Franklin v. New York: A Supreme Court Signal To Reconsider Crawford and the “Primary‑Purpose” Test in Confrontation Clause Law

Introduction

In Franklin v. New York (604 U.S. ___, Mar. 24, 2025), the Supreme Court denied certiorari. Ordinarily, a certiorari denial says nothing about the merits. This one is different. Two separate statements—by Justice Alito and Justice Gorsuch—use the denial as a platform to question the foundations of modern Confrontation Clause doctrine. Both Justices express deep dissatisfaction with the Court’s post-2004 trajectory, centered on Crawford v. Washington’s “testimonial” framework and the judge-made “primary‑purpose” test for identifying testimonial statements.

The case arises from New York’s use at trial of a pre‑arraignment bail report prepared by a publicly funded agency, without calling the report’s author for cross‑examination. The New York Court of Appeals upheld the conviction, finding the report non‑testimonial because it was created for administrative, not trial, purposes—a conclusion anchored in the Supreme Court’s “primary‑purpose” jurisprudence (especially Michigan v. Bryant).

While the Court declines to intervene now, the two statements function as a powerful signal: the Court is inviting a reexamination of Crawford’s testimonial edifice and the primary‑purpose test, potentially in favor of an approach more tightly rooted in the Sixth Amendment’s text and the founding-era common law.

Summary of the Opinion

• The Supreme Court denies the petition for certiorari (No. 24‑330).
• Justice Alito, respecting the denial, argues that the Court should, in an appropriate case, reconsider Crawford’s understanding of the Confrontation Clause. He questions:
  • Crawford’s historical premises (newer scholarship allegedly undermines them), and
  • the workability of the testimonial framework (inconsistent and unpredictable results).
  He also advances a textualist critique: Crawford’s treatment of an out‑of‑court declarant as a “witness” diverges from the term’s usage in neighboring constitutional provisions (Compulsory Process Clause; Treason Clause).
• Justice Gorsuch, also respecting the denial, criticizes the “primary‑purpose” test as judge‑made, amorphous, and a poor fit with the Sixth Amendment’s text and original meaning. Using Franklin’s bail report as an example, he argues that the test can greenlight the very evil the Clause targeted: replacing live testimony with pretrial examinations not subject to cross‑examination. He suggests a different organizing principle: what matters is whether the government seeks to use an out‑of‑court statement against a defendant at trial in lieu of live testimony, subject to narrow, historically grounded exceptions.
• Both Justices encourage lower courts to reckon with these criticisms and to explore alternatives, noting that the Court recently addressed related issues in Smith v. Arizona (2024) and may benefit from further percolation before taking up the matter again.

Case Background

While awaiting arraignment, Cid Franklin was interviewed by a New York City Criminal Justice Agency (CJA) employee for bail assessment purposes. Later, prosecutors introduced Franklin’s CJA bail report at trial as evidence of guilt without calling the report’s author. The jury convicted, and the New York Court of Appeals affirmed. It held the report non‑testimonial because its “primary purpose” was administrative (bail recommendations), not the creation of trial evidence—an analysis drawn from Michigan v. Bryant and consistent with Smith v. Arizona’s acceptance of primary‑purpose formulations.

Analysis

Precedents Cited and Their Influence

• Crawford v. Washington (2004)
  • Replaced Ohio v. Roberts’ reliability test with a categorical bar against admission of “testimonial” statements unless the witness is unavailable and there was a prior opportunity for cross‑examination.
  • Anchored in history, Crawford identified the “use of ex parte examinations as evidence against the accused” as a principal evil the Confrontation Clause sought to prevent.
  • Franklin matters because both Justices question whether Crawford’s historical account (and the testimonial category it spawned) faithfully maps the founding-era law.
• Davis v. Washington (2006)
  • Introduced the “primary purpose” formulation in distinguishing statements made to resolve ongoing emergencies (non‑testimonial) from those aimed at establishing past facts for prosecution (testimonial).
  • Gorsuch notes Davis did not purport to craft an exhaustive taxonomy; later cases nonetheless elevated “primary purpose” into a controlling test.
• Michigan v. Bryant (2011)
  • Emphasized an objective inquiry into the “primary purpose” of the exchange, focusing on whether the statement was created as an out‑of‑court substitute for trial testimony.
  • New York relied on Bryant to deem the bail report administrative and thus non‑testimonial.
• Melendez‑Diaz v. Massachusetts (2009)
  • Held that sworn certificates of forensic analysis are testimonial; offered a broader test: whether an objective witness would reasonably believe the statement would be used at trial.
  • The dissent below relied on Melendez-Diaz’s broader articulation to argue the bail report was testimonial because it was prepared for use in court and available for use at trial.
• Williams v. Illinois (2012)
  • A fractured decision concerning expert testimony and underlying lab reports; Justice Kagan’s dissent observed that the source and contours of “primary purpose” are elusive.
• Smith v. Arizona (2024)
  • Recent decision acknowledging “varied formulations” of the testimonial inquiry; generally accepted the use of a primary‑purpose analysis while illuminating its inconsistencies.
  • Gorsuch, concurring in part in Smith and again in Franklin, warns that treating primary purpose as the necessary condition for all claims is both untethered to text and destabilizing in practice.
• Washington v. Texas (1967)
  • Read the Confrontation and Compulsory Process Clauses as complementary—two sides of the same coin—on adversarial presentation of witnesses.
• Founding-era textual anchors
  • Compulsory Process Clause (Sixth Amendment): protects the right “to have compulsory process for obtaining witnesses in his favor.”
  • Treason Clause (Art. III, §3, cl. 1): requires conviction “on the testimony of two witnesses” (live witnesses), reinforcing the public meaning of “witness” in the constitutional text.
  • Justice Alito argues that Crawford’s use of “witness” to include non‑testifying declarants clashes with the same word’s usage elsewhere in the Constitution.
• Other cited decisions on method
  • Kennedy v. Bremerton School District (2022); American Legion v. American Humanist Assn. (2019): movement away from abstract balancing tests toward historical grounding in other constitutional contexts.
  • Ramos v. Louisiana (2020); Jarkesy (2024); Heller (2008); and others: examples Gorsuch cites where the Court privileges text and history over judge‑made frameworks.
  • United States v. Burr (1807): Marshall’s admonition to remain vigilant against inroads on confrontation rights.

Legal Reasoning in the Statements

Justice Alito’s critique and invitation

• Textual consistency
  • Alito emphasizes a canon of consistent usage: where a legal text uses the same term, it presumptively bears the same meaning. If “witnesses” in the Compulsory Process Clause refers to live witnesses, and the Treason Clause speaks of live “witnesses,” it is “startling” to give the same term a radically different scope in the Confrontation Clause.
  • Implication: Crawford’s premise—that any out‑of‑court declarant of testimonial statements is a “witness” for confrontation purposes—may be linguistically and structurally unsound.
• Historical underpinnings
  • Alito points to more recent scholarship casting doubt on Crawford’s account of the founding-era common law (citing Davies, Sklansky, Trachtenberg, Bellin, among others).
  • He stresses he would not revisit every historical holding merely because new law review articles disagree, but here the doctrine has proven “unstable and badly in need of repair.”
• Workability concerns
  • Two decades of “testimonial” litigation have not produced predictability. Courts oscillate among competing tests; results hinge on which formulation they choose.
• Scope of reconsideration
  • Alito is open-ended: reexamination could reaffirm Crawford or yield “an entirely different Confrontation Clause rule.” Importantly, he implies that the ultimate defect may be structural—rooted in Crawford’s basic framing—not just definitional (what counts as testimonial).

Justice Gorsuch’s critique and proposed refocus

• Primary‑purpose’s provenance and variability
  • Gorsuch questions where the primary‑purpose test comes from: not the Sixth Amendment’s text, nor clearly from original meaning. Davis used the phrase descriptively, not prescriptively; subsequent cases expanded it into a “grand unified theory” without stable contours.
  • He catalogs the Court’s inconsistent formulations: Bryant’s “substitute for trial testimony,” Melendez‑Diaz’s “objectively available for trial,” Davis’s “prove past events,” and Smith’s “focus on court.”
• Practical indeterminacy
  • Even assuming an “objective” inquiry, judges must parse multi‑actor intent, sift through context, and hold mini‑trials on purpose. Different judges predictably reach different results—doctrinal instability in action.
  • This complexity scales with the variety of statements prosecutors may use: emergency calls, forensic reports, bail reports, administrative forms, expert materials.
• Return to text and history
  • Gorsuch urges refocusing the inquiry on whether the government uses an out‑of‑court statement at trial “in lieu of live testimony.” If so, the Confrontation Clause presumptively requires cross‑examination unless the statement falls within a historically grounded exception.
  • He notes evidence (including scholarship cited by Justice Alito) that the founding-era law may have imposed a broad bar on unsworn hearsay to prove guilt, not cabined by a testimonial/non‑testimonial distinction. If that is right, reconsideration might need to “broaden” Crawford’s protections rather than contract them.
• Franklin as an example
  • New York’s reliance on a pretrial examination (bail report) without live testimony resembles the ex parte examinations the Clause was designed to prevent. That this report was created for administrative purposes does not cure the confrontation problem when it is later used as trial evidence against the accused.

Impact and Forward‑Looking Implications

Although the Court set no binding precedent in Franklin, the combined statements have significant signaling value. They invite lower courts and litigants to:

• Reexamine the necessity and scope of the primary‑purpose test.
  • Courts may begin treating primary purpose as one tool—not a threshold barrier—when evaluating Confrontation Clause claims.
  • Expect increased attention to the use-at-trial function of the statement and to founding-era exceptions.
• Develop records on history and tradition.
  • Parties may present historical evidence about recognized exceptions at the founding (e.g., dying declarations; forfeiture by wrongdoing; possibly certain public records) and the status of business records and other hearsay exceptions in that period.
• Reassess categories of frequently used out‑of‑court statements:
  • Bail reports, pretrial risk assessments, probation/parole records, and administrative forms: Using them as substantive evidence of guilt may invite robust confrontation challenges.
  • Forensic laboratory certificates and expert reports: Melendez‑Diaz already casts them as testimonial when formalized; under a use‑based approach, any reliance “in lieu of live testimony” demands the analyst’s presence or a historical exception.
  • Police interviews and emergency communications: The emergency/non‑emergency divide may recede in importance if the core question becomes whether the statement is used against the defendant at trial without cross‑examination.
  • Business and public records: If the Court moves to a founding‑era exceptions model, litigants will debate which exceptions are historically rooted. Modern business records doctrine matured well after the founding; public records have deeper roots but may warrant careful line‑drawing.
• Anticipate doctrinal forks in the road:
  • Alito‑leaning path: Narrow the Clause’s reach by aligning “witness” with live in‑court testimony, thereby reducing confrontation’s role in regulating hearsay.
  • Gorsuch‑leaning path: Broaden the Clause by discarding the testimonial filter and requiring cross‑examination whenever the government uses an out‑of‑court statement to prove guilt, subject only to historically grounded exceptions.
  • Intermediate possibilities:
    • Revise “testimonial” to focus on formalized/sufficiently solemn materials (Justice Thomas’s approach in past cases).
    • Retain primary purpose but cabin it, clarifying consistent criteria and placing the burden on the prosecution to show an exception grounded in history.

In the short term, Franklin will embolden defense counsel to press Confrontation Clause objections beyond the primary‑purpose frame and encourage trial judges to make more explicit findings about whether an out‑of‑court statement is being used as a substitute for live testimony and whether any founding‑era exception applies.

Complex Concepts Simplified

• Confrontation Clause
  • The Sixth Amendment guarantee that a defendant can face and cross‑examine the witnesses against him.
• Compulsory Process Clause
  • The defendant’s right to use the court’s subpoena power to bring favorable witnesses to testify.
• “Witness” in the Sixth Amendment
  • At issue is whether “witness” includes out‑of‑court declarants whose statements are introduced at trial (Crawford’s view) or refers only to people who take the stand (Alito’s textual concern).
• Testimonial statements
  • Under Crawford, a statement is “testimonial” if made in circumstances resembling formal testimony (e.g., sworn statements, police interrogations) such that the Confrontation Clause requires cross‑examination.
• Primary‑purpose test
  • A judge‑made tool for deciding whether a statement is testimonial by asking the “primary purpose” for which it was created—e.g., to meet an ongoing emergency (non‑testimonial) or to establish past facts for prosecution (testimonial). Its multiple formulations have produced inconsistent results.
• Ex parte examination
  • A pretrial questioning of witnesses by officials outside the defendant’s presence and without cross‑examination. Historically disfavored as a substitute for live testimony at trial.
• Founding‑era exceptions
  • Narrow categories historically recognized as admissible despite confrontation concerns, such as dying declarations and forfeiture by wrongdoing. The scope and number of such exceptions, and whether they include modern business/public records, will be pivotal if the Court adopts a history‑and‑tradition model.
• Ohio v. Roberts “reliability” test (pre‑Crawford)
  • Allowed hearsay if it fit a “firmly rooted” exception or had “particularized guarantees of trustworthiness.” Crawford rejected this reliability balancing in favor of categorical confrontation for testimonial statements.

Key Takeaways

• No new binding rule today. The Supreme Court denied certiorari, leaving the New York judgment intact.
• But two Justices map out potential future paths. Alito questions Crawford’s textual and historical premises and the testimonial framework’s workability; Gorsuch questions the primary‑purpose test’s legitimacy and urges a use‑at‑trial, history‑bound approach.
• Lower courts are on notice. Expect deeper engagement with:
  • whether an out‑of‑court statement is being used at trial as a substitute for live testimony, and
  • whether a founding‑era exception applies—possibly displacing or reconfiguring the centrality of the primary‑purpose test.
• Practical consequences could be substantial. Administrative documents like bail reports, forensic certifications, and certain records may face stricter confrontation scrutiny when used as substantive evidence of guilt.
• The direction of travel is uncertain—and consequential. A majority might narrow confrontation by redefining “witness” (Alito’s concern) or broaden it by discarding the testimonial distinction in favor of a general bar on out‑of‑court proof absent historical exceptions (Gorsuch’s suggestion). Either way, modern Confrontation Clause law appears poised for significant recalibration.

Conclusion

Franklin v. New York does not change the law today, but it may prove an inflection point tomorrow. Justice Alito’s statement questions Crawford’s core premise—that the Confrontation Clause codified a bar on “testimonial” hearsay by treating out‑of‑court declarants as “witnesses”—as textually and historically suspect and unworkable in practice. Justice Gorsuch’s statement targets the “primary‑purpose” test as atextual and erratic, urging a return to text and founding-era principles: the government may not use an out‑of‑court statement against a criminal defendant at trial in lieu of live testimony, except where a historically grounded exception applies.

Between them, these statements invite a fundamental rethinking of the testimonial project that has defined confrontation doctrine since 2004. Whether the Court ultimately narrows, retools, or broadens Crawford, Franklin signals that the Court is actively searching for a more textually and historically faithful, and more administrable, framework. Litigants and lower courts should prepare now for that conversation.