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 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, 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 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. 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 Syllabus 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. 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 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. 417-421. (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 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-of-court statements that may be admitted in Syllabus criminal trials. But the question here 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. 418-420. 99 (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. 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. Márquez 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 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 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 Oregon, 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 Washington, 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 Marianne 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. Opinion of the Court 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 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. |