Petition for Writ of Certiorari — Cid C. Franklin, Petitioner v. New York

Supreme Court briefSep 20, 2024

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No. _______

In the Supreme Court of the United States

CID C. FRANKLIN, PETITIONER

NEW YORK.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE STATE OF NEW YORK COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

PATRICIA PAZNER

HANNAH KON

DAVID FITZMAURICE

APPELLATE ADVOCATES

111 John Street

9th Floor

New York, NY 10038

GREGORY SILBERT

Counsel of Record

SHAI BERMAN

ALEXANDRA CLINE

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8000

gregory.silbert@weil.com

QUESTION PRESENTED

This Court has “variously described” the “category” of “testimonial statements” that give rise to a

cross-examination right under the Sixth Amendment’s

Confrontation Clause. Smith v. Arizona, 144 S. Ct.

1785, 1792 (2024). In the decision below, the New York

Court of Appeals recognized only one of this Court’s various formulations of the test as valid: a statement is testimonial solely if it “was created for the primary purpose

of serving as trial testimony.” Pet. App. 1a. The court

thus held that a post-arrest report about Petitioner prepared by a State agent to determine Petitioner’s suitability for bail was properly admitted as evidence against

him at his criminal trial—even though the report’s author was not made available for cross-examination.

That ruling conflicts with the decisions of other courts

that apply different tests. It also conflicts with Crawford

v. Washington, 541 U.S. 36 (2004), which held the Confrontation Clause was enacted to reach bail reports like

Petitioner’s, even if they were not prepared “to produce

evidence admissible at trial.” Id. at 44, 50.

The questions presented are:

Whether the Sixth Amendment’s Confrontation Clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only

if, the statements were created for the primary purpose

of serving as trial testimony.

Whether a post-arrest report prepared

about a criminal defendant by an agent of the State for

use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing

a right to cross-examine the report’s author.

(i)

RELATED PROCEEDINGS

State of New York Supreme Court, Queens County:

The People of the State of New York v. Cid C. Franklin, No. 2709/2016 (April 16, 2019)

State of New York Supreme Court, Appellate Division,

Second Department:

The People of the State of New York v. Cid C. Franklin, No. 2019-06088 (July 6, 2022)

State of New York Court of Appeals:

The People of the State of New York v. Cid C. Franklin, No. APL-2023-00005 (April 25, 2024)

(ii)

TABLE OF CONTENTS

Opinions Below ............................................................... 1

Jurisdiction ...................................................................... 1

Constitutional Provisions Involved................................ 2

Statement ........................................................................ 2

A. Legal Background ............................................ 4

B. Factual Background ......................................... 5

C. Decisions Below… ............................................ 7

Reasons For Granting The Petition ............................. 10

I. Decisions From This Court And The Lower

Courts Are Divided Over When A Statement

Is Testimonial....................................................... 10

A. This Court Has Announced And Applied

Conflicting Formulations Of The

Testimonial Standard .................................... 10

B. This Court’s Conflicting Formulations

Have Created Disarray And Divergent

Outcomes In Federal Courts of Appeals

And State Courts Of Last Resort .................. 14

C. This Court’s Decision In Smith v. Arizona

Underscores The Problem.............................. 21

II. The Question Of When A Statement Is

Testimonial Is One Of Vital Importance To

Criminal Defendants Nationwide....................... 22

A. Which Testimonial Standard Applies

Means The Difference Between Freedom

And Incarceration........................................... 24

B. The Narrow Standard Applied By The

Court Of Appeals And Other Courts

Opens The Door To The Admission Of

Many Damaging Out-Of-Court

Statements………........................................... 25

(iii)

III. The Decision Below Conflicts With Crawford

And The Confrontation Clause’s Original

Meaning. ............................................................... 28

A. Under Crawford, The Evidence In This

Case Is Not Admissible Without

Confrontation…… .......................................... 28

B. The Evidence In This Case Would Not

Have Been Admissible At Common Law...... 29

C. A Strict “Primary Purpose” Inquiry

Invites The Kind Of Ahistorical Results

Reflected In This Case ................................... 31

IV. This Case Is An Ideal Vehicle ............................. 32

Conclusion ..................................................................... 33

Appendix A — New York Court Of Appeals

Opinion (April 25, 2024)...................... 1a

Appendix B — New York Supreme Court

Appellate Division Decision &

Order (July 6, 2022) .......................... 29a

Appendix C — Criminal Justice Agency Report

(As Introduced At Trial) .................... 33a

(iv)

TABLE OF AUTHORITIES

Cases

Page(s)

Ackerman v. State,

51 N.E.3d 171 (Ind. 2016) .................................... 19

Bowling v. State,

717 S.E.2d 190 (Ga. 2011) ................................... 16

Briscoe v. Virginia,

559 U.S. 32 (2010) ................................................ 23

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ........................................ 13, 23

California v. Green,

399 U.S. 149 (1970) ........................................ 23, 24

Cardosi v. State,

128 N.E.3d 1277 (Ind. 2019) ................................ 16

Commonwealth v. Hart,

222 N.E.3d 455 (Mass. 2023) ............................... 16

Commonwealth v. Trotto,

169 N.E.3d 883 (Mass. 2021) ............................... 16

Crawford v. Washington,

541 U.S. 36 (2004) ..... 2, 3, 4, 7, 8, 9, 10, 11, 12, 14,

15, 18, 20, 22, 28, 29, 30, 31, 32

Cuesta-Rodriguez v. State,

241 P.3d 214 (Okla. Crim. App. 2010) ................ 19

Davis v. Washington,

547 U.S. 813 (2006) ...................... 11, 12, 15, 21, 23

Dickey v. State,

483 S.W.3d 287 (Ark. 2016) ................................. 16

Doe v. United States,

487 U.S. 201 (1988) ........................................ 13, 22

Giles v. California,

554 U.S. 353 (2008) ........................................ 23, 29

(v)

Goodloe v. Brannon,

4 F.4th 445 (7th Cir. 2021) .................................. 16

Hemphill v. New York,

595 U.S. 140 (2022) ........................................ 23, 27

Henriquez v. State,

580 S.W.3d 421 (Tex. Ct. App. 2019)................... 19

King v. Commonwealth,

554 S.W.3d 343 (Ky. 2018)................................... 16

Kirby v. United States,

174 U.S. 47 (1899) ................................................ 28

Lambert v. Warden Greene SCI,

861 F.3d 459 (3d Cir. 2017) ................................. 17

Leidig v. State,

256 A.3d 870 (Md. 2021) ...................................... 17

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ............ 3, 12, 15, 18, 21, 23, 28

Michigan v. Bryant,

562 U.S. 344 (2011) ............................ 12, 16, 21, 23

N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................. 29

Nicholls v. People,

396 P.3d 675 (Colo. 2017) .................................... 15

Ohio v. Clark,

576 U.S. 237 (2015) .............................. 8, 12, 16, 23

Ohio v. Roberts,

448 U.S. 56 (1980) ................................................ 11

People v. Amezcua,

434 P.3d 1121 (Cal. 2019) .................................... 14

People v. Barner,

30 N.E.3d 271 (Ill. 2015) ...................................... 17

People v. Dungo

286 P.3d 442 (Cal. 2012) ...................................... 19

(vi)

People v. Garcia,

479 P.3d 905 (Colo. 2021) .................................... 16

People v. Gomez,

430 P.3d 791 (Cal. 2018) ...................................... 17

People v. Gonzalez,

499 P.3d 282 (Cal. 2021) ...................................... 20

People v. Leach,

980 N.E.2d 570 (Ill. 2012) .................................... 19

People v. Ortega,

227 N.E.3d 302 (N.Y. 2023) ................................. 20

People v. Washington,

2024 WL 3551260 (Mich. July 26, 2024) ............. 15

Reiner v. Woods,

955 F.3d 549 (6th Cir. 2020) ................................ 16

Roby v. State,

183 So. 3d 857 (Miss. 2016) ................................. 15

Samia v. United States,

599 U.S. 635 (2023) .............................................. 23

Smith v. Arizona,

144 S. Ct. 1785 (2024) ................... 3, 11, 13, 17, 18,

21, 22, 23

State v. Beasley,

108 N.E.3d 1028 (Ohio. 2018) .............................. 16

State v. English,

902 S.E.2d 385 (S.C. 2024) .................................. 16

State v. Hutchison,

482 S.W.3d 893 (Tenn. 2016) ......................... 17, 19

State v. Kennedy,

735 S.E.2d 905 (W. Va. 2012) .............................. 19

State v. Koederitz,

166 So. 3d 981 (La. 2015)..................................... 16

(vii)

State v. Maxwell,

9 N.E.3d 930 (Ohio 2014) ..................................... 19

State v. Norton,

117 A.3d 1055 (Md. 2015) .................................... 17

State v. Patel,

270 A.3d 627 (Conn. 2022) ................................... 15

State v. Sites,

825 S.E.2d 758 (W. Va. 2019) .............................. 15

State v. Thomas,

985 N.W.2d 87 (Wis. 2023) .................................. 15

State v. Tomlinson,

264 A.3d 950 (Conn. 2021) ................................... 15

State v. Vargas,

869 N.W.2d 150 (S.D. 2015)................................. 16

Stuart v. Alabama,

139 S. Ct. 36 (2018) .................................. 14, 20, 23

United States v. Buluc,

930 F.3d 383 (5th Cir. 2019) ................................ 16

United States v. Burr,

25 F. Cas. 187 (C.C.D. Va. 1807) ................... 22, 23

United States v. Denton,

944 F.3d 170 (4th Cir. 2019) ................................ 16

United States v. Esparza,

791 F.3d 1067 (9th Cir. 2015) .............................. 18

United States v. Hagege,

437 F.3d 943 (9th Cir. 2006) ................................ 28

United States v. Hollingshed,

940 F.3d 410 (8th Cir. 2019) ................................ 16

United States v. Ignasiak,

667 F.3d 1217 (11th Cir. 2012) ............................ 19

United States v. James,

712 F.3d 79 (2d Cir. 2013) ................................... 19

(viii)

United States v. King,

93 F.4th 845 (5th Cir. 2024) ................................ 15

United States v. Kirk Tang Yuk,

885 F.3d 57 (2d Cir. 2018) ................................... 16

United States v. Klemis,

859 F.3d 436 (7th Cir. 2017) ................................ 16

United States v. Latu,

46 F.4th 1175 (9th Cir. 2022) .............................. 17

United States v. Lundy,

83 F.4th 615 (6th Cir. 2023) ................................ 16

United States v. McLean,

695 F. App’x 681 (4th Cir. 2017) ......................... 15

United States v. Moore,

651 F.3d 30 (D.C. Cir. 2011) .......................... 15, 19

United States v. Reed,

780 F.3d 260 (4th Cir. 2015) ................................ 16

United States v. Richard,

678 F. App’x 927 (11th Cir. 2017) ....................... 15

United States v. Sanchez,

853 F. App’x 141 (9th Cir. 2021) ......................... 15

United States v. Stepanets,

989 F.3d 88 (1st Cir. 2021) .................................. 16

Wallace v. State,

659 S.W.3d 267 (Ark. 2023) ................................. 16

Williams v. Illinois,

567 U.S. 50 (2012) .............................. 13, 17, 22, 23

Williams v. Superintendent Greene SCI,

112 F.4th 155 (3d Cir. 2024) .................... 15, 18, 19

Zeger v. State,

2022 WL 16703330 (Nev. Nov. 3, 2022) .............. 15

(ix)

Constitution, Statutes & Court Rules

U.S. Const. amend V ................................................. 13

U.S. Const. amend VI ........................................ 2, 4, 13

28 U.S.C. 1257(a)......................................................... 1

Cal. Rules of Court 4.411 .......................................... 26

Cal. Rules of Court 4.411.5 ....................................... 26

Fed. R. Crim. P. 32 .............................................. 25, 26

N.J. Stat. Ann. § 2C:44-6 .......................................... 26

N.Y. Crim. Proc. § 390.20 .......................................... 26

N.Y. Crim. Proc. § 390.30 .......................................... 26

N.Y. Penal Law §70.02(3)(b) ....................................... 7

N.Y. Penal Law § 265.03(3)......................................... 7

Tex. Code Crim. Proc. Ann. art.

42A.252-53............................................................ 26

Miscellaneous

John H. Langbein, Prosecuting Crime in

the Renaissance 24 (1974) .................................... 30

Kevin C. McMunigal, Crawford,

Confrontation, and Mental States, 64

Syracuse L. Rev. 219 (2014) ................................ 14

Transcript of Oral Argument, Smith v.

Arizona, 144 S. Ct. 1785 (No. 22899), 2024 WL 250706 ................................... 14, 15

2 N. Webster, An American Dictionary

of the English Language (1828) .................... 12, 13

(x)

In the Supreme Court of the United States

NO. _______

CID C. FRANKLIN, PETITIONER

NEW YORK.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE STATE OF NEW YORK COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Cid C. Franklin respectfully petitions for a writ of

certiorari to review the judgment of the New York Court

of Appeals in this case.

OPINIONS BELOW

The opinion of the New York Court of Appeals (Pet.

App. 1a-28a) is not yet reported but is available at 2024

WL 1773244. The opinion of the New York Supreme

Court, Appellate Division, Second Department (Pet.

App. 29a-32a) is reported at 169 N.Y.S.3d 546.

JURISDICTION

The Court of Appeals entered judgment on April 25,

2024. On July 16, 2024, this Court extended the time

within which to file a petition for a writ of certiorari to

and including September 20, 2024. This Court has jurisdiction under 28 U.S.C. 1257(a).

(1)

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the

United States provides in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right … to be confronted with the witnesses

against him.

STATEMENT

This Court’s modern Confrontation Clause jurisprudence begins with Crawford v. Washington, 541 U.S. 36

(2004). Although Crawford did not define the class of

“testimonial” statements that give rise to a confrontation right, it held that “some statements qualify under

any definition—for example, ex parte testimony at a preliminary hearing.” Id. at 52. “Whatever else the term covers,” the Court explained, “it applies at a minimum to

prior testimony at a preliminary hearing … and to police

interrogations.” Id. at 68.

This case involves the admission of exactly this type

of testimony at Petitioner Cid C. Franklin’s criminal

trial. The State’s only evidence of an essential element

of the charged offense was a report prepared by an agent

of the State after Franklin’s arrest to assist the court in

determining Franklin’s eligibility for bail. But even

though the report contains testimony given at a preliminary proceeding, the New York Court of Appeals held

that Franklin had no right to cross-examine his accuser—a right he would have enjoyed if only he had

been tried in other jurisdictions.

The bail report admitted against Franklin in this

case bears a “close[] kinship to the abuses at which the

Confrontation Clause was directed.” Crawford, 541 U.S.

at 68. One of those abuses was the admission at trial of

the common-law precursors to the report admitted in

this case—examinations conducted under the 16th-century “Marian bail and committal statutes.” Id. at 44.

Like Franklin’s bail report, Marian statute bail examinations probably were not conducted for the purpose of

producing trial evidence. Id. But they were nonetheless

admitted into evidence at some trials, without cross-examination. This is one of the “principal evil[s] at which

the Confrontation Clause was directed.” Id. at 50.

The decision below allowing Franklin’s bail report to

be admitted at trial without cross-examination shows

how far some lower courts have strayed from the Sixth

Amendment’s original meaning. In fairness, it is not all

their fault. Since Crawford, this Court has “variously

described” the test for identifying “testimonial” statements that give rise to a Sixth Amendment cross-examination right. Smith v. Arizona, 144 S. Ct. 1785, 1792

(2024). The lower courts apply a hodge-podge of different standards pulled from language in this Court’s decisions. Several courts openly admit they cannot discern

what this Court intends.

Here, the lower court held Franklin’s bail report is

not testimonial because it was not “created for the primary purpose of serving as trial testimony,” Pet. App.

1a-2a—even though the same was true of Marian statute bail examinations, see Crawford, 541 U.S. at 44.

Other courts apply different tests drawn from other language in this Court’s opinions, under which Franklin

would have had a cross-examination right—asking, for

example, if it was reasonable “to believe that the statement would be available for use at a later trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)

(quoting Crawford, 541 U.S. at 52).

This Court should grant the petition to ensure that

criminal defendants’ Sixth Amendment rights do not depend on the vagaries of where they are prosecuted, and

to restore the original meaning of the Confrontation

Clause.

A. Legal Background

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses

against him.” U.S. Const. amend VI. The amendment

codifies the “right of confrontation at common law, admitting only those exceptions established at the time of

the founding.” Crawford, 541 U.S. at 54. Now, as then,

the confrontation right prohibits “admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.” Id.

at 53-54.

“[T]he principal evil at which the Confrontation

Clause was directed was the civil-law mode of criminal

procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 50. One

practice of particular concern at the founding was the

introduction into evidence of statements made pursuant

to the 16th century “Marian bail and committal statutes,” which “required justices of the peace to examine

suspects and witnesses in felony cases and to certify the

results to the court.” Id. at 43-44. Although “it is doubtful that the original purpose of the examinations was to

produce evidence admissible at trial … they came to be

used as evidence in some cases.” Id. at 44. “It was these

practices that … [the] right to confrontation was meant

to prohibit; and that the founding-era rhetoric decried.”

Id. at 50. “The Sixth Amendment must be interpreted

with this focus in mind.” Ibid.

B. Factual Background

Cid C. Franklin was convicted of a felony because of

a bail report—the modern-day analogue of the Marian

statute bail examinations. Franklin lived in a home he

shared with his son and his stepmother, Grace Mapp.

Pet. App. 2a. Franklin’s father, a licensed gun owner,

had also lived in the home for many years until his

death. Pet. C.A. Br. 11. Police responding to a call

searched the home and recovered a gun from a basement closet. Pet. App. 2a. Police also found “blankets,

pillows, and other miscellaneous items belonging to

both Mapp and Franklin” in that closet. Ibid. None of

the recovered items proved that Franklin lived in the

basement. See C.A. App. 993.

Franklin was arrested and booked on a firearm possession charge. Pet. App. 2a, 4a. While in custody and

awaiting arraignment—but before he was assigned

counsel—Franklin was interviewed by an employee of

the Criminal Justice Agency (CJA). “CJA is a nonprofit

organization funded by the City of New York that provides pretrial services similar to those provided by probation departments in counties” elsewhere in the State.

Pet. App. 2a. CJA interviews “nearly all individuals arrested” in New York City and collects information to

make a pretrial release recommendation to the arraignment judge. Ibid.

CJA employees complete an official report that records information about an arrestee’s home address,

length of residence, employment status, and education,

among other things. See Pet. App. 33a. These reports

also list the time and date of a defendant’s arrest, along

with the crimes charged. See Ibid. CJA employees submit their report to the arraignment judge, along with a

release recommendation, and appear at the arraignment to answer questions from the court. Pet. App. 3a.

As relevant here, the CJA employee recorded Franklin’s

home address as “117-48 168th St, BSMT,” and noted

the employee had “verified” that information with

Mapp, Franklin’s stepmother and housemate. Pet. App.

3a, 33a.1

This report was indispensable to the State’s case. It

was the State’s only evidence that Franklin had “dominion and control” over the basement of his shared residence, “an element deemed essential by all parties to

prove [Franklin] constructively possessed [the] weapon”

found in a basement closet “in violation of the law.” Pet.

App. 16a. (Aarons, J., dissenting). Yet the State refused

to call the CJA employee who prepared the report. Instead, the State introduced the report through a CJA

supervisor “who did not interview defendant, complete

the report, or have any direct knowledge as to whether

[Franklin] ... lived in the basement.” Pet. App. 17a.

Defense counsel objected that Franklin had a Sixth

Amendment right to cross-examine the CJA employee

who prepared the report and whose statements were being introduced as key evidence against Franklin. Pet.

App. 3a-4a (majority opinion); C.A. App. 994. The trial

court overruled the objection, holding that the Confrontation Clause did not apply because the CJA report “was

not made specifically for [a] prosecution purpose,” but

rather “as an aid to the Judge to [determine] if any bail

should be set at arraignment[.]” C.A. App. 1000. Based

on the report, Franklin was convicted of second-degree

criminal possession of a weapon, a Class C violent felony

The report incorrectly refers to Mapp as Franklin’s “mother.”

Pet. App. 33a.

that carries a 3.5 year minimum sentence. Pet. App. 4a;

N.Y. Penal Law §§ 265.03(3), 70.02(3)(b).

C. Decisions Below

1. The Appellate Division, New York’s intermediate

appellate court, unanimously reversed and ordered a

new trial. Citing Crawford, the court held that the CJA

report qualified as “testimonial evidence” subject to the

Confrontation Clause because it was “a solemn declaration or affirmation made for the purpose of establishing

or proving some fact.” Pet. App. 31a (quoting Crawford,

541 U.S. at 51). Therefore, the court concluded, the trial

court “violat[ed Franklin’s] right of confrontation” by

permitting the State to introduce the report “to establish an essential element” of the crime without “giv[ing

Franklin] the opportunity to cross-examine the CJA employee” who authored it. Ibid.

2. A divided Court of Appeals reversed by a vote of 5

to 2.

a. The court’s opinion recognized that the CJA report

“was central to the People’s case at trial,” there being no

discernable DNA or fingerprints on the gun. Pet. App.

3a. The court also noted that “[n]one of the witnesses

who testified at Franklin’s trial provided direct proof

that [Franklin] lived in the basement,” and the prosecution introduced no “evidence that any personal documents or effects of Franklin’s were found there.” Ibid.

Still, the Court of Appeals held that Franklin had no

right to cross-examine his accuser, whose out-of-court

statements were essential to the prosecution’s case. To

reach its conclusion, the Court of Appeals diverged from

the Appellate Division in defining the standard for “testimonial” statements. Pet. App. 6a. It acknowledged

“Crawford’s definition of testimony as ‘[a] solemn decla-

ration or affirmation made for the purpose of establishing or proving some fact.’” Pet. App. 4a-5a (quoting

Crawford, 541 U.S. at 51). It also quoted language from

Crawford that a statement is testimonial if “an objective

witness would reasonably believe it ‘would be available

for use at a later trial.’” Pet. App. 8a (quoting Crawford,

541 U.S. at 52). But the court concluded that this Court

has since “refined its Confrontation Clause analysis” to

define “testimonial” to mean only a statement that, “in

light of all the circumstances [and] viewed objectively,”

had a “primary purpose … to create an out-of-court substitute for trial testimony.” Pet. App. 5a-6a (cleaned up)

(quoting Ohio v. Clark 576 U.S. 237, 245 (2015)).

Applying that standard, the Court of Appeals held

that the CJA report was not testimonial. Specifically,

the court concluded that the CJA report is an “administrative” filing with the “objective” of “giv[ing] the arraignment judge information pertaining to a defendant’s suitability for pretrial release,” and that therefore

its “primary purpose … was not to create an out-of-court

substitute for trial testimony.” Pet. App. 10a.

The Court of Appeals did not deny that applying this

Court’s other formulations of the test would have

yielded the opposite result. It all but conceded that “an

objective witness would reasonably believe” the CJA report “would be available for use at a later trial.” Pet.

App. 8a-9a (quoting Crawford, 541 U.S. at 52). After all,

the report was prepared by an agent of the State in order to gather facts about Franklin (while he was in custody but before he was assigned counsel) to submit to a

court in the very same prosecution that culminated in

Franklin’s conviction. But the Court of Appeals held

that none of that made any difference. Because the CJA

report was not “created for the primary purpose of serving as trial testimony,” it was not testimonial, and

Franklin’s conviction stands. Pet. App. 1a-2a.

b. Judge Aarons dissented. Unlike the majority, she

would have held that a statement is testimonial when

“made under circumstances which would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial.” Pet. App. 15a.

(quoting Crawford, 541 U.S. at 52). The CJA report easily qualified under that standard, Judge Aarons explained, for several reasons.

First, the CJA report was “generated for and given

directly to the court during a criminal prosecution to

prove facts and make conclusions about” Franklin. Pet.

App. 22a. The report thus contains “pretrial statements

that declarants would reasonably expect to be used

prosecutorially.” Ibid. (quoting Crawford, 541 U.S. at

51).

Judge Aarons further explained that, “[r]egardless of

its contents,” a CJA report “can be used to make any

case [the State] can against a defendant’s interests.”

Pet. App. 27a. Accordingly, “[t]he CJA report is not some

kind of intake form,” but “is a statement by a person

standing in the shoes of a law enforcement officer working within the criminal justice system” that can be

“pulled out and leveraged against a defendant at any

time during the prosecution.” Ibid.

The majority’s decision, Judge Aarons concluded, undermined the Sixth Amendment’s confrontation right

and allowed a “lone statement of questionable provenance [to] secure[ Franklin’s] conviction.” Pet. App. 28a.

REASONS FOR GRANTING THE PETITION

In Crawford, this Court “le[ft] for another day any

effort to spell out a comprehensive definition of ‘testimonial.’” 541 U.S. at 68. That day still has not arrived. The

lower courts apply conflicting tests drawn from this

Court’s decisions and reach inconsistent results. Accordingly, the Confrontation Clause currently provides different protections to different defendants.

This case vividly illustrates the problem. Under versions of the test applied in other jurisdictions, the evidence the State relied on to secure Franklin’s conviction

would have been inadmissible because Franklin was not

permitted to cross-examine his accuser. Yet under the

narrow test the New York Court of Appeals adopted in

this case, Franklin stands convicted even though the evidence against him plainly would have triggered a confrontation right at common law. That narrow test also

opens the door to the admission of tomes of prejudicial

evidence without affording defendants a right of crossexamination. This Court should grant certiorari to clarify the test for determining whether a statement is “testimonial,” restore the original meaning of the Confrontation Clause, and reverse the judgment below.

I. Decisions From This Court And The Lower Courts Are

Divided Over When A Statement Is Testimonial

A. This Court Has Announced And Applied Conflicting

Formulations Of The Testimonial Standard

Twenty years ago, this Court’s decision in Crawford

reaffirmed the Confrontation Clause’s “bedrock procedural guarantee”: the Clause categorically prohibits the

prosecution from introducing into evidence any “testimonial statement[]” of an absent witness unless the witness is “unavailable to testify, and the defendant ha[s]

had a prior opportunity” for cross-examination. 541 U.S.

at 42, 53-54. In doing so, this Court both retethered the

confrontation right to the “original meaning of the Confrontation Clause” and endeavored to leave behind the

“unpredictability” that defined the Court’s prior jurisprudence. Id. at 60, 63. Before Crawford, the Court allowed “an unavailable witness’s out-of-court statement

[to] be admitted so long as it has adequate indicia of reliability.” Id. at 42 (citing Ohio v. Roberts, 448 U.S. 56,

66 (1980)).

Assessing the Founding-era common-law right to

confrontation, Crawford held that “testimonial” statements include, “at a minimum[,] … prior testimony at a

preliminary hearing, before a grand jury, or at a former

trial; and … police interrogations.” Id. at 68. At the

same time, though, Crawford “le[ft] for another day any

effort to spell out a comprehensive definition of ‘testimonial.’” Id. at 68. The Court “acknowledge[d]” that its “refusal to articulate a comprehensive definition” of “testimonial” would “cause interim uncertainty,” but promised the lingering uncertainty would not be “permanent[.]” Id. at 68 n.10. (emphasis omitted).

That promise remains unfulfilled. The two decades

since Crawford have not clarified what that decision left

obscure. Instead, this Court has set forth “varied formulations of the … testimonial inquiry,” all of which diverge in meaningful ways. Smith, 144 S. Ct. at 1801-02.

One of those “formulations,” ibid., originated in this

Court’s opinion in Davis v. Washington, 547 U.S. 813

(2006), which held that “statements … made in the

course of police interrogation … are testimonial when

the circumstances objectively indicate that there is no

… ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at

822.

In its next case addressing this issue, however, this

Court did not apply (or even mention) the formulation

in Davis. See Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009). Rather, this Court provided two additional

and different versions of the testimonial inquiry. Melendez-Diaz first held that out-of-court statements are testimonial if the statements “are functionally identical to

live, in-court testimony.” Id. at 310-11. And the Court

then held the statements in question (relating to forensic analysis) were testimonial because they were “made

under circumstances which would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.” Id. at 311 (quoting

Crawford, 541 U.S. at 52). The dissenting judges below

applied that latter formulation. Pet. App. 15a.

This Court’s proliferation of formulations continued

in Michigan v. Bryant, 562 U.S. 344 (2011), which held

that a statement is “testimonial” when “procured with a

primary purpose of creating an out-of-court substitute

for trial testimony.” Id. at 358; see also Ohio v. Clark,

576 U.S. 237, 250-51 (2015) (“[W]e ask whether a statement was given with the ‘primary purpose of creating

an out-of-court substitute for trial testimony.’” (quoting

Bryant, 562 U.S. at 358)). The Court of Appeals applied

this formulation. Pet. App. 6a, 9a-10a.

Still more formulations abound. This Court has

noted that Webster’s early 19th Century dictionary defined “testimony” to mean a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51 (quoting 2 N.

Webster, An American Dictionary of the English Language (1828)). One member of this Court consistently

applies that definition under the Confrontation Clause.

See Smith, 144 S. Ct. at 1803 (Thomas, J., concurring in

part). That is also the definition the intermediate appellate court applied in this case to unanimously reverse

Franklin’s conviction. Pet. App. 31a. And while the

Court’s precedents do not impose a solemnity requirement, this Court has parroted that definition’s second

half, providing that a statement is testimonial when

“made for the purpose of proving a particular fact.” Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011).

Williams v. Illinois, 567 U.S. 50 (2012) further compounds the confusion. In a 4:4:1 decision, the plurality

held that a statement is not testimonial unless it has

“the primary purpose of accusing a targeted individual.”

Id. at 84. But a majority of the justices—one concurring

in the judgment and four dissenting—rejected the plurality’s view. See id. at 114-17 (Thomas, J., concurring

in the judgment); id. at 135-36 (Kagan, J., dissenting).2

This Court has adopted yet another standard in the context of

the Fifth Amendment’s privilege against self-incrimination. There,

compelled “testimonial” statements of the defendant—which cannot

be introduced at trial—include all statements that “explicitly or implicitly … relate a factual assertion or disclose information.” Doe v.

United States, 487 U.S. 201, 210 (1988). This Court has never explained why the right against self-incrimination and the confrontation right should apply different standards, especially considering

the text providing each right is nearly identical. Compare U.S.

Const. amend V. (no criminal defendant may “be compelled … to be

a witness against himself” (emphasis added)), with U.S. Const.

amend VI. (a criminal defendant has a right “to be confronted with

the witnesses against him” (emphasis added)).

In sum, “[a] comprehensive definition of the term

‘testimonial’ [still] awaits articulation.” People v. Amezcua, 434 P.3d 1121, 1140 (Cal. 2019). This Court has set

out at least seven different formulations of the standard,

leading many to describe recent Confrontation Clause

cases “as ‘incoherent,’ ‘uncertain,’ ‘unpredictable,’ ‘a

train wreck,’ suffering from ‘vagueness’ and ‘doublespeak,’ and, simply put, a ‘mess.’” Kevin C. McMunigal,

Crawford, Confrontation, and Mental States, 64 Syracuse L. Rev. 219, 220 (2014) (citations omitted). This

Court should grant certiorari to clarify the testimonial

inquiry and to ensure that the “unpredictable and inconsistent application” that came to define the now-defunct

Roberts framework does not befall Crawford as well.

Crawford, 541 U.S. at 66.

B. This Court’s Conflicting Formulations Have Created

Disarray And Divergent Outcomes In Federal Courts

of Appeals And State Courts Of Last Resort

Six years ago, this Court declined an invitation to settle confusion in lower courts regarding two issues: (1)

the test for determining whether a statement is “testimonial” under the Confrontation Clause; and (2) when

out-of-court testimony is admitted “for its truth” (another requirement to trigger a confrontation right). See

Stuart v. Alabama, 139 S. Ct. 36, 36-37 (2018) (Gorsuch,

J., dissenting from the denial of certiorari). Just last

Term, this Court intervened to resolve the second issue.

See Smith, 144 S. Ct. at 1794-1800. The disarray regarding the first issue—the one presented by this petition—remains as strong as ever.

This Court’s conflicting formulations of the testimonial standard have created an intractable “circuit split

on … what test exists for an out-of-court statement to be

testimonial.” Transcript of Oral Argument at 27, Smith,

144 S. Ct. 1785 (No. 22-899), 2024 WL 250706 (Sotomayor, J.). The same goes for state courts, which “are

increasingly confronting circumstances in which they

are unsure how to assess whether a statement is testimonial.” State v. Patel, 270 A.3d 627, 647 n.18 (Conn.

2022), cert. denied, 143 S. Ct. 216 (2022).

1. Following this Court’s lead, lower courts apply various conflicting standards to determine when admission

of an out-of-court statement triggers a criminal defendant’s Sixth Amendment right to cross-examination.

Some decisions hold that statements are testimonial if

“made under circumstances [that] would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial,” MelendezDiaz, 557 U.S. at 311; Crawford, 541 U.S. at 52. E.g.,

Williams v. Superintendent Greene SCI, 112 F.4th 155,

164 (3d Cir. 2024); United States v. Sanchez, 853 F.

App’x 141, 143 (9th Cir. 2021); United States v. McLean,

695 F. App’x 681, 685 (4th Cir. 2017); United States v.

Richard, 678 F. App’x 927, 939 (11th Cir. 2017); United

States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011), aff’d

sub nom. Smith v. United States, 568 U.S. 106 (2013);

People v. Washington, --- N.W.3d ----, 2024 WL 3551260,

at *3 (Mich. July 26, 2024); State v. Thomas, 985 N.W.2d

87, 96 (Wis. 2023); Zeger v. State, 2022 WL 16703330, at

*1 (Nev. Nov. 3, 2022); State v. Tomlinson, 264 A.3d 950,

962 (Conn. 2021); State v. Sites, 825 S.E.2d 758, 766 (W.

Va. 2019); Nicholls v. People, 396 P.3d 675, 680 (Colo.

2017); Roby v. State, 183 So. 3d 857, 871 (Miss. 2016).

Other decisions define “testimonial” statements as

those made “to establish or prove past events potentially

relevant to later criminal prosecution,” Davis, 547 U.S.

at 822. E.g., United States v. King, 93 F.4th 845, 851

(5th Cir. 2024), petition for cert. filed, No. 23-7592 (U.S.

May 30, 2024); Goodloe v. Brannon, 4 F.4th 445, 449

(7th Cir. 2021); Reiner v. Woods, 955 F.3d 549, 554 (6th

Cir. 2020); United States v. Hollingshed, 940 F.3d 410,

416 n.4 (8th Cir. 2019); United States v. Denton, 944

F.3d 170, 184 (4th Cir. 2019) Dickey v. State, 483 S.W.3d

287, 290 (Ark. 2016); Commonwealth v. Trotto, 169

N.E.3d 883, 904 (Mass. 2021); State ex rel. A.R., 188

A.3d 332, 344 n.9 (N.J. 2018); King v. Commonwealth,

554 S.W.3d 343, 362 (Ky. 2018), overruled in part by

Johnson v. Commonwealth, 676 S.W.3d 405 (Ky. 2023).

Still more, like the New York Court of Appeals in this

case, apply this Court’s narrowest formulation: that

statements are testimonial only when their “primary

purpose” is to “creat[e] an out-of-court substitute for

trial testimony,” Bryant, 562 U.S. at 358; Clark, 576

U.S. at 250-51. E.g., Pet. App. 6a, 9a-10a; United States

v. Lundy, 83 F.4th 615, 620 (6th Cir. 2023); United

States v. Stepanets, 989 F.3d 88, 116 (1st Cir. 2021);

United States v. Buluc, 930 F.3d 383, 392 (5th Cir.

2019); United States v. Kirk Tang Yuk, 885 F.3d 57, 81

n.13 (2d Cir. 2018); United States v. Klemis, 859 F.3d

436, 444 (7th Cir. 2017); United States v. Reed, 780 F.3d

260, 269 (4th Cir. 2015); State v. English, 902 S.E.2d

385, 390 (S.C. 2024); Commonwealth v. Hart, 222

N.E.3d 455, 471 (Mass. 2023); Wallace v. State, 659

S.W.3d 267, 272 (Ark. 2023); People v. Garcia, 479 P.3d

905, 907 (Colo. 2021); Cardosi v. State, 128 N.E.3d 1277,

1288 (Ind. 2019); State v. Beasley, 108 N.E.3d 1028,

1064 (Ohio. 2018); State v. Vargas, 869 N.W.2d 150, 160

(S.D. 2015); State v. Koederitz, 166 So. 3d 981, 986 (La.

2015); Bowling v. State, 717 S.E.2d 190, 197-98 (Ga.

2011).

Some cases apply a hybrid standard. They ask, for

example, “whether out-of-court statements result from

questioning, ‘the primary purpose of which was to establish or prove past events potentially relevant to later

criminal prosecution’ and whether they are ‘functionally

identical to live, in-court testimony, made for the purpose of establishing or proving some fact’ at trial.’”

United States v. Latu, 46 F.4th 1175, 1180 (9th Cir.

2022) (emphasis added) (cleaned up). Others ask

whether a statement “fall[s] within [a] ‘core class,’” of

testimonial statements, which consists only of “[e]x

parte examinations and interrogations used as a functional equivalent for in-court testimony,” or whether the

statement “was taken with the primary purpose of creating an out-of-court substitute for trial testimony.”

Lambert v. Warden Greene SCI, 861 F.3d 459, 469-70

(3d Cir. 2017).

The solemnity and accusatory standards supply the

rule in some states. In Maryland, Tennessee, and Illinois, the Confrontation Clause applies only to a statement that is either “formal” or “accusatory, in that it targets an individual as having engaged in criminal conduct.” State v. Norton, 117 A.3d 1055, 1073 (Md. 2015)

(citing Williams, 567 U.S. at 103-04 (Thomas, J., concurring in the judgment) and Williams, 567 U.S. at 83-84

(plurality opinion)); see also Leidig v. State, 256 A.3d

870, 896-98 (Md. 2021); State v. Hutchison, 482 S.W.3d

893, 910 (Tenn. 2016), abrogated on other grounds by

Smith, 144 S. Ct. 1785; People v. Barner, 30 N.E.3d 271,

283-84 (Ill. 2015). And in California, a statement is testimonial only if “the primary purpose of the statement

… pertain[s] in some fashion to a criminal prosecution”

and it was made “with some degree of formality or solemnity.” People v. Gomez, 430 P.3d 791, 834 (Cal. 2018).

2. These various formulations pose differences of substance, not just semantics. Take this case. The Court of

Appeals reinstated Franklin’s conviction applying the

“out-of-court substitute for trial testimony” standard,

even while acknowledging that an “objective witness

would reasonably believe” that the CJA report “would

be available for use at a later trial.” Pet. App. 8a-9a; see

also id. at 15a (Aarons, J., dissenting). Franklin also

would have had a confrontation right under the standard applied by the intermediate appellate court to vacate his conviction, defining testimony as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Pet. App. 31a; Smith, 144

S. Ct. at 1803 (Thomas, J., concurring in part). The CJA

report is a formalized document, prepared and verified

by an agent of the State in order to establish facts for

use in a court proceeding. Pet. App. 33a. But Franklin

stands convicted again because the Court of Appeals

held that only statements primarily intended to be “outof-court substitute[s] for trial testimony” are testimonial. Pet. App. 6a, 9a-10a.

Franklin is not alone. Other cases demonstrate that

the Confrontation Clause’s application turns on which

testimonial standard a court chooses to apply. For example, the Ninth Circuit applied the “would be available

for use at a later trial” standard to “easily conclude” that

a confrontation right attached to a document that was

not created as a substitute for trial testimony—a “Notice

of Transfer/Release of Liability” that an out-of-court witness sent “to the DMV” regarding an automobile allegedly involved in a crime. United States v. Esparza, 791

F.3d 1067, 1072-73 (9th Cir. 2015). And as recently as

August 2024, the Third Circuit applied the same “available for use at a later trial” standard to hold that a

“Criminal Information” filed against a defendant’s al-

leged co-conspirator is testimonial. Williams v. Superintendent Greene SCI, 112 F.4th 155, 164-65 (3d Cir.

2024). Had those courts applied the “substitute for trial

testimony” standard championed by the New York

Court of Appeals in this case, the results would have

been different. Neither an official form regarding vehicle ownership submitted to the DMV nor a charging document have a “primary purpose … to create an out-ofcourt substitute for trial testimony.” Pet. App. 9a.

Whether a defendant has the right to confront the

author of an autopsy report also can depend on which of

this Court’s various tests a lower court chooses. Courts

applying the “substitute for trial testimony” test have

held that autopsy reports are “not testimonial” and are

therefore admissible without cross-examination. Ackerman v. State, 51 N.E.3d 171, 175, 195 (Ind. 2016); State

v. Maxwell, 9 N.E.3d 930, 950 (Ohio 2014) (same); accord United States v. James, 712 F.3d 79, 99 (2d Cir.

2013). Courts that apply solemnity or accusatory frameworks often reach the same result. See Hutchison, 482

S.W.3d at 910-14; People v. Leach, 980 N.E.2d 570, 59094 (Ill. 2012); People v. Dungo 286 P.3d 442, 450 (Cal.

2012).

In contrast, courts applying the “available for use at

a later trial” test have consistently found that defendants must be permitted to cross-examine the authors of

autopsy reports. United States v. Ignasiak, 667 F.3d

1217, 1232 (11th Cir. 2012); Moore, 651 F.3d at 73; Henriquez v. State, 580 S.W.3d 421, 427-28 (Tex. Ct. App.

2019); State v. Kennedy, 735 S.E.2d 905, 915-17 (W. Va.

2012); accord Cuesta-Rodriguez v. State, 241 P.3d 214,

228 (Okla. Crim. App. 2010).

The randomness, incoherence, and unfairness that

stem from this Court’s conflicting formulations is perhaps best illustrated by contrasting the decision below

with a Confrontation Clause case the same court decided just five months earlier: People v. Ortega, 227

N.E.3d 302, 308-09 (N.Y. 2023). In Ortega, the New

York Court of Appeals did not apply or even mention the

“substitute for trial testimony” standard it relied on in

this case to reinstate Franklin’s conviction. Rather, Ortega held that the defendant had a constitutional right

to cross-examine the author of autopsy reports because

the reports were “solemn declarations or affirmations

made for the purpose of establishing or proving some

fact” and “were also created ‘under circumstances which

would lead an objective witness reasonably to believe

that the statement[s] would be available for use at a

later trial.’” Ibid. (quoting Crawford, 541 U.S. at 51-52).

Yet just months later, the same court explicitly rejected

both those standards—both of which would have led to

reversal of Franklin’s conviction. Instead, the court held

that the “substitute for trial testimony” test provides the

sole standard for evaluating whether a statement is testimonial. Pet. App. 6a, 9a-10a. On that basis alone,

Franklin again stands convicted of a felony without ever

receiving the right to cross-examine his accuser.

All told, lower court decisions reflect “the muddled

state of [the] current doctrine” on testimonial statements. People v. Gonzalez, 499 P.3d 282, 305 (Cal. 2021).

This Court “owe[s] lower courts struggling to abide [by

its] holdings more clarity than [it] ha[s] afforded them

in this area.” Stuart, 139 S. Ct. at 37 (Gorsuch, J., dissenting from the denial of certiorari). It owes a similar

duty to criminal defendants, whose constitutional rights

currently depend on where in the country their trial occurs or sometimes which appellate panel happens to be

assigned to their cases.

C. This Court’s Decision In

Underscores The Problem

Smith

Arizona

Last Term’s decision in Smith highlights and perpetuates the conflict. There, this Court acknowledged that

it has provided at least three “varied formulations of the

standard” for the “testimonial inquiry.” Smith, 144

S. Ct. at 1801-02; see id. at 1792 (quoting three conflicting formulations). Smith, however, expressly declined to

assess whether the statements in that case were testimonial or to clear up the recognized uncertainty created

by this Court’s conflicting formulations. Id. at 1801

(“[T]hat issue is not now fit for our resolution.”).

While Smith “offer[ed] a few thoughts” on the issue,

it did not address the heart of the conflict. The Court

merely observed that its “varied formulations” “focus[]

on the ‘primary purpose’ of the statement, and in particular on how it relates to a future criminal proceeding”

or if it “ha[s] ‘a focus on court.” Id. at 1801-02 (citation

omitted).

That gloss only begs the question. Lower courts reading Smith will still be left wondering just how a statement must “relate[] to a future criminal proceeding” or

“focus on court” to make it testimonial. Ibid. Must it

have been created primarily to “substitute for trial testimony”? Id. at 1792 (quoting Bryant, 562 U.S. at 358).

Is an intent “to establish or prove past events potentially

relevant to later criminal prosecution” sufficient? Ibid.

(quoting Davis, 547 U.S. at 822). Is a “belie[f] that the

statement[] would be available for use at a later trial”

enough? Ibid. (quoting Melendez-Diaz, 557 U.S. at 311).

Must the statement also bear a “requisite” level of “formality and solemnity”? Id. at 1803-04 (Thomas, J., concurring in part). Must it “accus[e] a targeted individual”? Williams, 567 U.S. at 84 (plurality opinion). And

why does the Confrontation right depend on the statement’s “primary purpose” at all, when the similarly

worded Fifth Amendment right against self-incrimination treats statements as “testimonial” if they “explicitly

or implicitly … relate a factual assertion or disclose information”? Doe v. United States, 487 U.S. 201, 210

(1988); see Smith, 144 S. Ct. at 1804 (Gorsuch, J., concurring in part). Smith simply does not say.

Smith’s endorsement of an undefined “primary purpose” test raises other questions as well: “Does it focus

… on the purposes an objective observer would assign to

a challenged statement, the declarant’s purposes in

making it, the government’s purposes in procuring it, or

maybe still some other point of reference?” Smith, 144

S. Ct. at 1804 (Gorsuch, J., concurring in part) (cleaned

up). “[H]ow do [courts] pick the primary [purpose] out of

the several a statement might serve?” Ibid. These crucial questions remain unanswered.

In the end, Smith’s “thoughts” on the “varied formulations of the standard” for the “testimonial inquiry,” id.

at 1801-02 (majority opinion), leave courts right back

where they were: without “a comprehensive definition

of ‘testimonial’” and with the “uncertainty” that this

Court promised would be temporary, Crawford, 541

U.S. at 68 & n.10. Only this Court’s intervention can

change that.

II. The Question Of When A Statement Is Testimonial Is One

Of Vital Importance To Criminal Defendants Nationwide

The Sixth Amendment’s confrontation right is “all essential to the correct administration of justice.” United

States v. Burr, 25 F. Cas. 187, 193 (C.C.D. Va. 1807)

(Marshall, J.). It guarantees a defendant’s ability to

“force[] the witness to submit to cross-examination, the

‘greatest legal engine ever invented for the discovery of

truth.’” California v. Green, 399 U.S. 149, 158 (1970)

(quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)).

Accordingly, it is “incumbent on courts to be watchful of

every inroad on a principle so truly important.” Burr, 25

F. Cas. at 193.

This Court abides that centuries-old command. In

the two decades since Crawford, it has heard no fewer

than twelve Confrontation Clause cases. See Smith, 144

S. Ct. 1785; Samia v. United States, 599 U.S. 635 (2023);

Hemphill v. New York, 595 U.S. 140 (2022); Clark, 576

U.S. 237; Williams, 567 U.S. 50; Bullcoming, 564 U.S.

647; Bryant, 562 U.S. 344; Briscoe v. Virginia, 559 U.S.

32 (2010); Melendez-Diaz, 557 U.S. 305; Giles v. California, 554 U.S. 353 (2008); Hammon v. Indiana, 547 U.S.

813 (2006); Davis, 547 U.S. 813. Seven of those cases—

Clark, Williams, Bullcoming, Bryant, Melendez-Diaz,

Hammon, and Davis—concerned when a statement is

testimonial, demonstrating the fundamental importance of this “regularly recur[ring]” issue, Stuart,

139 S. Ct. at 37 (Gorsuch, J., dissenting from denial of

certiorari).

This case highlights that this Court’s work remains

unfinished and why it is imperative to complete the job.

The disarray in this Court and the lower courts on the

testimonial standard leaves an individual’s liberty to

the vagaries of where a defendant is prosecuted and

which standard a defendant happens to draw. And if

this Court allows the decision below to stand, then in

New York and other jurisdictions applying the same

narrow test, prejudicial and inculpatory evidence will be

admitted in criminal trials without affording defendants a right to cross-examine their accusers.

A. Which Testimonial Standard Applies Means The

Difference Between Freedom And Incarceration

The Court need look no further than this case to appreciate the peril of the prevailing disarray. Franklin

stands convicted because the Court of Appeals chose to

apply the “substitute for trial testimony” standard. Pet.

App. 6a, 9a-10a. But his conviction would have been vacated if the court had held, like many others, that

whether a statement is testimonial depends on either a

“reasonabl[e] belie[f] … it would be available for use at

a later trial” or whether it was a “solemn declaration or

affirmation made for the purpose of establishing or

proving some fact.” Pet App. 8a; id. at 15a (Aarons, J,

dissenting); id. at 31a (Appellate Division opinion).

This case also highlights how denying a right of

cross-examination impedes “the discovery of truth.”

Green, 399 U.S. at 158. Recall, Franklin’s conviction

turned on whether he had “dominion and control” of the

gun police found in the basement of the home he shared

with his stepmother, Grace Mapp. Pet. App. 2a. Recall,

too, that the closet with the gun contained items “belonging to both Mapp and Franklin.” Ibid. To prove its

case, the State needed to establish that Franklin, and

not Mapp, had dominion over the basement. Id. at 3a.

The State’s only evidence for this essential element of

the offense introduced at trial was the CJA employee’s

statement that Franklin lived specifically in the basement of the shared home. Ibid.

Had Franklin been able to cross-examine the CJA

employee, he could have inquired into why the employee

made this statement. The CJA employee’s report specifically noted that he had “verified” Franklin’s address

with Mapp, Franklin’s co-tenant. Pet. App. 3a, 33a. If

Mapp was the source of the information that Franklin

supposedly resided in the basement, Franklin would

have been able to impeach that statement on the basis

that, by linking the basement closet to Franklin, Mapp

avoided implicating herself in a firearms possession

charge. Franklin also would likely have had a right to

confront Mapp about this statement. Yet because the

trial court allowed the prosecution to introduce the CJA

employee’s statement through his supervisor, nobody

(the jury included) will ever know or be able to assess

the answers to these questions. This Court should grant

certiorari to explain that the Sixth Amendment does not

permit this degradation of the truth-seeking process.

B. The Narrow Standard Applied By The Court Of

Appeals And Other Courts Opens The Door To The

Admission Of Many Damaging Out-Of-Court

Statements

The decision below held that statements in a bail report prepared while the defendant was in custody, without counsel present, were admissible at trial without

confrontation because the statements were not “created

for the primary purpose of serving as trial testimony.”

Pet. App. 1a-2a. That standard threatens to unleash a

torrent of prejudicial evidence against criminal defendants nationwide, without subjecting the evidence to the

crucible of cross-examination.

Consider the following examples: In the federal criminal justice system, a “probation officer must conduct a

presentence investigation and submit a report to the

court before it imposes sentence.” Fed. R. Crim. P.

32(c)(1)(A). These reports collect the probation officer’s

statements about numerous aspects of a defendant’s

history and conduct. Such reports “must … contain,”

among other things, “the defendant’s history and characteristics, including: [] any prior criminal record …

and[] any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in

correctional treatment.” Fed. R. Crim. P. 32(d)(2)(A).

The report must also “identify any factor relevant to []

the appropriate kind of sentence, or [] the appropriate

sentence within the applicable sentencing range.” Fed.

R. Crim. P. 32(d)(1)(D).

New York likewise requires “a pre-sentence investigation” “[i]n any case where a person is convicted of a

felony.” N.Y. Crim. Proc. § 390.20(1). That investigation

yields a report containing “information with respect to

the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, and the defendant’s social history, employment

history, family situation, economic status, education,

and personal habits.” Id. § 390.30(1),(3). Other states

have similar requirements. See, e.g., N.J. Stat. Ann.

§ 2C:44-6; Cal. Rules of Court 4.411, 4.411.5; Tex. Code

Crim. Proc. Ann. art. 42A.252-53.

Under the decision below, the Confrontation Clause

might allow the introduction of statements contained in

these presentence reports in subsequent trials involving

a criminal defendant. After all, sentencing reports are

plainly not “created for the primary purpose of serving

as trial testimony.” Pet. App. 1a. On the contrary, the

trial has already concluded when the probation officer

composes the presentence report, which is primarily, if

not solely, prepared to assist the court in determining a

sentence.

It’s not just presentence reports that could be admitted. As former New York Court of Appeals Judge Eugene Fahey explained in an amicus brief below, states

maintain a series of “treatment” and “problem-solving

courts” that “save money, reduce crime, and improve

lives” of “tens of thousands of participants.” C.A. Univ.

at Buffalo Am. Br. 2. These courts, which do not hold

trials, “are an alternative to the traditional criminal justice system for certain offenders,” and, in New York, include “drug treatment courts, mental health courts,

DWI courts, veterans’ courts, and opioid courts.” Id. at

12. Gaining access to and completing these specialized

programs, however, often involves “a series of potentially incriminating disclosures” that may be recorded

by various program staff. Id. at 17.

Under the Court of Appeals’ myopic view, the Constitution apparently does not prevent prosecutors from introducing records and statements from these problemsolving courts in subsequent trials—even when the defendant cannot cross-examine the declarants. Like

presentence reports, these records are by no means “created for the primary purpose of serving as trial testimony.” Pet. App. 1a. If anything, they are meant to

avoid a criminal trial. Their purpose is to help “address

the underlying issue that may have caused [a defendant’s] involvement with the criminal justice system.”

C.A. Univ. at Buffalo Am. Br. 12.

The Court of Appeals’ decision could also turn this

Court’s recent decision in Hemphill into a nullity. In

Hemphill, this Court assumed that a defendant’s plea

allocation was testimonial and held it could not be introduced without cross-examination in an alleged co-conspirator’s trial, even if the co-conspirator had made the

allocution “arguably relevant to his theory of defense.”

595 U.S. at 144, 146 n.1. A plea allocution, however, is

made to avoid a trial, not to “substitute for trial testimony.” Pet. App. 6a, 9a.

Similarly, the Court of Appeals’ standard may permit

introduction of conviction records from other trials without confrontation. Such records also are not “substitute[s] for trial testimony,” Pet. App. 6a, 9a, as they

merely document the end result of a trial or other adjudication. Yet admitting these materials would contravene “[l]ongstanding case law” holding that “admission

of” “records of conviction … violate[s a defendant’s]

rights under the Confrontation Clause.” Melendez-Diaz,

557 U.S. at 314 (discussing Kirby v. United States, 174

U.S. 47, 53-55 (1899)). Accordingly, this Court’s intervention is required to prevent the decision below from

re-interring the bedrock confrontation right just recently “resurrected in Crawford.” United States v.

Hagege, 437 F.3d 943, 958 (9th Cir. 2006).

III. The Decision Below Conflicts With Crawford And The

Confrontation Clause’s Original Meaning.

Crawford held that “testimonial statements” include,

“at a minimum[,] … prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and …

police interrogations.” 541 U.S. at 68. Crawford also instructed courts to “turn to the historical background of

the [Confrontation] Clause to understand its meaning.”

Id. at 43. The decision below strays from Crawford’s

conclusion and command.

A. Under Crawford, The Evidence In This Case Is Not

Admissible Without Confrontation

Franklin stands convicted based on statements an

agent of the State submitted to the trial court as evidence in Franklin’s bail proceeding, in the very same

prosecution that led to his conviction. These statements

are plainly “prior testimony at a preliminary hearing.”

Id. at 68. Crawford holds that, “at a minimum,” such

statements are testimonial and inadmissible without

confrontation. Ibid. But the Court of Appeals missed

Crawford’s bottom-line holding because it believed this

Court had later “refined its Confrontation Clause analysis.” Pet. App. 5a-6a. This Court should grant certiorari

to reaffirm Crawford’s basic rule and to ensure other

courts do not follow the same wayward path.

B. The Evidence In This Case Would Not Have Been

Admissible At Common Law

The lower court’s decision is also incompatible with

the confrontation right that existed under common law

when the Sixth Amendment was enacted in 1791. The

Amendment codifies the “right of confrontation at common law, admitting only those exceptions established at

the time of the founding.” Crawford, 541 U.S. at 54. Accordingly, “courts [must] consult history to determine

the scope of th[e] right.” N.Y. State Rifle & Pistol Ass'n,

Inc. v. Bruen, 597 U.S. 1, 25 (2022); see Giles, 554 U.S.

at 358-61 (looking to founding era cases to delimit the

“forfeiture by wrongdoing” exception to the confrontation right). The decision below, however, failed to consult any historical evidence and, as a result, sanctioned

the admission of evidence that would have been excluded at common law.

“[T]he historical analogies here” should have been

“relatively simple to draw.” Bruen, 597 U.S. at 27. As

Crawford explained, one practice of particular concern

at the founding was the introduction into evidence of

statements made pursuant to the 16th century “Marian

bail and committal statutes,” which “required justices of

the peace to examine suspects and witnesses in felony

cases and to certify the results to the court.” Crawford,

541 U.S. at 43-44. Although “it is doubtful that the orig-

inal purpose of the examinations was to produce evidence admissible at trial … they came to be used as evidence in some cases.” Id. at 44; see also John H. Langbein, Prosecuting Crime in the Renaissance 24 (1974).

This case involves the modern-day analogue of those

Marian statute bail and committal examinations. After

Franklin’s arrest and while he was in custody—but before he was assigned counsel—an agent of the State

completed a report to assist the court in determining

Franklin’s suitability for bail. Like the Marian statute

bail examinations, the “original purpose” of the CJA report was not “to produce evidence admissible at trial,”

but the report nonetheless “came to be used as evidence”

in his case. Crawford, 541 U.S. at 44.

In Crawford, this Court explained that one of the

“principal evil[s] at which the Confrontation Clause was

directed” was this “use of ex parte examinations as evidence against the accused.” Id. at 50. It made no difference that Marian statute bail examinations probably

were not conducted to create a substitute for trial testimony. Id. at 44. They were nonetheless used as evidence

at some trials. And, this Court held, the admission at

trial of “testimony at a preliminary hearing” “qualif[ies]”

as testimonial “under any definition.” Id. at 52, 68.

Except now it doesn’t. The court below redefined the

confrontation right to exclude the very kind of evidence

the Confrontation Clause was specifically enacted to

reach. And the lower court allowed the CJA bail report

to be admitted as evidence against Franklin at his trial

solely because the report was not “created for the primary purpose of serving as trial testimony”—just like

bail examinations under the Marian statutes. Pet App.

1a-2a. The confrontation right requires an opportunity

for cross-examination all the same. Only this Court’s intervention can secure the Constitution’s guarantee to

Franklin and to defendants nationwide.

C. A Strict “Primary Purpose” Inquiry Invites The Kind

Of Ahistorical Results Reflected In This Case

The Court of Appeals’ “primary purpose” inquiry is

fundamentally at odds with the history and original

meaning of the Sixth Amendment. Through rigid application of one of this Court’s various definitions of “testimonial,” divorced from any founding-era principles, the

Court of Appeals left unprotected the very kind of statement the Confrontation Clause targeted at the time of

ratification. As applied to cases like Franklin’s and

countless others, the “primary purpose” inquiry has

proven incapable of serving as the proper guidepost for

Sixth Amendment analyses, placing criminal defendants at risk of losing a right guaranteed to them for centuries.

In this case, the CJA interview and report imitates

the very civil-law practices that Crawford highlighted

and that the Confrontation Clause resisted. See 541

U.S. at 50. That the CJA report could be deemed nontestimonial merely because its “primary purpose” was

not “to create an out-of-court substitute for trial testimony,” Pet. App. 9a-10a, shows that this inquiry simply

cannot be right or stand as the singular touchpoint for

the Sixth Amendment analysis. The CJA report prepared by a State agent for use in Franklin’s bail proceeding is plainly testimonial under the Framers’ conception

of the confrontation right, regardless of the varying

glosses this Court and others have placed on that right.

Indeed, this Court recognized in Crawford that

“[v]ague standards” of the kind invited by the primary

purpose test “are manipulable.” 541 U.S. at 68. And

“[t]he Framers … would not have been content” to leave

a bedrock constitutional right to the vagaries of an inquiry untethered to history or tradition. Id. at 67. This

Court should grant certiorari to restore history and tradition to their proper place in Sixth Amendment jurisprudence.

IV. This Case Is An Ideal Vehicle

This case is an ideal vehicle for this Court to bring

sorely needed clarity to the confrontation right. The

questions are squarely presented and dispositive. Like

examinations under the Marian statutes, the CJA report about Franklin was not created primarily to serve

as evidence at his trial. But without the CJA report, the

State could not have convicted him. If the report is testimonial, Franklin’s conviction will be vacated. If not,

his conviction will stand—but the Sixth Amendment’s

history and purpose will be eviscerated.

This Court should grant certiorari and reverse. In

one of the most notorious uses of ex parte evidence, Sir

Walter Raleigh was convicted of treason in the 17th century after the court denied his demand to confront the

witness against him. See Crawford, 541 U.S. at 44

(“‘Call my accuser before my face.’”). Sir Raleigh later

received clemency from the King. Cid C. Franklin will

not be so lucky.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for a writ of certiorari.

Respectfully submitted.