Trial Lawyers Takeaway: Redaction and limiting instruction is not always sufficient to cure a Confrontation Clause violation for admission of a co-defendant's confession.

Carl Bruner and Michael Lawson were charged with first-degree premeditated murder (among other things) for a killing outside a Detroit nightclub. They were tried together. At Lawson’s preliminary examination, a witness, Westley Webb, testified about the shooting. The prosecutor impeached Webb with his police statement, in which Webb said that Lawson had admitted to him that he was part of the shooting and had described that Bruner had a gun at the time.

By the time of Bruner’s and Webb’s joint trial, the prosecution could not locate Webb and therefore asked the trial court to treat Webb as an unavailable witness, which would have permitted the prosecution to read Webb’s prior testimony to the jury. The prosecutor conceded that Webb’s statements about Lawson’s description of Bruner holding the gun could not be admitted against Bruner.

As a result, the prosecutor agreed to remove any mention of Bruner and the trial court determined that a limiting instruction would suffice to protect any prejudice to Bruner. When Webb’s testimony from the preliminary examination was read into evidence, Bruner’s name was replaced with the word “Blank.” The court also instructed the jury to consider Webb’s testimony only against Lawson.

The question was whether this reading of Webb’s testimony violated Bruner’s right under the Confrontation Clause of the Sixth Amendment, as incorporated against the States through the Fourteenth Amendment.

Trial Lawyer’s Takeaway: prosecution cannot merely recite a proper purpose for character evidence, must instead show the purpose is proper.

Denson was charged with assault with intent to do great bodily harm less than murder. At trial, he claimed self-defense. In response, the prosecution sought to introduce evidence of Denson’s prior conviction for assault with intent to do great bodily harm less than murder. That conviction resulted from a confrontation over a drug debt. Denson had sought out someone who owed him drug money, had smashed the windows on the person’s car, and, once the person appeared on a nearby porch, Denson shot him.

Defense counsel objected to admission of the conviction as inadmissible character evidence in violation of 404(b), but the prosecution claimed it was offering the evidence to rebut the self-defense claim, rather than to show propensity.