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No. 05-595

In the Supreme Court of the United States

GLEN WHORTON, DIRECTOR, NEVADA DEPARTMENT
OF CORRECTIONS, PETITIONER

v.

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 S. 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

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.

In the Supreme Court of the United States

No. 05-595

GLEN WHORTON, DIRECTOR, NEVADA DEPARTMENT
OF CORRECTIONS, PETITIONER

v.

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.

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. Id. 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." Id. at 105a n.1.

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. Ibid. Detective Zinovitch attempted to question Autumn at the hospital, but she was distraught and responded only that someone had hurt her. Ibid.

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. Ibid. 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. Ibid.

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. Id. 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. Ibid. Efforts to persuade Au tumn to cooperate were unsuccessful, and the judge de clared her unavailable to testify at trial. Ibid.

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. Ibid.

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 Idaho 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. Id. 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 knowledge 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." Id. 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. Ibid.

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. Id. 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 admissibility 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." Id. 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." Ibid. (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. Id. at 36a-37a.

In a concurring opinion, Judge Noonan expressed the view that Crawford did not establish a new rule. Pet. App. 37a-41a. 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. Id. 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." Ibid.

Judge Wallace concurred in part and dissented in part. Pet. App. 41a-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. Id. 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." Id. at 51a. 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." Id. at 53a (citation omitted).

With nine judges dissenting, the Ninth Circuit de nied rehearing en banc. Pet. App. 1a-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 Teague'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 NOT 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.1

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." Id. at 309. The general rule against retroactive application of new rules is subject to two limited exceptions. First, "[n]ew 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 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.2

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." Id. at 66 (internal quotation marks and citation omitted). Statements had adequate indicia of reliability when they fell within a "firmly rooted hearsay exception" or when they bore "particularized guarantees of trustworthi ness." Ibid. 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 acknowledged 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 based 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 admission 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.3

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." Ibid. 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 watershed rules of criminal procedure. Id. 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." Ty ler, 533 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." Id. 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 S. 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. 383, 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 judicial 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." Id. 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." Ibid. "[N]othing 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'Scannlain, 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. Summerlin, 542 U.S. at 355. Nor is the question whether the former rule actually does lead to greater accuracy. Ibid. 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. Summer 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 "[u]nlike 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 U.S. 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. Idaho 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 "[j]uries 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." Id. 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, 126 S. 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.4

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

1 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 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); Idaho 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. Id. at 58a-62a.

2 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).

3 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 U.S. at 417 n.7.

4 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.