How Could A New "Watershed Rule" Impact Your Criminal Case?

How Could A New “Watershed Rule” Impact Your Criminal Case?

There are a lot of legal terms that you’re probably familiar with. But you might not be familiar with others. One of the more unfamiliar terms is the term “watershed rule.” Very few people in public know what a new watershed rule is, lawyers included. And even less understand how it could impact your criminal case. Chances are small, but a new watershed rule could get you out of prison sooner. So understanding what it is and how it impacts your case is important.

How do courts create new rules of law?

Sometimes. These new rules of law apply to future cases. So, if your criminal case is still happening, a new rule of law will apply to your case. They also apply to other cases that are already on “direct” appeal. So, if you are appealing your case, the new rule of law will apply as well. Things get more complicated if your case is already final. In that circumstance, the new rule of law usually won’t apply to your case. But there are two exceptions. This article is about the second one: when a new rule of law is a “watershed” rule.

Not appeal appeals court decisions create rules of law, though. In fact, the opposite is true: Most appeals court decisions don’t. If you appeal your case to your state’s first-level appeals court, it’s possible your case won’t impact any other cases at all. This is usually true if the court decides the appeal in an unpublished opinion. In many states, unpublished opinions have little or no “presidential” value. This means that the decisions aren’t considered precedent and other courts need not follow them. The same can be true about other appeals court decisions, too.

Do new rules of law apply to old cases? Sometimes. These new rules of law apply to future cases.
Image courtesy of BrianScantlebury via iStockphoto.com

Do new rules of law apply to old cases?

Sometimes. These new rules of law apply to future cases. So, if your criminal case is still happening, a new rule of law will apply to your case. They also apply to other cases that are already on “direct” appeal. So, if you are in the process of appealing your case, the new rule of law will apply as well. Things get more complicated, however, if your case is already final. In that circumstance, the new rule of law usually won’t apply to your case. But there are two exceptions. This article is about the second one: when a new rule of law is a “watershed” rule.

To begin, the watershed rule only applies to rules of criminal procedure. This means that a decision like Miller v. Alabama wouldn’t fit that exception. (The decision in Miller v. Alabama would apply to everyone anyway.) But the exception does apply to decisions impacting the procedures used in criminal cases. Examples of Supreme Court decisions with these new procedural rules of law include Miranda v. Arizona (1966) and Batson v. Kentucky (1985). Miranda v. Arizona established so-called Miranda rights. And Batson v. Kentucky prohibits prosecutors from striking potential jurors based on race.

But, according to the Supreme Court, neither Miranda v. Arizona nor Batson v. Kentucky established a new watershed rule. As a result, the rules of law from those cases only applied to future and pending cases, not past ones. This means that people convicted of a crime but denied their Miranda rights are out of luck. Same with people convicted by juries where potential jurors were excluded based on the color of their skin. In fact, in the more than 30 years since the Supreme Court announced the watershed rule, it hasn’t been used at all.

Will the Watershed Rule impact your case?

Probably not. Again, the U.S. Supreme Court announced the watershed rule decades ago. But they haven’t used it yet. And, according to the Supreme Court’s recent decision in Edwards v. Vannoy (2020), it won’t ever use it. Justice Brett Kavanaugh, writing for the majority of the Court, stated the following: “The watershed exception is moribund. It must ‘be regarded as retaining no vitality.’ ” Put more simply, the watershed rule is no more.

Whether your state has a rule and whether it still applies depends on where you’re at. But, because of Edwards v. Vannoy, it’s unlikely that the watershed rule will help your case. Court decisions can still impact your case if they create a “substantive rule of constitutional law.” This is a separate exception that How to Justice explains in a separate article.

The Takeaway:

If you’ve been convicted of a crime, shortening your sentence or getting your conviction overturned is very important. But it’s also rare. In the past, you might have been able to rely on a new watershed rule of law to do so. Now, the chances of using the watershed rule are small and depend on what state you are in.

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