Wednesday, November 01, 2006

Argument in the Retroactivity Case

The Court heard argument today in Whorton v. Bockting, posing the question of whether Crawford should be applied retroactively. For a report on the argument by Lyle Denniston from SCOTUSBLOG, under the title Commentary: Crawford grows in stature?, click here. When the transcript of the argument becomes available, I will post a link on this blog.

It sure does seem to me that if anything qualifies as a watershed decision Crawford does. And yet I worry about what the effect will be on the development of confrontation law if Crawford is held to apply retroactively. Where judges do not duck the issue, I am afraid they will be even more inclined than they are now to interpret the confrontation right narrowly, lest they open up some old convictions that would be difficult or impossible to retry. And bad law created in this way may last for a long time.

5 comments:

Richard D. Friedman said...

Sorry -- I had failed to click the button that allows comments. Now I have done so!

Roger Park said...

The decision below in the 9th Circuit, sub nom Bockting v. Bayer, said that the test for retroactivity was twofold, (1) whether the rule was bedrock-fundamental and (2) whether it "implicates the accuracy of the criminal proceeding." It also ventured that "The Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation Clause is to promote accuracy," citing Crawford, Roberts, and others. Ergo, it said, the decision is retroactive.

If I'm correct in thinking that Rich (Prof. Friedman) doesn't like basing the Crawford doctrine on an accuracy rationale, then it seems to me that his position might be that Crawford is not retroactive because it is not the purpose of the Confrontation Clause to promote accuracy. Or perhaps that the test for retroactivity ought to be changed.

Roger Park

Richard D. Friedman said...

In response to Roger: I don't have any strong feelings about what the standards on retroactivity should be. I do worry that if Crawford were held retroactive then courts would tend to construe the confrontation right more narrowly than they should, and that in the long term this would be bad for the proper recognition of the right.

As for accuracy, of course I don't believe that admissibility of a statement should depend on whether or not it appears likely to promote accuracy. This is one of the key points held by Crawford. A statement might be rendered inadmissible by the Confrontation Clause even if it appears to a court to be highly reliable and therefore likely to promote accuracy. Whether this will have any bearing on the retroactivity question I don't know.

As to the question of whether promotion of accuracy is the ultimate goal of the Clause, my answer is somewhat complex. Crawford indicates that the answer is affirmative, and that the Clause is meant to create a procedure that courts must rigorously follow and that over the long run, whether in the particular case or not, will tend to promote accuracy. I think that this is one of the goals of the Clause, and that over the long run confrontation, together with the threat of confrontation, probably does promote accuracy in fact-finding. But there are lots of other advantages of a system that makes an opportunity for confrontation a requisite for prosecution testimony -- such as promotion of openness and a sense of completeness, the appearance of fairness, and prevention of intimidation (and worse). And after several hundred years, the fact that this is the way we do things has substantial weight.

Mark Dwyer said...

though I am impossibly prosecutorial, may I offer this thought in hopes that it might contribute:

it is to me of great significance to recall that Crawford will decidedly be retroactive to all cases on direct appeal. what Prof. Friedman certainly understands and probably thinks is obvious might nonetheless be stated expressly: what is it issue here is whether every Confrontation Clause issue will now be re-opened in cases in which the direct appeal is over, and indeed may have been over for decades.

Richard D. Friedman said...

Thanks to Mark for the clarification -- and he is right that I may have hastily assumed that readers understood that Crawford certainly appliesto cases that were alive on direct appeal when it was decided; the retroactivity question is whether it will apply on collateral review, to cases that might otherwise have been closed for some time.

I agree with Mark on his other point as well, that he is impossibly prosecutorial. (Of course, I don't mean to be defense-minded; I'm just an academic thinking about what the best law of the confrontaiton right will be.)