When is a New Rule Applicable on Collateral Review?

Whorton v. Bockting

Bockting’s stepdaughter, Autumn, who was 6 years old, told her mother that Bockting sexually assaulted her. Autumn spoke to a rape counselor and recreated the acts with anatomically correct dolls. When Autumn was too distressed to be sworn at trial the State moved to allow her mother and a detective to recount her statements. Nevada allows out-of-court statements by a child under 10 to 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 trustowrithiness.”

When this case last reached the Supreme Court the controlling precedent on the constitutionality of these sorts of laws, in light of the Confrontation Clause, was Ohio v. Roberts, which held that the constitution allowed such evidence 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.” After Bockting’s case was decided on these grounds, and as his habeas case was pending, the Court overruled Roberts, in Crawford, deciding 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].” Specifically, in that case, the Court found that the Confrontation Clause did not make a judgment on the desirability of reliable evidence, but on how the reliability of that evidence would be tested; cross-examination.

The Crawford rule would not have admitted Autumn’s statements. Under Teague v. Lane if the Crawford rule was in existence at the time of his conviction, or a “watershed” rule that implicated fundamental fairness, it should be applied to cases on collateral review. New rules only apply to cases on direct review. The Crawford rule was clearly a “new rule,” one that was not “dictated” by precedent existing at the time; though the Crawford Court noted that its decision was consistent with the outcome of all prior cases, “the explicit overruling of an earlier holding no doubt creates a new rule.”

For a rule to meet the “watershed” it must (1) be necessary to prevent “an ‘impermissibly large risk’” of inaccurate conviction, and (2) alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Only the right to counsel for indigents charged with a felony has been held necessary to prevent an “impermissibly large risk” of inaccurate conviction, and is not comparable to the rule announced in Crawford. As for the second factor, the question is whether the Crawford rule is “one without which the likelihood of an accurate conviction” is not just diminished, but “seriously diminished.” Additionally, the rule must not only be “based on” a bedrock procedural rule, or be “fundamental,” but must “must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” While the Crawford decision was important, it is not of the same category as the right to counsel and lacks “primacy” and “centrality” of a watershed rule.