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3 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2007)

handle is hein.journals/dukjppsid3 and id is 1 raw text is: WHOR TON v. BOCKTING AND THE
WATERSHED EXCEPTION OF
TEA G UE v. LANE
TADHG DOOLEY*
I. INTRODUCTION
In Whorton v. Bockting,' the Supreme Court considered whether
its rule from Crawford v. Washington,' prohibiting the admission of
testimonial hearsay statements without a prior opportunity for the
defendant to cross-examine the declarant, should be applied
retroactively to cases on collateral appeal under the standard set forth
in Teague v. Lane. The determination rested on whether Crawford
announced a new rule that should be applied retroactively by virtue
of its being a watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.,4 In a
unanimous decision, the Court held that Crawford did announce a
new rule of criminal procedure, but that this rule does not fall
within the Teague exception for watershed rules.' Therefore, the
respondent could not benefit from the Crawford rule during the
collateral review of his original state court conviction.
The outcome of the case was not surprising given the high bar the
Court has set for finding a watershed rule in decisions after Teague.
Since the Teague standard was announced, the Court has not found a
single rule that satisfies its requirements. However, prior to the
* 2008 J.D. Candidate, Duke University School of Law.
1. Whorton v. Bockting, 127 S. Ct. 1173 (2007).
2. Crawford v. Washington, 541 U.S. 35 (2004).
3. Teague v. Lane, 489 U.S. 288 (1989).
4. Bockting, 127 S. Ct. at 1181(quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).
5.  Id. at 1184.
6. See, e.g., Schiro v. Summerlin, 542 U.S. 348 (2004) (rejecting retroactivity for Ring v.
Arizona, 546 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 v. Netherland, 521 U.S. 151 (1997) (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);

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