(Slip Opinion) OCTOBER TERM, 2006 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

WHORTON, DIRECTOR, NEVADA DEPARTMENT OF 

CORRECTIONS v. BOCKTING

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 05–595. Argued November 1, 2006—Decided February 28, 2007 

At respondent’s trial for sexual assault on his 6-year-old stepdaughter, 

the court determined that the child was too distressed to testify and

allowed respondent’s wife and a police detective to recount her out-ofcourt statements about the assaults, as permitted by Nevada law, rejecting respondent’s claim that admitting this testimony would violate the Confrontation Clause. He was convicted and sentenced to 

prison. On direct appeal, the Nevada Supreme Court found the 

child’s statements constitutional under Ohio v. Roberts, 448 U. S. 56, 

then this Court’s governing precedent, which had held that the Confrontation Clause permitted the admission of a hearsay statement

made by a declarant unavailable to testify if the statement bore sufficient indicia of reliability, id., at 66. Respondent renewed his Confrontation Clause claim in a subsequent federal habeas petition,

which the District Court denied. While his appeal was pending in 

the Ninth Circuit, this Court overruled Roberts in Crawford v. Washington, 541 U. S. 36, holding that “testimonial 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],” id., at 59, and concluding that 

Roberts’ interpretation of the Confrontation Clause was unsound, id., 

at 60. Respondent contended that had Crawford been applied to his

case, the child’s statements would not have been admitted, and that 

it should have been applied because it was either an old rule in existence at the time of his conviction or a “ ‘watershed rul[e] of criminal 

procedure’ implicating the fundamental fairness and accuracy of the

criminal proceeding,” Saffle v. Parks, 494 U. S. 484, 495 (quoting 

Teague v. Lane, 489 U. S. 288, 311 (plurality opinion)). The Ninth 
2 WHORTON v. BOCKTING 

Syllabus 

Circuit reversed, holding that Crawford was a new rule, but a watershed rule that applies retroactively to cases on collateral review. 

Held: Crawford announced a new rule of criminal procedure that does 

not fall within the Teague exception for watershed rules. Pp. 8–14.

(a) Under Teague’s framework, an old rule applies both on direct

and collateral review, but a new rule generally applies only to cases 

still on direct review and applies retroactively in a collateral proceeding only if it (1) is substantive or (2) is a watershed rule that implicates “the fundamental fairness and accuracy of the criminal proceeding.” Respondent’s conviction became final on direct appeal well 

before Crawford was decided, and Crawford announced a new rule, 

i.e., “a rule that . . . was not ‘dictated by precedent existing at the

time the defendant’s conviction became final,’ ” Saffle, supra, at 488. 

It is flatly inconsistent with Roberts, which it overruled. “The explicit 

overruling of an earlier holding no doubt creates a new rule.” Saffle, 

supra, at 488. Prior to Crawford, “reasonable jurists,” Graham v. 

Collins, 506 U. S. 461, 467, could have concluded that Roberts governed the admission of testimonial hearsay statements made by an

unavailable declarant. Pp. 8–9. 

(b) Because Crawford announced a new rule and because that rule 

is procedural and not substantive, it cannot be applied here unless it 

is a “watershed rul[e]” that implicates “the fundamental fairness and 

accuracy of the criminal proceeding.” This exception is “extremely 

narrow,” Schriro v. Summerlin, 542 U. S. 348, 351, and since Teague, 

this Court has rejected every claim that a new rule has satisfied the 

requirements necessary to qualify as a watershed. The Crawford 

rule does not meet those two requirements. Pp. 10–14.

(1) First, the rule does not implicate “the fundamental fairness 

and accuracy of the criminal proceeding” because it is not necessary

to prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction, Summerlin, supra, at 356. Gideon v. Wainwright, 372 U. S. 335, 

the only case that this Court has identified as qualifying under this 

exception, provides guidance. There, the Court held that counsel 

must be appointed for an indigent defendant charged with a felony

because, when such a defendant is denied representation, the risk of

an unreliable verdict is intolerably high. The Crawford rule is not 

comparable to the Gideon rule. It is much more limited in scope, and

its relationship to the accuracy of the factfinding process is far less 

direct and profound. Crawford overruled Roberts because Roberts 

was inconsistent with the original understanding of the Confrontation Clause, not because the Crawford rule’s overall effect would be to 

improve the accuracy of factfinding in criminal trials. With respect to 

testimonial out-of-court statements, Crawford is more restrictive 

than Roberts, which may improve the accuracy of factfinding in some 
Cite as: 549 U. S. ____ (2007) 3 

Syllabus 

criminal cases. But whatever improvement in reliability Crawford 

produced must be considered together with Crawford’s elimination of 

Confrontation Clause protection against the admission of unreliable

out-of-court nontestimonial statements. It is thus unclear whether 

Crawford decreased or increased the number of unreliable out-ofcourt statements that may be admitted in criminal trials. But the 

question is not whether Crawford resulted in some net improvement

in the accuracy of factfinding in criminal cases, but, as the dissent below noted, whether testimony admissible under Roberts is so much 

more unreliable that, without the Crawford rule, “ ‘the likelihood of 

an accurate conviction is seriously diminished,’ ” Summerlin, supra,

at 352. Crawford did not effect a change of this magnitude. Pp. 11– 

13. 

(2) Second, the Crawford rule did not “alter [this Court’s] understanding of the bedrock procedural elements essential to the fairness 

of a proceeding,” Sawyer v. Smith, 497 U. S. 227, 242. The Court has 

“not hesitated to hold that less sweeping and fundamental rules”

than Gideon’s do not qualify. Beard v. Banks, 542 U. S. 406, 418. 

The Crawford rule, while certainly important, is not in the same 

category with Gideon, which effected a profound and “ ‘sweeping’ ” 

change. Beard, supra, at 418. Pp. 13–14. 

399 F. 3d 1010 and 408 F. 3d 1127, reversed and remanded. 

ALITO, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 549 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

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

[February 28, 2007] 

JUSTICE ALITO delivered the opinion of the Court. 

This case presents the question whether, under the 

rules set out in Teague v. Lane, 489 U. S. 288 (1989), our 

decision in Crawford v. Washington, 541 U. S. 36 (2004), is 

retroactive to cases already final on direct review. We 

hold that it is not. 

I 

A 

Respondent Marvin Bockting lived in Las Vegas, Nevada, with his wife, Laura Bockting, their 3-year-old 

daughter Honesty, and Laura’s 6-year-old daughter from a 

previous relationship, Autumn. One night, while respondent was at work, Autumn awoke from a dream crying, 

but she refused to tell her mother what was wrong, explaining: “‘[D]addy said you would make him leave and 

that he would beat my butt if I told you.’” App. 119. After 

her mother reassured her, Autumn said that respondent 

had frequently forced her to engage in numerous and 

varied sexual acts with him. Ibid. 
2 WHORTON v. BOCKTING 

Opinion of the Court 

The next day, Laura Bockting confronted respondent 

and asked him to leave the house. He did so but denied 

any wrongdoing. Two days later, Laura called a rape 

crisis hotline and brought Autumn to the hospital for an

examination. At the hospital, Detective Charles Zinovitch 

from the Las Vegas Metropolitan Police Department Sexual Assault Unit attempted to interview Autumn but

found her too distressed to discuss the assaults. Detective 

Zinovitch then ordered a rape examination, which revealed strong physical evidence of sexual assaults. See 

Findings of Fact and Conclusions of Law and Order in 

Nevada v. Bockting, Case No. C–83110 (D. Nev., Sept. 5, 

1994); App. 47, 119. 

Two days later, Detective Zinovitch interviewed Autumn

in the presence of her mother, and at that time, Autumn

provided a detailed description of acts of sexual assault 

carried out by respondent; Autumn also demonstrated 

those acts using anatomically correct dolls. Id., at 47–48; 

119. Respondent was then arrested, and a state grand

jury indicted him on four counts of sexual assault on a

minor under 14 years of age.

At respondent’s preliminary hearing, Autumn testified 

that she understood the difference between a truth and a 

lie, but she became upset when asked about the assaults. 

Although she initially agreed that respondent had touched 

her in a way that “[she] didn’t think he was supposed to

touch [her],” id., at 14, she later stated that she could not 

remember how respondent had touched her or what she

had told her mother or the detective, id., at 19–21. The 

trial court, however, found the testimony of Laura Bockting and Detective Zinovitch to be sufficient to hold respondent for trial.

At trial, the court held a hearing outside the presence of 

the jury to determine whether Autumn could testify. After 

it became apparent that Autumn was too distressed to be 

sworn in, id., at 25–26, the State moved under Nev. Rev. 
Cite as: 549 U. S. ____ (2007) 3 

Opinion of the Court 

Stat. §51.385 (2003)1 to allow Laura Bockting and Detective Zinovitch to recount Autumn’s statements regarding

the sexual assaults. App. 25–27. Under the Nevada 

statute, out-of-court statements made by a child under 10 

years of age describing acts of sexual assault or physical

abuse of the child may 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 trustworthiness.”

§51.385(1)(a). Over defense counsel’s objection that admission of this testimony would violate the Confrontation 

Clause, id., at 27–28, the trial court found sufficient evidence of reliability to satisfy §51.385. 

As a result of this ruling, Laura Bockting and Detective

Zinovitch were permitted at trial to recount Autumn’s outof-court statements about the assaults. Laura Bockting

also testified that respondent was the only male who had 

had the opportunity to assault Autumn. In addition, the 

prosecution introduced evidence regarding Autumn’s 

—————— 

1Section 51.385 provides, in relevant part: 

“1. [A] statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child or any act

of physical abuse of the child is admissible in a criminal proceeding 

regarding that act of sexual conduct or physical abuse if: 

“(a) The court finds, in a hearing out of the presence of the jury, that

the time, content and circumstances of the statement provide sufficient

circumstantial guarantees of trustworthiness; and 

“(b) The child testifies at the proceeding or is unavailable or unable to

testify.

“2. In determining the trustworthiness of a statement, the court shall

consider, without limitation, whether: 

“(a) The statement was spontaneous; 

“(b) The child was subjected to repetitive questioning;

“(c) The child had a motive to fabricate; 

“(d) The child used terminology unexpected of a child of similar age;

and 

“(e) The child was in a stable mental state.” 
4 WHORTON v. BOCKTING 

Opinion of the Court 

medical exam. Respondent testified in his own defense 

and denied the assaults, and the defense brought out the 

fact that Autumn, unlike many children her age, had 

acquired some knowledge about sexual acts, since she had 

seen respondent and her mother engaging in sexual intercourse and had become familiar with sexual terms. Id., at 

118. 

The jury found respondent guilty of three counts of

sexual assault on a minor under the age of 14, and the

trial court imposed two consecutive life sentences and 

another concurrent life sentence. 

B 

Respondent took an appeal to the Nevada Supreme

Court, which handed down its final decision in 1993, more 

than a decade before Crawford.2 In analyzing respondent’s contention that the admission of Autumn’s out-ofcourt statements had violated his Confrontation Clause 

rights, the Nevada Supreme Court looked to Ohio v. Roberts, 448 U. S. 56 (1980), which was then the governing 

precedent of this Court. See Bockting v. State, 109 Nev. 

103, 847 P. 2d 1364 (1993) (per curiam). Roberts had held 

that the Confrontation Clause permitted the admission of 

a hearsay statement made by a declarant who was unavailable to testify 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” relating to

the statement in question. 448 U. S., at 66. Applying 

Roberts, the Nevada Supreme Court held that the admis-

—————— 

2The State Supreme Court initially dismissed respondent’s appeal in

1989, Bockting v. State, 105 Nev. 1023, 810 P. 2d 317 (unpublished 

table opinion), but we granted respondent’s petition for a writ of certiorari and vacated and remanded the case for reconsideration in light of 

Idaho v. Wright, 497 U. S. 805 (1990), see Bockting v. Nevada, 497 U. S. 

1021 (1990). 
Cite as: 549 U. S. ____ (2007) 5 

Opinion of the Court 

sion of Autumn’s statements was constitutional because 

the circumstances surrounding the making of the statements provided particularized guarantees of trustworthiness. The Court cited the “natural spontaneity” of Autumn’s initial statements to her mother, her reiteration of 

the same account to Detective Zinovitch several days later, 

her use of anatomically correct dolls to demonstrate the 

assaults, and her detailed descriptions of sexual acts with

which a 6-year-old would generally not be familiar. Bockting, supra, at 109–112, 847 P. 2d, at 1368–1370. 

C 

Respondent then filed a petition for a writ of habeas 

corpus with the United States District Court for the District of Nevada, arguing that the Nevada Supreme Court’s

decision violated his Confrontation Clause rights. The 

District Court denied the petition, holding that respondent 

was not entitled to relief under the habeas statute, 28 

U. S. C. §2254(d), because the Nevada Supreme Court’s 

decision was not “contrary to” and did not “involv[e] an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United

States.” Order in Bockting v. Bayer, No. CV–N–98–0764– 

ECR (Mar. 19, 2002), App. 69–70. Respondent then appealed to the United States Court of Appeals for the Ninth 

Circuit. 

While this appeal was pending, we issued our opinion in 

Crawford, in which we overruled Roberts and held 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].” 541 U. S., at 59. See also 

Davis v. Washington, 547 U. S. ___ (2006). We noted that 

the outcome in Roberts—as well as the outcome in all 

similar cases decided by this Court—was consistent with

the rule announced in Crawford, but we concluded that 
6 WHORTON v. BOCKTING 

Opinion of the Court 

the interpretation of the Confrontation Clause set out in 

Roberts was unsound in several respects. See Crawford, 

supra, at 60 (“Although the results of our decisions have 

generally been faithful to the original meaning of the 

Confrontation Clause, the same cannot be said of our 

rationales”). First, we observed that Roberts potentially

excluded too much testimony because it imposed Confrontation Clause restrictions on nontestimonial hearsay not 

governed by that Clause. 541 U. S., at 60. At the same 

time, we noted, the Roberts test was too “malleable” in 

permitting the admission of ex parte testimonial statements. 541 U. S., at 60. We concluded: 

“Where testimonial statements are involved, we do 

not think the Framers meant to leave the Sixth 

Amendment’s protection to the vagaries of the rules of 

evidence, much less to amorphous notions of ‘reliability.’ . . . Admitting statements deemed reliable by a 

judge is fundamentally at odds with the right to confrontation. To be sure, the Clause’s ultimate goal is to 

ensure reliability of evidence, but it is a procedural 

rather than a substantive guarantee. It commands 

not that evidence be reliable, but that reliability be 

assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a 

judgment, not only about the desirability of reliable 

evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Id., at 61. 

D 

On appeal from the denial of his petition for writ of 

habeas corpus, respondent contended that if the rule in 

Crawford had been applied to his case, Autumn’s out-ofcourt statements could not have been admitted into evidence and the jury would not have convicted him. Respondent further argued that Crawford should have been 
Cite as: 549 U. S. ____ (2007) 7 

Opinion of the Court 

applied to his case because the Crawford rule was either 

(1) an old rule in existence at the time of his conviction or 

(2) a “‘watershed’” rule that implicated “the fundamental

fairness and accuracy of the criminal proceeding.” Saffle 

v. Parks, 494 U. S. 484, 495 (1990) (quoting Teague, 489 

U. S., at 311 (plurality opinion)). 

A divided panel of the Ninth Circuit reversed the District Court, holding that Crawford applies retroactively to 

cases on collateral review. Bockting v. Bayer, 399 F. 3d 

1010, as amended, 408 F. 3d 1127 (2005). In the panel’s 

lead opinion, Judge McKeown concluded that Crawford 

announced a new rule of criminal procedure, 399 F. 3d, at

1014–1016, but that the decision was nevertheless retroactive on collateral review because it announced a watershed rule that “rework[ed] our understanding of bedrock 

criminal procedure,” id., at 1016.3 Judge Noonan concurred, but his preferred analysis differed from Judge

McKeown’s. Judge Noonan believed that Crawford did not 

announce a new rule, 399 F. 3d, at 1022–1024, but “[a]s an 

alternative to [this] analysis and in order to provide a 

precedent for [the] court,” he “also concur[red] in Judge

McKeown’s analysis and opinion,” id., at 1024. Judge

Wallace, concurring and dissenting, agreed with Judge

McKeown that Crawford announced a new procedural rule

but arguing that Crawford did not rise to the level of a 

watershed rule under this Court’s jurisprudence. The 

Ninth Circuit denied rehearing en banc, with nine judges

dissenting. 418 F. 3d 1055 (2005).

The panel’s decision that Crawford is retroactive to 

cases on collateral review conflicts with the decision of 

every other Court of Appeals and State Supreme Court 

—————— 

3 Judge McKeown then held respondent merited habeas corpus relief

under the Antiterrorism and Effective Death Penalty Act of 1996, 

because that statute incorporates our Teague v. Lane, 489 U. S. 288 

(1989) retroactivity analysis. 399 F. 3d, at 1021–1022. 
8 WHORTON v. BOCKTING 

Opinion of the Court 

that has addressed this issue.4 We granted certiorari to

resolve this conflict. 547 U. S. ___ (2006). 

II 

A 

In Teague and subsequent cases, we have laid out the

framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final 

on direct review. Under the Teague framework, an old 

rule applies both on direct and collateral review, but a new

rule is generally applicable only to cases that are still on 

direct review. See Griffith v. Kentucky, 479 U. S. 314 

(1987). A new rule applies retroactively in a collateral

proceeding only if (1) the rule is substantive or (2) the rule

is a “‘watershed rul[e] of criminal procedure’ implicating 

the fundamental fairness and accuracy of the criminal 

proceeding.” Saffle, supra, at 495 (quoting Teague, supra, 

at 311 (plurality opinion)). 

B 

In this case, it is undisputed that respondent’s conviction became final on direct appeal well before Crawford 

was decided. We therefore turn to the question whether 

Crawford applied an old rule or announced a new one. A 

new rule is defined as “a rule that . . . was not ‘dictated by

precedent existing at the time the defendant’s conviction 

—————— 

4See, e.g., Lave v. Dretke, 444 F. 3d 333 (CA5 2006); Espy v. Massac, 

443 F. 3d 1362 (CA11 2006); Murillo v. Frank, 402 F. 3d 786 (CA7 

2005); Dorchy v. Jones, 398 F. 3d 783 (CA6 2005); Brown v. Uphoff, 381 

F. 3d 1219 (CA10 2004); Mungo v. Duncan, 393 F. 3d 327 (CA2 2004); 

Edwards v. People, 129 P. 3d 977 (Colo. 2006) (en banc); Ennis v. State, 

122 Nev. ___, 137 P. 3d 1095 (2006); Danforth v. State, 718 N. W. 2d 

451 (Minn. 2006); State v. Williams, 695 N. W. 2d 23 (Iowa 2005); 

Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005); In re Markel, 154 Wash. 

2d 262, 111 P. 3d 249 (2005). 
Cite as: 549 U. S. ____ (2007) 9 

Opinion of the Court 

became final.’” Saffle, supra, at 488 (quoting Teague, 

supra, at 301 (plurality opinion); emphasis in original). 

Applying this definition, it is clear that Crawford announced a new rule. The Crawford rule was not “dictated” 

by prior precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with the prior governing

precedent, Roberts, which Crawford overruled. See Davis, 

547 U. S., at ___ (slip op., at ___). “The explicit overruling 

of an earlier holding no doubt creates a new rule.” Saffle, 

supra, at 488. 

In concluding that Crawford merely applied an old rule, 

Judge Noonan relied on our observation in Crawford that 

the holdings in our prior decisions, including those that

applied the Roberts rule, had been generally consistent 

with the rule announced in Crawford (and with the Framers’ understanding of the meaning of the Confrontation 

Clause, which provided the basis for the Crawford decision). See 541 U. S., at 57–59. But the Crawford Court 

was quick to note that “the rationales” of our prior decisions had been inconsistent with the Crawford rule. Id., 

at 60. “‘The “new rule” principle . . . validates reasonable, 

good-faith interpretations of existing precedents made by

state courts even though they are shown to be contrary to

later decisions.’” Lockhart v. Fretwell, 506 U. S. 364, 372– 

373 (1993) (quoting Butler v. McKellar, 494 U. S. 407, 414 

(1990)). And it is stating the obvious to say that, prior to 

Crawford, “reasonable jurists,” Graham v. Collins, 506 

U. S. 461, 467 (1993), could have reached the conclusion

that the Roberts rule was the rule that governed the admission of hearsay statements made by an unavailable 

declarant. 

 Because the Crawford rule was not dictated by the

governing precedent existing at the time when respondent’s conviction became final, the Crawford rule is a new 

rule. 
10 WHORTON v. BOCKTING 

Opinion of the Court 

III 

A 

Because Crawford announced a “new rule” and because 

it is clear and undisputed that the rule is procedural and 

not substantive, that rule cannot be applied in this collateral attack on respondent’s conviction unless it is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal 

proceeding.” Saffle, 494 U. S., at 495 (quoting Teague, 489 

U. S., at 311 (plurality opinion)). This exception is “extremely narrow,” Schriro v. Summerlin, 542 U. S. 348, 352 

(2004). We have observed that it is “‘unlikely’” that any 

such rules “‘ha[ve] yet to emerge,’” ibid. (quoting Tyler v. 

Cain, 533 U. S. 656 (2001); internal quotation marks

omitted); see also O’Dell v. Netherland, 521 U. S. 151, 157 

(1997); Graham, supra, at 478; Teague, supra, at 313 

(plurality opinion). And in the years since Teague, we 

have rejected every claim that a new rule satisfied the 

requirements for watershed status. See, e.g., Summerlin, 

supra (rejecting retroactivity for Ring v. Arizona, 536 U. S. 

584 (2002)); Beard v. Banks, 542 U. S. 406 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U. S. 367 

(1988)); O’Dell, supra (rejecting retroactivity for Simmons 

v. South Carolina, 512 U. S. 154 (1994)); Gilmore v. Taylor, 508 U. S. 333 (1993) (rejecting retroactivity for a new 

rule relating to jury instructions on homicide); Sawyer v. 

Smith, 497 U. S. 227 (1990) (rejecting retroactivity for 

Caldwell v. Mississippi, 472 U. S. 320 (1985)).

In order to qualify as watershed, a new rule must meet 

two requirements. First, the rule must be necessary to 

prevent “an ‘“impermissibly large risk”’” of an inaccurate 

conviction. Summerlin, supra, at 356; see also Tyler, 533 

U. S., at 665. Second, the rule must “alter our understanding of the bedrock procedural elements essential to

the fairness of a proceeding.” Ibid. (internal quotation 

marks and emphasis omitted). We consider each of these 
Cite as: 549 U. S. ____ (2007) 11 

Opinion of the Court 

requirements in turn. 

B 

The Crawford rule does not satisfy the first requirement 

relating to an impermissibly large risk of an inaccurate

conviction. To be sure, the Crawford rule reflects the 

Framers’ preferred mechanism (cross-examination) for 

ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused. But in order for 

a new rule to meet the accuracy requirement at issue here, 

“[i]t is . . . not enough . . . to say that [the] rule is aimed at 

improving the accuracy of trial,” Sawyer, 497 U. S., at 242 

or that the rule “is directed toward the enhancement of 

reliability and accuracy in some sense,” id., at 243. Instead, the question is whether the new rule remedied “an

‘“impermissibly large risk”’” of an inaccurate conviction. 

Summerlin, supra, at 366. 

Guidance in answering this question is provided by 

Gideon v. Wainwright, 372 U. S. 335 (1963), to which we 

have repeatedly referred in discussing the meaning of the 

Teague exception at issue here. See, e.g., Beard, supra, at 

417; Saffle, supra, at 495; Gilmore, supra, at 364 (Blackmun, J., dissenting). In Gideon, the only case that we

have identified as qualifying under this exception, the 

Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant 

who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is 

intolerably high. See Mickens v. Taylor, 535 U. S. 162, 

166 (2002); United States v. Cronic, 466 U. S. 648, 658– 

659 (1984); Gideon, supra, at 344–345. The new rule 

announced in Gideon eliminated this risk. 

The Crawford rule is in no way comparable to the 

Gideon rule. The Crawford rule is much more limited in 

scope, and the relationship of that rule to the accuracy of 

the factfinding process is far less direct and profound. 
12 WHORTON v. BOCKTING 

Opinion of the Court 

Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the

Confrontation Clause, not because the Court reached the 

conclusion that the overall effect of the Crawford rule 

would be to improve the accuracy of fact finding in criminal trials. Indeed, in Crawford we recognized that even 

under the Roberts rule, this Court had never specifically 

approved the introduction of testimonial hearsay statements. 542 U. S., at 57–60. Accordingly, it is not surprising that the overall effect of Crawford with regard to the

accuracy of fact-finding in criminal cases is not easy to 

assess. 

With respect to testimonial out-of-court statements, 

Crawford is more restrictive than was Roberts, and this 

may improve the accuracy of fact-finding in some criminal 

cases. Specifically, under Roberts, there may have been

cases in which courts erroneously determined that testimonial statements were reliable. But see 418 F. 3d, at 

1058 (O’Scannlain, J., dissenting from denial of rehearing 

en banc) (observing that it is unlikely that this occurred 

“in anything but the exceptional case”). But whatever 

improvement in reliability Crawford produced in this

respect must be considered together with Crawford’s 

elimination of Confrontation Clause protection against the

admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial 

statement not subject to prior cross-examination could not

be admitted without a judicial determination regarding

reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements 

and therefore permits their admission even if they lack 

indicia of reliability.

It is thus unclear whether Crawford, on the whole, 

decreased or increased the number of unreliable out-ofcourt statements that may be admitted in criminal trials.

But the question here is not whether Crawford resulted in 
Cite as: 549 U. S. ____ (2007) 13 

Opinion of the Court 

some net improvement in the accuracy of fact finding in

criminal cases. Rather, “the question is whether testimony admissible under Roberts is so much more unreliable than that admissible under Crawford that the Crawford rule is ‘one without which the likelihood of an 

accurate conviction is seriously diminished.’” 399 F. 3d, at 

1028 (Wallace, J., concurring and dissenting) (quoting 

Summerlin, 542 U. S., at 352 (internal quotation marks 

omitted; emphasis in original). Crawford did not effect a 

change of this magnitude. 

C 

The Crawford rule also did not “alter our understanding 

of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer, supra, at 242 (internal

quotations marks omitted and emphasis in original).

Contrary to the suggestion of the Court of Appeals, see 

399 F. 3d, at 1019 (relying on the conclusion that “the

right of cross-examination as an adjunct to the constitutional right of confrontation” is a “bedrock procedural

rul[e]”), this requirement cannot be met simply by showing that a new procedural rule is based on a “bedrock” 

right. We have frequently held that the Teague bar to 

retroactivity applies to new rules that are based on “bedrock” constitutional rights. See, e.g., Beard, 542 U. S., at 

418. Similarly, “[t]hat a new procedural rule is ‘fundamental’ in some abstract sense is not enough.” Summerlin, 

542 U. S., at 352. 

Instead, in order to meet this requirement, a new rule

must itself constitute a previously unrecognized bedrock 

procedural element that is essential to the fairness of a 

proceeding. In applying this requirement, we again have

looked to the example of Gideon, and “we have not hesitated to hold that less sweeping and fundamental rules” 

do not qualify. Beard, supra, at 418. 

In this case, it is apparent that the rule announced in 
14 WHORTON v. BOCKTING 

Opinion of the Court 

Crawford, while certainly important, is not in the same 

category with Gideon. Gideon effected a profound and 

“‘sweeping’” change. Beard, supra, at 418 (quoting O’Dell, 

521 U. S., at 167). The Crawford rule simply lacks the 

“primacy” and “centrality” of the Gideon rule, Saffle, 494 

U. S., at 495, and does not qualify as a rule that “alter[ed] 

our understanding of the bedrock procedural elements 

essential to the fairness of a proceeding,” Sawyer, 497 

U. S., at 242 (internal quotation marks and emphasis 

omitted). 

IV 

In sum, we hold that Crawford announced a “new rule” 

of criminal procedure and that this rule does not fall

within the Teague exception for watershed rules. We 

therefore reverse the judgment of the Court of Appeals 

and remand the case for further proceedings consistent

with this opinion. 

It is so ordered.