Confessions of Co-Defendants

A tricky issue that shows up on the MBE in the area of Criminal Procedure relates to whether the confession of one co-defendant that implicates the guilt of the other co-defendant can be used as substantive evidence as to the guilt of the non-confessing co-defendant.

This issue comes up because as per the 6th Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. And if two people are tried together and one has given a confession that implicates the other, the non-confessing defendant cannot compel the confessing defendant to take the stand for cross-examination, and so admitting the confessing defendant's statements against the non-confessing defendant would violate the 6th Amendment rights of the non-confessing defendant.

There are, however, exceptions in which the confession of one co-defedant that implicates another co-defendant will be admissible. Such a confession will be admissible if all portions referring to the non-confessing defendant can be eliminated from the confession. Further, the confession will be admissible if the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of the confession. Finally the confession is admissible if both defendants have confessed, and the prosecution wants to admit the confession of one co defendant as a means of rebutting the claim that the confession of the other co-defendant was obtained coercively. For this last exception, the jury must be informed that the confession should only be used for this specific purpose.