The Supreme Court refusing to hear a case is nothing new, but an otherwise run-of-the-mill denial of the cert petition in Franklin v. New York, 604 U.S. ____ (2025) was accompanied by statements from Justices Alito and Gorsuch that warrant attention from criminal defense and appellate counsel. Both justices suggested interest in reexamining the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004) concerning the admissibility of hearsay evidence and the right of criminal defendants to confront their accusers in court under the Confrontation Clause. Justice Gorsuch urged lower courts to give more thought to the issue “and address possible alternatives” to the current test for admissibility of hearsay evidence. With that invitation, there seems to be no better time than now for criminal defense and appellate counsel to raise concerns about Crawford and the admissibility of hearsay evidence generally.
Under the Sixth Amendment, criminal defendants have the right “to confront the witnesses against” them. But what exactly that means has been the subject of decades of Supreme Court interpretation, set against a backdrop of centuries of English and American common law practice. Since 2004, the Confrontation Clause has been read as splitting out-of-court statements into two categories: “testimonial,” those which can be admitted only if the defendant can cross-examine the witness, and “nontestimonial,” those which can be admitted under a hearsay exception. Crawford v. Washington. How to divine “testimonial” from “nontestimonial,” however, has plagued the lower courts—and the Supreme Court itself—since then. The Supreme Court seemingly settled on a “primary purpose” test just last year to answer this question. See Smith v. Arizona, 144 S. Ct. 1785 (2024). In Franklin v. New York, the appellant alleged the trial court wrongly admitted under this test a bail report that summarized an interview of Franklin that was made after his arrest and without counsel present. And while the Supreme Court’s cert denial will not change the law for Franklin, Justices Alito and Gorsuch signaled a larger problem.
Justice Alito called on the Court to reconsider the Confrontation Clause and Crawford, noting the case and its progeny have been called “astonishing,” a “morass,” “incoherent,” and “unpredictable.” Indeed, Justice Alito criticized the Crawford decision for, in his view, interpreting the word “witness” in the Confrontation Clause in a manner wholly inconsistent with the meaning of that word in the Compulsory Process Clause, also found in the Sixth Amendment. While Justice Alito’s view on the ultimate answer to the issue is more opaque, Justice Gorsuch appears to argue that the Confrontation Clause’s “broad language” only tolerates admission of hearsay with a “historically recognized exception” present at its drafting. He went so far as to note with approval a law review article which concluded that “framing-era evidence doctrine imposed a virtually total ban against using unsworn hearsay evidence to prove a criminal defendant’s guilt,” and therefore reexamining Crawford may result in “broaden[ing] its protections.”
Such a test, of course, would have very broad implications for criminal defense and appellate counsel. Currently, the Federal Rules of Evidence include a number of exceptions to the rule against hearsay. A signal from two justices that the Court should reconsider the current Confrontation Clause regime creates opportunities for criminal defense and appellate counsel to object to the admissibility of all types of hearsay. Not only that, trial courts may now be more receptive to these arguments. Justice Gorsuch encouraged lower courts to “pause to consider the complications surrounding the primary-purpose test and address possible alternatives we might consider.” This would allow the Supreme Court to “benefit from the insights and further experience of our lower court colleagues” while the justices wait for an appropriate case in which to reconsider Crawford.
