Tuesday, February 22, 2005

Bocting v. Bayer

Crawford. In this case, the defendant got a life sentence for sexual abuse although the only witness, his six year old stepdaughter, did not testify at trial. The interview with the police was admitted at trial, although it contradicted her testimony at the preliminary hearing, when she claimed she could not remember what took place. What affect should Crawford be given on post-conviction? The 9th splinters. Judge McKeown holds that Crawford, despite its "historical basis" is really a new rule, but fulfills the Teague exception in that it is "watershed" ruling that is implicit in an ordered concept of liberty. For Judge McKeown, the truth seeking aspects of Crawford are essential for the ordered liberty, and must be applied retroactively. Judge Noonan agrees with the result, but he would find that Crawford is not a new rule, but is rather a reaffirmation of an old rule that had been misinterpreted by Ohio v. Roberts. Judge Wallace, dissenting, argues that Crawford must be considered a new rule, but it is a rule of procedure, and that fact that courts had to find, under Roberts, that admitted statements had guarantees of trustworthiness made it not the watershed rule promoted by judge McKeown but a different means of testing evidence.


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