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
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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
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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.