Franklin v. New York

1 Cite as: 604 U. S. ____ (2025)
Statement of A
LITO, J.
SUPREME COURT OF THE UNITED STATES
CID C. FRANKLIN v. NEW YORK
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF NEW YORK
No. 24–330. Decided March 24, 2025
The petition for a writ of certiorari is denied.
Statement of J
USTICE ALITO respecting the denial of cer-
tiorari.
I agree that we should not grant certiorari in this case,
but in an appropriate case we should reconsider the inter-
pretation of the Confrontation Clause that the Court
adopted in Crawford v. Washington, 541 U. S. 36 (2004),
and has elaborated in later cases. Overturning established
precedent, the Crawford Court claimed that its new inter-
pretation captured the original meaning of the Confronta-
tion Clause as revealed by then-recent scholarship, id., at
60–61, and that this interpretation would avoid the “unpre-
dictable and inconsistent” results that had occurred under
the test it overturned, id., at 66.
Subsequent developments have undermined these two
pillars of Crawford’s rationale. Historical research now
calls into question Crawford’s understanding of the rele-
vant common law rules at the time of the adoption of the
Sixth Amendment, and whatever else may be said about
that decision, there can be no dispute that it has not pro-
duced predictable and consistent results. Despite repeated
attempts to explain what Crawford meant by “testimonial
statements,” our Confrontation Clause jurisprudence con-
tinues to confound courts, attorneys, and commentators.
1
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1
See, e.g., R. Allen, J. Hoffman, D. Livingston, A. Leipold, & T. Meares,
Comprehensive Criminal Procedure 1416 (5th ed. 2020) (“astonishing”);
E. Sheley, The Dignitary Confrontation Clause, 97 Wash. L. Rev. 207,
223 (2022) (“morass”); D. Tuerkheimer, Exigency, 49 Ariz. L. Rev. 801,

2 FRANKLIN v. NEW YORK
Statement of A
LITO, J.
Petitioner asks us to remedy this confusion by clarifying
what qualifies as a “testimonial statement” under our post-
Crawford case law. See Smith v. Arizona, 602 U. S. 779,
783–789, 799–802 (2024) (discussing our “varied formula-
tions” of Crawford’s “testimonial inquiry”). But the real
problem may be Crawford itself and its conclusion that the
Confrontation Clause codified a well-established common
law right against the use of any “testimonial” statement
made out of court by a person who is available to testify and
was not previously subject to cross-examination by the de-
fendant. 541 U. S., at 68.
In order to reach this conclusion, the Court was required
to hold that any person who makes a “testimonial” state-
ment (whatever that means) is a “witness” within the
meaning of the Confrontation Clause, but this gave the
term “witness” a meaning that is radically different from its
meaning in the neighboring Compulsory Process Clause
and elsewhere in the Constitution. See A. Amar, Confron-
tation Clause First Principles: A Reply to Professor Fried-
man, 86 Geo. L. J. 1045, 1045–1047 (1998); A. Amar, Fore-
word: Sixth Amendment First Principles, 84 Geo. L. J. 641,
647 (1996).
——————
832, n. 173 (2007) (“incoherent”); J. Widdison, Comment, Michigan v.
Bryant: The Ghost of Roberts and the Return of Reliability, 47 Gonz.
L. Rev. 219, 240 (2011) (“unstable”); A. Eichner, Note, The Failures of
Melendez-Diaz v. Massachusetts and the Unstable Confrontation Clause,
38 Am. J. Crim. L. 437 (2011) (same); M. Spottswood, Truth, Lies, and
the Confrontation Clause, 89 U. Colo. L. Rev. 565, 611 (2018) (“unneces-
sarily complex”); J. Ross, After Crawford Double-Speak: “Testimony”
Does Not Mean Testimony and “Witness” Does Not Mean Witness, 97 J.
Crim. L. & C. 147 (2006) (“double-speak”); D. Crump, Overruling Craw-
ford v. Washington: Why and How, 88 Notre Dame L. Rev. 115, 132
(2012) (“unworkable”); D. Noll, Constitutional Evasion and the Confron-
tation Puzzle, 56 Boston College L. Rev. 1899, 1903 (2015) (“mess” (in-
ternal quotation marks omitted)); G. Fisher, The Crawford Debacle, 113
Mich. L. Rev. First Impressions 17, 24 (2014) (“ ‘inherently, and therefore
permanently, unpredictable’ ” (quoting Crawford, 541 U. S., at 68, n. 10)).

3 Cite as: 604 U. S. ____ (2025)
Statement of A
LITO, J.
The Compulsory Process Clause, which follows immedi-
ately after the Confrontation Clause, gives a defendant the
right “to have compulsory process for obtaining witnesses in
his favor.” Amdt. 6 (emphasis added). And it is clear that
these “witnesses” are people who are subpoenaed to appear
in court and testify. The Court has understood the Clauses’
neighboring references to “witnesses” as two sides of the
same coin. See Washington v. Texas, 388 U. S. 14, 19 (1967)
(“Just as an accused has the right to confront the prosecu-
tion’s witnesses for the purpose of challenging their testi-
mony, he has the right to present his own witnesses to es-
tablish a defense”). After Crawford, however, only the
Compulsory Process Clause’s “witnesses” are people who
must appear in court and take the stand. When a law uses
the same term more than once, we presume that the term
means the same thing every time it is used. See A. Scalia
& B. Garner, Reading Law: The Interpretation of Legal
Texts 170 (2012). Thus, it is startling to hold that the term
“witnesses” in two provisions separated by nothing but a
semicolon have very different meanings.
Other provisions of the Constitution that use the term
“witnesses” also refer to people who testify in court. The
Treason Clause states that “[n]o Person shall be convicted
of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.” Art. III,
§3, cl. 1. This provision requires two live witnesses who
take the stand. See M. Hale, Pleas of the Crown 262 (1694);
J. Langbein, The Origins of Adversary Criminal Trial 238–
239 (2003); Amar, 86 Geo. L. J., at 1047.
These powerful textual arguments were known when
Crawford was decided, but the Court dismissed them be-
cause its study of history led it to believe that the Confron-
tation Clause was meant to codify a well-established com-
mon law right against the introduction of a certain category

4 FRANKLIN v. NEW YORK
Statement of A
LITO, J.
of what we now call hearsay. More recent scholarship, how-
ever, casts doubt on key aspects of Crawford’s reasoning.
2
Our body of constitutional decisions would be in perpet-
ual turmoil if we reconsidered every decision resting on an
interpretation of history that is subsequently challenged in
the law reviews. But as both J
USTICE GORSUCH and I rec-
ognize, the current state of our Confrontation Clause juris-
prudence is unstable and badly in need of repair. If we un-
dertake that project, we should not limit our efforts to an
attempt to shore up what may be a fundamentally unsound
structure.
If we reconsider Crawford, as I think we should, the re-
sult might be a reaffirmation of Crawford or the adoption
of an entirely different Confrontation Clause rule. But
whatever the outcome might be, reconsideration is needed.
——————
2
See, e.g., T. Davies, Not “The Framers’ Design”: How the Framing-Era
Ban Against Hearsay Evidence Refutes the Crawford-Davis “Testimo-
nial” Formulation of the Scope of the Original Confrontation Clause, 15
J. L. & Pol’y 349 (2007); Noll, 56 Boston College L. Rev., at 1904–1905,
1918–1950; Spottswood, 89 U. Colo. L. Rev., at 595–596; D. Sklansky,
Hearsay’s Last Hurrah, 2009 S. Ct. Rev. 1, 5–6, 36–38, 46–47, 54; B.
Trachtenberg, Confronting Coventurers: Coconspirator Hearsay, Sir
Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 Fla.
L. Rev. 1669, 1677–1681 (2012); J. Bellin, The Incredible Shrinking Con-
frontation Clause, 92 B. U. L. Rev. 1865, 1881–1893 (2012); T. Davies,
What Did the Framers Know, and When Did They Know It? Fictional
Originalism in Crawford v. Washington, 71 Brooklyn L. Rev. 105, 106–
107 (2005); R. Kry, Confrontation Under the Marian Statutes: A Re-
sponse to Professor Davies, 72 Brooklyn L. Rev. 493 (2007); T. Davies,
Revisiting the Fictional Originalism in Crawford’s “Cross-Examination
Rule”: A Reply to Mr. Kry, 72 Brooklyn L. Rev. 557 (2007).

1 Cite as: 604 U. S. ____ (2025)
Statement of G
ORSUCH, J.
SUPREME COURT OF THE UNITED STATES
CID C. FRANKLIN v. NEW YORK
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF NEW YORK
No. 24–330. Decided March 24, 2025
Statement of JUSTICE GORSUCH respecting the denial of
certiorari.
While Cid Franklin awaited arraignment after his arrest,
an employee of the Criminal Justice Agency questioned him
outside the presence of counsel. That publicly funded
agency interviews “nearly all individuals arrested in New
York City” in order to make bail recommendations to the
arraigning judge. 42 N. Y. 3d 157, 159, 242 N. E. 3d 652,
653 (2024) (internal quotation marks omitted).
Much later, prosecutors sought to make a different use of
Mr. Franklin’s bail report. At trial, they introduced it as
evidence of his guilt. See App. to Pet. for Cert. 33a (exhibit).
And they did so without giving him a chance to cross-
examine the report’s author. Relying on the report, which
“was central to the People’s case at trial,” a jury convicted
Mr. Franklin. 42 N. Y. 3d, at 160, 242 N. E. 3d, at 654.
On appeal, Mr. Franklin argued that this use of the bail
report violated his Sixth Amendment right to confront the
witnesses against him. The New York Court of Appeals dis-
agreed. It reasoned that the Sixth Amendment only bars
the use of “‘testimonial’” out-of-court statements. Id., at
161, 242 N. E. 3d, at 655 (quoting Crawford v. Washington,
541 U. S. 36, 51 (2004)). And a statement qualifies as “tes-
timonial,” the court continued, only if it “was created for the
primary purpose of serving as trial testimony.” 42 N. Y. 3d,
at 159, 242 N. E. 3d, at 653. Applying that test, taken from
this Court’s decision in Michigan v. Bryant, 562 U. S. 344
(2011), the Court of Appeals concluded that Mr. Franklin’s

2 FRANKLIN v. NEW YORK
Statement of G
ORSUCH, J.
bail report was written principally for “administrative” pur-
poses and not primarily for use at trial. 42 N. Y. 3d, at 165,
242 N. E. 3d, at 658. Therefore, the court reasoned, it did
not qualify as testimonial. Ibid.
It’s hard to fault the Court of Appeals for applying a “pri-
mary-purpose” test in assessing Mr. Franklin’s Sixth
Amendment claim. After all, this Court endorsed the test
just last year in Smith v. Arizona, 602 U. S. 779, 800 (2024).
But even if that judge-made test may have some useful role
to play, it seems to me that treating it as a necessary con-
dition to relief under the Confrontation Clause can pose
problems too, risking results that sit uneasily with the
Clause’s original meaning. It is a concern I raised in
Smith—and one that, to my eyes, this case highlights. Id.,
at 806 (opinion concurring in part).
Consider briefly some of what we know about the Sixth
Amendment. Beginning in the 16th century, Parliament
required magistrates “to examine suspects and witnesses”
before trial and to “certify the results to the court.” Craw-
ford, 541 U. S., at 43–44. Apparently, an important pur-
pose of those examinations was to ensure that the defend-
ant and key witnesses would appear at trial, not to generate
admissible evidence. See J. Langbein, Prosecuting Crime
in the Renaissance 24 (1974). Still, prosecutors sometimes
introduced those examinations at trial instead of calling
live witnesses, effectively denying defendants a chance to
cross-examine their accusers. See Crawford, 541 U. S., at
44. By the founding, the common law had largely turned
against that practice. See J. Beattie, Crime and the Courts
in England 1660–1800, pp. 270–271, 363–365 (1985). Rec-
ognizing as much, this Court in Crawford held that the “use
of ex parte examinations as evidence against the accused”
was one of the “principal evil[s] at which the Confrontation
Clause was directed.” 541 U. S., at 50.
Now return to Mr. Franklin’s case. The Court of Appeals
applied the primary-purpose test to approve something that

3 Cite as: 604 U. S. ____ (2025)
Statement of G
ORSUCH, J.
looks very similar to what the Confrontation Clause was
adopted to prevent—the use at trial of a pretrial examina-
tion as evidence against the accused “in lieu of live testi-
mony” subject to cross-examination. Id., at 43.
Perhaps there is some way to reconcile this apparent ten-
sion. But perhaps, too, the tension here should give us rea-
son to ask some questions about the “primary-purpose” test
itself. Start with this one: Where does it come from? The
test appears nowhere in the text of the Sixth Amendment,
nor have our decisions sought to justify it by reference to
the Amendment’s original meaning and the historic prac-
tices that informed it. Really, where the primary-purpose
test “comes from is anyone’s guess.” Williams v. Illinois,
567 U. S. 50, 135 (2012) (K
AGAN, J., dissenting).
Seemingly, the first mention of “primary purpose” in our
Sixth Amendment jurisprudence came in Davis v. Washing-
ton, 547 U. S. 813, 822 (2006). Even there, however, the
Court did not purport to suggest that every Confrontation
Clause claim must run the primary-purpose gauntlet. In-
stead, Davis used the phrase “primary purpose” merely as
shorthand to describe some situations in which an out-of-
court statement will qualify as “testimonial” and thus im-
plicate the Confrontation Clause. Ibid. Reading any more
into its discussion, Davis emphasized, would be a mistake,
since it was not “attempting to produce an exhaustive clas-
sification of all conceivable statements . . . as either testi-
monial or nontestimonial.” Ibid.
Admittedly, and despite that admonition, some of our
later cases seized on Davis’s discussion of “primary pur-
pose” and sought to transform it into a kind of “grand uni-
fied theory” for assessing Confrontation Clause claims, a
test that must be satisfied in every case. American Legion
v. American Humanist Assn., 588 U. S. 29, 60 (2019) (plu-
rality opinion). But even after years of toiling with that
project, our cases have never quite settled on what the
primary-purpose test is. As we candidly acknowledged last

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Statement of G
ORSUCH, J.
year in Smith, the Court has offered a number of “varied”
and seemingly inconsistent “formulations.” 602 U. S., at
800; see also State v. Mattox, 2017 WI 9, ¶63, 373 Wis. 2d
122, 161, 890 N. W. 2d 256, 277 (Abrahamson, J., dissent-
ing) (“[T]he U. S. Supreme Court has not adopted a single,
definitive formulation of the primary purpose test”); People
v. Fontenot, 509 Mich. 1073, 1079, 975 N. W. 2d 919, 925
(2022) (McCormack, C. J., concurring) (“[T]he proper for-
mulation of the primary-purpose test is unclear”).
Consider a few examples. Perhaps the most demanding
articulation of the primary-purpose test came in Bryant,
where the Court indicated that an out-of-court statement
qualifies as testimonial if it was procured “with a primary
purpose of creating an out-of-court substitute for trial testi-
mony.” 562 U. S., at 358 (emphasis added). More forgiv-
ingly, in Melendez-Diaz v. Massachusetts, the Court said
that a statement qualifies as “testimonial” if it was “‘made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial.’ ” 557 U. S. 305, 310 (2009) (emphasis
added). Differently still, Davis suggested that statements
“made in the course of police interrogation . . . are testimo-
nial when . . . the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
criminal prosecution.” 547 U. S., at 822 (emphasis added).
And in yet another iteration, Smith said the relevant ques-
tion is whether a statement was prepared with a “‘focus on
court.’ ” 602 U. S., at 802 (emphasis added).
It might be possible, I suppose, to harmonize these dis-
cordant variations. But lower courts have generally felt
compelled to pick one version or another, and a defendant’s
conviction or acquittal can hang on that choice. See, e.g.,
United States v. Miller, 982 F. 3d 412, 436 (CA6 2020)
(“Were [the statements] testimonial? It might depend on
which of the Supreme Court’s varied ‘primary-purpose’
tests we apply”).

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Statement of G
ORSUCH, J.
Just look again at what happened to Mr. Franklin in the
Court of Appeals. There, a majority applied Bryant’s ver-
sion of the test, asking whether the primary purpose of Mr.
Franklin’s bail report “was to create an out-of-court substi-
tute for trial testimony.” 42 N. Y. 3d, at 164, 242 N. E. 3d,
at 657. Under that standard, the report struck the majority
as nontestimonial. Meanwhile, the dissent thought the bail
report testimonial because, even if it wasn’t created as a
substitute for trial testimony, it was created for use in court
and was available for use at trial, considerations Smith and
Melendez-Diaz have suggested are enough to trigger the
Sixth Amendment. See 42 N. Y. 3d, at 176, 242 N. E. 3d, at
666 (Aarons, J., dissenting).
If deciding which primary-purpose test to use can pose
lower courts with a challenge, applying any version of it
may be no easier. Bryant suggested that a court must “ob-
jectively” determine an out-of-court statement’s “‘primary
purpose.’” 562 U. S., at 360. But how is a court supposed
to do that? Must it take evidence and conduct a mini-trial
about the circumstances of each utterance? See id., at 370
(suggesting that courts must analyze “the statements and
actions of all participants” in an out-of-court encounter).
What, too, is a court supposed to do when the evidence in-
dicates that an officer had one “primary purpose” in mind
when soliciting an out-of-court statement and the declarant
had another? See id., at 383 (Scalia, J., dissenting). In
cases like that, what is to keep an “objective” inquiry from
devolving into raw judicial choice, inviting in the process
different results from different judges in similar cases? See
Kennedy v. Bremerton School Dist., 597 U. S. 507, 533–534
(2022) (noting problems with a not-dissimilar “reasonable
observer” inquiry); Smith, 602 U. S., at 806–807
(G
ORSUCH, J., concurring in part); cf. Davis, 547 U. S., at
841–842 (T
HOMAS, J., concurring in judgment in part and
dissenting in part). The challenges associated with apply-

6 FRANKLIN v. NEW YORK
Statement of G
ORSUCH, J.
ing the primary-purpose test only seem to compound fur-
ther when one considers the immense variety of out-of-court
statements that prosecutors may seek to use at trial—rang-
ing from statements from eyewitnesses at a crime scene to
bail reports to expert forensic analyses. Does each type of
statement demand its own primary-purpose jurisprudence?
Cf. Smith, 602 U. S., at 802 (distinguishing among different
types of laboratory records).
To my mind, all this suggests we may need to rethink our
course sometime soon. The primary-purpose test came
about accidentally. It has caused considerable confusion.
This Court has never sought to justify it on the basis of the
Sixth Amendment’s text or original meaning. Nor, for that
matter, is it easy to see how one might. The Sixth Amend-
ment guarantees “the accused . . . the right . . . to be con-
fronted with the witnesses against him.” What matters, as
I read those words, is not the purpose for which an out-of-
court statement was originally created, but whether the
government seeks to use a witness’s statement at trial
against a defendant in lieu of live testimony. See Smith,
602 U. S., at 806–807 (G
ORSUCH, J., concurring in part).
When it comes to vindicating many other guarantees in
the Bill of Rights, we have eschewed “ambitious, abstract,
and ahistorical” tests in favor of ones grounded in the con-
stitutional text and the common law that informed it. Ken-
nedy, 597 U. S., at 534 (internal quotation marks and alter-
ation omitted) (Establishment Clause).
1
Perhaps we should
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1
See also, e.g., SEC v. Jarkesy, 603 U. S. 109 (2024) (Seventh Amend-
ment); Ramos v. Louisiana, 590 U. S. 83 (2020) (Sixth Amendment jury
right); Knick v. Township of Scott, 588 U. S. 180 (2019) (Fifth Amend-
ment Takings Clause); Currier v. Virginia, 585 U. S. 493 (2018) (Fifth
Amendment Double Jeopardy Clause); District of Columbia v. Heller, 554
U. S. 570 (2008) (Second Amendment); United States v. Bajakajian, 524
U. S. 321 (1998) (Eighth Amendment Excessive Fines Clause); cf. Car-
penter v. United States, 585 U. S. 296, 397–404 (2018) (G
ORSUCH, J., dis-
senting) (urging a similar approach for the Fourth Amendment).

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ORSUCH, J.
consider doing the same here. As we recognized in Craw-
ford, the Sixth Amendment enshrined a pre-existing right
to confront one’s accusers at trial, and its broad language
“admit[s] only those exceptions established at the time of
the founding.” 541 U. S., at 54. In other words, the Amend-
ment established a presumption that prosecutors cannot
use out-of-court statements against a defendant without an
opportunity for cross-examination, a presumption prosecu-
tors can overcome only by identifying some historically rec-
ognized exception to the general rule. Following that ap-
proach might sometimes present courts and counsel with
difficult questions, but perhaps no more so than those they
face today under the primary-purpose regime. And, in any
event, it is hard to see how else we might proceed if our aim
is “to honor the supreme law the people have ordained ra-
ther than substituting our will for theirs.” United States v.
Rahimi, 602 U. S. 680, 711 (2024) (G
ORSUCH, J., concur-
ring); see Crawford, 541 U. S., at 67.
Now may not be the moment, I concede, for the Court to
take up these questions. The Court issued its latest word
on the Confrontation Clause in Smith less than a year ago.
Before weighing in again, we may benefit from the insights
and further experience of our lower court colleagues. Along
the way, I hope only that they pause to consider the compli-
cations surrounding the primary-purpose test and address
possible alternatives we might consider. As Chief Justice
Marshall observed, all of us who serve in the judiciary are
charged with being “watchful of every inroad” on the rights
the Confrontation Clause protects. United States v. Burr,
25 F. Cas. 187, 193 (No. 14,694) (CC Va. 1807).
2
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2
JUSTICE ALITO also writes to criticize the various tests this Court has
developed to determine what qualifies as a “testimonial” statement. As
he observes, “the real problem may” lie not with any particular test but,
more fundamentally, with the notion that the Confrontation Clause’s
protections hinge on whether a statement is “testimonial.” Ante, at 2
(statement respecting denial of certiorari). So, for instance, one study

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ORSUCH, J.
——————
cited by J
USTICE ALITO argues that “framing-era sources did not draw any
distinction between testimonial and nontestimonial hearsay.” T. Davies,
Not “The Framers’ Design”: How the Framing-Era Ban Against Hearsay
Evidence Refutes the Crawford-Davis “Testimonial” Formulation of the
Scope of the Original Confrontation Clause, 15 J. L. & Pol’y 349, 465
(2007) (emphasis added). According to that study, “framing-era evidence
doctrine imposed a virtually total ban against using unsworn hearsay
evidence to prove a criminal defendant’s guilt,” regardless of the state-
ment’s original purpose. Id., at 351; cf. Crawford v. Washington, 541
U. S. 36, 52, n. 3 (2004) (discussing evidence of a “general bar on unsworn
hearsay” at the founding). If that is true, then reexamining the relevant
history might well require us not only to “reaffir[m]” Crawford, as
J
USTICE ALITO suggests, ante, at 4, but to broaden its protections, per-
haps along the lines outlined above.