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Monday, March 05, 2007

Whorton: No Retroactivity for Crawford

In Whorton v. Bockting, No. 05-595 (Feb. 28, 2007), the Supreme Court held that it gave no retroactive effect to its Confrontation Clause holding in Crawford v. Washington that testimonial statements of witnesses absent from a trial are admissible only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness.
The Court first noted that Crawford was not an "old" rule, but a "new" rule, as evidenced by the fact that Crawford explicitly overruled Ohio v. Roberts. Thus, as a new rule, Crawford would only apply retroactively if it was a watershed rule that implicated the fundamental fairness and accuracy of judicial proceedings. The Court held that Crawford did not so quality.
First, the hearsay that is now admissibile under Crawford did not, when introduced at trial, create an impermissibly large risk of inaccurate convictions. It is not comparable to Gideon, the rule that entitled a defendant to representation by counsel. The Court noted that it was "unclear" whether Crawford increased or decreased the reliability of trial verdicts, because it eliminated Confrontation Clause protection against out-of-court nontestimonial statements.
Second, Crawford did not alter the bedrock procedural elements essential to the fairness of a criminal proceeding. Crawford, while important, did not institute a "sweeping" change.