84
Opinion of the Court
able under McLaughlin's 48-hour rule. The State so concedes. Appellee's Answer to Petition for Rehearing in No. 22348 (Nev.), p. 7; Tr. of Oral Arg. 28. The State further concedes that the Nevada Supreme Court's retroactivity analysis was incorrect. See ibid. We held in Griffith v. Kentucky, 479 U. S., at 328, that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." Griffith stressed two points. First, "the nature of judicial review . . . precludes us from '[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.' " Id., at 323 (quoting Mackey v. United States, 401 U. S. 667, 679 (1971) (Harlan, J., concurring in judgment)). Second, "selective application of new rules violates the principle of treating similarly situated defendants the same." Griffith, supra, at 323. Assuming, arguendo, that the 48-hour presumption announced in Mc-Laughlin qualifies as a "new rule," cf. Teague v. Lane, 489 U. S. 288, 299-310 (1989), Griffith nonetheless entitles Powell to rely on McLaughlin for this simple reason: Powell's conviction was not final when McLaughlin was announced.
It does not necessarily follow, however, that Powell must "be set free," 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1, or gain other relief, for several questions remain open for decision on remand. In particular, the Nevada Supreme Court has not yet closely considered the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), or the consequences of Powell's failure to raise the federal question, or the district attorney's argument that introduction at trial of what Powell said on November 7, 1989, was "harmless" in view of a similar, albeit shorter, statement Powell made on November 3, prior to his arrest. See Brief for Respondent 22. Expressing no opin-
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