05-595 Whorton v. Bockting

Listen to this article

Crawford v. Washington, 541 U.S. 36 (2004), is not retroactive to cases already final on direct review.

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, 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 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 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 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. Crawford did not effect a change of this magnitude.

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 . 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 . 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.

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

Local effect: The decision is consistent with governing Seventh Circuit precedent, Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005). However, it is inconsistent with the only state appellate case on the issue, in which the court assumed, without deciding, that Crawford is retroactive, State v. Smith, 724 N.W.2d 273, *4, fn.4 (Table) 2006 WL 2670391 (Wis.App., Sept. 19, 2006).

Alito, J.