SUPREME COURT OF THE UNITED STATES
No. 22–196
ADAM SAMIA, AKA SAL, AKA ADAM SAMIC, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 23, 2023]
Justice Barrett, concurring in part and concurring in the judgment.
I agree that the admission of Stillwell’s modified confession, together with a limiting instruction, did not violate the Confrontation Clause. But in my view, the historical evidence described in Part II–A, ante, is beside the point.
First is a timing problem. The evidence is largely from the late 19th and early 20th centuries—far too late to inform the meaning of the Confrontation Clause “at the time of the founding.” Crawford v. Washington, 541 U. S. 36, 54 (2004). The Court seems to agree, because it does not suggest that the history is probative of original meaning. But nor does it explain why this seemingly random time period matters. For whatever reason (the parties only speculate), there appears to be little founding-era evidence illustrating how courts handled the admission of a codefendant’s confession. So why not simply say that the history is inconclusive? And if we are going to pick up the thread in 1878, why drop it in 1896? Ante, at 7. Are cases from 1896 that much more important than cases from, say, the 1940s? While the Court makes a claim about “longstanding practice” for “most of our Nation’s history,” ante, at 6, it describes only a snapshot.
That brings me to my second problem: the substance of the snapshot. The cited cases address the rules of evidence rather than the Confrontation Clause. Ante, at 6–8. On top of that, the two federal cases do not discuss the effectiveness of limiting instructions, much less any need for redaction. Sparf v. United States holds that the co-conspirator exception to the hearsay rule does not apply to statements made after the conspiracy has ended. 156 U. S. 51, 56 (1895). Emphasizing the trial court’s error in admitting the statements against both defendants, the Court explained that the trial court should have admitted them against the speaker and excluded them against his codefendant. Id., at 58. Neither limiting instructions nor redaction came up. United States v. Ball is similarly tangential to Samia’s case. 163 U. S. 662 (1896). There, the Court held that the trial court had not abused its discretion in trying three codefendants together. Id., at 672. As support for that point, the Court noted that when the Government introduced the admissions of one defendant, “the [trial] court at once said, in the presence of the jury, that, of course, it would be only evidence against him, if he said anything; and the court was not afterwards requested to make any further ruling upon this point.” Ibid. The Court assumed in passing that the limiting instruction was effective—but the codefendants did not argue otherwise, and they did not ask the court to alter the statements.
The two state cases at least address (and endorse) the use of a limiting instruction after the admission of a codefendant’s confession. State v. Workman 15 S. C. 540, 545 (1881); Jones v. Commonwealth, 72 Va. 836, 839–840 (1878). One even holds that a trial court should not alter a statement by redacting a codefendant’s name. Workman, 15 S. C., at 545. Like the federal cases, though, the state cases make no mention of the confrontation right. Same for the treatises cited by the Court. See S. Phillipps, Law of Evidence *82–*83 (1816); 3 J. Wigmore, Evidence §2100, p. 2841, and n. 5 (1904). So for all we know, the cases cited by the Court and the treatises proceed from the premise that an ordinary hearsay rule, as opposed to a constitutional right, was on the line. That weakens the importance of these sources, because courts might have gone to greater lengths (for example, redaction) to ensure that a jury did not consider a declaration whose admission would violate the State or Federal Constitution. Bruton v. United States, after all, grounds itself in the Sixth Amendment. 391 U. S. 123, 126 (1968).
At best, the evidence recounted in Part II–A shows that, during a narrow historical period, some courts assumed and others expressly held that a limiting instruction sufficiently protected a codefendant from a declaration inadmissible on hearsay grounds. In suggesting anything more, the Court overclaims. That is unfortunate. While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.