WHORTON, DIRECTOR, NEVADA DEPARTMENT OF CORRECTIONS v. BOCKTING

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406 OCTOBER TERM, 2006
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-of-court
statements about the assaults, as permitted by Nevada law, rejecting
respondent’s claim that admitting this testimony would violate the Con
frontation Clause. He was convicted and sentenced to prison. On di
rect appeal, the Nevada Supreme Court found the child’s statements
constitutional under Ohio v. Roberts, 448 U. S. 56, then this Court’s gov
erning precedent, which had held that the Confrontation Clause permit
ted the admission of a hearsay statement made by a declarant unavail
able to testify if the statement bore sufficient indicia of reliability, id.,
at 66. Respondent renewed his Confrontation Clause claim in a subse
quent federal habeas petition, which the District Court denied. While
his appeal was pending in the Ninth Circuit, this Court overruled Rob
erts 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 conclud
ing that Roberts’ interpretation of the Confrontation Clause was un
sound, 541 U. S., 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 Circuit re
versed, 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. 416–421.
(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

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407 Cite as: 549 U. S. 406 (2007)
Syllabus
it (1) is substantive or (2) is a watershed rule that implicates “the funda
mental fairness and accuracy of the criminal proceeding.” Respond
ent’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 convic
tion became final,’ ” Saffle, supra, at 488. It is flatly inconsistent with
Roberts, which it overruled. “The explicit overruling of an earlier hold
ing no doubt creates a new rule.” Saffle, supra, at 488. Prior to Craw
ford, “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. 416–417.
(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 accu
racy of the criminal proceeding.” This exception is “extremely nar
row,” Schriro v. Summerlin, 542 U. S. 348, 351, and since Teague, this
Court has rejected every claim that a new rule has satisfied the require
ments necessary to qualify as a watershed. The Crawford rule does
not meet those two requirements. Pp. 417–421.
(1) First, the rule does not implicate “the fundamental fairness and
accuracy of the criminal proceeding” because it is not necessary to pre
vent “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction, Sum
merlin, 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 ap
pointed for an indigent defendant charged with a felony because, when
such a defendant is denied representation, the risk of an unreliable ver
dict 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 fact
finding in criminal trials. With respect to testimonial out-of-court
statements, Crawford is more restrictive than Roberts, which may im
prove the accuracy of factfinding in some criminal cases. But whatever
improvement in reliability Crawford produced must be considered to
gether with Crawford’s elimination of Confrontation Clause protection
against the admission of unreliable out-of-court nontestimonial state
ments. It is thus unclear whether Crawford decreased or increased the
number of unreliable out-of-court statements that may be admitted in

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408 WHORTON v. BOCKTING
Syllabus
criminal trials. But the question here is not whether Crawford re
sulted in some net improvement in the accuracy of factfinding in crimi
nal 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. 418–420.
(2) Second, the Crawford rule did not “alter [this Court’s] under
standing 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 Craw
ford rule, while certainly important, is not in the same category with
Gideon, which effected a profound and “ ‘sweeping’ ” change. Beard,
supra, at 418. Pp. 420–421.
399 F. 3d 1010 and 408 F. 3d 1127, reversed and remanded.
Alito, J., delivered the opinion for a unanimous Court.
George J. Chanos, Attorney General of Nevada, argued the
cause for petitioner. With him on the briefs were Gerald
Gardner, Chief Deputy Attorney General, and Victor-Hugo
Schulze II and Rene L. Hulse, Senior Deputy Attorneys
General.
Irving L. Gornstein argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Clement, Assistant Attorney
General Fisher, Deputy Solicitor General Dreeben, and
Kathleen A. Felton.
Frances A. Forsman argued the cause for respondent.
With her on the brief was Michael Pescetta.*
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor
General, Kristofer S. Monson, Assistant Solicitor General, and Fredericka
Sargent, Assistant Attorney General, by Bill Lockyer, Attorney General
of California, and Brian Means, Supervising Deputy Attorney General,
and by the Attorneys General for their respective States as follows: Troy
King of Alabama, David W. Ma´ rquez of Alaska, Terry Goddard of Arizona,
John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Carl C.
Danberg of Delaware, Thurbert E. Baker of Georgia, Mark Bennett of

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409 Cite as: 549 U. S. 406 (2007)
Opinion of the Court
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
Hawaii, Lawrence Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter
of Indiana, Tom Miller of Iowa, Phill Kline of Kansas, Gregory D. Stumbo
of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of
Maryland, Tom Reilly of Massachusetts, Mike Cox of Michigan, Jim Hood
of Mississippi, Mike McGrath of Montana, Jon Bruning of Nebraska, Kelly
A. Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Jim
Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Ore
gon, Tom Corbett of Pennsylvania, Patrick C. Lynch of Rhode Island,
Larry Long of South Dakota, Paul G. Summers of Tennessee, Mark
Shurtleff of Utah, Bob McDonnell of Virginia, Rob McKenna of Washing
ton, Darrell V. McGraw, Jr., of West Virginia, Peggy A. Lautenschlager
of Wisconsin, and Patrick J. Crank of Wyoming; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.
A brief of amicus curiae urging affirmance was filed for the National
Association of Criminal Defense Lawyers by Jeffrey T. Green and Mari
anne T. Caulfield.
A brief of amici curiae was filed for former District Judge Edward N.
Cahn et al. by Timothy P. O’Toole, Catharine F. Easterly, and former
Judges John J. Gibbons, Timothy K. Lewis, H. Curtis Meanor, Stephen
M. Orlofsky, and Patricia M. Wald, all pro se.

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to engage in numerous and varied sexual acts with him.
Ibid.
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 hot
line 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 pro
vided 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. Re
spondent 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 remem
ber 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 Detec
tive 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.

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Stat. § 51.385 (2003) 1 to allow Laura Bockting and Detective
Zinovitch to recount Autumn’s statements regarding the sex
ual 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 cir
cumstantial guarantees of trustworthiness.” § 51.385(1)(a).
Over defense counsel’s objection that admission of this testi
mony would violate the Confrontation Clause, id., at 27–28,
the trial court found sufficient evidence of reliability to sat
isfy § 51.385.
As a result of this ruling, Laura Bockting and Detective
Zinovitch were permitted at trial to recount Autumn’s out
of-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 pros
ecution introduced evidence regarding Autumn’s medical
exam. Respondent testified in his own defense and denied
the assaults, and the defense brought out the fact that Au
1 Section 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.”

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tumn, 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 be
come 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 concur
rent 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 conten
tion that the admission of Autumn’s out-of-court statements
had violated his Confrontation Clause rights, the Nevada Su
preme 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 state
ment 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
admission of Autumn’s statements was constitutional be
cause the circumstances surrounding the making of the
statements provided particularized guarantees of trustwor
thiness. The court cited the “natural spontaneity” of Au
tumn’s initial statements to her mother, her reiteration of
the same account to Detective Zinovitch several days later,
2 The 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).

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her use of anatomically correct dolls to demonstrate the as
saults, and her detailed descriptions of sexual acts with
which a 6-year-old would generally not be familiar. Bock
ting, supra, at 109–112, 847 P. 2d, at 1368–1370.
C
Respondent then filed a petition for a writ of habeas cor
pus with the United States District Court for the District
of Nevada, arguing that the Nevada Supreme Court’s deci
sion 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. 813 (2006). We noted that the out
come in Roberts—as well as the outcome in all similar cases
decided by this Court—was consistent with the rule an
nounced in Crawford, but we concluded that the interpre
tation 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 ob
served that Roberts potentially excluded too much testimony
because it imposed Confrontation Clause restrictions on non

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testimonial 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 testimo
nial statements. 541 U. S., at 60. We concluded:
“Where testimonial statements are involved, we do
not think the Framers meant to leave the Sixth Amend
ment’s protection to the vagaries of the rules of evi
dence, much less to amorphous notions of ‘reliability.’ . . .
Admitting statements deemed reliable by a judge is fun
damentally 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 sub
stantive 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-of-court state
ments could not have been admitted into evidence and the
jury would not have convicted him. Respondent further ar
gued that Crawford should have been applied to his case be
cause the Crawford rule was either (1) an old rule in exist
ence 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

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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 re
view 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 con
cur[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 proce
dural rule but argued 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 that has ad
dressed this issue.4 We granted certiorari to resolve this
conflict. 547 U. S. 1127 (2006).
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), retroac
tivity analysis. 399 F. 3d, at 1021–1022.
4 See, 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. 694,
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).

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II
A
In Teague and subsequent cases, we have laid out the
framework to be used in determining whether a rule an
nounced in one of our opinions should be applied retroac
tively 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 de
cided. 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 became
final.’ ” Saffle, supra, at 488 (quoting Teague, supra, at 301
(plurality opinion); emphasis in original).
Applying this definition, it is clear that Crawford an
nounced a new rule. The Crawford rule was not “dictated”
by prior precedent. Quite the opposite is true: The Craw
ford rule is flatly inconsistent with the prior governing prec
edent, Roberts, which Crawford overruled. See Davis, 547
U. S., at 825, n. 4, 834. “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

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the Roberts rule, had been generally consistent with the rule
announced in Crawford (and with the Framers’ understand
ing of the meaning of the Confrontation Clause, which pro
vided 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 inconsis
tent 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.’ ” Lock
hart 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 gov
erning precedent existing at the time when respondent’s con
viction became final, the Crawford rule is a new rule.
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 at
tack 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, 667, n. 7
(2001); internal quotation marks omitted); see also O’Dell v.
Netherland, 521 U. S. 151, 157 (1997); Graham, supra, at 478;

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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. Ari
zona, 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 pre
vent “an ‘ “impermissibly large risk” ’ ” of an inaccurate con
viction. 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 omitted; em
phasis deleted). We consider each of these requirements in
turn.
B
The Crawford rule does not satisfy the first requirement
relating to an impermissibly large risk of an inaccurate con
viction. 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 accu
racy 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 356.

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Guidance in answering this question is provided by Gideon
v. Wainwright, 372 U. S. 335 (1963), to which we have repeat
edly referred in discussing the meaning of the Teague excep
tion at issue here. See, e. g., Beard, supra, at 417; Saffle,
supra, at 495; Gilmore, supra, at 364 (Blackmun, J., dissent
ing). 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. 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 factfinding 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. 541 U. S., at 57–60. Accordingly, it is
not surprising that the overall effect of Crawford with re
gard to the accuracy of factfinding 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 factfinding in some criminal cases.
Specifically, under Roberts, there may have been cases in
which courts erroneously determined that testimonial state
ments were reliable. But see 418 F. 3d, at 1058 (O’Scann
lain, J., dissenting from denial of rehearing en banc) (observ

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420 WHORTON v. BOCKTING
Opinion of the Court
ing that it is unlikely that this occurred “in anything but the
exceptional case”). But whatever improvement in reliabil
ity 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, de
creased or increased the number of unreliable out-of-court
statements that may be admitted in criminal trials. But the
question here is not whether Crawford resulted in some net
improvement in the accuracy of factfinding 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 dimin
ished.’ ” 399 F. 3d, at 1028 (Wallace, J., concurring and dis
senting) (quoting Summerlin, 542 U. S., at 352; internal quo
tation 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 quotation
marks omitted; emphasis in original). Contrary to the sug
gestion of the Court of Appeals, see 399 F. 3d, at 1019 (rely
ing 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

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Opinion of the Court
“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 ‘funda
mental’ in some abstract sense is not enough.” Summerlin,
supra, at 352.
Instead, in order to meet this requirement, a new rule
must itself constitute a previously unrecognized bedrock pro
cedural element that is essential to the fairness of a proceed
ing. 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
Crawford, while certainly important, is not in the same cate
gory with Gideon. Gideon effected a profound and “ ‘sweep
ing’ ” change. Beard, supra, at 418 (quoting O’Dell, 521
U. S., at 167). The Crawford rule simply lacks the “pri
macy” and “centrality” of the Gideon rule, Saffle, 494 U. S.,
at 495, and does not qualify as a rule that “alter[ed] our un
derstanding of the bedrock procedural elements essential to
the fairness of a proceeding,” Sawyer, 497 U. S., at 242 (inter
nal quotation marks omitted; emphasis deleted).
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 re
verse the judgment of the Court of Appeals and remand the
case for further proceedings consistent with this opinion.
It is so ordered.