author: Mr. Justice Brennan Mr. Justice White,

text:
    AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA et al. v. CARROLL et al.
    No. 309.
    Argued March 4, 1968.
    Decided May 20, 1968

      Ronald Rosenberg argued the cause for petitioners in No. 309 and respondents in No. 310. With him on the briefs were Henry Kaiser, Eugene Gressman, George Kaufmann, Jerome H. Adler, and David I. Ashe.

      Godfrey P. Schmidt argued the cause and filed briefs for respondents in No. 309 and petitioners in No. 310.
    Briefs of amici curiae were filed by J. Albert Wall, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Shayle P. Fox and Samuel H. Young for the National Association of Orchestra Leaders.

      Together with No. 310, Carroll et al. v. American Federation of Musicians of the United States and Canada et al., also on certiorari to the same court.

   Mr. Justice Brennan

delivered the opinion of the Court.

This action for injunctive relief and treble damages alleging violations of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2, was brought in the District Court for the Southern District of New York against the petitioners in No. 309, American Federation of Musicians and its Local 802. The question is whether union practices of the petitioners affecting orchestra leaders violate the Sherman Act as activities in combination with a “non-labor” group, or are exempted by the Norris-LaGuardia Act as activities affecting a “labor” group which is party to a “labor dispute.” After a five-week trial without a jury the District Court dismissed the action on the merits, holding that all of the petitioners’ practices brought in question “come within the definition of the term 'labor dispute’ . . . and are exempt from the antitrust laws.” 241 F. Supp. 865, 894. The Court of Appeals for the Second Circuit reversed on the issue of alleged price fixing, but in all other respects affirmed the dismissal. 372 F. 2d 155. Both parties sought certiorari, in No. 309 the petitioners from the reversal of the dismissal in respect of alleged price fixing, and in No. 310 the respondents from the affirmance of the dismissal in the other respects. We granted both petitions, 389 U. S. 817. We hold that the District Court properly dismissed the action on the merits, and that the Court of Appeals should have affirmed the District Court judgment in its entirety.

I.

The petitioners are labor unions of professional musicians. The union practices questioned here are mainly those applied to “club-date” engagements of union members. These are one-time engagements of orchestras to provide music, usually for only a few hours, at such social events as weddings, fashion shows, commencements, and the like. The purchaser of the music, e. g., the father of the bride, the chairman of the events, etc., makes arrangements with a musician, or with a musician’s booking agent, for an orchestra of a conductor and a given number of instrumentalists, or “sidemen,” at a specified time and place. The musician in such cases assumes the role of “leader” of the orchestra, obtains the “sidemen” and attends to the bookkeeping and other details of the engagement. Usually the “leader” performs with the orchestra, sometimes only conducting but often also playing an instrument. When he does not personally appear, he designates a “subleader” who conducts for him and often also plays an instrument.

A musician performing “club-dates” may perform in different capacities on the same day or during the same week, at times as leader and other times as subleader or sideman. The four respondents, however, are musicians who usually act as leaders and maintain offices and employ personnel to solicit engagements through advertising and personal contacts. When two or more engagements are accepted for the same time, each of the respondents will conduct, and, except respondent Peterson, sometimes play, at one and designate a subleader to perform the functions of leader at the other.

The four respondents were members of the petitioner Federation and Local 802 when this suit was filed. Virtually all musicians in the United States and the great majority of the orchestra leaders are union members. There are no collective bargaining agreements in the club-date field. Club-date engagements are rigidly regulated by unilaterally adopted union bylaws and regulations. Under these bylaws and regulations

(1) Petitioners enforce a closed shop and exert various pressures upon orchestra leaders to become union members.

(2) Orchestra leaders must engage a minimum number of sidemen for club-date engagements.

(3) Orchestra leaders must charge purchasers of music minimum prices prescribed in a “Price List Booklet.” The prices are the total of (a) the minimum wage scales for sidemen, (b) a “leader’s fee” which is double the sideman’s scale when four or more musicians compose the orchestra, and (c) an additional 8% to cover social security, unemployment insurance, and other expenses. When the leader does not personally appear at an engagement, but designates a subleader and four or more musicians perform, the leader must pay the subleader one and one-half times the wage scale out of his “leader’s fee.”

(4) Orchestra leaders are required to use a form of contract, called the Form B contract, for all engagements. In the club-date field, however, Local 802 accepts assurances that the terms of club-date engagements comply with all union regulations and provide for payment of the minimum wage. Union business agents police compliance.

(5) Additional regulations apply to traveling engagements. The leader of a traveling orchestra must charge 10% more than the minimum price of either the home local or of the local in whose territory the orchestra is playing, whichever is greater.

(6) Orchestra leaders are prohibited from accepting engagements from or making any payments to caterers.

(7) Orchestra leaders may accept engagements made by booking agents only if the booking agents have been licensed by the unions under standard forms of license agreements provided by the unions.

The District Court assumed, and the Court of Appeals held, that orchestra leaders in the club-date field are employers and independent contractors. Respondents argue that petitioners’ involvement' of the orchestra leaders in the promulgation and enforcement of the challenged regulations and bylaws creates a combination or conspiracy with a “non-labor” group which violates the Sherman Act. Allen Bradley Co. v. Union, 325 U. S. 797, 800; Los Angeles Meat & Provision Drivers Union v. United States, 371 U. S. 94; Mine Workers v. Pennington, 381 U. S. 657. But the Court of Appeals concurred in the finding of the District Court that such orchestra leaders, although deemed to be employers and independent contractors, constitute not a “non-labor” group but a “labor” group. 372 F. 2d, at 168.

The criterion applied by the District Court in determining that the orchestra leaders were a “labor” group and parties to a “labor dispute” was the “presence of a job or wage competition or some other economic interrelationship affecting legitimate union interests between the union members and the independent contractors. If such a relationship existed the independent contractors were a 'labor group’ and party to a labor dispute under the Norris-LaGuardia Act.” 241 F. Supp., at 887. The Court of Appeals held, and we agree, that this is a correct statement of the applicable principles. The Norris-LaGuardia Act took all “labor disputes” as therein defined outside the reach of the Sherman Act and established that the allowable area of union activity was not to be restricted to an immediate employer-employee relation. United States v. Hutcheson, 312 U. S. 219, 229-236; Allen Bradley Co. v. Union, supra, at 805-806; Los Angeles Meat & Provision Drivers Union v. United States, supra, at 103; Milk Wagon Drivers’ Union v. Lake Valley Farm Prods., 311 U. S. 91. “This Court has recognized that a legitimate aim of any national labor organization is to obtain uniformity of labor standards and that a consequence of such union activity may be to eliminate competition based on differences in such standards.” Mine Workers v. Pennington, 381 U. S. 657, 666.

The District Court found that the orchestra leaders performed work and functions which actually or potentially affected the hours, wages, job security, and working conditions of petitioners’ members. These findings have substantial support in the evidence and in the light of the job and wage competition thus established, both courts correctly held that it was lawful for petitioners to pressure the orchestra leaders to become union members, Los Angeles Meat Drivers, supra, and Milk Wagon Drivers’, supra, to insist upon a closed shop, United States v. American Federation of Musicians, 318 U. S. 741, affirming 47 F. Supp. 304, to refuse to bargain collectively with the leaders, see Hunt v. Crumboch, 325 U. S. 821, to impose the minimum employment quotas complained of, United States v. American Federation of Musicians, supra, to require the orchestra leaders to use the Form B contract, see Teamsters Union v. Oliver, 362 U. S. 605 (Oliver II), and to favor local musicians by requiring that higher wages be paid to musicians from outside a local’s jurisdiction, Rambusch Decorating Co. v. Brotherhood of Painters, 105 F. 2d 134.

The District Court also sustained the legality of the “Price List” stating, “In view of the competition between leaders and sidemen and subleaders which underlies the finding that the leaders are a labor group, the union has a legitimate interest in fixing minimum fees for a participating leader and minimum engagement prices equal to the total minimum wages of the sidemen and the participating leader.” 241 F. Supp., at 890. The Court of Appeals, one judge dissenting, disagreed that the “Price List” was within the labor exemption, stating that “the unions’ establishment of price floors on orchestral engagements constitutes a per se violation of the Sherman Act.” 372 F. 2d, at 165. The premise of the majority’s conclusion was that the “Price List” was disqualified for the exemption because its concern is “prices” and not “wages.” But this overlooks the necessity of inquiry beyond the form. Mr. Justice White’s opinion in Meat Cutters v. Jewel Tea, 381 U. S. 676, 690, n. 5, emphasized that “[t]he crucial determinant is not the form of the agreement — e. g., prices or wages — but its relative impact on the product market and the interests of union members.” It is therefore not dispositive of the question that petitioners’ regulation in form establishes price floors. The critical inquiry is whether the price floors in actuality operate to protect the wages of the subleader and sidemen. The District Court found that the price floors were expressly designed to and did function as a protection of sidemen’s and subleaders’ wage scales against the job and wage competition of the leaders. The Court said:

“As a consequence of this relationship, the practices of [orchestra leaders] when they lead and play must have a vital effect on the working conditions of the non-leader members of the union. If they undercut the union wage scale or do not adhere to union regulations regarding hours or other working conditions when they perform they will undermine these union standards. They would put pressure on the union members they compete with to correspondingly lower their own demands.” 241 F. Supp., at 888.

The Court of Appeals itself expressed a similar view in saying:

“even those orchestra leaders who, as employers in club dates, lead but never perform as players, are proper subjects for membership because they are in job competition with union sub-leaders; each time a non-union orchestra leader performs, he displaces a ‘union job’ with a ‘non-union job.’ ” 372 F. 2d, at 168.

And of particular significance, the Court of Appeals noted that where the leader performs

“the services of a sub-leader would not be required and the leader may in this way save the wages he would otherwise have to pay. Consequently, he could make the services of his orchestra available at a lower price than could a non-performing leader.” 372 F. 2d, at 166.

Thus the price floors, including the minimums for leaders, are simply a means for coping with the job and wage competition of the leaders to protect the wage scales of musicians who respondents concede are employees on club-dates, namely sidemen and subleaders. As such the provisions of the “Price List” establishing those floors are indistinguishable in their effect from the collective bargaining provisions in Teamsters Union v. Oliver, 358 U. S. 283 (Oliver I), which we held governed not prices but the mandatory bargaining subject of wages. The precise issue in Oliver I was whether Article XXXII of a multi-employer, multistate collective bargaining agreement between the Teamsters Union and a bargaining organization of motor carriers dealt with a mandatory subject of bargaining. Article XXXII provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed driver’s wage, not less than a prescribed minimum rental for the use of their vehicles. We held that the article was a wage and not a price provision, saying:

“The inadequacy of a rental which means that the owner makes up his excess costs from his driver’s wages not only clearly bears a close relation to labor’s efforts to improve working conditions but is in fact of vital concern to the carrier’s employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. . . .” 358 U. S., at 294.

We disagree with the Court of Appeals that “[t]he circumstances constituting a possible threat to the employment of sub-leaders or the displacement of a sideman . . . are not at all comparable,” 372 F. 2d, at 166. The price floors here serve the identical ends served by Article XXXII in Oliver I. The Price List has in common with Article XXXII the objective to protect employees’ job opportunities and wages from job and wage competition of other union members — in the case of the Article, drivers when they drive their own vehicles, and in the case of the Price List, musicians on the occasions they are leaders and play a role as employers. Like the Article, the Price List is therefore “a direct and frontal attack upon a problem thought to threaten the maintenance of the basic wage structure . . . .” 358 U. S., at 294.

The majority of the Court of Appeals apparently regarded Meat Cutters v. Jewel Tea, supra, as militating against this conclusion. The majority read the opinions of Mr. Justice White and Mr. Justice Goldberg in that case as requiring a holding that “mandatory subjects of collective bargaining carry with them an exemption . . . ,” but that “[o]n matters outside of the mandatory area ... no such considerations govern . . . .” 372 F. 2d, at 165. Even if only mandatory subjects of bargaining enjoy the exemption — a question not in this case and upon which we express no view — nothing Mr. Justice White or Mr. Justice Goldberg said remotely suggests that the distinction between mandatory and nonmandatory subjects turns on the form of the method taken to protect a wage scale, here a price floor. To the contrary, we pointed out above that Mr. Justice White’s opinion emphasized that the “crucial determinant is not the form of the agreement . . .” and cited Oliver I as settling that proposition. 381 U. S., at 690, n. 5.

The reasons which entitle the Price List to the exemption embrace the provision fixing the minimum price for a club-date engagement when the orchestra leader does not perform, and does not displace an employee-musician. That regulation is also justified as a means of preserving the scale of the sidemen and subleaders. There was evidence that when the leader does not collect from the purchaser of the music an amount sufficient to make up the total of his out-of-pocket expenses, including the sum of his wage-scale wages and the scale wages of the sidemen, he will, in fact, not pay the sidemen the prescribed scale. The District Court found:

“It is unquestionably true that skimping on the part of the person who sets up the engagement [the leader] so that his costs are not covered is likely to have an adverse effect on the fees paid to the participating musicians. By fixing a reasonable amount over the sum of the minimum wages of the musicians participating in an engagement to cover these expenses, the union insures that ‘no part of the labor costs paid to a [leader] would be diverted by him for overhead or other non-labor costs.’ ” 241 F. Supp., at 891.

In other words, the price of the product — here the price for an orchestra for a club-date — represents almost entirely the scale wages of the sidemen and the leader. Unlike most industries, except for the 8% charge, there are no other costs contributing to the price. Therefore, if leaders cut prices, inevitably wages must be cut.

The analyses of Mr. Justice White and Mr. Justice Goldberg in Jewel Tea support our conclusion. Jewel Tea did not hold that an agreement respecting marketing hours would always come within the labor exemption. Rather, that case held that such an agreement was lawful because it was found that the marketing-hours restriction had a substantial effect on hours worked by the union members. Similarly, the price-list requirement is brought within the labor exemption under the finding that the requirement is necessary to assure that scale wages will be paid to the sidemen and the leader. If the union may not require that the full-time leader charge the purchaser of the music an amount sufficient to compensate him for the time he spends selecting musicians and performing the other musical functions involved in leading, the full-time leader may compete with other union members who seek the same jobs through price differentiation in the product market based on differences in a labor standard. His situation is identical to that of a truck owner in Oliver I who does not charge an amount sufficient to compensate him for the value of his labor services in driving the truck, and is a situation which the union can prevent consistent with its antitrust exemption. There can be no differentiation between the leader who appears with his orchestra and the one who on occasion hires a subleader. In either case part of the union-prescribed “leader’s fee” is attributable to service rendered in either conducting or playing and part to the service rendered in selecting musicians, bookkeeping, etc. The only difference is that in the former situation the leader keeps the entire fee while in the latter he is required to pay that part of it attributable to playing or conducting to the subleader. In this respect we agree with the view espoused by Judge Friendly in his separate opinion, 372 F. 2d, at 168-170.

We think also that the caterer and booking agent restrictions “are at least as intimately bound up with the subject of wages,” Oliver II, supra, at 606, as the price floors. The District Court found that the booking agent regulations were adopted because of experience that “many booking agents charged exorbitant fees to members and booked engagements for musicians at wages which were below union scale.” 241 F. Supp., at 881-882. On the basis of these findings, the District Court concluded:

“Because the activities of the booking agents here have and had a direct and substantial effect on the wages of the members of [the unions], I find that they are in an economic interrelationship with the members . . . such that the [unions] are justified in regulating their activities .... Furthermore, I find the regulations to be reasonably related to their interest in maintaining observance of union scale wages and working conditions.” 241 F. Supp., at 893.

The finding concerning the caterer regulations was to the same effect.

“The evidence discloses that caterers took advantage of their position before the union adopted its regulations to, in effect, book orchestras and they continue to do so, at least to some extent. Caterers recommend orchestras to customers and receive commissions from orchestra leaders. These practices actually or potentially affect the wages of the musicians involved.
“I believe that this constitutes an economic interrelationship which permits the defendants to regulate and prohibit the booking activities of the caterers without violating the Sherman Act.” 241 F. Supp., at 893.

The judgment of the Court of Appeals is vacated and the cases are remanded with direction to enter a judgment affirming the judgment of the District Court in its entirety.

It is so ordered.

The Chief Justice and Mr. Justice Marshall took no part in the consideration or decision of these cases.

Mr. Justice White,

with whom Mr. Justice Black joins,

dissenting.

In my view the Court is misled by the peculiar role of bandleaders and the peculiar economics of the club-date music industry, and fashions a rule which, if comprehensible at all, has unfortunate consequences for the delicate and difficult area of conflict between antitrust and labor policy.

The four respondents in No. 309 (hereafter respondents) are successful bandleaders whose success has made it unnecessary for them to continue working from time to time as sidemen and subleaders. However they do work as leaders. Indeed, their business practice was to lead individually whenever they obtained an engagement, hiring a subleader only when they obtained two or more engagements at conflicting times. Leading a band was obviously one important part of their working careers; it was not, however, the only part. Respondents also devoted much time and energy to organizing and managing their businesses. They advertised, and in other ways obtained engagements. They planned the music to be provided at those engagements. They chose, recruited, and supervised the subleaders and sidemen working for them. And they established and directed the administrative operation necessary for obtaining and fulfilling engagements.

The Court accepts the finding that respondents were a “labor” group. I would think it beyond dispute that leading a band (a task which usually includes also occasional playing of an instrument) is “labor group work,” but that it is equally beyond dispute that managing and administering a business whose function is supplying bands to fathers of brides is not “labor group work.” The first task, leading, certainly possesses “economic interrelationship [s] affecting legitimate union interests,” and the second clearly does not. The Court appears to feel that because respondents' work includes some “labor group” tasks, all aspects of respondents’ activities are proper subjects of union concern. I see no reason why the law in this area cannot be sufficiently flexible to grant the union antitrust immunity for regulation of those activities of bandleaders which sufficiently affect union members, while denying that immunity where the union has no proper concern.

Teamsters Union v. Oliver, 358 U. S. 283 (1959), is a difficult case, but an important one, with which I fully agree. Oliver, as I read it, holds that where independent contractors are doing work for an employer in competition with the work of union members, the union can bargain with the employer to make certain they are not doing that work at a lower wage than that paid to members. Since in Oliver an independent truck driver who claimed to be charging the union rate for his labor but received in addition less than his costs for equipment and gasoline would in fact be cutting the union wage scale, the Court held that the union did not violate the antitrust laws when it bargained about the total amount — including both wage and equipment costs— that the companies would pay to the independent owner-drivers. On the facts before us, Oliver is relevant, but not across-the-board, as the Court seems to think. Here, when one of respondents leads, he does work — playing and leading — -which is also done by union members, and for which the union has a proper concern. The union thus has a right to see that the respondent does not perform that work for less than the going scale for union musicians and subleaders. Since the leader fixes a single charge to compensate him for both leading and organizing, the union can require the leader to make that charge not less than the union scale for a subleader plus the leader’s costs in obtaining the engagement, hiring the musicians, and planning the program. Since, as Judge Friendly said in his separate opinion below, the price the union requires leaders to charge has not been shown to be “set so high as to cover not merely compensation for the additional services rendered by a leader but entrepreneurial profit as well,” the union should be free of antitrust liability for imposing this minimum rate on charges by leaders when théy actually lead. Oliver so holds.

The question is quite different, however, when we deal with imposition of fixed minimum charges by leaders for engagements at which they do not themselves lead. For such engagements the role of the leader is solely that of entrepreneur: he obtains a customer (partly, it appears, through the attraction of his reputation as an established provider of music), makes the necessary arrangements for servicing the customer, including employment and supervision of staff, and maintains the administrative structure required for this work: office, payroll clerk, permanent telephone listing, and so forth. The union has of course a full right to impose on this leader, who is in effect an employer, its minimum scale for work by sidemen and subleaders. The musicians union, however, goes further. It requires that, for an engagement of four or more musicians, the leader charge his customer not less than the sideman’s scale times the number of musicians (including the subleader), plus double the sideman’s scale to compensate the leader, of which one-fourth — plus the sideman’s scale — goes to the subleader. The union is clearly requiring that the leader charge his customer more than the total of the leader’s wage bill, even though the leader himself does no “labor group” work.

There is no clear holding by this Court that a union is not immune from antitrust liability when it requires that all the employers with whom it deals charge uniform prices. It has certainly been assumed, however, that the Norris-LaGuardia exemption to the antitrust laws does not extend this far. In Meat Cutters v. Jewel Tea Co., 381 U. S. 676 (1965), the entire Court joined opinions strongly suggesting there is no antitrust immunity for a union which joins with employers to fix the prices at which the employers sell to the public. I wrote, in an opinion joined by The Chief Justice and Mr. Justice Brennan:

“Jewel, for example, need not have bargained about or agreed to a schedule of prices at which its meat would be sold and the unions could not legally have insisted that it do so. But if the unions had made such a demand, Jewel had agreed and the United States or an injured party had challenged the agreement under the antitrust laws, we seriously doubt that either the unions or Jewel could claim immunity by reason of the labor exemption, whatever substantive questions of violation there might be.” 381 U. S., at 689.

Mr. Justice Goldberg in his separate opinion, joined by Justices Harlan and Stewart, wrote:

“The direct and overriding interest of unions in such subjects as wages, hours, and other working conditions, which Congress has recognized in making, them subjects of mandatory bargaining, is clearly lacking where the subject of the agreement is price-fixing and market allocation. Moreover, such activities are at the core of the type of anticompetitive commercial restraint at which the antitrust laws are directed.” 381 U. S., at 732-733.

Mr. Justice Douglas, dissenting in Jewel Tea and joined by Justices Black and Clark, wrote:

“[T]he unions can no more aid a group of businessmen to force their competitors to follow uniform store marketing hours than to force them to sell at fixed prices. Both practices take away the freedom of traders to carry on their business in their own competitive fashion.” 381 U. S., at 737.

Unions are, of course, not without interest in the prices at which employers sell. As the majority points out, by seeing that employers sell at prices covering all their costs, a union can insure employer solvency and make more certain employee collection of wages owed them. In addition, assuring that competing employers charge at least a minimum price prevents price competition from exerting downward pressure on wages. On the other hand, price competition, a significant aid to satisfactory resource allocation and a deterrent to inflation, would be substantially diminished if industry-wide unions were free to dictate uniform prices through agreements with employers. I have always thought that this strong policy outweighed the legitimate union interest in the prices at which employers sell, and until today I had thought that the Court agreed. Of course the lack of discussion of this question in the majority’s opinion, and the failure to refer to the unanimous rejection in Jewel Tea of antitrust immunity for union efforts to fix industry-wide prices, suggest that the Court takes this step without full awareness of the implications and the likely consequences. The step is nonetheless disturbing, and I must record my dissent.

I am also in disagreement with the majority about certain of the questions presented in No. 310. The musicians union imposes its rules not only on respondents, who sometimes lead and sometimes hire subleaders, but upon leaders who never lead personally. These leaders are merely independent businessmen, performing no “labor group” work, and the union has no proper interest in regulating their activities. Even though the District Court found that the union imposed its rules on these leaders, I believe the facts as found below demonstrate that the union formed a combination with those independent businessmen. If the union and employers combined, I have no doubt that some of the regulations agreed upon were unlawful restraints of trade. Boycotting booking agents and caterers who occasionally did business with employers not living by the union’s rules unreasonably restrained trade. So also did combining with willing caterers and booking agents to impose uniform business practices on bandleaders and to boycott those who did not abide by the established rules and policies. Agreeing with employers that the employers would not take their wares to other cities without charging prices 10% higher than the local employers charged was a blatant violation of the Sherman Act. Horizontal division of territories has always been held a per se violation of § 1, e. g., Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899), and it should make no difference that the instigation for this division came from the union and not from the employers. I am unable to see how the practice at issue here is distinguishable from an agreement by General Motors and Ford, at the behest of the UAW, for GM to sell west of the Mississippi only at prices 10% higher than those charged by Ford, while Ford would sell in the East' only at prices higher than GM’s. Since union combinations with nonlabor groups which restrain trade are not immune from antitrust attack, Allen Bradley Co. v. Union, 325 U. S. 797 (1945); Mine Workers v. Pennington, 381 U. S. 657 (1965), I think respondents should be permitted to show that these unlawful and unimmunized restraints of trade injured them, and should be able to recover the trebled amount of such damages as they can establish.

By combining with a nonlabor group, the musicians union has obtained effective control of the entire club-date industry. The device for this control has been imposition of union membership and union rules on cooperating bandleaders, and on some who did not want to cooperate. I am sure the Clayton and Norris-LaGuardia Acts never intended to give unions this kind of stranglehold on any industry. It may be that the Court views this industry as having special problems of supply and demand requiring special treatment under the antitrust laws. If this is the case, the Court should frankly say so and seek to confine the misguided rules of law it announces. More appropriately, the Court should leave to Congress the task of making special provisions in the antitrust laws for the special circumstances of the music industry. On more than one occasion Congress has seen to it that the full rigors of the antitrust laws are not felt by industries which cannot survive under competitive conditions. The Court treads dangerous ground in seeking on its own motion to deny to a particular industry the normal competitive conditions envisioned by the antitrust laws, conditions usually viewed as essential for maintaining service and prices at satisfactory levels.

       Peterson and Carroll, respondents in No. 309, filed the first action in July 1960 and the other in December 1960. The latter was brought to challenge an increase in the musicians’ wage scale adopted after the first complaint was filed. The other respondents were allowed to intervene. By stipulation the testimony in Carroll v. Associated Musicians, 206 F. Supp. 462, 316 F. 2d 574, and Cutler v. American Federation of Musicians, 211 F. Supp. 433, 316 F. 2d 546, was made part of the record.

         § 13 (c), 47 Stat. 73, 29 U. S. C. § 113 (c); see also §§ 6 and 20 of the Clayton Act, 38 Stat. 731, 738, 15 U. S. C. § 17, 29 U. S. C. §52.

       “Musical engagements are generally classified as either ‘steady/ those lasting for longer than one week, or ‘single/ usually one day or one performance affairs but including all engagements lasting less than one week. The much sought after steady engagements are rare in comparison with the number of single engagements.
      “The predominant form of single engagement is the ‘club date’.... Single engagements also include the ‘non-club date’ field, consisting of television appearances or recording engagements, etc. . . .” 372 F. 2d, at 158.

       Both the District Court and the Court of Appeals held that respondents did not prove that they properly represented a class under former Fed. Rule Civ. Proc. 23 (a), 241 F. Supp., at 884-886; 372 F. 2d, at 161-163. The record sustains this conclusion. Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356; Hansberry v. Lee, 311 U. S. 32. Since all of the respondents either play an instrument or conduct their orchestras unless they book more than one engagement for the same time, we do not have before us a leader who merely books engagements and never appears with his orchestra.

       Carroll and Peterson have since been expelled from membership. See 241 F. Supp., at 870. Both are still permitted to book engagements and hire musicians to play at them but cannot appear with their orchestra either as conductors or instrumentalists. See Carroll v. American Federation of Musicians, 310 F. 2d 325.

       “The distinction, between the kinds of single engagements is vital; the non-club date engagements are ordinarily governed by collective bargaining agreements .... The same is usually true of the steady engagement field. Local 802 has collective bargaining agreements with the major users or 'purchasers’ of live music within its area such as recording companies, hotels, television and film producers, opera companies and theatres.” 372 F. 2d, at 158.

       See 241 F. Supp., at 887; 372 F. 2d, at 159. We need not decide the question.

       The Court of Appeals also found “no evidence of a conspiracy between Local 802, or the Federation, and orchestra leaders to eliminate competitors, fix prices or achieve any other commercial restraint, nor was such a finding made by the district judge. Rather, the record establishes that all restraints were instituted unilaterally by the unions and acquiesced in by the orchestra leaders.” 372 F. 2d, at 164; see 241 F. Supp., at 891.

       “[I]n the club date and hotel steady engagement fields . . . orchestra leaders are in competition with employee members of the . . . unions regarding jobs, wages and other working conditions. As a result, they comprise a labor group in these fields.” 241 F. Supp., at 887-888.

       The “Price List” establishes only a minimum charge; there is no attempt to set a maximum. Nor does the union attempt by its minimum charge to assure the leader a profit above the fair value of his labor services. The District Court found no evidence “which indicates that the increment to the [leader] is unrelated to his costs in that function.” 241 F. Supp., at 891. See also 372 F. 2d, at 170 (Friendly, J., in separate opinion): “A different result might be warranted if the floor were set so high as to cover not merely compensation for the additional services rendered by a leader but entrepreneurial profit as well. But there has been no such showing here.”

       Because of the intense competition for positions as leader, the full-time leader “displaces” another union member simply by securing an engagement for himself. Union members who act principally as sidemen and subleaders but who act occasionally as leaders “bid for the same jobs as full-time leaders such as plaintiffs and perform the same musical service when they get a job. They also perform in the same places as full-time leaders.” 241 F. Supp., at 872.

       Only two things can happen when the leader does not charge the specified minimum; either he works below union scale or the musicians he employs work below union scale. In either event the result is price competition through differences of standards in the labor market.

       Rather, they worked as leaders until their insubordination, resulted in expulsion from the union. See 241 F. Supp. 865, 870 (D. C. S. D. N. Y. 1965).

       See Columbia River Packers Assn. v. Hinton, 315 U. S. 143 (1942).

       241 F. Supp., at 887.

       See Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 690, n. 5 (1965).

       The union could have bargained for restrictions on contracting out of work by the employer. Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203 (1964).

       372 F. 2d 155, 170 (C. A. 2d Cir. 1967).

       As one commentator has concluded, “Although the Court split on the application of this proposition, all the justices agreed that the antitrust laws would be offended by a collective bargaining agreement binding employers to charge a certain price for their goods.” P. Areeda, Antitrust Analysis 52 (1967). See also Mine Workers v. Pennington, 381 U. S. 657, 663 (1965): “If the UMW in this case, in order to protect its wage scale by maintaining employer income, had presented a set of prices at which the mine operators would be required to sell their coal, the union and the employers who happened to agree could not successfully defend this contract provision if it were challenged under the antitrust laws by the United States or by some party injured by the arrangement.”

       See J. T. Dunlop, Wage Determination Under Trade Unions (1950); C. E. Lindblom, Unions and Capitalism (1949); E. S. Mason, Economic Concentration and the Monopoly Problem (1957).

        United States v. Parke, Davis & Co., 362 U. S. 29 (1960). See also Albrecht v. Herald Co., 390 U. S. 145, 150, n. 6 (1968). I cannot believe that the Court intends its n. 8 to hold that unilateral demands, enforced by threats, combined with willing cooperation or reluctant acquiescence by leaders (who may join the union and in any event obey its rules), cannot amount to a combination in restraint of trade.

        E. g., § 1 of the the Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291 (agricultural cooperatives); § 2 of the Webb-Pomerene Act, 40 Stat. 517, 15 U. S. C. § 62 (foreign trade associations); § 6 (b) (1) of the Act of Nov. 8, 1966, 80 Stat. 1515, 15 U. S. C. § 1291 (1964 ed., Supp. II) (joint- agreements by professional football clubs).


source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Justice Stewart, Mr. Justice White,

license: Public Domain

text:
    BRUTON v. UNITED STATES.
    No. 705.
    Argued March 11, 1968.
    Decided May 20, 1968.

      Daniel P. Reardon, Jr., argued the cause and filed a brief for petitioner.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Robert S. Rif kind, and Beatrice Rosenberg.

   Mr. Justice Brennan

delivered the opinion of the Court.

This case presents the question, last considered in Delli Paoli v. United States, 352 U. S. 232, whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence.

A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U. S. C. § 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges. Both petitioner and Evans appealed their convictions to the Court of Appeals for the Eighth Circuit. That court set aside Evans’ conviction on the ground that his oral confessions to the postal inspector should not have been received in evidence against him. 375 F. 2d 355, 361. However, the court, relying upon Delli Paoli, affirmed petitioner’s conviction because the trial judge instructed the jury that although Evans’ confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner’s guilt or innocence. 375 F. 2d, at 361-363. We granted certiorari to reconsider Delli Paoli. 389 U. S. 818. The Solicitor General has since submitted a memorandum stating that “in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial.” The Solicitor General states that this disposition is urged in part because “[h]ere it has been determined that the confession was wrongly admitted against [Evans] and his conviction has been reversed, leading to a new trial at which he was acquitted. To argue, in this situation, that [petitioner’s] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule — at least, where, as here, the other evidence against [petitioner] is not strong.” We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.

The basic premise of Delli Paoli was that it is “reasonably possible for the jury to follow” sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U. S., at 239. If it were true that the jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided this Court has effectively repudiated its basic premise. Before discussing this, we pause to observe that in Pointer v. Texas, 380 U. S. 400, we confirmed “that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him” secured by the Sixth Amendment, id., at 404; “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” Id., at 406-407.

We applied Pointer in Douglas v. Alabama, 380 U. S. 415, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd’s recollection the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd’s confession. These statements inculpated Douglas in the crime. We held that Douglas’ inability to cross-examine Loyd denied Douglas “the right of cross-examination secured by the Confrontation Clause.” 380 U. S., at 419. We noted that “effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer.” Id., at 420. The risk of prejudice in petitioner’s case was even more serious than in Douglas. In Douglas we said, “Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” Id., at 419. Here Evans’ oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater, then, was the likelihood that the jury would believe Evans made the statements and that they were true— not just the self-incriminating portions but those implicating petitioner as well. Plainly, the introduction of Evans’ confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since Evans did not take the stand. Petitioner thus was denied his constitutional right of confrontation.

Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence. But, as we have said, that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U. S. 368. Nonetheless the message of Jackson for Delli Paoli was clear. We there held that a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id., at 388-389. Significantly, we supported that conclusion in part by reliance upon the dissenting opinion of Mr. Justice Frankfurter for the four Justices who dissented in Delli Paoli. Id., at 388, n. 15.

That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt. “The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.” 352 U. S., at 247. The dissent went on to say, as quoted in the cited note in Jackson, “The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Id., at 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U. S. 440, 453: “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction. . . .”

The significance of Jackson for Delli Paoli was suggested by Chief Justice Traynor in People v. Aranda, 63 Cal. 2d 518, 528-529, 407 P. 2d 265, 271-272:

“Although Jackson was directly concerned with obviating any risk that a jury might rely on an unconstitutionally obtained confession in determining the defendant’s guilt, its logic extends to obviating the risks that the jury may rely on any inadmissible statements. If it is a denial of due process to rely on a jury’s presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury’s presumed ability to disregard a codefendant’s confession implicating another defendant when it is determining that defendant’s guilt or innocence.
“Indeed, the latter task may be an even more difficult one for the jury to perform than the former. Under the Néw York procedure, which Jackson held violated due process, the jury was only required to disregard a confession it found to be involuntary. If it made such a finding, then the confession was presumably out of the case. In joint trials, however, when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case and the jury is expected to perform the overwhelming task of considering it in determining the guilt or innocence of the de-clarant and then of ignoring it in determining the guilt or innocence of any codefendants of the declar-ant. A jury cannot 'segregate evidence into separate intellectual boxes.’ ... It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.”

In addition to Jackson, our action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure also evidences our repudiation of Delli Paoli’s basic premise. Rule 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial. The Rule was amended in 1966 to provide expressly that “[i]n ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.” The Advisory Committee on Rules said in explanation of the amendment:

“A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. . . .
“The purpose of the amendment is to provide a procedure whereby the issue of possible prejudice can be resolved on the motion for severance. ...”

Those who have defended reliance on the limiting instruction in this area have cited several reasons in support. Judge Learned Hand, a particularly severe critic of the proposition that juries could be counted on to disregard inadmissible hearsay, wrote the opinion for the Second Circuit which affirmed Delli Paoli’s conviction. 229 F. 2d 319. In Judge Hand’s view the limiting instruction, although not really capable of preventing the jury from considering the prejudicial evidence, does as a matter of form provide a way around the exclusionary rules of evidence that is defensible because it “probably furthers, rather than impedes, the search for truth . . . .” Nash v. United States, 54 F. 2d 1006, 1007. Insofar as this implies the prosecution ought not to be denied the benefit of the confession to prove the confessor’s guilt, however, it overlooks alternative ways of achieving that benefit without at the same time infringing the noncon-fessor’s right of confrontation. Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice.

Another reason cited in defense of Delli Paoli is the justification for joint trials in general, the argument being that the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Joint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. But the answer to this argument was cogently stated by Judge Lehman of the New York Court of Appeals, dissenting in People v. Fisher, 249 N. Y. 419, 432, 164 N. E. 336, 341:

“We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them .... We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.”

Finally, the reason advanced by the majority in Delhi Paoli was to tie the result to maintenance of the jury system. “Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.” 352 U. S., at 242. We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U. S. 604, 619; see Hopt v. Utah, 120 U. S. 430, 438; cf. Fed. Rule Crim. Proc. 52 (a). It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Compare Hopt v. Utah, supra; Throckmorton v. Holt, 180 U. S. 552, 567; Mora v. United States, 190 F. 2d 749; Holt v. United States, 94 F. 2d 90. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. Pointer v. Texas, supra.

We, of course, acknowledge the impossibility of determining whether in fact the jury did or did not ignore Evans’ statement inculpating petitioner in determining petitioner’s guilt. But that was also true in the analogous situation in Jackson v. Denno, and was not regarded as militating against striking down the New York procedure there involved. It was enough that that procedure posed “substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.” 378 U. S., at 389. Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the con-cededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. See Anderson v. United States, 318 U. S. 350, 356.-357; cf. Burgett v. Texas, 389 U. S. 109, 115.

Reversed.

Mr. Justice Black concurs in the result for the reasons stated in the dissent in Delli Paoli v. United States, 352 U. S. 232, 246.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Stewart,

concurring.

I join the opinion and judgment of the Court. Although I did not agree with the decision in Jackson v. Denno, 378 U. S. 368 (see id., at 427), I accept its holding and share the Court’s conclusion that it compels the overruling of Delli Paoli v. United States, 352 U. S. 232.

Quite apart from Jackson v. Denno, however, I think it clear that the underlying rationale of the Sixth Amendment’s Confrontation Clause precludes reliance upon cautionary instructions when the highly damaging out-of-court statement of a codefendant, who is not subject to cross-examination, is deliberately placed before the jury at a joint trial. A basic premise of the Confrontation Clause, it seems to me, is that certain kinds of hearsay (see, e. g., Pointer v. Texas, 380 U. S. 400; Douglas v. Alabama, 380 U. S. 415) are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give. See the Court’s opinion, ante, at 136, n. 12. It is for this very reason that an out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused, rather than admissible for the little it may be worth. Even if I did not consider Jackson v. Denno controlling, therefore, I would still agree that Delhi Paoli must be overruled.

Mr. Justice White,

dissenting.

Whether or not Evans’ confession was inadmissible against him, nothing in that confession which was relevant and material to Bruton’s case was admissible against Bruton. As to him it was inadmissible hearsay, a presumptively unreliable out-of-court statement of a non-party who was not a witness subject to cross-examination. Admitting Evans’ confession against Bruton would require a new trial unless the error was harmless.

The trial judge in this case had no different view. He admitted Evans’ confession only against Evans, not against Bruton, and carefully instructed the jury to disregard it in determining Bruton’s guilt or innocence. Contrary to its ruling just a decade ago in Delli Paoli v. United States, 352 U. S. 232 (1957), the Court now holds this instruction insufficient and reverses Bruton’s conviction. It would apparently also reverse every other case where a court admits a codefendant’s confession implicating a defendant, regardless of cautionary instructions and regardless of the circumstances. I dissent from this excessively rigid rule. There is nothing in this record to suggest that the jury did not follow the trial judge’s instructions. There has been no new learning since Delli Paoli indicating that juries are less reliable than they were considered in that case to be. There is nothing in the prior decisions of this Court which supports this new constitutional rule.

The Court concedes that there are many instances in which reliance on limiting instructions is justified— “Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.” Ante, at 135. The Court asserts, however, that the hazards to the defendant of permitting the jury to hear a codefendant’s confession implicating him are so severe that we must assume the jury’s inability to heed a limiting instruction. This was the holding of the Court with respect to a confession of the defendant himself in Jackson v. Denno, 378 U. S. 368 (1964). There are good reasons, however, for distinguishing the codefendant’s confession from that of the defendant himself and for trusting in the jury’s ability to disregard the former when instructed to do so.

First, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Though itself an out-of-court statement, it is admitted as reliable evidence because it is an admission of guilt by the defendant and constitutes direct evidence of the facts to which it relates. Even the testimony of an eyewitness may be less reliable than the defendant’s own confession. An observer may not correctly perceive, understand, or remember the acts of another, but the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so. This was the conclusion of the Court in Jackson, and I continue to believe that case to be sound law.

Second, it must be remembered that a coerced confession is not excluded because it is thought to be unreliable. Regardless of how true it may be, it is excluded because specific provisions of the Constitution demand it, whatever the consequences for the criminal trial. In Jackson itself it was stated that “[i]t is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or ha part, upon an involuntary confession, without regard for the truth or falsity of the confession .. ..” 378 U. S., at 376. See id., at 385-386. In giving prospective effect only to its rules in Miranda v. Arizona, 384 U. S. 436 (1966), the Court specifically reaffirmed the principle that coerced confessions are inadmissible regardless of their truth or falsity, Johnson v. New Jersey, 384 U. S. 719, 729, n. 9 (1966). The Court acknowledged that the rules of Miranda apply to situations “in which the danger [of unreliable statements] is not necessarily as great as when the accused is subjected to overt and obvious coercion.” Id., at 730. And, in Tehan v. United States ex rel. Shott, 382 U. S. 406, 416 (1966), holding the rule of Griffin v. California, 380 U. S. 609 (1965), not retroactive, the Court quite explicitly stated that “the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values . . . .” The exclusion of probative evidence in order to serve other ends is sound jurisprudence but, as the Court concluded in Jackson v. Denno, 378 U. S., at 382, juries would have great difficulty in understanding that policy, in putting the confession aside, and in finding the confession involuntary if the consequence was that it could not be used in considering a defendant’s guilt or innocence.

The situation in this case is very different. Here we deal with a codefendant’s confession which is admitted only against the codefendant and with a firm instruction to the jury to disregard it in determining the defendant’s guilt or innocence. That confession cannot compare with the defendant’s own confession in evidentiary value. As to the defendant, the confession of the eodefendant is wholly inadmissible. It is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. Furthermore, the codefendant is no more than an eyewitness, the accuracy of whose testimony about the defendant’s conduct is open to more doubt than would be the defendant’s own account of his actions. More than this, however, the statements of a codefend-ant have traditionally been viewed with special suspicion. Crawford v. United States, 212 U. S. 183, 204 (1909); Holmgren v. United States, 217 U. S. 509, 523-524 (1910). See also Caminetti v. United States, 242 U. S. 470, 495 (1917); Mathes, Jury Instruction and Forms for Federal Criminal Cases, 27 F. R. D. 39, 68-69 (1961). Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence. Whereas the defendant’s own confession possesses greater reliability and eviden-tiary value than ordinary hearsay, the codefendant’s confession implicating the defendant is intrinsically much less reliable.

The defendant’s own confession may not be used against him if coerced, not because it is untrue but to protect other constitutional values. The jury may have great difficulty understanding such a rule and following an instruction to disregard the confession. In contrast, the codefendant’s admissions cannot enter into the determination of the defendant’s guilt or innocence because they are unreliable. This the jury can be told and can understand. Just as the Court believes that juries can reasonably be expected to disregard ordinary hearsay or other inadmissible evidence when instructed to do so, I believe juries will disregard the portions of a co-defendant’s confession implicating the defendant when so instructed. Indeed, if we must pick and choose between hearsay as to which limiting instructions will be deemed effective and hearsay the admission of which cannot be cured by instructions, codefendants’ admissions belong in the former category rather than the latter, for they are not only hearsay but hearsay which is doubly suspect. If the Court is right in believing that a jury can be counted on to ignore a wide range of hearsay statements which it is told to ignore, it seems very odd to me to question its ability to put aside the codefendant’s hearsay statements about what the defendant did.

It is a common experience of all men to be informed of “facts” relevant to an issue requiring their judgment, and yet to disregard those “facts” because of sufficient grounds for discrediting their veracity or the reliability of their source. Responsible judgment would be impossible but for the ability of men to focus their attention wholly on reliable and credible evidence, and jurymen are no less capable of exercising this capacity than other men. Because I have no doubt that serious-minded and responsible men are able to shut their minds to unreliable information when exercising their judgment, I reject the assumption of the majority that giving instructions to a jury to disregard a codefendant’s confession is an empty gesture.

The rule which the Court announces today will severely limit the circumstances in which defendants may be tried together for a crime which they are both charged with committing. Unquestionably, joint trials are more economical and minimize the burden on witnesses, prosecutors, and courts. They also avoid delays in bringing those accused of crime to trial. This much the Court concedes. It is also worth saying that separate trials are apt to have varying consequences for legally indistinguishable defendants. The unfairness of this is confirmed by the common prosecutorial experience of seeing codefendants who are tried separately strenuously jockeying for position with regard to who should be the first to be tried.

In view of the practical difficulties of separate trials and their potential unfairness, I am disappointed that the Court has not spelled out how the federal courts might conduct their business consistent with today’s opinion. I would suppose that it will be necessary to exclude all extrajudicial confessions unless all portions of them which implicate defendants other than the declarant are effectively deleted. Effective deletion will probably require not only omission of all direct and indirect inculpations of codefendants but also of any statement that could be employed against those defendants once their identity is otherwise established. Of course, the deletion must not be such that it will distort the statements to the substantial prejudice of either the declarant or the Government. If deletion is not feasible, then the Government will have to choose either not to use the confession at all or to try the defendants separately. To save time, money, and effort, the Government might best seek a ruling at the earliest possible stage of the trial proceedings as to whether the confession is admissible once offending portions are deleted. The failure of the Government to adopt and follow proper procedures for insuring that the inadmissible portions of confessions are excluded will be relevant to the question of whether it was harmless error for them to have gotten before the jury. Oral statements, such as that involved in the present case, will present special problems, for there is a risk that the witness in testifying will inadvertently exceed permissible limits. Except for recommending that caution be used with regard to such oral statements, it is difficult to anticipate the issues which will arise in concrete factual situations.

I would hope, but am not sure, that by using these procedures the federal courts would escape reversal under today’s ruling. Even so, I persist in believing that the reversal of Delli Paoli unnecessarily burdens the already difficult task of conducting criminal trials, and therefore I dissent in this case.

Mr. Justice Harlan joins this opinion without abandoning his original disagreement with Jackson v. Denno, 378 U. S. 368, 427, expressed in his dissenting opinion in that case.

       The trial began June 20, 1966, one week after the decision in Miranda v. Arizona, 384 U. S. 436. The Court of Appeals held, 375 F. 2d, at 357, that Miranda and its companion cases were therefore applicable and controlling on the question of the admissibility in evidence of the postal inspector’s testimony as to Evans’ admissions. Johnson v. New Jersey, 384 U. S. 719. On April 8, 1966, St. Louis police officers, without giving Evans preliminary warnings of any kind and in the absence of counsel, obtained an oral confession during an interrogation at the city jail. The police informed the postal inspector, who interrogated Evans at the jail on April 11 and May 4, 1966; he obtained the oral confession expressly implicating petitioner on the latter date. On the merits, the Court of Appeals held, 375 F. 2d, at 361, that Evans’ admissions to the postal inspector “were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer,” and were therefore inadmissible under Westover v. United States, decided with Miranda, 384 U. S., at 494-497. On the retrial, Evans was acquitted.

       At the close of the Government’s direct case, the trial judge cautioned the jury that Evans’ admission implicating petitioner “if used, can only be used against the defendant Evans. It is hearsay insofar as the defendant George William Bruton is concerned, and you are not to consider it in any respect to the defendant Bruton, because insofar as he is concerned it is hearsay.”
      The instructions to the jury included the following:
      “A confession made outside of court by one defendant may not be considered as evidence against the other defendant, who was not present and in no way a party to the confession. Therefore, if you find that a confession was in fact voluntarily and intentionally made by the defendant Evans, you should consider it as evidence in the case against Evans, but you must not consider it, and should disregard it, in considering the evidence in the case against the defendant Bruton.
      “It is your duty to give separate, personal consideration to the cause of each individual defendant. When you do so, you should analyze what the evidence shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant. Each defendant is entitled to have his case determined from his own acts and statements and the other evidence in the case which may be applicable to him.”

       We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U. S. 440; Fiswick v. United States, 329 U. S. 211, the problem arising only because the statement was (but for the violation of Westover, supra, n. 1) admissible against the declarant Evans. See C. McCormick, Evidence §239 (1954); 4 J. Wigmore, Evidence §§ 1048-1049 (3d ed. 1940); Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L. J. 355 (1921). See generally Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159 (1954); Comment, Post-Conspiracy Admissions in Joint Prosecutions, 24 U. Chi. L. Rev. 710 (1957); Note, Criminal Conspiracy, 72 Harv. L. Rev. 920, 984-990 (1959). There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. See Pointer v. Texas, 380 U. S. 400; Barber v. Page, 390 U. S. 719; Mattox v. United States, 156 U. S. 237. See generally McCormick, supra, § 224; 5 Wigmore, supra, §§ 1362-1365, 1397; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177 (1948).

       Several cases since Delli Paoli have refused to consider an instruction as inevitably sufficient to avoid the setting aside of convictions. See, e. g., United States ex rel. Floyd v. Wilkins, 367 F. 2d 990; United States v. Bozza, 365 F. 2d 206; Greenwell v. United States, 119 U. S. App. D. C. 43, 336 F. 2d 962; Jones
        v. United States, 119. U. S. App. D. C. 284, 342 F. 2d 863; Barton v. United States, 263 F. 2d 894; United States ex rel. Hill v. Deegan, 268 F. Supp. 580. In Bozza the Court of Appeals for the Second Circuit stated:
      “It is impossible realistically to suppose that when the twelve good men and women had Jones’ confession in the privacy of the jury room, not one yielded to the nigh irresistible temptation to fill in the blanks with the keys Kuhle had provided and ask himself the intelligent question to what extent Jones’ statement supported Kuhle’s testimony, or that if anyone did yield, his colleagues effectively persuaded him to dismiss the answers from his mind.” 365 F. 2d, at 215.
      State decisions which have rejected Delli Paoli include People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265; State v. Young, 46 N. J. 152, 215 A. 2d 352. See also People v. Barbaro, 395 Ill. 264, 69 N. E. 2d 692; State v. Rosen, 151 Ohio St. 339, 86 N. E. 2d 24.
      It has been suggested that the limiting instruction actually compounds the jury’s difficulty in disregarding the inadmissible hearsay. See Breeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744, 753-755 (1959).

       See Pointer v. Texas, supra, at 405: “Indeed, we have expressly-declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.”

       Joinder of defendants is governed by Rules 8 (b) and 14 of the Federal Rules of Criminal Procedure. “The rules are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Daley v. United States, 231 F. 2d 123, 125. An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. See, e. g., Blumenthal v. United States, 332 U. S. 539, 559-560.

       34 F. R. D. 419. See generally Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L. J. 553 (1965).

       Judge Hand addressed the subject several times. The limiting instruction, he said, is a “recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else,” Nash v. United States, 54 F. 2d 1006, 1007; “Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay,” United States v. Gottfried, 165 F. 2d 360, 367; “it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition,” Delli Paoli v. United States, 229 F. 2d 319, 321. Judge Hand referred to the instruction as a “placebo,” medically defined as “a medicinal lie.” Judge Jerome Frank suggested that its legal equivalent “is a kind of ‘judicial lie’: It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.” United States v. Grunewald, 233 F. 2d 556, 574. See also 8 Wigmore, supra, n. 3, § 2272, at 416.
      Compare E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956), who suggests that the use of limiting instructions fosters an inconsistent attitude toward juries by “treating them at times as a group of low-grade morons and at other times as men endowed with a superhuman ability to control their emotions and intellects.” See also Shepard v. United States, 290 U. S. 96, 104; Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 326 (1954).

       In this ease, however, Evans’ conviction was reversed on the ground that his confessions were inadmissible in evidence even against him, and on his retrial he was acquitted. In People v. Aranda, supra, 63 Cal. 2d, at 526, 407 P. 2d, at 270, it was said: “When, however, the confession implicating both defendants is not admissible at all, there is no longer room for compromise. The risk of prejudicing the nonconfessing defendant can no longer be justified by the need for introducing the confession against the one who made it. Accordingly, we have held that the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant.” See also Jones v. United States and Greenwell v. United States, both supra, n. 4.

       Some courts have required deletion of references to codefendants where practicable. See, e. g., Oliver v. United States, 335 F. 2d 724; People v. Vitagliano, 15 N. Y. 2d 360, 206 N. E. 2d 864; People v. La Belle, 18 N. Y. 2d 405, 222 N. E. 2d 727. For criticisms suggesting that deletions (redaction) from the confession are ineffective, see, e. g., Note, 72 Harv. L. Rev. 920, 990 (1959); Comment, 24 U. Chi. L. Rev. 710, 713 (1957); Note, 74 Yale L. J. 553, 564 (1965).
      In this ease Evans’ confessions were offered in evidence through the oral testimony of the postal inspector. It has been said: “Where the confession is offered in evidence by means of oral testimony, redaction is patently impractical. To expect a witness to relate X’s confession without including any of its references to Y is to ignore human frailty. Again, it is unlikely that an intentional or accidental slip by the witness could be remedied by instructions to disregard.” Note, 3 Col. J. of Law & Soc. Prob. 80, 88 (1967).
      Some courts have promulgated rules governing the use of the confessions. See n. 4, supra. See also rules suggested by Judge Frank, dissenting in Delli Paoli v. United States, 229 F. 2d 319, 324.

       See Crawford v. United States, 212 U. S. 183, 204; Caminetti v. United States, 242 U. S. 470, 495; Stoneking v. United States, 232 F. 2d 385.

       It is suggested that because the evidence is so unreliable the need for cross-examination is obviated. This would certainly seem contrary to the acceptance of the rule of evidence which would require exclusion of the confession as to Bruton as “inadmissible hearsay, a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject to cross-examination.” Post, at 138. “The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrust-worthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of Cross-examination.” 5 Wigmore, Evidence § 1362, at 3. The reason for excluding this evidence as an evidentiary matter also requires its exclusion as a constitutional matter. Surely the suggestion is not that Pointer v. Texas, for example, be repudiated and that all hearsay evidence be admissible so long as the jury is properly instructed to weigh it in light of “all the dangers of inaccuracy which characterize hearsay generally.” Post, at 141.

      As the Court observes, “[i]f . . . the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause . . . Ante, at 126. Because in my view juries can reasonably be relied upon to disregard the codefendant’s references to the defendant, there is no need to explore the special considerations involved in the Confrontation Clause.