Whorton v. Bockting

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WHORTON, DIRECTOR, NEVADA DEPARTMENT OF

CORRECTIONS v. BOCKTING

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 05–595. Argued November 1, 2006—Decided February 28, 2007

At respondent’s trial for sexual assault on his 6-year-old stepdaughter,

the court determined that the child was too distressed to testify and

allowed respondent’s wife and a police detective to recount her out-of

court statements about the assaults, as permitted by Nevada law, re

jecting respondent’s claim that admitting this testimony would vio

late the Confrontation Clause. He was convicted and sentenced to

prison. On direct appeal, the Nevada Supreme Court found the

child’s statements constitutional under Ohio v. Roberts, 448 U. S. 56,

then this Court’s governing precedent, which had held that the Con

frontation Clause permitted the admission of a hearsay statement

made by a declarant unavailable to testify if the statement bore suffi

cient indicia of reliability, id., at 66. Respondent renewed his Con

frontation Clause claim in a subsequent federal habeas petition,

which the District Court denied. While his appeal was pending in

the Ninth Circuit, this Court overruled Roberts in Crawford v. Wash

ington, 541 U. S. 36, holding that “testimonial statements of wit

nesses absent from trial” are admissible “only where the declarant is

unavailable, and only where the defendant has had a prior opportu

nity to cross-examine [the witness],” id., at 59, and concluding that

Roberts’ interpretation of the Confrontation Clause was unsound, id.,

at 60. Respondent contended that had Crawford been applied to his

case, the child’s statements would not have been admitted, and that

it should have been applied because it was either an old rule in exis

tence at the time of his conviction or a “ ‘watershed rul[e] of criminal

procedure’ implicating the fundamental fairness and accuracy of the

criminal proceeding,” Saffle v. Parks, 494 U. S. 484, 495 (quoting

Teague v. Lane, 489 U. S. 288, 311 (plurality opinion)). The Ninth

2 WHORTON v. BOCKTING

Syllabus

Circuit reversed, holding that Crawford was a new rule, but a water

shed rule that applies retroactively to cases on collateral review.

Held: Crawford announced a new rule of criminal procedure that does

not fall within the Teague exception for watershed rules. Pp. 8–14.

(a) Under Teague’s framework, an old rule applies both on direct

and collateral review, but a new rule generally applies only to cases

still on direct review and applies retroactively in a collateral proceed

ing only if it (1) is substantive or (2) is a watershed rule that impli

cates “the fundamental fairness and accuracy of the criminal proceed

ing.” Respondent’s conviction became final on direct appeal well

before Crawford was decided, and Crawford announced a new rule,

i.e., “a rule that . . . was not ‘dictated by precedent existing at the

time the defendant’s conviction became final,’ ” Saffle, supra, at 488.

It is flatly inconsistent with Roberts, which it overruled. “The explicit

overruling of an earlier holding no doubt creates a new rule.” Saffle,

supra, at 488. Prior to Crawford, “reasonable jurists,” Graham v.

Collins, 506 U. S. 461, 467, could have concluded that Roberts gov

erned the admission of testimonial hearsay statements made by an

unavailable declarant. Pp. 8–9.

(b) Because Crawford announced a new rule and because that rule

is procedural and not substantive, it cannot be applied here unless it

is a “watershed rul[e]” that implicates “the fundamental fairness and

accuracy of the criminal proceeding.” This exception is “extremely

narrow,” Schriro v. Summerlin, 542 U. S. 348, 351, and since Teague,

this Court has rejected every claim that a new rule has satisfied the

requirements necessary to qualify as a watershed. The Crawford

rule does not meet those two requirements. Pp. 10–14.

(1) First, the rule does not implicate “the fundamental fairness

and accuracy of the criminal proceeding” because it is not necessary

to prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate convic

tion, Summerlin, supra, at 356. Gideon v. Wainwright, 372 U. S. 335,

the only case that this Court has identified as qualifying under this

exception, provides guidance. There, the Court held that counsel

must be appointed for an indigent defendant charged with a felony

because, when such a defendant is denied representation, the risk of

an unreliable verdict is intolerably high. The Crawford rule is not

comparable to the Gideon rule. It is much more limited in scope, and

its relationship to the accuracy of the factfinding process is far less

direct and profound. Crawford overruled Roberts because Roberts

was inconsistent with the original understanding of the Confronta

tion Clause, not because the Crawford rule’s overall effect would be to

improve the accuracy of factfinding in criminal trials. With respect to

testimonial out-of-court statements, Crawford is more restrictive

than Roberts, which may improve the accuracy of factfinding in some

Cite as: 549 U. S. ____ (2007) 3

Syllabus

criminal cases. But whatever improvement in reliability Crawford

produced must be considered together with Crawford’s elimination of

Confrontation Clause protection against the admission of unreliable

out-of-court nontestimonial statements. It is thus unclear whether

Crawford decreased or increased the number of unreliable out-of

court statements that may be admitted in criminal trials. But the

question is not whether Crawford resulted in some net improvement

in the accuracy of factfinding in criminal cases, but, as the dissent be

low noted, whether testimony admissible under Roberts is so much

more unreliable that, without the Crawford rule, “ ‘the likelihood of

an accurate conviction is seriously diminished,’ ” Summerlin, supra,

at 352. Crawford did not effect a change of this magnitude. Pp. 11–

13.

(2) Second, the Crawford rule did not “alter [this Court’s] under

standing of the bedrock procedural elements essential to the fairness

of a proceeding,” Sawyer v. Smith, 497 U. S. 227, 242. The Court has

“not hesitated to hold that less sweeping and fundamental rules”

than Gideon’s do not qualify. Beard v. Banks, 542 U. S. 406, 418.

The Crawford rule, while certainly important, is not in the same

category with Gideon, which effected a profound and “ ‘sweeping’ ”

change. Beard, supra, at 418. Pp. 13–14.

399 F. 3d 1010 and 408 F. 3d 1127, reversed and remanded.

ALITO, J., delivered the opinion for a unanimous Court.

Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–595

_________________

GLEN WHORTON, DIRECTOR, NEVADA DEPART-

MENT OF CORRECTIONS, PETITIONER v.

MARVIN HOWARD BOCKTING

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 28, 2007]

JUSTICE ALITO delivered the opinion of the Court.

This case presents the question whether, under the

rules set out in Teague v. Lane, 489 U. S. 288 (1989), our

decision in Crawford v. Washington, 541 U. S. 36 (2004), is

retroactive to cases already final on direct review. We

hold that it is not.

I

A

Respondent Marvin Bockting lived in Las Vegas, Ne

vada, with his wife, Laura Bockting, their 3-year-old

daughter Honesty, and Laura’s 6-year-old daughter from a

previous relationship, Autumn. One night, while respon

dent was at work, Autumn awoke from a dream crying,

but she refused to tell her mother what was wrong, ex

plaining: “ ‘[D]addy said you would make him leave and

that he would beat my butt if I told you.’ ” App. 119. After

her mother reassured her, Autumn said that respondent

had frequently forced her to engage in numerous and

varied sexual acts with him. Ibid.

2 WHORTON v. BOCKTING

Opinion of the Court

The next day, Laura Bockting confronted respondent

and asked him to leave the house. He did so but denied

any wrongdoing. Two days later, Laura called a rape

crisis hotline and brought Autumn to the hospital for an

examination. At the hospital, Detective Charles Zinovitch

from the Las Vegas Metropolitan Police Department Sex

ual Assault Unit attempted to interview Autumn but

found her too distressed to discuss the assaults. Detective

Zinovitch then ordered a rape examination, which re

vealed strong physical evidence of sexual assaults. See

Findings of Fact and Conclusions of Law and Order in

Nevada v. Bockting, Case No. C–83110 (D. Nev., Sept. 5,

1994); App. 47, 119.

Two days later, Detective Zinovitch interviewed Autumn

in the presence of her mother, and at that time, Autumn

provided a detailed description of acts of sexual assault

carried out by respondent; Autumn also demonstrated

those acts using anatomically correct dolls. Id., at 47–48;

119. Respondent was then arrested, and a state grand

jury indicted him on four counts of sexual assault on a

minor under 14 years of age.

At respondent’s preliminary hearing, Autumn testified

that she understood the difference between a truth and a

lie, but she became upset when asked about the assaults.

Although she initially agreed that respondent had touched

her in a way that “[she] didn’t think he was supposed to

touch [her],” id., at 14, she later stated that she could not

remember how respondent had touched her or what she

had told her mother or the detective, id., at 19–21. The

trial court, however, found the testimony of Laura Bock

ting and Detective Zinovitch to be sufficient to hold re

spondent for trial.

At trial, the court held a hearing outside the presence of

the jury to determine whether Autumn could testify. After

it became apparent that Autumn was too distressed to be

sworn in, id., at 25–26, the State moved under Nev. Rev.

Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

Stat. §51.385 (2003)1 to allow Laura Bockting and Detec

tive Zinovitch to recount Autumn’s statements regarding

the sexual assaults. App. 25–27. Under the Nevada

statute, out-of-court statements made by a child under 10

years of age describing acts of sexual assault or physical

abuse of the child may be admitted if the court finds that

the child is unavailable or unable to testify and that “the

time, content and circumstances of the statement provide

sufficient circumstantial guarantees of trustworthiness.”

§51.385(1)(a). Over defense counsel’s objection that ad

mission of this testimony would violate the Confrontation

Clause, id., at 27–28, the trial court found sufficient evi

dence of reliability to satisfy §51.385.

As a result of this ruling, Laura Bockting and Detective

Zinovitch were permitted at trial to recount Autumn’s out-

of-court statements about the assaults. Laura Bockting

also testified that respondent was the only male who had

had the opportunity to assault Autumn. In addition, the

prosecution introduced evidence regarding Autumn’s

——————

1 Section 51.385 provides, in relevant part:

“1. [A] statement made by a child under the age of 10 years describ

ing any act of sexual conduct performed with or on the child or any act

of physical abuse of the child is admissible in a criminal proceeding

regarding that act of sexual conduct or physical abuse if:

“(a) The court finds, in a hearing out of the presence of the jury, that

the time, content and circumstances of the statement provide sufficient

circumstantial guarantees of trustworthiness; and

“(b) The child testifies at the proceeding or is unavailable or unable to

testify.

“2. In determining the trustworthiness of a statement, the court shall

consider, without limitation, whether:

“(a) The statement was spontaneous;

“(b) The child was subjected to repetitive questioning;

“(c) The child had a motive to fabricate;

“(d) The child used terminology unexpected of a child of similar age;

and

“(e) The child was in a stable mental state.”

4 WHORTON v. BOCKTING

Opinion of the Court

medical exam. Respondent testified in his own defense

and denied the assaults, and the defense brought out the

fact that Autumn, unlike many children her age, had

acquired some knowledge about sexual acts, since she had

seen respondent and her mother engaging in sexual inter

course and had become familiar with sexual terms. Id., at

118.

The jury found respondent guilty of three counts of

sexual assault on a minor under the age of 14, and the

trial court imposed two consecutive life sentences and

another concurrent life sentence.

B

Respondent took an appeal to the Nevada Supreme

Court, which handed down its final decision in 1993, more

than a decade before Crawford.2 In analyzing respon

dent’s contention that the admission of Autumn’s out-of

court statements had violated his Confrontation Clause

rights, the Nevada Supreme Court looked to Ohio v. Rob

erts, 448 U. S. 56 (1980), which was then the governing

precedent of this Court. See Bockting v. State, 109 Nev.

103, 847 P. 2d 1364 (1993) (per curiam). Roberts had held

that the Confrontation Clause permitted the admission of

a hearsay statement made by a declarant who was un

available to testify if the statement bore sufficient indicia

of reliability, either because the statement fell within a

firmly rooted hearsay exception or because there were

“particularized guarantees of trustworthiness” relating to

the statement in question. 448 U. S., at 66. Applying

Roberts, the Nevada Supreme Court held that the admis

——————

2 The State Supreme Court initially dismissed respondent’s appeal in

1989, Bockting v. State, 105 Nev. 1023, 810 P. 2d 317 (unpublished

table opinion), but we granted respondent’s petition for a writ of certio

rari and vacated and remanded the case for reconsideration in light of

Idaho v. Wright, 497 U. S. 805 (1990), see Bockting v. Nevada, 497 U. S.

1021 (1990).

Cite as: 549 U. S. ____ (2007) 5

Opinion of the Court

sion of Autumn’s statements was constitutional because

the circumstances surrounding the making of the state

ments provided particularized guarantees of trustworthi

ness. The Court cited the “natural spontaneity” of Au

tumn’s initial statements to her mother, her reiteration of

the same account to Detective Zinovitch several days later,

her use of anatomically correct dolls to demonstrate the

assaults, and her detailed descriptions of sexual acts with

which a 6-year-old would generally not be familiar. Bock

ting, supra, at 109–112, 847 P. 2d, at 1368–1370.

C

Respondent then filed a petition for a writ of habeas

corpus with the United States District Court for the Dis

trict of Nevada, arguing that the Nevada Supreme Court’s

decision violated his Confrontation Clause rights. The

District Court denied the petition, holding that respondent

was not entitled to relief under the habeas statute, 28

U. S. C. §2254(d), because the Nevada Supreme Court’s

decision was not “contrary to” and did not “involv[e] an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” Order in Bockting v. Bayer, No. CV–N–98–0764–

ECR (Mar. 19, 2002), App. 69–70. Respondent then ap

pealed to the United States Court of Appeals for the Ninth

Circuit.

While this appeal was pending, we issued our opinion in

Crawford, in which we overruled Roberts and held that

“[t]estimonial statements of witnesses absent from trial”

are admissible “only where the declarant is unavailable,

and only where the defendant has had a prior opportunity

to cross-examine [the witness].” 541 U. S., at 59. See also

Davis v. Washington, 547 U. S. ___ (2006). We noted that

the outcome in Roberts—as well as the outcome in all

similar cases decided by this Court—was consistent with

the rule announced in Crawford, but we concluded that

6 WHORTON v. BOCKTING

Opinion of the Court

the interpretation of the Confrontation Clause set out in

Roberts was unsound in several respects. See Crawford,

supra, at 60 (“Although the results of our decisions have

generally been faithful to the original meaning of the

Confrontation Clause, the same cannot be said of our

rationales”). First, we observed that Roberts potentially

excluded too much testimony because it imposed Confron

tation Clause restrictions on nontestimonial hearsay not

governed by that Clause. 541 U. S., at 60. At the same

time, we noted, the Roberts test was too “malleable” in

permitting the admission of ex parte testimonial state

ments. 541 U. S., at 60. We concluded:

“Where testimonial statements are involved, we do

not think the Framers meant to leave the Sixth

Amendment’s protection to the vagaries of the rules of

evidence, much less to amorphous notions of ‘reliabil

ity.’ . . . Admitting statements deemed reliable by a

judge is fundamentally at odds with the right to con

frontation. To be sure, the Clause’s ultimate goal is to

ensure reliability of evidence, but it is a procedural

rather than a substantive guarantee. It commands

not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the cru

cible of cross-examination. The Clause thus reflects a

judgment, not only about the desirability of reliable

evidence (a point on which there could be little dis

sent), but about how reliability can best be deter

mined.” Id., at 61.

D

On appeal from the denial of his petition for writ of

habeas corpus, respondent contended that if the rule in

Crawford had been applied to his case, Autumn’s out-of

court statements could not have been admitted into evi

dence and the jury would not have convicted him. Re

spondent further argued that Crawford should have been

Cite as: 549 U. S. ____ (2007) 7

Opinion of the Court

applied to his case because the Crawford rule was either

(1) an old rule in existence at the time of his conviction or

(2) a “ ‘watershed’ ” rule that implicated “the fundamental

fairness and accuracy of the criminal proceeding.” Saffle

v. Parks, 494 U. S. 484, 495 (1990) (quoting Teague, 489

U. S., at 311 (plurality opinion)).

A divided panel of the Ninth Circuit reversed the Dis

trict Court, holding that Crawford applies retroactively to

cases on collateral review. Bockting v. Bayer, 399 F. 3d

1010, as amended, 408 F. 3d 1127 (2005). In the panel’s

lead opinion, Judge McKeown concluded that Crawford

announced a new rule of criminal procedure, 399 F. 3d, at

1014–1016, but that the decision was nevertheless retro

active on collateral review because it announced a water

shed rule that “rework[ed] our understanding of bedrock

criminal procedure,” id., at 1016.3 Judge Noonan con

curred, but his preferred analysis differed from Judge

McKeown’s. Judge Noonan believed that Crawford did not

announce a new rule, 399 F. 3d, at 1022–1024, but “[a]s an

alternative to [this] analysis and in order to provide a

precedent for [the] court,” he “also concur[red] in Judge

McKeown’s analysis and opinion,” id., at 1024. Judge

Wallace, concurring and dissenting, agreed with Judge

McKeown that Crawford announced a new procedural rule

but arguing that Crawford did not rise to the level of a

watershed rule under this Court’s jurisprudence. The

Ninth Circuit denied rehearing en banc, with nine judges

dissenting. 418 F. 3d 1055 (2005).

The panel’s decision that Crawford is retroactive to

cases on collateral review conflicts with the decision of

every other Court of Appeals and State Supreme Court

——————

3 Judge McKeown then held respondent merited habeas corpus relief

under the Antiterrorism and Effective Death Penalty Act of 1996,

because that statute incorporates our Teague v. Lane, 489 U. S. 288

(1989) retroactivity analysis. 399 F. 3d, at 1021–1022.

8 WHORTON v. BOCKTING

Opinion of the Court

that has addressed this issue.4 We granted certiorari to

resolve this conflict. 547 U. S. ___ (2006).

II

A

In Teague and subsequent cases, we have laid out the

framework to be used in determining whether a rule an

nounced in one of our opinions should be applied retroac

tively to judgments in criminal cases that are already final

on direct review. Under the Teague framework, an old

rule applies both on direct and collateral review, but a new

rule is generally applicable only to cases that are still on

direct review. See Griffith v. Kentucky, 479 U. S. 314

(1987). A new rule applies retroactively in a collateral

proceeding only if (1) the rule is substantive or (2) the rule

is a “ ‘watershed rul[e] of criminal procedure’ implicating

the fundamental fairness and accuracy of the criminal

proceeding.” Saffle, supra, at 495 (quoting Teague, supra,

at 311 (plurality opinion)).

B

In this case, it is undisputed that respondent’s convic

tion became final on direct appeal well before Crawford

was decided. We therefore turn to the question whether

Crawford applied an old rule or announced a new one. A

new rule is defined as “a rule that . . . was not ‘dictated by

precedent existing at the time the defendant’s conviction

——————

4 See, e.g., Lave v. Dretke, 444 F. 3d 333 (CA5 2006); Espy v. Massac,

443 F. 3d 1362 (CA11 2006); Murillo v. Frank, 402 F. 3d 786 (CA7

2005); Dorchy v. Jones, 398 F. 3d 783 (CA6 2005); Brown v. Uphoff, 381

F. 3d 1219 (CA10 2004); Mungo v. Duncan, 393 F. 3d 327 (CA2 2004);

Edwards v. People, 129 P. 3d 977 (Colo. 2006) (en banc); Ennis v. State,

122 Nev. ___, 137 P. 3d 1095 (2006); Danforth v. State, 718 N. W. 2d

451 (Minn. 2006); State v. Williams, 695 N. W. 2d 23 (Iowa 2005);

Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005); In re Markel, 154 Wash.

2d 262, 111 P. 3d 249 (2005).

Cite as: 549 U. S. ____ (2007) 9

Opinion of the Court

became final.’ ” Saffle, supra, at 488 (quoting Teague,

supra, at 301 (plurality opinion); emphasis in original).

Applying this definition, it is clear that Crawford an

nounced a new rule. The Crawford rule was not “dictated”

by prior precedent. Quite the opposite is true: The Craw

ford rule is flatly inconsistent with the prior governing

precedent, Roberts, which Crawford overruled. See Davis,

547 U. S., at ___ (slip op., at ___). “The explicit overruling

of an earlier holding no doubt creates a new rule.” Saffle,

supra, at 488.

In concluding that Crawford merely applied an old rule,

Judge Noonan relied on our observation in Crawford that

the holdings in our prior decisions, including those that

applied the Roberts rule, had been generally consistent

with the rule announced in Crawford (and with the Fram

ers’ understanding of the meaning of the Confrontation

Clause, which provided the basis for the Crawford deci

sion). See 541 U. S., at 57–59. But the Crawford Court

was quick to note that “the rationales” of our prior deci

sions had been inconsistent with the Crawford rule. Id.,

at 60. “ ‘The “new rule” principle . . . validates reasonable,

good-faith interpretations of existing precedents made by

state courts even though they are shown to be contrary to

later decisions.’ ” Lockhart v. Fretwell, 506 U. S. 364, 372–

373 (1993) (quoting Butler v. McKellar, 494 U. S. 407, 414

(1990)). And it is stating the obvious to say that, prior to

Crawford, “reasonable jurists,” Graham v. Collins, 506

U. S. 461, 467 (1993), could have reached the conclusion

that the Roberts rule was the rule that governed the ad

mission of hearsay statements made by an unavailable

declarant.

Because the Crawford rule was not dictated by the

governing precedent existing at the time when respon

dent’s conviction became final, the Crawford rule is a new

rule.

10 WHORTON v. BOCKTING

Opinion of the Court

III

A

Because Crawford announced a “new rule” and because

it is clear and undisputed that the rule is procedural and

not substantive, that rule cannot be applied in this collat

eral attack on respondent’s conviction unless it is a “ ‘wa

tershed rul[e] of criminal procedure’ implicating the fun

damental fairness and accuracy of the criminal

proceeding.” Saffle, 494 U. S., at 495 (quoting Teague, 489

U. S., at 311 (plurality opinion)). This exception is “ex

tremely narrow,” Schriro v. Summerlin, 542 U. S. 348, 352

(2004). We have observed that it is “ ‘unlikely’ ” that any

such rules “ ‘ha[ve] yet to emerge,’ ” ibid. (quoting Tyler v.

Cain, 533 U. S. 656 (2001); internal quotation marks

omitted); see also O’Dell v. Netherland, 521 U. S. 151, 157

(1997); Graham, supra, at 478; Teague, supra, at 313

(plurality opinion). And in the years since Teague, we

have rejected every claim that a new rule satisfied the

requirements for watershed status. See, e.g., Summerlin,

supra (rejecting retroactivity for Ring v. Arizona, 536 U. S.

584 (2002)); Beard v. Banks, 542 U. S. 406 (2004) (reject

ing retroactivity for Mills v. Maryland, 486 U. S. 367

(1988)); O’Dell, supra (rejecting retroactivity for Simmons

v. South Carolina, 512 U. S. 154 (1994)); Gilmore v. Tay

lor, 508 U. S. 333 (1993) (rejecting retroactivity for a new

rule relating to jury instructions on homicide); Sawyer v.

Smith, 497 U. S. 227 (1990) (rejecting retroactivity for

Caldwell v. Mississippi, 472 U. S. 320 (1985)).

In order to qualify as watershed, a new rule must meet

two requirements. First, the rule must be necessary to

prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate

conviction. Summerlin, supra, at 356; see also Tyler, 533

U. S., at 665. Second, the rule must “alter our under

standing of the bedrock procedural elements essential to

the fairness of a proceeding.” Ibid. (internal quotation

marks and emphasis omitted). We consider each of these

Cite as: 549 U. S. ____ (2007) 11

Opinion of the Court

requirements in turn.

B

The Crawford rule does not satisfy the first requirement

relating to an impermissibly large risk of an inaccurate

conviction. To be sure, the Crawford rule reflects the

Framers’ preferred mechanism (cross-examination) for

ensuring that inaccurate out-of-court testimonial state

ments are not used to convict an accused. But in order for

a new rule to meet the accuracy requirement at issue here,

“[i]t is . . . not enough . . . to say that [the] rule is aimed at

improving the accuracy of trial,” Sawyer, 497 U. S., at 242

or that the rule “is directed toward the enhancement of

reliability and accuracy in some sense,” id., at 243. In

stead, the question is whether the new rule remedied “an

‘ “impermissibly large risk” ’ ” of an inaccurate conviction.

Summerlin, supra, at 366.

Guidance in answering this question is provided by

Gideon v. Wainwright, 372 U. S. 335 (1963), to which we

have repeatedly referred in discussing the meaning of the

Teague exception at issue here. See, e.g., Beard, supra, at

417; Saffle, supra, at 495; Gilmore, supra, at 364 (Black

mun, J., dissenting). In Gideon, the only case that we

have identified as qualifying under this exception, the

Court held that counsel must be appointed for any indi

gent defendant charged with a felony. When a defendant

who wishes to be represented by counsel is denied repre

sentation, Gideon held, the risk of an unreliable verdict is

intolerably high. See Mickens v. Taylor, 535 U. S. 162,

166 (2002); United States v. Cronic, 466 U. S. 648, 658–

659 (1984); Gideon, supra, at 344–345. The new rule

announced in Gideon eliminated this risk.

The Crawford rule is in no way comparable to the

Gideon rule. 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.

12 WHORTON v. BOCKTING

Opinion of the Court

Crawford overruled Roberts because Roberts was inconsis

tent with the original understanding of the meaning of the

Confrontation Clause, not because the Court reached the

conclusion that the overall effect of the Crawford rule

would be to improve the accuracy of fact finding in crimi

nal trials. Indeed, in Crawford we recognized that even

under the Roberts rule, this Court had never specifically

approved the introduction of testimonial hearsay state

ments. 542 U. S., at 57–60. Accordingly, it is not surpris

ing that the overall effect of Crawford with regard to the

accuracy of fact-finding in criminal cases is not easy to

assess.

With respect to testimonial out-of-court statements,

Crawford is more restrictive than was Roberts, and this

may improve the accuracy of fact-finding in some criminal

cases. Specifically, under Roberts, there may have been

cases in which courts erroneously determined that testi

monial statements were reliable. But see 418 F. 3d, at

1058 (O’Scannlain, J., dissenting from denial of rehearing

en banc) (observing that it is unlikely that this occurred

“in anything but the exceptional case”). But whatever

improvement in reliability Crawford produced in this

respect must be considered together with Crawford’s

elimination of Confrontation Clause protection against the

admission of unreliable out-of-court nontestimonial state

ments. Under Roberts, an out-of-court nontestimonial

statement not subject to prior cross-examination could not

be admitted without a judicial determination regarding

reliability. Under Crawford, on the other hand, the Con

frontation Clause has no application to such statements

and therefore permits their admission even if they lack

indicia of reliability.

It is thus unclear whether Crawford, on the whole,

decreased or increased the number of unreliable out-of

court statements that may be admitted in criminal trials.

But the question here is not whether Crawford resulted in

Cite as: 549 U. S. ____ (2007) 13

Opinion of the Court

some net improvement in the accuracy of fact finding in

criminal cases. Rather, “the question is whether testi

mony admissible under Roberts is so much more unreli

able than that admissible under Crawford that the Craw

ford rule is ‘ one without which the likelihood of an

accurate conviction is seriously diminished.’ ” 399 F. 3d, at

1028 (Wallace, J., concurring and dissenting) (quoting

Summerlin, 542 U. S., at 352 (internal quotation marks

omitted; emphasis in original). Crawford did not effect a

change of this magnitude.

C

The Crawford rule also did not “alter our understanding

of the bedrock procedural elements essential to the fair

ness of a proceeding.” Sawyer, supra, at 242 (internal

quotations marks omitted and emphasis in original).

Contrary to the suggestion of the Court of Appeals, see

399 F. 3d, at 1019 (relying on the conclusion that “the

right of cross-examination as an adjunct to the constitu

tional right of confrontation” is a “bedrock procedural

rul[e]”), this requirement cannot be met simply by show

ing that a new procedural rule is based on a “bedrock”

right. We have frequently held that the Teague bar to

retroactivity applies to new rules that are based on “bed

rock” constitutional rights. See, e.g., Beard, 542 U. S., at

418. Similarly, “[t]hat a new procedural rule is ‘funda

mental’ in some abstract sense is not enough.” Summerlin,

542 U. S., at 352.

Instead, in order to meet this requirement, a new rule

must itself constitute a previously unrecognized bedrock

procedural element that is essential to the fairness of a

proceeding. In applying this requirement, we again have

looked to the example of Gideon, and “we have not hesi

tated to hold that less sweeping and fundamental rules”

do not qualify. Beard, supra, at 418.

In this case, it is apparent that the rule announced in

14 WHORTON v. BOCKTING

Opinion of the Court

Crawford, while certainly important, is not in the same

category with Gideon. Gideon effected a profound and

“ ‘sweeping’ ” change. Beard, supra, at 418 (quoting O’Dell,

521 U. S., at 167). The Crawford rule simply lacks the

“primacy” and “centrality” of the Gideon rule, Saffle, 494

U. S., at 495, and does not qualify as a rule that “alter[ed]

our understanding of the bedrock procedural elements

essential to the fairness of a proceeding,” Sawyer, 497

U. S., at 242 (internal quotation marks and emphasis

omitted).

IV

In sum, we hold that Crawford announced a “new rule”

of criminal procedure and that this rule does not fall

within the Teague exception for watershed rules. We

therefore reverse the judgment of the Court of Appeals

and remand the case for further proceedings consistent

with this opinion.

It is so ordered.