Were you convicted of crime because of hearsay? Crawford and retroactivity. . .

In March 2005, the Ninth Circuit held that the Crawford rule (which redefines hearsay rules in all courts nationwide) is retroactive to cases not still pending on direct appeal. In the Bockting case the Court held that the defendant (a convicted child molester), was entitled to retroactive relief on a 2254.

See full case: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1886E09C54A4E27388256FB0005803BA/$file/0215866.pdf?openelement

The Court reasoned that it did not matter whether Crawford announced a new rule within the meaning of Teague because Bockting was entitled to relief either way. The court reasoned that Crawford announced a new PROCEDURAL rule, and therefore "Crawford merits retroactive application only if it implicates the fundamental fairness of the accuracy of the proceeding' [citations] and reworks our understanding of bedrock criminal procedure."

The Ninth Circuit then goes through a very eloquent discussion of both of these elements and finds that Crawford meets them both. Quoting from Scalia in Crawford, the Ninth Circuit notes that Crawford specifically dissaproves of the old Ohio v. Roberts 'trustworthiness' regime for hearsay rule exceptions. The Ninth also reasons that the because cross examination is a engine designed for improving accuracy of factfinding, and because Crawford re-works the rules of cross-examination, then the first part of the Teague test with respect to new procedural rules is met.

Moving on, the Ninth then distinguishes its rule of retroactivity from that announced by the Tenth Circuit.