Whorton v. Bockting, No. 05–595.

CourtUnited States Supreme Court
Writing for the CourtJustice ALITO delivered the opinion of the Court.
Citation167 L.Ed.2d 1,127 S.Ct. 1173,549 U.S. 406,75 BNA USLW 4121
Docket NumberNo. 05–595.
Decision Date28 February 2007
PartiesGlen WHORTON, Director, Nevada Department of Corrections, Petitioner, v. Marvin Howard BOCKTING.

549 U.S. 406
127 S.Ct.
1173
167 L.Ed.2d 1
75 BNA USLW 4121

Glen WHORTON, Director, Nevada Department of Corrections, Petitioner,
v.
Marvin Howard BOCKTING.

No. 05–595.

Supreme Court of the United States

Argued Nov. 1, 2006.
Decided Feb. 28, 2007.




[127 S.Ct. 1174]Syllabus*

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, rejecting respondent's claim that admitting this testimony would violate the Confrontation[127 S.Ct. 1175]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, 100 S.Ct. 2531, 65 L.Ed.2d 597, then this Court's governing precedent, which had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant unavailable to testify if the statement bore sufficient indicia of reliability, id., at 66, 100 S.Ct. 2531. Respondent renewed his Confrontation 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. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, holding that “testimonial 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],” id., at 59, 100 S.Ct. 2531, and concluding that Roberts' interpretation of the Confrontation Clause was unsound, 541 U.S., at 60, 100 S.Ct. 2531. 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 existence 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, 110 S.Ct. 1257, 108 L.Ed.2d 415 (quoting Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (plurality opinion)). The Ninth Circuit reversed, holding that Crawford was a new rule, but a watershed 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. 1180 – 1184.

(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 proceeding only if

[549 U.S. 407]

it (1) is substantive or (2) is a watershed rule that implicates “the fundamental fairness and accuracy of the criminal proceeding.” 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, 110 S.Ct. 1257. 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, 110 S.Ct. 1257. Prior to Crawford, “reasonable jurists,” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260, could have concluded that Roberts governed the admission of testimonial hearsay statements made by an unavailable declarant. Pp. 1180 – 1181.

(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, 124 S.Ct. 2519, 159 L.Ed.2d 442, 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. 1181 – 1184.

(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 conviction, [127 S.Ct. 1176]Summerlin, supra, at 356, 124 S.Ct. 2519.Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 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 Confrontation 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 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

[549 U.S. 408]

criminal trials. But the question here is not whether Crawford resulted in some net improvement in the accuracy of factfinding in criminal cases, but, as the dissent below 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, 124 S.Ct. 2519.Crawford did not effect a change of this magnitude. Pp. 1182 – 1183.

(2) Second, the Crawford rule did not “alter [this Court's] understanding of the bedrock procedural elements essential to the fairness of a proceeding,” Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193. 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, 124 S.Ct. 2504, 159 L.Ed.2d 494. 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, 124 S.Ct. 2504. Pp. 1183 – 1184.

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

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


Attorney General George J. Chanos, for petitioner, by Irving L. Gornstein for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Frances A. Forsman, Las Vegas, NV, for respondent.


George J. Chanos, Attorney General of the State of Nevada, Gerald Gardner, Chief Deputy Attorney General, Counsel of Record, Victor–Hugo Schulze, II, Senior Deputy Attorney General, Rene L. Hulse, Senior Deputy Attorney General, Las Vegas, NV, for Petitioner.

Franny A. Forsman, Counsel of Record, Federal Public Defender, Michael Pescetta, Assistant Federal Public Defender for District of Nevada, Las Vegas, NV, for Respondent.

[127 S.Ct. 1177]Justice ALITO delivered the opinion of the Court.

[549 U.S. 409]

This case presents the question whether, under the rules set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), our decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, Nevada, 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 respondent was at work, Autumn awoke from a dream crying, but she refused to tell her mother what was wrong, explaining: “ ‘[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

[549 U.S. 410]

to engage in numerous and varied sexual acts with him. Ibid.

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 Sexual Assault Unit attempted to interview Autumn but found her too distressed to discuss the assaults. Detective Zinovitch then ordered a rape examination, which revealed 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...

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1024 practice notes
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 7, 2013
    ...169 L.Ed.2d 736 (2008) (discussing Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) and Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)). The former test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) likewis......
  • Rhea v. Jones, Case No. 1:06-cv-41.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 2008
    ...Crawford was not applicable retroactively to criminal judgments that became final before Crawford was announced. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 1177, 167 L.Ed.2d 1 (2007); accord Vasquez v. Jones, 496 F.3d 564, 568 n. 1 (6th Cir. 2007). The criminal judgment in the p......
  • Ware v. Harry, Case No. 06-CV-10553-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 21, 2008
    ...hearsay is at issue, the Confrontation Clause is not implicated at all, and need not be considered. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) ("Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be......
  • Mata v. Sherman, Case No. 1:13-cv-01040 DAD MJS (HC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 22, 2016
    ...are "testimonial" and does not bar the admission of non-testimonial hearsay statements. Id. at 42, 51, 68. See also Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007) ("the Confrontation Clause has no application to" an "out-of-court nontestimonial statement.").......
  • Request a trial to view additional results
1022 cases
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 7, 2013
    ...169 L.Ed.2d 736 (2008) (discussing Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) and Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)). The former test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) likewis......
  • Rhea v. Jones, Case No. 1:06-cv-41.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 2008
    ...Crawford was not applicable retroactively to criminal judgments that became final before Crawford was announced. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 1177, 167 L.Ed.2d 1 (2007); accord Vasquez v. Jones, 496 F.3d 564, 568 n. 1 (6th Cir. 2007). The criminal judgment in the p......
  • Ware v. Harry, Case No. 06-CV-10553-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 21, 2008
    ...hearsay is at issue, the Confrontation Clause is not implicated at all, and need not be considered. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) ("Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be......
  • Mata v. Sherman, Case No. 1:13-cv-01040 DAD MJS (HC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 22, 2016
    ...are "testimonial" and does not bar the admission of non-testimonial hearsay statements. Id. at 42, 51, 68. See also Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007) ("the Confrontation Clause has no application to" an "out-of-court nontestimonial statement.").......
  • Request a trial to view additional results
2 books & journal articles
  • Criminal Justice Decisions of the Supreme Court of the United States, 2006 Term
    • United States
    • Criminal Justice Review Nbr. 32-4, December 2007
    • December 1, 2007
    ...1995 WL 65031, *1 (N.D. Ill. 1995).Uttecht v. Brown, 127 S.Ct. 2218 (2007).Wallace v. Kato, 127 S.Ct. 1091 (2007).Whorton v. Bockting, 127 S.Ct. 1173 (2007).Witherspoon v. Illinois, 391 U.S. 510 James L. Maddex Jr. is professor emeritus of criminal justice at Georgia State University, havin......
  • Criminal Justice Decisions of the United States Supreme Court, 2007 Term
    • United States
    • Criminal Justice Review Nbr. 33-4, December 2008
    • December 1, 2008
    ...v. Moore, 553 U.S.—,76 U.S.L.W. 4237 (2008).Watson v. United States, 552 U.S.—,76 U.S.L.W. 4020 (2007).Whorton v. Bockting, 549 U.S. 406 (2007). Statutes Cited Armed Career Criminal Act, 18 U.S.C. § 924e (2001).Controlled Substances Act, 21 U.S.C. § 841a (1970).Federal Tort Claims Act, 28 U......

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