dissenting.
Because exactly the same evidence supported defendant’s and Fortuna’s convictions, Fortuna’s mid-trial flight combined *63with the trial court’s flight instruction seriously prejudiced Melendez — so much so that even the most conscientious jury could not have confined its consideration of the flight charge solely to the determination of Fortuna’s case. Accordingly, limiting instructions were inadequate to safeguard Melendez’s Sixth Amendment right to confront witnesses against him. In my view, the trial court either should have granted the motion for severance or refused to give the flight charge.
Ordinarily, a witness is considered to be testifying “against” a defendant for Confrontation Clause purposes if the jury may consider the evidence provided by the witness in assessing the defendant’s guilt. Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162, 169 (1987). When evidence is admissible against only one defendant, a limiting instruction to that effect generally will ensure that the jury will not consider that evidence in assessing the guilt or innocence of a codefendant. Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176, 185-86 (1987); Cruz, supra, 481 U.S. at 190, 107 S.Ct. at 1717, 95 L.Ed.2d at 169-70; Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476, 484-85 (1968). As the United States Supreme Court has acknowledged, however, “there are some contexts in which the risk that the jury will not, or cannot, follow [limiting] 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.” Bruton, supra, 391 U.S. at 135, 88 S.Ct. at 1627, 20 L.Ed.2d at 485. In such cases, a limiting instruction is not sufficient to ensure that the jury will not use evidence improperly against a codefendant. See, e.g., Cruz, supra, 481 U.S. at 190, 107 S.Ct. at 1717, 95 L.Ed.2d at 170. If the defendant providing the damaging evidence is unavailable for cross-examination, introduction of that evidence unfairly infringes on the codefendant’s right of confrontation. Id. at 193, 107 S.Ct. at 1719, 95 L.Ed.2d at 172.
In Bruton, the Supreme Court held that the trial court had erred in admitting a non-testifying codefendant’s confession *64that expressly implicated Bruton, even though the court had instructed the jury that the evidence could be used only against the codefendant. According to the Court, the exceptionally-incriminating nature of the evidence was such that the jury could not help but disregard the limiting instruction. Bruton, supra, 391 US. at 136-37, 88 S.Ct. at 1628-29, 20 L.Ed.2d at 485-86. Because Bruton had had no opportunity to cross-examine his codefendant, the Court held that the admission of the confession posed a substantial threat to the defendant’s right to confront the witnesses against him, and constituted reversible error. Id. at 135-37, 88 S.Ct. at 1628, 20 L.Ed.2d at 485-86.
As the majority notes, the Supreme Court subsequently has clarified Bruton’s scope. In Richardson, supra, the Court held that a codefendant’s confession had been properly admitted because the confession did not refer to the defendant, nor did it indicate that anyone other than the codefendant and another accomplice had participated in the crime. 481 U.S. at 203, 107 S.Ct. at 1705, 95 L.Ed.2d at 183. In Richardson, the defendant was accused with two others of robbery and murder. Hér codefendant, a fugitive at the time of trial, had previously confessed, and the confession was admitted at trial. Defendant testified that she had been present during the crime, but asserted that she had been an unwilling participant, had not known her codefendants were armed, and had not intended to rob or kill anyone. The Richardson jury could have found the codefendant’s confession entirely credible, yet independently could have determined that defendant had not formed the requisite intent necessary to be found guilty of the charges. Because the codefendant’s confession did not refer to defendant in any respect, the jury might have been more likely to believe that she had been an unwilling participant. The confession, therefore, was not sufficiently incriminating to render unlikely jury compliance with the limiting instruction. Thus, in Richardson, unlike Bruton, no substantial risk arose that the jury would use the codefendant’s unexamined confession to deter*65mine the defendant’s guilt, and therefore the defendant’s Sixth Amendment rights were not implicated. 481 U.S. at 208, 211, 107 S.Ct. at 1707, 1709, 95 L.Ed.2d at 186, 188.
The majority concludes, ante at 59, 609 A.2d at 6, that Fortuna’s flight combined with the flight instruction cannot be characterized as evidence “against” Melendez for Confrontation Clause purposes because the trial court gave a limiting instruction. That analysis, however, begs the question. A jury uses incriminating evidence “against” a defendant when it disregards limiting instructions. Accordingly, the relevant inquiry is not whether the trial court explained the limited relevance of the evidence but whether the incriminating nature of that evidence is such that the jury was unlikely to have followed the limiting instruction. See Richardson, supra, 481 U.S. at 208 n. 3, 107 S.Ct. at 1707 n. 3, 95 L.Ed.2d at 186 n. 3. The majority’s holding also relies on Richardson’s broad directive that when evidence, not incriminating on its face, becomes incriminating only when linked to other evidence, “it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” 481 U.S. at 208, 107 S.Ct. at 1707, 95 L.Ed.2d at 186. Viewed in the abstract, evidence of a codefendant’s flight does seem less incriminating than a confession that expressly implicates a defendant. In determining whether evidence infringes on a defendant’s right to confront witnesses, however, the inquiry should focus not on whether the evidence is “facially” incriminatory but rather on whether the trial court reasonably could have assumed that a jury could obey the limiting instructions in the context of the evidence presented at trial. See State v. Scioscia, 200 N.J.Super. 28, 43, 490 A.2d 327 (App.Div.), certif. denied, 101 N.J. 277, 501 A.2d 942 (1985); cf. State v. Manney, 26 N.J. 362, 368, 140 A.2d 74 (1958) (noting that question whether to sever trial involving multiple charges depends on “whether a jury is likely to be unable to comply with the trial court’s instructions”).
Application of that standard to these facts demonstrates that Melendez was substantially prejudiced by the instruction con*66eerning Fortuna’s mid-trial flight. The State’s evidence consisted of the testimony of Officer Cruz, who allegedly had purchased the drugs from both defendants acting in concert, and Cruz’s supervising officer, who had not witnessed the transaction, Although Cruz testified that he had identified defendant and Fortuna soon after the transaction, Melendez was not arrested until several months later. Additionally, the supervising officer admitted that he had not recovered the fifty dollars that Cruz had used to purchase the drugs. Although defendant and Fortuna were represented by separate attorneys, both attorneys advanced the same theory at trial — that Officer Cruz had fabricated the drug sale to advance his career.
Thus, the State’s theory was that Fortuna and Melendez had acted together in selling cocaine to Officer Cruz. Their common position was that neither of them had been present when Cruz had allegedly purchased drugs. Neither defendant nor Fortuna testified in his own behalf. The entire case, therefore, rested on whether the jury believed Officer Cruz. If the jury determined that Cruz was credible, it would inevitably find both defendant and Fortuna guilty; if it did not believe Cruz, both were likely to be acquitted.
. Because the jury was allowed to consider Fortuna’s flight as a basis for determining Fortuna’s guilt, the jury was also entitled to infer from Fortuna’s flight that Officer Cruz had told the truth. Once the jury had determined that Cruz’s testimony was credible, it would virtually be compelled to find Melendez guilty. Even if the jury had attempted diligently to use the evidence of Fortuna’s flight against Fortuna alone, it could not avoid considering that evidence as also implicating Melendez. Because Fortuna was not present, Melendez had no opportunity to cross-examine him regarding his reasons for fleeing. Moreover, because Fortuna’s flight occurred toward the trial’s conclusion, Melendez had no opportunity to offer a defense that .was not linked inextricably to Fortuna’s defense. Accordingly, Fortuna’s flight, combined with the flight instruc*67tion, served as “powerfully incriminating” evidence against Melendez.
Concededly, several courts have found that a flight instruction concerning a codefendant does not substantially prejudice another defendant when the trial court has expressly limited the use of that evidence. Many of those cases are distinguishable, however, because the facts implicating the defendants were not so intertwined that the guilt of one defendant conclusively established the guilt of the other. See United States v. Candoli, 870 F.2d 496, 502 (9th Cir.1989); United States v. Lobo, 516 F.2d 883, 885 (2nd Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); Russell v. United States, 586 A.2d 695 (D.C.1991); Camp v. State, 164 Ga.App. 253, 296 S.E.2d 799 (1982). The remaining cases are unpersuasive, offering only cursory discussions of the facts or summary analyses of the flight issue. See United States v. Hyson, 721 F.2d 856, 864-65 (1st Cir.1983); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. DeLeon, 498 F.2d 1327, 1332 (7th Cir.1974); People v. Barnes, 2 Ill.App.3d 461, 276 N.Ed.2d 509, 512-13 (1971); State v. Ouimette, 110 R.I. 747, 298 A.2d 124, 139-40 (1972).
A substantial risk exists that the jury considered Fortuna’s flight in assessing Cruz’s credibility, and thus in determining Melendez’s guilt. Melendez and Fortuna had presented identical defenses to the charges against them. Moreover, Melendez had no opportunity to explore on cross-examination the reasons for Fortuna’s flight. Because Melendez was severely prejudiced by Fortuna’s flight and the subsequent flight charge, I would hold that the trial court committed reversible error in issuing the flight instruction or alternatively in denying the motion to sever.
Chief Justice WILENTZ joins in this opinion.
*68For affirmance — Justices CLIFFORD, HANDLER, POLLOCK, O’HERN and GARIBALDI — 5.
For reversal — Chief Justice WILENTZ and Justice STEIN— 2.