202
Scalia, J., dissenting
his beard before trial, and the prosecution introduced evidence concerning his former appearance. Similarly, the statement "Me, Kevin Gray, and a few other guys" would be facially incriminating, unless the defendant's name set forth in the indictment was not Kevin Gray, and evidence was introduced to the effect that he sometimes used "Kevin Gray" as an alias. By contrast, the person to whom "deleted" refers in "Me, deleted, deleted, and a few other guys" is not apparent from anything the jury knows independent of the evidence at trial. Though the jury may speculate, the statement expressly implicates no one but the speaker.
Of course the Court is correct that confessions redacted to omit the defendant's name are more likely to incriminate than confessions redacted to omit any reference to his existence. But it is also true—and more relevant here—that confessions redacted to omit the defendant's name are less likely to incriminate than confessions that expressly state it. The latter are "powerfully incriminating" as a class, Bruton, supra, at 124, n. 1, 135; the former are not so. Here, for instance, there were two names deleted, five or more participants in the crime, and only one other defendant on trial. The jury no doubt may "speculate about the reference," ante, at 193, as it speculates when evidence connects a defendant to a confession that does not refer to his existence. The issue, however, is not whether the confession incriminated petitioner, but whether the incrimination is so "powerful" that we must depart from the normal presumption that the jury follows its instructions. Richardson, supra, at 208, n. 3. I think it is not—and I am certain that drawing the line for departing from the ordinary rule at the facial identification of the defendant makes more sense than drawing it anywhere else.
The Court's extension of Bruton to name-redacted confessions "as a class" will seriously compromise "society's compelling interest in finding, convicting, and punishing those who violate the law." Moran v. Burbine, 475 U. S. 412, 426
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