550
Opinion of the Court
type laws and Article 38.07 may seem to operate on their face, in practical application (at least in certain instances) their consequences are no different, and, accordingly, they ought to be treated alike. For example, if there were a rule declaring a victim to be incompetent to testify unless she was under a certain age at the time of the offense, or had made an outcry within a specified period of time, or had other corroborating evidence, and the prosecution attempted to rest its case on the victim's testimony alone without satisfying those requirements, the end result would be a judgment of acquittal. Post, at 564-565. Likewise, under Article 38.07, if the prosecution attempts to rest its case on the victim's testimony alone without satisfying the Article's requirements, the result would also be an acquittal. Thus, Hopt-type laws and Article 38.07 should be treated the same way for ex post facto purposes.
This argument seeks to make Hopt controlling by ignoring what the case says. Hopt specifically distinguished laws that "alter the degree, or lessen the amount or measure, of the proof" required to convict from those laws that merely respect what kind of evidence may be introduced at trial. See supra, at 545. The above argument, though, simply denies any meaningful distinction between those types of laws, on the premise that they produce the same results in some situations. See post, at 563 ("Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule"); post, at 571 ("Hopt cannot meaningfully be distinguished from the instant case"). In short, the argument finds Hopt controlling by erasing the case's controlling distinction.
The argument also pays no heed to the example laid down by Fenwick's case. Surely we can imagine a witness competency rule that would operate in a manner similar to the law in that case (e. g., a witness to a treasonous act is not
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