot eliminate the effect of the evidence from theirminds entirely, and thus the usual result of the device is to admit other-wise objectionable hearsay evidence.22  Judge Hand, in the Gottfriedcase, seems to recognize this weakness. After commenting that as apractical result the cautionary instruction is not effective, he rationalizeshis position in stating that "hearsay is admissible in all sorts of situa-tions when the truth is not otherwise available and the fact that thismay be another exception is not conclusive against it. . . . In effectthe rule probably furthers rather than impedes the search for truthand thus perhaps excuses the device which satisfies form while it vio-lates substance."When the trial judge allows a highly incriminating statement madeby a joint indictee to come before the jury, no matter how technicallyrestricted the purpose, it in substance denies the non-confessing defend-17 4 Wigmore, Evidence op. dt. &upra note 5 at p. 496.18 People v. Betsoh, 362 Ill. 502, 200 N.E. 594 (1936) (co-defendant's name deletedand words " other person" substituted) ; People v. Meisenhelter, 381 Ill. 378, 45 N.E.(2d) 678 (1943) (court substituted the words "other person or persons" and alsogave a cautionary instruction to the jury).19 Comm. v. Di Stasio, 294 Mass. 273, 1 N.E. (2d) 189 (1936) ; State v. Boswell,56 A. (2d) 196 (R.I. 1947) (defendant lost this opportunity by not moving to deleteprejudicial matter) ; Miller v. People, 98 Colo. 249, 55 P. (2d) 320 (1936) (part ofco-defendant's confession implicating the defendant excluded).20 State v. Livsey, 190 La. 474, 182 So. 576 (1938).21 Skikowski v. United States, 158 F. (2d) 177 (App. D.C. 1946); State v. Sanchez,59 Ariz. 426, 129 P. (2d) 923 (1942); Blanco v. State, 150 Fla. 98, 7 So. (2d) 333(1942) ; State v. Clapp, 94 N.H. 62, 46 A. (2d) 119 (1946) ; Comm. v. Dolan, 155 Pa.Super. 453, 38 A. (2d) 497 (1944).22 People v. Sweetin, 325 Ill. 245, 156 N.E. 354 (1927) (remarks that it is prac-tically impossible to remove by instruction the prejudicial effect of the confession).See Nash v. U.S., 54 F. (2d) 1006 (C.C.A. 8th, 1932).1948]CRIMINAL LAW COMMENTSant one of the elemental rights comprised within the concept of fairtrial, namely, the right of confrontation of his accuser. This is so be-cause the confession will normally have been obtained without thepresence of the co-defendant, and the confessing defendant cannot besubjected to cross-examination at the trial. By hypothesis the confessorno longer claims the confession as his own. Thus the majority rule, indenying a severance without requiring a careful preliminary inquiryon the question of the possible weight the jury may improperly attachto the confession as to the guilt of the non-confessing defendant, placesspeed and economy in the administration of justice above the funda-mental fairness which a separate trial would insure.23The minority rule disallowing severance only when there appears tobe sufficiently strong evidence against the defendant, independent of hisco-defendant's confession, would seem to be the more equitable approach.By using a little foresight, the trial judge could base his decision or.motion for severance on an estimate of the probable facts in issue. Thus,if identity were contested and the prosecutor admitted having onlyweak circumstantial proof thereon, and if the confession tended tothrow light on this particular issue, a severance should be granted.While this approach requires a review by the trial judge of the prose-cution's proposed proof, it would seem to present the only intelligentcompromise between the competing considerations of efficiency in theadministration of criminal justice and fundamental fairness to theaccused.JOE W. McCLARA_23 See dissent of Lehman, J. in People v. Fisher, 249 N.Y. 419, 164 N.E. 336 (1928).[Vol. 39

Admissibility of an Accomplice\u27s Confession against a Non-Confessing Defendant

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Admissibility of an Accomplice\u27s Confession against a Non-Confessing Defendant

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