Sunday, April 03, 2005

Crawford Retroactivity summary:

This is a great summary of retroactivity of Crawford from Professor Friedman's Confrontation Blog. In all the buzz about Booker we may have forgotten about this very important one year old rule changing the very nature of hearsay analysis.

Retroactivity of Crawford:

I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.

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