The court will order . . . redacted

From time to time counsel want to offer documents which have objectionable information in them. There is an objection, and as often happens the court encourages or orders the objectionable parts be redacted. My here pointer relates to how the redaction is done – it must be done carefully. I was reminded of this general point by SCOTUSBlog’s Argument Preview of Greene v. Fisher. Greene is a case about Bruton (confrontation) issues and is not relevant to current military practice; it has been many years since the military has done a joint trial. What is relevant for us in practice is the redaction issue. Here are some relevant points from Rory Little’s preview.

The trial judge, however, denied severance and ordered instead – and not inconsistently with the law at the time – that the codefendants’ statements be “redacted” to omit any mention of Greene by name. The government complied but – and again, not inconsistently with the law at that time – replaced Greene’s name at certain points with the word “blank” or similar symbols, making it clear that redaction of someone’s name had occurred.

Thinking on notions of perception and implication and common sense, how would a jury interpret that document, or any document with redactions. Thinking on human behavior, and regardless of any limiting instruction from the judge, isn’t a jury going to try and figure out what’s redacted.

On appeal, the Pennsylvania Superior Court rejected Greene’s Bruton argument, noting that “the substitution of the letter ‘X’ for a defendant’s name does not violate that defendant’s Bruton rights.”

Again from Mr. Little.

While [a petition for discretionary review [with the Pa. Sup. Ct.] was pending, the U.S. Supreme Court decided Gray v. Maryland [523 U.S. 185] (1998), ruling that “as a class, redactions that replace a proper name with an obvious blank, … or similarly notify the jury that a name has been deleted” require the “same legal results” as a direct Bruton violation.

In other words the manner of redaction is ineffective because it obviously points to the accused as the X or blank. In Gray the court noted:

For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way [with the obvious blanks or X’s], for the jury will often realize that the confession refers specifically to the defendant. This is true even when the State does not blatantly link the defendant to the deleted name[.] For another thing, the obvious deletion may well call the jurors’ attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession’s accusation–once the jurors work out the reference. That is why Judge Learned Hand, many years ago, wrote in a similar instance that blacking out the name of a codefendant not only “would have been futile. . . . [T]here could not have been the slightest doubt as to whose names had been blacked out,” but “even if there had been, that blacking out itself would have not only laid the doubt, but underscored the answer.”

The court recognized the above to be a situation where a limiting instruction would not be of great help. And as we all know, a limiting instruction can often underscore and emphasize the very point the parties are trying to hide.

So, whenever a document is being offered with redactions it’s incumbent on us to make sure that the proper redactions are made and that they are not made in a way that undermines what is to be accomplished by the redaction.