This is a big question because a lot of times — especially in felony cases; not as much in misdemeanor cases — there's a group of people arrested who are allegedly involved in a criminal conspiracy or other criminally-related activity and the police will separate all the people and take statements from them, and a lot times some of the defendants actually make statements that not only hurt themselves — incriminate themselves — they also incriminate their co-defendants and say stuff that causes their co-defendants to be put in a bad position.  That statement, if used against the co-defendant, would certainly be a statement that could be used to convict them.

Cross Examination

So, the question becomes, wait a minute, are we going to let that statement in against the co-defendant, when usually the co-defendant's attorney is not going to have an opportunity to cross-examine that particular defendant unless they actually take the witness stand.

So, if the person does take the witness stand, then a lot of times that statement is going to come in and of course, the defense attorney for the defendant who that statement is coming in against is going to be able to challenge that person and say, wait a minute, the only reason you said that was because you're trying to get yourself off and blame my client — whatever the angle is depending on exactly what is said and based on the circumstances of the case.

Aranda-Bruton Rule

But what if they try to get the evidence in at the preliminary hearing, for example, in a felony case?  There's cases called Aranda-Bruton Rule.  These cases stand for the proposition that yes, at a preliminary hearing a co-defendant's statement can come in against another co-defendant and against them as an admission even if the defense attorney doesn't have an opportunity to cross-examine that co-defendant.

I don't agree with it.  I don't see the logic behind it and I certainly don't see the fairness behind it, because the same co-defendant's statement cannot come in against another defendant at a trial unless that person takes the witness stand because there's no opportunity to confront the witness.  There's no opportunity to challenge their statement because you can't ask them any questions, so the question just comes in cold.

So, the question becomes, wait a minute, why would you let it in in a preliminary hearing and not at a trial.  Apparently, they're saying you don't have confrontation rights at a preliminary hearing which sounds very unreasonable and unfair.  A lot of times prosecutors just use a co-defendant's statement to get passed the prelim when they really don't have a chance at a trial and there's no chance that person's ever going to testify at the trial.  So, that statement's not coming in at the trial.

So, what happens if two co-defendants go to trial and they're trying to get the one co-defendant who blabs' statement in against him at least?  Well then, a lot of times you have to have two juries for example, or you'll just have separate juries so that the jury for the one co-defendant who didn't say anything can't be convicted because of another co-defendant's statement whose attorney does not have the opportunity to cross-examine him.

Importance Of Having An Experienced Criminal Lawyer

So, when it comes to co-defendant's statements, some of this stuff gets a bit complicated.  So, if you're in a scenario where you're charged with a conspiracy and you have co-defendants making statements, you better sit down with your attorney.  Let him know what happened — what your involvement was, and obviously, let your attorney deal with keeping these co-defendant's statements out of the mix against you, especially when you don't have an opportunity to cross-examine or ask any questions of that particular co-defendant.

You know, it's one thing if you want to say a bunch of stuff and get yourself in trouble.  Don't bring other people down with you, and that's really what we're looking out for when somebody makes a statement and the prosecutors are trying to use that statement against other co-defendants.  That's something that definitely needs to be blocked.

Jailhouse Informants

Another thing I see the police doing very effectively is they'll use jailhouse informants to go try and talk to people which is a very effective tool that can be used.  They'll also put co-defendants together and just let them start talking to each other.  There's nothing wrong with that.  Those statements can all be used against somebody.

So, when people say, keep your mouth shut, there's a reason they say that.  Usually in criminal cases that I've been doing for twenty-five years, the best evidence the prosecutors typically have at trial is the person's own statement against them. Contact our law firm to review your case.