U.S. Supreme Court to Hear Retroactivity of Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the confrontation Clause of the Sixth Amendment prohibitted the admission of hearsay statements by third parties which were “testimonial” in nature. Crawford overruled a long line of U.S. Supreme Court precedent to the contrary. U.S. Supreme Court precedent says that overruling decisions are generally not retroactive unless the old rule created unreliable results.

The facts in the Whorton v. Bocking are fairly simple. Marvin Bockting was convicted of rape and sentenced to life in prison by a Nevada Court. He challenges the constitutionality of the court’s admitting hearsay testimony of his victim without opportunity for cross- examination. No such requirement was in place at the time of his conviction, but in Crawford, later decided that such cross-examination is necessary for the admission of this type of hearsay testimony.

In the lower court decision (Bockting v. Bayer, 399 F.3d 1010, 1013 (9th Cir. 2005)), the Ninth Circuit Court of Appeals ruled that Crawford was retroactive. The Supreme Court has granted certiorari to determine if the Ninth Circuit is correct. This case will represent another data point in the set defining the scope of retroactivity of criminal procedure rules. Moreover, it will clarify federal courts’ powers to hear cases on writs of habeas corpus when the issue at hand is the retroactive application of a criminal procedure rule. The decision of the Ninth Circuit conflicts with the decisions of the decisions of the Second, Sixth, Seventh, and Tenth circuits. Oral arguments are scheduled for October 31, 2006.