Crawford Decision Not Retroactive, Supreme Court Decides

Whorton v. Bockting (2007)

The U.S. Supreme Court has denied the benefit of its landmark decision inCrawford v. Washington to persons whose convictions were final before it was decided. The unanimous decision came February 28th in Whorton v. Bockting.

Bockting was convicted in Nevada of sexually assaulting his six-year-old step-daughter. She did not testify at his trial. Instead, her out-of-court statements were admitted in evidence, despite his objection that this violated his constitutional right to confront witnesses against him. His conviction was affirmed on appeal, since confrontation jurisprudence at the time permitted the procedure used at his trial.

The 2004 Crawford decision changed that. It overruled prior Confrontation Clause cases and prohibited use of out-of-court statements in circumstances such as Bockting’s. It said such statements could be admitted at trial only if the person who made them testified at trial, or if the defendant had had an adequate prior opportunity to cross-examine her.

Bockting filed a habeas corpus petition for a new trial. Lower court decisions on that petition were appealed to the Supreme Court.

The Court applied its standards for when a “new rule” of criminal procedure will be applied to cases which are not still awaiting trial or on direct appeal from a conviction. It decided that the Crawford rule was not necessary to prevent “an impermissibly large risk” of an inaccurate conviction and hence will not be applied to such cases. In fact, it said, since Crawford eliminated an opportunity judges had had under prior case law to exclude out-of-court statements they deemed unreliable, Crawford might actually increase the number of unreliable out-of-court statements admitted in criminal trials.