Crawford ruling not retroactive
on Feb 28, 2007 at 11:40 am
UPDATE to 11:45 a.m.: Today’s decision in Whorton v. Bockting (05-595) can be downloaded here; it was the only opinion released by the Court.
The Supreme Court ruled unanimously on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down on March 8, 2004.
In an opinion by Justice Samuel A. Alito, Jr., in Whorton v. Bockting (05-595), the Court found that the decision limiting out-of-court statements as criminal evidence was a new rule and was not a “watershed rule” so it does not apply to earlier cases. The Crawford decision overruled an earlier Court decision (Ohio v. Roberts, 1980), and laid down the rule that a statement made out of court by a witness who cannot or does not appear at the trial cannot be admitted in the trial unless the accused had a prior opportunity to cross-examine that witness.
Because the Court ruled against retroactivity, the individual involved in the case, Marvin Bockting of Las Vegas, will not be allowed to use the Crawford ruling to challenge in federal court his conviction in state court based on the use at his child sexual assault trial of out-of-court statements made by his six-year-old step-daughter.
The Court used a formula laid down in the 1989 decision in Teague v. Lane for deciding when a Court decision on criminal law is to be applied in federal habeas proceedings to state convictions that had become final previously. The Court did not address a separate question posed by the state of Nevada in its appeal — that is, whether the Antiterrorism and Effective Death Penalty Act of 1996 imposing new restrictions on habeas rights does, in fact, incorporate the Teague v. Lane exceptions to non-retroactivity. Since the Court did not find either exception applied here, it had no reason to decide that issue.
Justice Alito’s opinion for the Court essentially had four parts: first, it applied the Teague v. Lane mode of analysis, second, it found that Crawford created a new rule of criminal law and thus did not apply an old rule, third, it ruled that the new rule was procedural and not substantive, and, fourth, because it could not qualify as a rule that implicated the fundamental fairness and accuracy of the criminal trial, it could not be retroactive. Thus, the Crawford rule applies only to new cases or to those that were still pending on direct review when that decision came down in 2004.
The Court noted that, since Teague in 1989, it had rejected every claim that a new rule satisfied this final requirement regarding fairness and accuracy. A new rule meets that test, the Court noted, only if it is necesssary to prevent a risk of an inaccurate conviction, and only if it alters the understanding of bedrock requirements for fairness. Crawford, it found, meets neither test.
It compared the impact of that ruling on criminal trials with the one precedent that the Court has said was necessary to prevent an inaccurate conviction — the right of a poor person facing criminal charges to a free lawyer, laid down in the 1963 decision of Gideon v. Wainwright.
“The Crawford rule is in no way comparable to the Gideon rule,” Alito wrote. “The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound.” While it may improve accuracy of fact-finding in some cases, he added, it will not significantly do so. Alito also said that Crawford does not involve a change in the understanding of “bedrock” constitutional rights, as did the Gideon precedent.
