Amicus Curiae Brief — Whorton v. Bockting

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In the Supreme Court of the Qnited States

GLEN WHORTON, DIRECTOR, NEVADA DEPARTMENT

OF CORRECTIONS, PETITIONER

Vv.

MARVIN HOWARD BOCKTING

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE 8S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

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QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether the rule in Crawford v. Washington, 541

U.S. 36, 68 (2004), that the testimonial hearsay state-

ments of an unavailable declarant are inadmissible

absent a prior opportunity for cross-examination applies

retroactively to cases on collateral review.

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TABLE OF CONTENTS

Page

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DUNGY GE GTI, 6.6. onc cccccvncssccccveccsasevececs 7

Argument:

Crawford does not apply retroactively to cases on

SI ho cicba cud ddenehsiduadscanedess 10

A. Crawford announced a new rule ................ 12

B. Crawford established a procedural rather than

ID sith vnnd eh ceni peas dxecenrsee 14

C. Crawford did not establish a watershed

ID icin ccchncncadi-dacytessvedéces 15

1. Application of Roberts rather than

Crawford does not seriously diminish

OIE. os vie cdeccosnescdeseddccsdennse 16

2. Crawford did not announce a bedrock rule

TIE Ken ptcseccsencdcctese 21

GED 6 nv Cdbincudsnndderss cubs cduynevavesstaen 28

TABLE OF AUTHORITIES

Cases:

Arizona v. Roberson, 486 U.S. 675 (1988) ............. 18

Barber v. Paige, 390 U.S. 719 (1968) .........2..e0ee. 28

Beard v. Banks, 542 U.S. 406 (2004) ...... 12, 13, 14, 15, 23

Berger v. California, 393 U.S. 314 (1969) ............. 28

Bintz v. Bertrand, 403 F.3d 859 (7th Cir.), cert.

Ss Bes Ge. SUP GIUED ic dcteccccccscvcveene 12

Brown v. Uphoff, 381 F.3d 1219 (10th Cir. 2004), cert.

Gented, 643 US. 107D GREG)... cc ccccccscccccvess 12

Bruton v. United States, 391 U.S. 123 (1968) .......... 28

(111)

Cases—Continued: Page

Butler v. McKellar, 484 U.S. 407 (1990) ............... 18

Caldwell v. Mississippi, 472 U.S. 320 (1985) ........... 22

California v. Green, 399 U.S. 149 (1970) .............. 26

Caspari v. Bohlen, 510 U.S. 383 (1994) .............6. 18

Colorado v. Connelly, 479 U.S. 157 (1986) ............. 25

Crawford v. Washington, 541 U.S. 36 (2004) ...... passim

Davis v. Washington, 126 S. Ct. 2266 (2006) ..... 13, 17, 27

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ... 24, 25, 27

Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005) .......... 12

Espy v. Massac, 443 F.3d 1362 (11th Cir. 2006) ........ 12

Gideon v. Wainwright, 372 U.S. 335 (1963) ........ 7, 9,21

Graham v. Collins, 506 U.S. 461 (1993) ............4.. 12

Idaho v. Wright, 497 U.S. 805 (1990) ......... 3, 11, 16, 24

Lave v. Dretke, 444 F.3d 333 (5th Cir.), petition for

cert. pending, No. 05-11552 (filed June 13, 2006) .... 12

Manson v. Brathwaite, 482 U.S. 98 (1977) ............ 25

Maryland v. Craig, 497 U.S. 836 (1990) ...........645. 26

Mattox v. United States, 156 U.S. 237 (1895) .......... 26

Mills v. Maryland, 486 U.S. 367 (1988) ............4.. 23

Mungo v. Duncan, 393 F.3d 327 (2d Cir. 2004), cert.

denied, 544 U.S. 1002 (2005) ................45: 12,17

Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005) ... 12, 14, 17

O'Dell v. Netherland, 521 U.S. 151 (1997) ............. 22

Ohio v. Roberts, 448 U.S. 56 (1980) .............. passim

Pointer v. Texas, 380 U.S. 400 (1965) ..............4.. 27

Cases—Continued: Page

Reynolds v. United States, 98 U.S. 145 (1879) ......... 26

Roberts v. Russell, 392 U.S. 293 (1968) ............... 28

Saffle v. Parks, 494 U.S. 484 (1990) ..... 2.660050 11,18

Sawyer v. Smith, 497 U.S. 227 (1990) ............ 5, 22, 24

Schriro v. Summerlin, 542 U.S. 348

DD hs ch beiashedkeende peduendoust 11, 15, 18, 20, 21

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ......... 14

Simmons v. South Carolina, 512 U.S. 154 (1994) ....... 22

Teague v. Lane, 489 U.S. 288 (1989) ............-. 5, 7, 11

Tennessee v. Street, 471 U.S. 409 (1985) .............. 26

Tyler v. Cain, 533 U.S. 656 (2001) ........ 12, 14, 16, 17, 21

United States v. Cronic, 466 U.S. 648 (1984) ........... 23

United States v. Inadi, 475 U.S. 387 (1986)°........... )

White v. Illinois, 502 U.S. 346 (1992) .............. 11,13

Constitution and statutes:

U.S. Const. :

Amend. V (Double Jeopardy Clause) .............. 18

Amend. VI (Confrontation Clause) ........... passim

EE nics Au eb heated bacesseecdenes ust 22

Amend. XTV (Due Process Clause) ............. 22, 25

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In the Supreme Court of the Gnited States

No. 05-595

GLEN WHORTON, DIRECTOR, NEVADA DEPARTMENT

: OF CORRECTIONS, PETITIONER

MARVIN HOWARD BOCKTING

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether the rule in

Crawford v. Washington, 541 U.S. 36, 68 (2004), that the

testimonial hearsay statements of an unavailable

declarant are inadmissible absent a prior opportunity

for cross-examination applies retroactively to cases on

collateral review. The United States has a substantial

interest in the resolution of that question. The rule

adopted by the Court in Crawford applies to federal as

well as state criminal trials. Whether Crawford applies

retroactively will therefore have a significant impact on

collateral challenges to federal convictions.

(1)

STATEMENT

1. In 1987, respondent lived in a motel in Las Vegas,

Nevada, with his wife, Laura, their child, Honesty, and

his wife’s six-year-old daughter, Autumn. Pet. App. 18a,

104a-105a. On Saturday evening, January 16, 1987, Au-

tumn woke up frightened and crying. /d. at 18a, 105a.

She was initially reluctant to tell her mother what was

wrong because she was afraid that respondent would

“beat her butt” and that “mom would make dad leave.”

Id. at 105a. After receiving reassurance, Autumn told

her mother that respondent had repeatedly put his “pee-

pee in her pee-pee,” that he put his “pee-pee in her

butt,” that he made her “suck his pee-pee like a sucker,”

and that “he put his chin on her pee-pee.” /d. at 105a

n.l.

On the following Tuesday, January 19, 1987, Laura

took Autumn to the hospital, where a doctor examined

her. Pet. App. 18a, 105a. The doctor found a tear in Au-

tumn’s rectal sphincter and a wide opening in her

hymenal ring. /bid. Detective Zinovitch attempted to

question Autumn at the hospital, but she was distraught

and responded only that someone had hurt her. /bid.

Two days later, Detective Zinovitch interviewed Au-

tumn at his office in a room designed to put her at ease.

Pet. App. 19a, 105a-106a. Autumn gave the same de-

scription of respondent’s conduct that she had given to

her mother. /bid. Autumn also demonstrated with ana-

tomically correct dolls what respondent had done to her.

Id. at 106a. Respondent was arrested and charged with

four counts of sexual assault on his stepdaughter. /bid.

At respondent’s preliminary hearing, Autumn testi-

fied that she could not remember what respondent had

done to her or what she had told her mother or the de-

tective. Pet. App. 19a, 106a-107a. The judge declared

Autumn an unavailable witness, and the preliminary

hearing proceeded with the testimony of Laura and De-

tective Zinovitch. /d. at 19a, 107a.

At trial, the judge held a hearing outside the jury’s

presence to determine whether Autumn would be able to

testify. Pet. App. 107a. When asked to take the oath,

Autumn did not respond. /bid. Efforts to persuade Au-

tumn to cooperate were unsuccessful, and the judge de-

clared her unavailable to testify at trial. /bid.

The prosecutor sought to introduce Autumn’s state-

ments to her mother and Detective Zinovitch pursuant

to Nev. Rev. Stat. § 51.385(1)(a) (2005). Pet. App. 107a.

That statute allows the admission of a child’s out-of-

court statements describing sexual abuse when the cir-

cumstances afford sufficient guarantees of trustworthi-

ness and the child is unable to testify or is unavailable.

Nev. Rev. Stat. § 51.385(1)(a) (2005). Following a hear-

ing, the court admitted the statements. Pet. App. 107a.

The court also admitted into evidence Autumn’s testi-

mony at the preliminary hearing. /bid.

2. Respondent was convicted of sexual abuse of a

minor and was sentenced to life imprisonment. Pet.

App. 19a. The Nevada Supreme Court dismissed respon-

dent’s appeal, rejecting his claim that admission of his

step-daughter’s statements pursuant to Nev. Rev. Stat.

§ 51.385(1) (2005) violated the Confrontation Clause.

Pet. App. 120a-123a. This Court vacated and remanded

for further consideration in light of Jdaho v. Wright, 497

U.S. 805 (1990). Pet. App. 119a.

On remand, the Nevada Supreme Court affirmed

Bockting’s conviction. Pet. App. 103a-118a. Applying

Wright, the court held that there were sufficient particu-

larized guarantees of trustworthiness to permit the in-

troduction of Autumn’s statements to her mother and

Detective Zinovitch. /d. at 112a-118a. The court con-

cluded that the following circumstances together showed

that Autumn’s statements were trustworthy: “(1) suffi-

cient spontaneity and consistent repetition existed in the

child’s various statements; (2) the child’s mental state

after a sudden awakening when she first told of her ex-

periences was one of agitation and fear, both apparent

from her statements and the fact that she was visibly

shaken and crying; (3) the child’s description of the inci-

dents indicated a knowle ige of sexual conduct not pres-

ent in most children six years of age; (4) the child-like

terminology used by the victim was reflective of candor

rather than coaching; (5) the child’s display of affection

for [respondent] as he was preparing to leave was indic-

ative of love rather than hate.” /d. at 115a-116a.

Respondent petitioned the state trial court for post-

conviction relief. Pet. App. 83a. The court denied the

petition, and the Nevada Supreme Court dismissed the

appeal. /bid.

3. Respondent then filed a petition for a writ of ha-

beas corpus in federal district court. Pet. App. 79a. In

an amended complaint, he asserted, inter alia, that the

admission of his stepdaughter’s out-of-court statements

violated the Confrontation Clause. /d. at 80a. The dis- .

trict court denied relief, holding that the Nevada Su-

preme Court’s decision was neither “contrary to,” nor

“involved an unreasonable application of, clearly estab-

lished federal law” and that habeas relief was therefore

unavailable under 28 U.S.C. 2254(d)(1). Pet. App. 83a-

89a (quoting 28 U.S.C. 2254(d)(1)).

While Bockting’s appeal of that decision was pending

before the Ninth Circuit, this Court held in Crawford v.

Washington, 541 U.S. 36 (2004), that the Confrontation

Clause of the Sixth Amendment generally bars the ad-

mission into evidence of testimonial out-of-court state-

ments unless the declarant is unavailable to testify and

the defendant had a prior opportunity to cross-examine

him. The court of appeals requested supplemental brief-

ing on whether Crawford applied retroactively to respon-

dent’s collateral challenge. Pet. App. 77a-78a.

4. A divided panel of the court of appeals reversed.

Pet. App. 15a-76a. A majority of the court (Judge

McKeown joined by Judge Wallace) first held that

Crawford was a “new rule” under Teague v. Lane, 489

U.S. 288 (1989), because it departed from the test of ad-

missibility set forth in Ohio v. Roberts, 448 U.S. 56

(1980). The court explained that, while Roberts allowed

admission of all hearsay statements as long as the state-

ments fell within a firmly rooted hearsay exception or

bore particularized guarantees of trustworthiness,

Crawford held that testimonial hearsay statements are

inadmissible unless there has been a prior opportunity

for cross-examination. Pet. App. 21a-24a.

A majority of the court (Judge McKeown, joined by

Judge Noonan) then held that Crawford’s requirement

of cross-examination as a precondition for admissibil'ty

of testimonial hearsay is applicable to cases on collateral

review because it is a bedrock rule of criminal procedure

and therefore falls within the second exception to

Teague’s bar on retroactivity. Pet. App. 24a-34a. The

court concluded that the rule in Crawford is one “with-

out which the accuracy of convictions would be seriously

undermined.” /d. at 30a. The court further concluded

that Crawford’s cross-examination rule cannot be dis-

missed as “incremental,” but instead is “an absolute pre-

requisite to fundamental fairness.” /bid. (quoting Saw-

yer v. Smith, 497 U.S. 227, 244 (1990)).

A majority of the court (Judge McKeown, joined by

Judge Noonan) also held that 28 U.S.C. 2254(d)(1) did

not preclude habeas relief because the Nevada Supreme

Court’s decision upholding the admissibility of Autumn’s

hearsay statements to the detective was “contrary to

* * * clearly established Federal law.” Pet. App. 35a

(quoting 28 U.S.C. 2254(d)(1)). Interpreting Section

2254(d)(1) to incorporate the Teague exceptions, the

court reasoned that the Nevada Supreme Court had

reached a decision “‘contrary to’ established Supreme

Court precedent in Crawford, as made retroactive under

Teague.” Id. at 36a. Finally, the court held that admis-

sion of Autumn’s statements to the detective was not

harmless error. /d. at 36a-37a.

In a concurring opinion, Judge Noonan expressed the

view that Crawford did not establish a new rule. Pet.

App. 37a-4la. Judge Noonan reasoned that prior Su-

preme Court decisions, including Roberts, had admitted

testimonial statements only when there was a prior op-

portunity for cross-examination. /d. at 40a. While ac-

knowledging that Crawford departed from the rationale

of Roberts, Judge Noonan concluded that “correction of

a misinterpretation does not create a new rule,” and that

a “change in rationale” is not “a change in rules.” /bid.

Judge Wallace concurred in part and dissented

in part. Pet. App. 4la-76a. He agreed with Judge

McKeown that Crawford established a new rule, but he

dissented from the panel’s holding that Crawford falls

within the second Teague exception. /d. at 41a-53a.

Judge Wallace explained that “[t]here is simply no solid

evidence that Roberts has so seriously undermined the

accuracy of criminal proceedings as to discredit the host

of final convictions generated pursuant to its authority.”

Id. at 48a. Judge Wallace further explained that the

focus of the Court’s decision in Crawford was on “fidelity

to the Framers’ intentions, rather than the accuracy of

convictions obtained under the Roberts regime.” /d. at

5la. Because Judge Wallace concluded that Crawford is

not retroactive under Teague, he did not reach the ques-

tion whether “AEDPA ‘nullifies’ the Teague exceptions,

such that no ‘new rule’—even one fitting within one of

those exceptions—may serve as the basis for habeas re-

lief.” Jd. at 53a (citation omitted).

With nine judges dissenting, the Ninth Circuit de-

nied rehearing en banc. Pet. App. la-12a. In an opinion

joined by all of the dissenting judges, Judge O’Scannlain

reasoned that Gideon v. Wainwright, 372 U.S. 335

(1963), is the only new rule that this Court has viewed as

satisfying the second Teague exception, and that

Crawford does not approach Gideon in the magnitude of

its effect on the accuracy of criminal proceedings. Pet.

App. 3a.

SUMMARY OF ARGUMENT

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plu-

rality opinion), new constitutional rules do not apply

retroactively unless they are substantive rules or water-

shed rules of criminal procedure. Because Crawford v.

Washington, 541 U.S. 36, 68 (2004), announced a new

rule that is neither substantive nor a watershed rule of

criminal procedure, it does not apply retroactively on

collateral review.

A. A decision that overrules a prior decision neces-

sarily creates a new rule, and Crawford falls in that cat-

egory. In holding that a prior opportunity for cross-ex-

amination is an indispensable requirement for admission

of testimonial hearsay of an unavailable declarant and

that a finding of reliability is insufficient, Crawford

overruled Ohio v. Roberts, 448 U.S. 56 (1980), and estab-

lished a new rule.

B. Crawford’s new rule is not substantive and there-

fore does not fall within the first Teague exception. The

rule that testimonial hearsay may not be admitted ab-

sent a prior opportunity for cross-examination is mani-

festly procedural. It has nothing to do with the range of

conduct or the class of persons that the law punishes.

Instead, it affects only the manner of determining

whether a defendant has violated the law. That rule is

therefore procedural.

C. Crawford’s new rule also does not fit within

Teague’s second exception for watershed rules of crimi-

nal procedure. That exception applies only when (1)

infringement of the new rule seriously diminishes the

accuracy of convictions, and (2) the rule alters our un-

derstanding of the bedrock procedural elements essen-

tial to a fair trial. Crawford’s new rule satisfies neither

requirement.

1. Because the old rule of Roberts incorporated a

reliability requirement—allowing testimonial hearsay to

be introduced only when it was so trustworthy that

cross-examination would not significantly add to reli-

ability—the admission of evidence allowed by Roberts

but excluded by Crawford could not have seriously di-

minished the accuracy of convictions. Indeed, Roberts,

whatever its deficiencies, also enhanced accuracy rela-

tive to the more textually-grounded Crawford rule in

two respects. When a declarant who has made a highly

reliable out-of-court statement is unavailable to testify,

the effect of Crawford’s exclusionary rule is the loss of

highly reliable evidence that would have been admissible

under Roberts. And because Roberts requires adequate

indicia of reliability for both testimonial and non-testi-

monial hearsay, the Roberts rule furnishes a greater

guarantee of reliability with respect to non-testimonial

hearsay. Roberts’ accuracy-enhancing features rein-

force the conclusion that its application does not seri-

ously diminish accuracy.

The reasoning in Crawford is fully consistent with

that conclusion. Crawford did not overrule Roberts

based on a determination that Roberts had seriously

diminished accuracy, but because it deviated from the

Framers’ understanding of the meaning of the Confron-

tation Clause.

2. Crawford also did not alter our understanding of

bedrock elements of criminal procedure that are essen-

tial to a fair trial. It has nowhere near the fundamental

and sweeping importance of Gideon v. Wainwright, 372

U.S. 335 (1963), the only rule that this Court has identi-

fied as falling within Teagwe’s second exception. The

right-to-counsel established in Gideon pervasively af-

fects the fairness of every aspect of the trial, while

Crawford affects the admissibility of one narrow cate-

gory of evidence—testimonial hearsay. Indeed, because

Roberts had already excluded testimonial hearsay unless

it was sufficiently trustworthy, Crawford only incremen-

tally affected the admissibility of that category of evi-

dence. In light of its limited scope and incremental ef-

fect, Crawford cannot be viewed as indispensable to a

fair trial.

That is particularly true because a series of comple-

mentary procedural protections helped to ensure that

trials under Roberts were fundamentally fair. Among

other things, a defendant could cross-examine the wit-

ness to the testimonial statement, introduce evidence

that would call into question the veracity of the

declarant or the reliability of his statement, and count

on the common sense of the jury to evaluate the reliabil-

ity of the statement in light of all the evidence.

Crawford’s relationship with the large body of Con-

frontation Clause law that preceded it confirms its non-

bedrock status. It had no effect on numerous Confron-

tation Clause principles, including those governing

cross-examination of live witnesses and face-to-face con-

frontation. And while it overruled Roberts, it is consis-

tent with the results of every prior decision except one.

Because Crawford is one of several rules that implement

the right to confrontation, and its incremental protection

is not indispensable to a fair trial, it is not the kind of

bedrock rule that falls within Teague’s second exception.

ARGUMENT

CRAWFORD DOES NUT APPLY RETROACTIVELY TO

CASES ON COLLATERAL REVIEW

In Crawford v. Washington, 541 U.S. 36, 68 (2004),

the Court held that testimonial hearsay from an unavail-

able declarant is generally inadmissible under the Con-

frontation Clause unless the defendant had a prior op-

portunity for cross-examination. The question pre-

sented in this case is whether Crawford’s requirement

of a prior opportunity for cross-examination of the

declarant of a testimonial statement applies retroac-

tively to cases on collateral review. '

' The only testimonial hearsay at issue here is Autumn’s statement

to Detective Zinovitch. The Nevada Supreme Court determined that

Autumn was unavailable. Pet. App. 108a n.4. The question whether

Crawford's unavailability requirement applies retroactively is thus not

at issue here. In any event, it is unclear whether the law in effect at the

time respondent’s conviction became final would have required

unavailability as a precondition for admission of Autumn’s statement to

the detective. See Ohio v. Roberts, 448 U.S. 56, 65 (1980) (“In the usual

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plu-

rality opinion), new constitutional rules are generally

inapplicable to cases that have already become final.

That general bar on retroactivity reflects a recognition

that “[a]pplication of constitutional rules not in existence

at the time a conviction became final seriously under-

mines the principle of finality which is essential to the

operation of our criminal justice system.” /d. at 309.

The general rule against retroactive application of new

rules is subject to two limited exceptions. First, “[nlew

substantive rules generally apply retroactively.”

Schriro v. Summerlin, 542 U.S. 348, 351 (2004). Second,

new procedural rules apply retroactively only when they

constitute “watershed rules of criminal procedure impli-

cating the fundamental fairness and accuracy of the

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

(1990) (internal quotation marks and citation omitted).

The latter category “is extremely narrow,” Summerlin,

542 U.S. at 352, and “it is unlikely that any of these wa-

case * * * , the prosecution must either produce, or demonstrate the

unavailability of, the declarant whose statement it wishes to use against

the defendant.”); United States v. Inadi, 475 U.S. 387 (1986) (unavail-

ability is not a requirement for the admission of statements made in

furtherance of a conspiracy); Jdaho v. Wright, 497 U.S. 805, 816 (1990)

(assuming without deciding that unavailability was a precondition to

admissibility of a victim’s statements to a doctor that were not made in

furtherance of medical treatment); White v. Illinois, 502 U.S.346 (1992)

(unavailability requirement does not apply to excited utterances or

statements made for purpose of medical diagnosis). Judge Wallace, the

only judge who examined respondent’s Confrontation Clause claim

under Roberts, concluded that Roberts required a finding of unavailabil-

ity. Pet. App. 57a. He further concluded that the Nevada Supreme

Court’s finding of unavailability was not unreasonable and that

respondent therefore was not entitled to federal habeas relief. Jd. at

b8a-G2a.

tershed rules ha|s] yet to emerge.” Tyler v. Cain, 533

U.S. 656, 667 n.7 (2001) (internal quotation marks and

citation omitted). Because Crawford’s cross-examina-

tion holding is a new rule, and that rule is neither a sub-

stantive rule nor a watershed rule of criminal procedure,

it does not apply retroactively on collateral review.”

A. Crawford Announced A New Rule

A rule is “new” for Teague purposes unless it was

“dictated” by the precedent in effect when the defen-

dant’s conviction became final. Beard v. Banks, 542 U.S.

406, 413 (2004) (citation omitted). While that inquiry

can be difficult in some cases, no such difficulty arises

when a decision overrules a prior decision. Whatever

weaknesses may be apparent in a precedent of this

Court, such a precedent can scarcely dictate its own

overruling. Any decision that overrules a prior decision

necessarily creates a new rule. Graham v. Collins, 506

U.S. 461, 467 (1993). Crawford is such a decision.

When respondent’s conviction became final, Ohio v.

Roberts, 448 U.S. 56 (1980), allowed admission of any

out-of-court statement of an unavailable declarant when

the statement had “adequate indicia of reliability.” /d.

at 66 (internal quotation marks and citation omitted).

Statements had adequate indicia of reliability when they

* Other than the court below, every court of appeals that has con-

sidered the question has reached that conclusion. Mungo v. Duncan,

393 F.3d 327, 332-336 (2d Cir. 2004), cert. denied, 544 U.S. 1002 (2005);

Lave v. Dretke, 444 F.3d 333, 334-336 (5th Cir.), petition for cert. pend-

ing, No. 05-11552 (filed June 13, 2006); Dorchy v. Jones, 398 F 3d 783,

(6th Cir. 2005); Bintz v. Bertrand, 403 F.3d 859, 865-867 (7th Cir.), cert.

denied, 126 S. Ct. 174 (2005); Murillo v. Frank, 402 F.3d 786, 788-791

(7th Cir. 2005); Brown v. Uphoff, 381 F.3d 1219, 1225-1227 (10th Cir.

2004), cert. denied, 543 U.S. 1079 (2005); Espy v. Massac, 443 F.3d

1362, 1366-1367 (11th Cir. 2006).

fell within a “firmly rooted hearsay exception” or when

they bore “particularized guarantees of trustworthi-

ness.” /bid. Crawford held that, with respect to testi-

monial out-of-court statements, a finding of reliability is

insufficient to satisfy the Confrontation Clause. As to

that class of hearsay statements, the Court held, the

Confrontation Clause bars admission unless there has

been a prior opportunity for cross-examination. 541

U.S. at 68. In holding that a prior opportunity for cross-

examination is an indispensable requirement for admis-

sion of testimonial hearsay and that a finding of reliabil-

ity is insufficient, Crawford overruled Roberts and es-

tablished a new rule. See Davis v. Washington, 126 S.

Ct. 2266, 2275 n.4 (2006) (“We overruled Roberts in

Crawford by restoring the * * * cross-examination

requirement! |.”).

Crawford cannot be excised from the category of new

rules on the theory that no prior Supreme Court deci-

sion had upheld admission of testimonial statements

absent a prior opportunity for cross-examination. See

Pet. App. 39a-40a (Noonan, J.). In White v. Illinois, 502

U.S. 346, 349-351 (1992), the Court upheld admission of

a child’s statements to a police officer about a past inci-

dent even though there was no prior opportunity for

cross-examination. The Court in Crawford expressly

a>xnowledged that White was “arguably in tension with

the rule requiring a prior opportunity for cross-examina-

tion.” 541 U.S. at 58 n.8.

More fundamentally, in deciding whether a decision

establishes a new rule under Teague, the question is not

whether it can be harmonized with the results of prior

precedents, but whether it is compelled by the constitu-

tional interpretation that produced those results.

Banks, 542 U.S. at 411. The precedential effect of the

Court’s decisions is determined not only by their specific

results, but also by the “rationale upon which the Court

bused the results.” Seminole Tribe v. Florida, 517 U.S.

44, 66-67 (1996); accord Tyler, 533 U.S. at 663 n.4.

Whether or not any prior case upheld admission of testi-

monial hearsay not subject to cross-examination, the

constitutional interpretation in effect when respondent’s

conviction became final allowed admissiva of such state-

ments when they had adequate indicia of reliability.

Because Crawford overruled that interpretation of the

Constitution, it established a new rule.

For similar reasons, that Crawford corrected a mis-

interpretation of the Constitution does not prevent the

decision from having created a new rule. Pet. App. 40a

(Noonan, J.). The benchmark for measuring whether a

rule is “new” is not the original meaning of the Constitu-

tion, but the interpretation of the Constitution in effect

when the defendant’s conviction became final. Banks,

542 U.S. at 411. Thus, while Crawford’s overruling of

Roberts may have restored the original meaning of the

Confrontation Clause, it nonetheless created a new rule.

See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005)

(“Crawford was not ‘dictated’ by Roberts * * * ; it

broke from [it]. That the break takes the form of a re-

turn to an older, less flexible but historically better

grounded approach does not make it less a break.”).

B. Crawford Established A Procedural Rather Than A Sub-

stantive Rule

Because Crawford established a new rule, it does not

apply retroactively unless it falls within one of the two

Teague exceptions to the bar on retroactive application

of new rules. Crawford does not fall within the first ex-

ception for new substantive rules because Crawford’s

holding that testimonial hearsay is inadmissible absent

a prior opportunity for cross-examination is a proce-

dural rather than a substantive rule.’

For Teague purposes, a rule is substantive when “it

alters the range of conduct or the class of persons that

the law punishes.” Summerlin, 542 U.S. at 353. In con-

trast, a rule is procedural when it regulates “the manner

of determining the defendant’s culpability.” /b¢d. Un-

der that standard, the holding in Crawford is clearly

procedural rather than substantive. The rule that testi-

monial hearsay may not be admitted absent a prior op-

portunity for cross-examination has nothing to do with

the range of conduct or the class of persons that the law

punishes. Instead, whether viewed as a rule governing

the admissibility of evidence, or a rule that entitles a

defendant to cross-examine a declarant who makes a

testimonial statement, it affects only the manner of de-

termining whether a defendant has violated the law.

Thus, as Crawford itself made clear, its rule that testi-

monial hearsay is inadmissible absent a prior opportu-

nity for cross-examination is “a procedural rather than

a substantive guarantee.” 541 U.S. at 61.

C. Crawford Did Not Establish A Watershed Procedural

Rule

The court of appeals recognized that Crawford estab-

lished a new rule and that the rule is procedural rather

than substantive. Pet. App. 24a. It concluded, however,

that the rule fit within Teague’s second exception for

* While the Court has on occasion referred to rules that place con-

duct or persons beyond the State’s power to punish as exceptions to

Teague’s bar on retroactivity, “they are more accurately characterized

as substantive rules not subject to the bar.” Summerlin, 542 U.S. at

352 n.4; Banks, 542 US. at 417 n.7.

watershed rules of criminal procedure. /d. at 24a-25a.

That conclusion is incorrect. A rule has watershed sta-

tus only if it satisfies two requirements: (1) “[i]nfringe-

ment of the rule must seriously diminish the likelihood

of obtaining an accurate conviction,” and (2) “the rule

must alter our understanding of the bedrock procedural

elements essential to the fairness of a proceeding.” T'y-

ler, 5383 U.S. at 665 (internal quotation marks, citations,

and emphasis omitted). The Crawford rule does not sat-

isfy either requirement.

1. Application Of Roberts Rather Than Crawford Does

Not Seriously Diminish Accuracy

a. Applying the Roberts rule rather than the Craw-

ford rule does not seriously diminish the likelihood of an

accurate conviction because Roberts incorporated a re-

quirement of reliability. Roberts did not freely permit

the admission of all out-of-court statements not subject

to prior cross-examination. Rather, Roberts authorized

the admission of such statements only when they bore

“adequate indicia of reliability.” 448 U.S. at 66 (internal

quotation marks and citation omitted). That standard

was a stringent one. “Reflecting [the Confrontation

Clause’s] underlying purpose to augment accuracy in the

factfinding process by ensuring the defendant an effec-

tive means to test adverse evidence,” Roberts “count-

enance[d] only hearsay marked with such trustworthi-

ness that there [was] no material departure from the

reason of the general rule.” /d. at 65 (internal quotation

marks and citation omitted). That meant that an out-of-

court statement could be admitted under Roberts only if

it. were “so trustworthy that adversarial testing would

add little to its reliability.” Wright, 497 U.S. at 821.

Because Roberts allowed testimonial hearsay only when

cross-examination would not have added significant

value, proper application of Roberts, by definition, could

not have “seriously diminish(ed] the likelihood of obtain-

ing an accurate conviction.” Tyler, 533 U.S. at 665 (cita-

tion omitted).

b. In certain respects, the Roberts rule, with its fo-

cus on reliability, rather than confrontation for its own

sake, promotes more accurate decisions than Crawford.

For example, in some cases, Crawford “precludes admis-

sion of highly reliable testimonial out-of-court state-

ments that would have been admissible under [Rob-

erts|.". Mungo v. Duncan, 393 F.3d 327, 335 (2d Cir.

2004), cert. denied, 544 U.S. 1002 (2005). When the out-

of-court declarant is available to testify, the Crawford

rule may cause the government to call the declarant to

the stand, thereby promoting accuracy. But when a

declarant who has made a highly reliable out-of-court

statement is unavailable to testify because of “death or

incapacity or threats or loyalty to one’s confederates,”

the effect of Crawford’s exclusionary rule is the loss of

highly reliable evidence. Murillo, 402 F.3d at 790. In

such cases, Crawford “will diminish, rather than in-

crease, the accuracy of the process.” Mungo, 393 F.3d

at 336.

In addition, Crawford applies only to testimonial out-

of-court statements. Roberts, in contrast, required ade-

quate indicia of reliability for both testimonial and non-

testimonial hearsay. Accordingly, at least with respect

to non-testimonial hearsay, the Roberts rule furnishes a

greater guarantee of reliability than Crawford. See Da-

vis, 126 8. Ct. at 2274 (holding that the Confrontation

Clause is limited to testimonial statements, an interpre-

tation that “was suggested in Crawford, even if not ex-

plicitly held”).

When a proposed new constitutional rule would di-

minish accuracy, it clearly is not retroactive. See

Caspari v. Bohlen, 510 U.S. 283, 396 (1994) (proposed

rule applying Double Jeopardy Clause to bar second

non-capital sentencing proceeding to determine persis-

tent offender status not within second exception because

a second proceeding would enhance accuracy); Saffle,

494 U.S. at 495 (proposed rule precluding an anti-sym-

pathy instruction on the ground that it interferes with

consideration of mitigating evidence does not fall within

second exception because accuracy is more likely to be

threatened than promoted by consideration whether the

defendant can strike an emotional chord in a juror); But-

ler v. McKellar, 494 U.S. 407, 416 (1990) (restrictions on

police interrogation added by Arizona v. Roberson, 486

U.S. 675 (1988), do not fall within second exception be-

cause violation of the restrictions may increase the like-

lihood of obtaining an accurate decision). Whether or

not the accuracy-enhancing features of Roberts mean

that the Roberts regime promotes more accurate deci-

sions than Crawford, those features, at a minimum, rein-

force the conclusion that application of Roberts rather

than Crawford does not seriously diminish accuracy.

See Summerlin, 542 U.S. at 356 (that judicia!

factfinding is more accurate than jury factfinding in cer-

tain respects helps to show that judicial factfinding does

not seriously diminish accuracy).

c. The court of appeals concluded that Crawford it-

self makes clear that, as applied to testimonial hearsay,

replacement of cross-examination with a judicial deter-

mination of reliability seriously diminishes accuracy.

Pet. App. 29a-30a. But Crawford did not overrule Rob-

erts based on a determination that Roberts had seriously

diminished the accuracy of verdicts. Rather, it over-

ruled Roberts because it was inconsistent with the Fram-

ers’ understanding that the Confrontation Clause would

bar the admission of testimonial hearsay absent a prior

opportunity for cross-examination. Crawford, 541 U.S.

at 53-54 (“[T]he Framers would not have allowed admis-

sion of testimonial statements of a witness who did not

appear at trial unless * * * the defendant had a prior

opportunity for cross-examination.”); id. at 55-56 (“[T]he

historical sources * * * suggest that [the] requirement

[of cross-examination] was dispositive, and not merely

one of several ways to establish reliability.”); id. at 60

(the rationale of Roberts is not “faithful to the original

meaning of the Confrontation Clause”); id. at 68

(“Where testimonial hearsay is at issue * * * the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examina-

tion.”). Indeed, Crawford faulted the Roberts decision

for placing too much emphasis on the overall goals of

accuracy and reliability, rather than focusing on the tex-

tual guarantee of confrontation. The Court specifically

explained that Roberts’ mistake was that it had formu-

lated a rule to serve the Confrontation Clause’s “ulti-

mate goal * * * to ensure reliability of evidence,” when

the Clause, as conceived by the Framers, “commands,

not that evidence be reliable, but that reliability be as-

sessed in a particular manner: by testing in the crucible

of cross-examination.” /d. at 61.

As the court of appeals noted (Pet. App. 29a-30a), the

Court in Crawford criticized the Roberts test as “unpre-

dictable.” 541 U.S. at 63. But the Court did not assert

that Roberts’ unpredictability had resulted in a serious

diminution in accuracy. Rather, the Court viewed Rob-

erts’ unpredictability as having resulted in the admission

of testimonial statements that the Framers would

have regarded as “core confrontation violations.” bid.

“{N Jothing in the Crawford opinion suggests that trial

and appellate judges were likely to admit clearly unreli-

able evidence in anything but the exceptional case.” Pet.

App. 7a (O’Scanniain, J., dissenting from the denial of

rehearing en banc).

The Court in Crawford also stated that the Confron-

tation Clause reflects the Framers’ judgment that reli-

ability “can best be determined” through cross-examina-

tion. 541 U.S. at 61. But the relevant question is not

whether the Framers believed that a rule barring admis-

sion of out-of-court testimonial statements absent a

prior opportunity for cross-examination would lead to

greater accuracy than a rule barring admission of all

hearsay statements that do not satisfy a stringent stan-

dard of reliability. Swmmerlin, 542 U.S. at 355. Nor is

the question whether the former rule actually does lead

to greater accuracy. J/bid. Rather, the question is

whether application of the Roberts reliability rule rather

than the Crawford cross-examination rule “so seriously

diminishe|s] accuracy that there is an impermissibly

large risk of punishing conduct the law does not reach.”

Id. at 355-356 (internal quotation marks and citation

omitted). And, for the reasons discussed above, Roberts

does not have that effect. There is therefore no basis “to

discredit the host of final convictions generated pursu-

ant to its authority.” Pet. App. 48a (Wallace, J., dissent-

ing).

d. In reaching a contrary conclusion, the court of

appeals relied on this Court’s decision in Summerlin.

Pet. App. 25a. That reliance is unfounded. In Summer-

lin, the Court held that a violation of Ring’s require-

ment that a jury rather than judge determine aggravat-

ing circumstances necessary for imposition of the death

penalty did not seriously diminish accuracy. The Court

reasoned that even though the Framers may have be-

lieved that juries produce more accurate decisions, and

even if they actually do, that does not establish that judi-

cial factfinding seriously diminishes accuracy. Swmmer-

lin, 542 U.S. at 355-356. Nothing in that reasoning sug-

gests that application of Roberts rather than Crawford

seriously diminishes accuracy. If anything, Summerlin

underscores that the adoption of a new rule that imple-

ments a procedure that the Framers viewed as promot-

ing reliability does not automatically mean that the new

rule enhances reliability to the degree required for ret-

roactivity.

2. Crawford Did Not Announce A Bedrock Rule Essen-

tial To A Fair Trial

There is an additional reason that Crawford’s cross-

examination rule does not fall within the second Teague

exception. Crawford does not “alter our understanding

of the bedrock procedural elements essential to the fair-

ness of a proceeding.” Tyler, 533 U.S. at 665 (internal

quotation marks, citation, and emphasis omitted).

a. The Court has identified only one rule that has

had that kind of groundbreaking effect: Gideon v.

Wainwright, 372 U.S. 335 (1963). See Banks, 542 U.S.

at 417. Before Gideon, it was thought that an indigent

defendant charged with a felony offense could in some

cases receive a fair trial without the opportunity for as-

sistance of appointed counsel. In Gideon, the Court re-

pudiated that notion when it recognized that, absent a

waiver of counsel, a felony trial conducted without a de-

fense lawyer was an inherently unfair vehicle for adjudi-

cating the defendant’s guilt or innocence. In that way,

Gideon altered the understanding of the procedures that

are indispensable to a fair trial; it added the right to

appointed counsel! to that core set of rules.

The Court has “not hesitated to hold that less sweep-

ing and fundamental rules do not fall within Teague’s

second exception.” Banks, 542 U.S. at 418. For exam-

ple, in Sawyer, the Court held that the rule in Caldwell

v. Mississippi, 472 U.S. 320 (1985), that the Eighth

Amendment bars imposition of a capital sentence when

a prosecutor mistakenly informs the jury that responsi-

bility for the death penalty rests elsewhere did not fall

within Teague’s second exception. Caldwell had rea-

soned that there was an unacceptable risk that a mis-

leading remark about the jury’s responsibility could af-

fect the reliability of the sentencing decision. But be-

cause a defendant could already obtain relief under a

pre-Caldwell decision by showing that a prosecutorial

remark caused actual prejudice, the Court concluded

that Caldwell’s “systemic rule enhancing reliability” was

not an “absolute prerequisite to fundamental fairness.”

Sawyer v. Smith, 497 U.S. 227, 244 (1990) (citation omit-

ted).

Similarly, in O’Dell v. Netherland, 521 U.S. 151

(1997), the Court held that the rule in Simmons v. South

Carolina, 512 U.S. 154 (1994), that a capital defendant

has a right under the Due Process Clause to introduce

evidence of his parole ineligibility to rebut a prosecu-

tor’s future-dangerousness argument did not fall within

Teague’s second exception. The Court reasoned that

“{uJnlike the sweeping rule of Gideon, which established

an affirmative right to counsel in all felony cases, the

narrow right of rebuttal that Simmons affords to defen-

dants in a limited class of capital cases has hardly

alter[ed] our understanding of the bedrock procedural

elements essential to the fairness of a proceeding.” 521

U.S. at 167 (internal quotation marks and citation omit-

ted).

And in Banks, the Court refused to make retroactive

the rule in Mills v. Maryland, 486 U.S. 367 (1988), that

the Eighth Amendment prohibits capital sentencing

schemes that require juries to find mitigating factors

unanimously. The Court reasoned that the Mills rule,

while designed to avoid arbitrary impositions of the

death sentence, “applies fairly narrowly” and “has none

of the primacy and centrality of the rule adopted in Gid-

eon.” Banks, 542 U.S. at 420 (citation omitted).

The lesson of Sawyer and O’Dell and Banks is that

rules that implement bedrock constitutional guarantees

are not themselves bedrock unless they approach the

fundamental and sweeping importance of Gideon. When

implementing rules produce “incremental change” and

lack the “primacy and centrality” of Gideon, they do not

fall within Teague’s second exception. Banks, 542 US.

at 419-420 (citation omitted).

b. Crawford’s cross-examination rule for testimonial

hearsay does not approach the fundamental and sweep-

ing importance of Gideon. The presence of counsel per-

vasively affects all aspects of the trial, including trial

strategy, the presentation of evidence, cross-examina-

tion of witnesses, the presentation of argument on legal

issues that arise during the trial, and argument to the

jury. A lay defendant is ill-equipped to perform those

crucial tasks without the assistance of counsel, particu-

larly when the power of the government is marshaled

against him. Accordingly, when an indigent defendant

facing serious criminal charges is completely denied

counsel's assistance in performing those tasks, a fair

trial is not possible. United States v. Cronic, 466 U.S.

648, 659 (1984).

In contrast, the Crawford rule is not “so fundamental

and pervasive.” See Delaware v. Van Arsdall, 475 U.S.

673, 681 (1986). It affects only the admissibility of one

limited category of evidence—testimonial hearsay.

Moreover, even in that limited area, the effect of Craw-

ford is only incremental. Roberts had already barred

the admission of testimonial hearsay that had not been

subjected to cross-examination unless the hearsay was

so trustworthy that cross-examination would add only

marginally to reliability. And a determination of trust-

worthiness had to be based on circumstances surround-

ing the making of the statement that demonstrated the

statement’s intrinsic trustworthiness, not on other evi-

dence that corroborated the statement’s truth. /daho v.

Wright, 497 U.S. 805, 822 (1990). In light of that sub-

stantial protection, it cannot be said that the Crawford

rule is an “absolute prerequisite to fundamental fair-

ness.” Sawyer, 497 U.S. at 244 (citation omitted).

That is especially true because other procedural

protections complemented the Roberts rule and helped

to ensure that proceedings governed by Roberts were

fundamentally fair. In trials conducted under Roberts,

the defendant could seek to discredit an out-of-court

statement admitted under Roberts through cross-exami-

nation of the witness who testified about that statement.

The defendant could also introduce evidence of his own

to challenge the veracity of the out-of-court declarant or

the reliability of his statement. If the out-of-court

declarant were available, the defendant could exercise

his right of compulsory process to call the declarant to

the stand and subject him to cross-examination.

Through closing argument, the defendant’s attorney

could draw the jury’s attention to any circumstances

that might call into question the reliability of the state-

ment. And the jury could exercise its common sense to

evaluate the reliability of the statement in light of all the

other evidence in the case. When coupled with those

complementary procedural protections, there can be no

viable claim that the Roberts reliability test automati-

cally results in a trial that is fundamentally unfair.

Indeed, it is particularly difficult to argue that ad-

mission of testimonial statements pursuant to the Rob-

erts reliability test necessarily results in an unfair trial

when this Court has held that the admission of testi-

mony that is of doubtful reliability ordinarily does

not offend Due Process. For example, in Manson v.

Brathwaite, 432 U.S. 98, 116 (1977), the Court held that

the introduction of identification evidence of question-

able reliability does not violate Due Process because

“{jjuries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that

has some questionable feature.” Similarly, in Colorado

v. Connelly, 479 U.S. 157, 167-168 (1986), the Court held

that a confession of someone who had experienced hallu-

cinations might be “quite unreliable,” but its admission

did not violate Due Process. If the admission of evi-

dence of questionable reliability does not necessarily

result in a trial that is fundamentally unfair, neither

does the admission of evidence that has been found to

bear adequate indicia of reliability.

c. The incremental, non-bedrock nature of Crawford

is further demonstrated by its relationship to the body

of Confrontation Clause law that preceded it. While

Crawford overruled Roberts as applied to testimonial

hearsay, it otherwise left undisturbed that large body of

law. For example, Crawford did not affect the rules that

govern the scope of a defendant’s right to cross-examine

live witnesses. See Van Arsdall, 475 U.S. at 679 (Con-

frontation Clause guarantees an opportunity for effec-

tive cross-examination, but it permits a court to impose

reasonable limits on cross-examination based on con-

cerns about harassment, prejudice, confusion of the is-

sues, witness safety, repetition, or relevance). It did not

affect the rules that govern a defendant’s right to con-

front face-to-face witnesses who appear before the trier

of fact. See Maryland v. Craig, 497 U.S. 836 (1990) (a

defendant has a right to face-to-face confrontation ex-

cept where denial is necessary to further an important

public policy and the reliability of the testimony is other-

wise assured). And it did not affect the admissibility of

non-testimonial out-of-court statements, such as state-

ments made during the course of a conspiracy or state-

ments contained in business records. See Crawford, 541

U.S. at 56.

Even as to testimonial statements, Crawford did not

alter a number of well established Confrontation Clause

doctrines. For example, Crawford did not disturb the

rule that out-of-court statements may be introduced for

a purpose other than establishing the truth of the matter

asserted, 541 U.S. at 59 n.9 (citing Tennessee v. Street,

471 U.S. 409, 414 (1985)), the rule that an out-of-court

statement not subjected to prior cross-examination may

be admitted so long as the declarant appears for cross-

examination at trial, ibid. (citing California v. Green,

399 U.S. 149, 162 (1970)), the rule allowing the admission

of dying declarations, id. at 56 n.6 (citing Mattox v.

United States, 156 U.S. 237, 243-244 (1895)), the rule

that a defendant may forfeit the right to confrontation

by wrongdoing, id. at 62 (citing Reynolds v. United

States, 98 U.S. 145, 158-159 (1879)), or the rule that an

error under the Confrontation Clause is subject to

harmless error review. See Van Arsdall, 475 U.S. at

684.

Other factors reinforce the conclusion that Crawford

lacks bedrock status, including that it can be reconciled

with the results of all prior decisions of this Court ex-

cept one, Crawford, 541 U.S. at 58 n.8, and that it identi-

fied only four narrow categories of testimonial state-

ments: “prior testimony at a preliminary hearing, before

a grand jury, or at a former trial,” and “police interroga-

tions.” /d. at 68. The Court’s subsequent decision in

Davis has further confined the reach of Crawford, hold-

ing that “[s]tatements are nontestimonial when made in

the course of police interrogation under circumstances

objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an

ongoing emergency.” Davis, 1268S. Ct. at 2273. Thus,

while Crawford’s rule that testimonial hearsay is inad-

missible absent a prior opportunity for cross-examina-

tion is significant, it is not the kind of bedrock rule that

fundamentally alters our understanding of what is es-

sential to the fairness of a proceeding.

d. That conclusion is fully consistent with the

Court’s statement in Crawford that the right to confron-

tation is “a bedrock procedural guarantee.” Crawford,

541 U.S. at 42. Crawford did not establish the right to

confrontation. That guarantee was established by the

Framers of the Constitution and was made applicable to

the States by Pointer v. Texas, 380 U.S. 400 (1965).

Crawford implements that bedrock guarantee. But as

discussed above, such implementing rules are not them-

selves bedrock unless they have the kind of fundamental!

and sweeping importance of Gideon. And Crawford

does not have that kind of fundamental and sweeping

importance. While significant, Crawford is still simply

one of several rules that implement the right to confron-

tation, and its incremental protection is not indispens-

able to a fair trial. Accordingly, Crawford is not the

kind of truly bedrock rule that falls within Teague’s sec-

ond exception.‘

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

KATHLEEN A. FELTON

Attorney

JULY 2006

* In two cases decided before Teague, the Court held retroactive two

rules implementing the Confrontation Clause. See Roberts v. Russell,

392 U.S. 293 (1968) (holding retroactive the rule in Bruton v. United

States, 391 U.S. 123 (1968), that the Confrontation Clause bars admis-

sion at a joint trial of a defendant’s extrajudicial confession implicating

a co-defendant); Berger v. California, 393 U.S. 314 (1969) (holding

retroactive the rule in Barber v. Paige, 390 U.S. 719 (1968), that the

Confrontation Clause bars admission of preliminary hearing testimony

unless the government has made a good faith effort to secure the wit-

ness’s presence at trial). Those decisions, however, were based on

retroactivity principles that Teague condemned as insufficiently

responsive to the serious costs to the criminal justice system caused by

disturbing the finality of convictions that were obtained in accordance

with then-existing law. Those decisions are therefore inapposite here.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.