My colleagues have covered the retroactivity rules many times before on the blog but the analysis for determining the retroactivity of new federal rules has changed in the last few years. Considering that and the recent Confrontation Clause rule for substitute analyst testimony announced in Smith v. Arizona, 602 U.S. ___; 144 S.Ct. 1785 (2024) (summarized here), an update is in order. Today’s post reviews the federal retroactivity analysis and examines how it may be applied to Smith. Read on for the details. Retroactivity Basics. When a new rule is announced, it applies to cases pending on appeal (also known as direct review) and to cases yet to be tried. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Retroactivity refers to the application of a new rule to cases that are final. For purposes of the retroactivity analysis, a case is final when appellate review has been completed, including the time in which review by the U.S. Supreme Court may be sought (or after it is denied), or when the time to appeal a case has expired without an appeal. Teague v. Lane, 489 U.S. 288, 295 (1989). A court decision announcing a new rule might state whether the rule is intended to apply to final cases. If the decision does not state whether it applies to cases that are final, a retroactivity question arises—may a defendant obtain the benefit of the new rule by way of post-conviction (also known as collateral) review, even though the direct appeal process is over? [...]
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