The Burton doctrine is straightforward: if a co-defendant makes a statement implicating another, then the statement may be used against the declarant, but not against the defendant.

Burton v. United States

391 U.S. 123 (1968).

Burton and Evans were co-defendants and had robbed a postal worker. Later Evans confessed to another postal worker that he and Burton were involved. This statement could be permitted against Evans, but not Burton. So, the trial court instructed the jury to forgot that Evans mentioned Burton. Both were convicted. This appeal says that the statement should not have been admitted at all because of the implications it has against Burton without the right to cross-examine the maker of the statement.

Gray v. Maryland

523 U.S. 185 (1998).

Gray and another committed a crime together and a statement made by the other was admitted at trial. The statement redacted and replaced any reference to Gray with “deleted”. On appeal, the Court said that this was not enough to protect Gray’s confrontation rights. Specifically, a jury is smart enough to realize that the redacted statements are about the defendant. Without the ability to cross-examine, the statements are inadmissible.

United States v. Edwards, 159 F.3d 1117 (8th Cir. 1998). Edwards and others were arrested for starting a fire that took the lives of several firefighters. Edwards gave a statement naming several of the co-defendants. At trial, the judge admitted the statement replacing any of the pronouns with gender neutral variations. Was this enough to protect the confrontation rights of the co-defendants? Probably not.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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