                        Docket No. 97544.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS



THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
          ROBERT STECHLY, Appellant.

                   Opinion filed April 19, 2007.



   JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
   Justices Fitzgerald and Burke concurred in the judgment and
opinion.
   Justice Kilbride concurred in part and dissented in part, with
opinion.
   Chief Justice Thomas dissented, with opinion, joined by Justice
Karmeier.
   Justice Garman dissented, with opinion.



                            OPINION

    Following a stipulated bench trial in the circuit court of Cook
County, defendant Robert Stechly was convicted of predatory
criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West
1998)), criminal sexual assault (720 ILCS 5/12–13(a)(1), (a)(2) (West
1998)), and aggravated criminal sexual abuse (720 ILCS
5/12–16(c)(1)(i) (West 1998)). Defendant’s convictions arose from
an incident in December 1998 involving M.M., the five-year-old
daughter of defendant’s girlfriend. As a result of the convictions, the
circuit court sentenced defendant to six years’ imprisonment.
Defendant appealed, arguing that the circuit court erred in admitting
the child’s statements pursuant to the hearsay exception for sexual
abuse victims under the age of 13 (725 ILCS 5/115–10 (West 1998)),
and in concluding that the child was unavailable to testify at trial. The
appellate court affirmed (No. 1–01–2869 (unpublished order under
Supreme Court Rule 23)), and defendant petitioned for leave to
appeal to this court. Subsequently, the United States Supreme Court
decided Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177,
124 S. Ct. 1354 (2004), which held that the testimonial hearsay
statements of a witness who is absent from trial may not be admitted
against a criminal defendant unless the witness is unavailable to
testify and the defendant had a prior opportunity for cross-
examination. Defendant filed a supplemental petition for leave to
appeal in which he cited Crawford. We allowed defendant’s petition
for leave to appeal. 210 Ill. 2d R. 315.

                            BACKGROUND
    In 1999, defendant was indicted on charges of predatory criminal
sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 1998)),
criminal sexual assault (720 ILCS 5/12–13(a)(1), (a)(2) (West 1998)),
and aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i)
(West 1998)). According to the indictment, the charges stemmed
from an incident that occurred on or about December 20, 1998.
    Prior to trial, the State requested a hearing to determine whether
the victim’s hearsay statements were sufficiently reliable to be
admitted under section 115–10 of the Code of Criminal Procedure. At
this hearing, the State offered the testimony of three recipients of the
child’s hearsay statements. Joan G., the child’s mother, testified that,
on January 13, 1999, M.M.’s babysitter, Brenda Galete, came to
Joan’s place of employment and told Joan that they needed to take the
child to the hospital. Brenda did not tell Joan what happened, and
Joan did not know why they were going to the hospital. Joan went
with Brenda, and sat next to M.M. in the backseat of Brenda’s car.
During the ride to the hospital, Joan asked M.M. what was wrong,
and M.M. described an incident of sexual abuse by “Bob.” M.M. also
said “Bob” warned her that if she told her mother about the abuse, he

                                  -2-
would “hurt” M.M. Joan understood “Bob” to be defendant, who at
the time lived in Joan’s apartment building in Alsip, Illinois, and was
involved with Joan in a relationship. According to Joan, on a Monday
about two weeks before Christmas 1998, defendant babysat M.M. in
his apartment while Joan was at work. Subsequently, Joan noticed
that her daughter was “acting awful strange” and “acting peculiar.”
For example, around Christmastime, when Joan suggested that she
and M.M. go to defendant’s apartment to visit, M.M. “got very upset”
and said she did not want to go there. Joan suspected that either
defendant or the child’s father had done something sexual to M.M.
About December 21, 1998, Joan confronted defendant with her
suspicions, but he denied doing anything to M.M.
    Upon arriving at Christ Hospital, Joan and M.M. went to the
emergency room. While they were there, Ann Grote, a clinical
specialist in charge of the hospital’s child-abuse team, came to the
emergency room and spoke with Joan. Grote, a registered nurse,
testified at the reliability hearing that, following her conversation with
Joan, she decided to interview M.M. According to Grote, the child’s
mother told her that the perpetrator was “the babysitter,” a man with
whom Joan was involved in a relationship. Grote took M.M. to her
office in Hope Children’s Hospital, which adjoined Christ Hospital,
and interviewed the child in a playroom that was connected to Grote’s
office. Grote testified that the child described an incident of sexual
abuse by “Bob.” The details were essentially the same as those
recounted by Joan in her testimony. According to Grote, M.M. said
“Bob” told her not to tell about the abuse, and he warned M.M. that
he “would be mad” if she told her mother. After the interview, Grote
returned M.M. to the emergency room for an examination. Grote also
spoke to Joan, telling her that a report would be filed and that Grote
would contact the police department and would verify that the Illinois
Department of Children and Family Services (DCFS) had been
notified.
    Grote testified further that the next day, January 14, 1999, she
spoke to Investigator Michael Fogarty of the Alsip police department
and arranged for a second interview with M.M. at about 3 p.m. that
day. The interview took place in the same playroom, which was
equipped with a microphone and was connected to a second room by
a one-way mirror. In the second room were Investigator Fogarty and

                                   -3-
an assistant State’s Attorney. Grote began the interview with M.M.
by asking the child if she could remember why she had come to the
hospital the previous day. M.M. answered that “it was because of
what Bob had done to her.” According to Grote, M.M. then related
essentially the same incident that she had described the day before.
    Also testifying at the reliability hearing was Perry Yates, a social
worker at the school where M.M. attended kindergarten. At about
8:30 a.m. on January 14, 1999–the date of Grote’s second interview
with M.M.–Yates received a telephone call at his office from M.M.’s
mother, who gave him “some information.” Yates then asked Joan if
he could speak to M.M. individually, and Joan said “that would be
fine.” In his testimony at the hearing, Yates explained his reason for
asking to speak with M.M. “The information that the mother had
disclosed put me in a position where I had to make a mandated report
[to DCFS].” Yates had a “legal obligation to check it out.” Yates
began the interview with M.M. by asking her what she could tell him
about Robert Stechly. M.M. responded by describing an incident of
sexual abuse, the details of which were similar to those recounted by
Joan and Grote. Yates stated:
             “It was kind of a long rambling narrative[,] which is
         unusual for the age of the child. She was very coherent, she
         gave a very comprehensive step by step report to me that was
         fairly alarming.”
With regard to when the alleged incident occurred, M.M. told Yates
that it happened “before Santa Claus came.” On cross-examination,
Yates conceded that, while he had mentioned the name “Robert
Stechly” in his initial question to M.M., she did not mention
defendant by name during the interview.
    At the conclusion of the hearing, the circuit court found that “the
time, content, and circumstances” of the hearsay statements “provide
sufficient safeguards of reliability to be admissible.” Pursuant to
section 115–10(b)(2), the court held that the statements “shall be
admissible contingent upon one of two things occurring: [e]ither the
child testifying at trial, or a judicial determination of unavailability,
and there is corroborative evidence of the act” that was the subject of
the statements.



                                  -4-
    The State filed a motion in limine seeking a judicial determination
regarding the victim’s availability to testify. The sole witness at the
hearing on this motion was Nancy Machonkin, a clinical child
psychologist. Machonkin testified that she was hired by the victim’s
father in March 1999 to evaluate M.M. to determine what impact the
alleged abuse had on the child and the type of treatment M.M. might
need. Machonkin met with M.M. five times over a monthlong period
in the spring of 1999 and, after these five sessions, concluded that
there was no need for treatment. Machonkin met with M.M. again in
October 2000, this time in anticipation of M.M.’s possibly testifying.
M.M.’s father told Machonkin that there was a possibility that the
State might require M.M. to testify, and he wanted Machonkin to
determine what impact that might have on the child. In her testimony
at the availability hearing, Machonkin stated that in all the sessions
she had with M.M., Machonkin was never able to persuade M.M. to
talk about the sexual abuse allegations. In the spring 1999 sessions,
each time Machonkin tried to broach the alleged abuse, M.M. would
state: “I don’t want to tell. I don’t want to talk about it. I’m not going
to talk about it.” M.M. gave a similar response in the October 2000
session when Machonkin suggested the possibility of testifying in
court regarding the alleged abuse. M.M. stated: “It’s nasty. I’m
scared. I don’t want to tell. I don’t want to talk about it.”
    Machonkin testified further that, if M.M. were forced to testify,
she would likely experience trauma symptoms such as anxiety, sleep
disturbance, and difficulties in concentrating and paying attention.
According to Machonkin, it would not be in the child’s best interest
to testify. Machonkin stated that, in her professional opinion, M.M.
was unavailable to testify. On cross-examination, Machonkin
acknowledged that there were steps the court might take to minimize
the stress associated with testifying. For example, M.M. could (1)
visit the courtroom when it was empty, (2) talk to the judge in
chambers, or (3) meet beforehand with the persons who would be
asking the questions. While Machonkin indicated that it might take
a year or more for M.M. to become acclimated to the courtroom, and
even then there would be no guarantees, Machonkin also stated that
M.M. might possibly become acclimated to the courtroom in as little
as two weeks.



                                   -5-
     At the conclusion of the availability hearing, the circuit court
declared M.M. legally unavailable. The court noted that M.M. had
been “repeatedly interviewed by an experienced and seasoned child
psychologist” and that M.M. had “steadfastly refused to discuss the
incident in question with this child psychologist.” The court
concluded:
              “[T]his uncommunicative child would likely suffer
         significant emotional harm if she were to participate in this
         trial. Such participation would inject [sic] this child to fear
         and anxiety to a degree that would further traumatize her.
         Accordingly, the Court declares this child to be legally
         unavailable for trial.”
     Defendant filed a motion to reconsider the ruling declaring M.M.
unavailable to testify. The circuit court denied the motion.
     Prior to the stipulated bench trial, defendant’s case was tried
before a jury. Four of the witnesses for the State at the jury trial were
the same witnesses who had testified at the reliability and availability
hearings. Their testimony before the jury was essentially consistent
with their testimony at the pretrial hearings. However, some
additional information was provided in the trial testimony. M.M.’s
mother, Joan, stated that, as far as she could recall, defendant babysat
M.M. only once. Joan also testified that, in addition to questioning
defendant in December 1998 about whether he had sexually abused
M.M., Joan asked M.M. (sometime in December before Christmas)
if her father or anyone else had ever touched her inappropriately.
M.M. said no one had. Joan testified that her nephew, Bob Reilly,
lived in an apartment in Joan’s building, but Joan insisted that her
nephew did not babysit for M.M. In addition, Joan’s testimony at trial
differed slightly from her testimony at the reliability hearing
regarding the conversation with M.M. en route to the hospital.
Whereas at the pretrial hearing Joan testified that M.M. identified her
abuser as “Bob,” and she “understood that to be Bob Stechly,” at trial
Joan testified that M.M. actually told her that “Robert Stechly”
performed the actions in question, identifying defendant by his full
first and last names. Ann Grote, the specialist in charge of the
hospital’s child-abuse team, stated that, with regard to her second
interview with M.M., Officer Christopher Radz of the Alsip police
department was also in the room adjacent to the playroom, along with

                                  -6-
Officer Fogarty and an assistant State’s Attorney. Perry Yates, the
social worker at M.M.’s school, gave additional details about the
telephone call he received from M.M.’s mother the morning of
January 14, 1999. According to Yates, the information that M.M.’s
mother gave him that morning was that there were allegations that
M.M. had been sexually abused and that defendant had “touched”
M.M. or “done something” to her. Nancy Machonkin, the clinical
child psychologist, explained why, after meeting with M.M. five
times in spring 1999, Machonkin concluded that no treatment was
necessary. Prior to the sessions with Machonkin, M.M. had exhibited
“symptoms” including sexualized behavior, undressing and dressing
dolls, and kissing and hugging unfamiliar adults. However, M.M.’s
father and grandmother told Machonkin that, following the spring
1999 sessions with Machonkin, M.M. had ceased to exhibit such
symptoms. Machonkin also testified that, while M.M. appeared to
have moved past the alleged abuse, at least for the time being, the
child also was dealing with a new living situation. M.M.’s father had
recently obtained temporary legal and physical custody of M.M., and
the child was “dealing with transitioning, adjusting [to] living with
her father and grandmother full time.”
    Also testifying for the State at the jury trial were Officer
Christopher Radz of the Alsip police department and Kent Delgado,
a Cook County assistant State’s Attorney. Radz stated that, as part of
his investigation of the alleged sexual abuse of M.M., he had
observed a “victim sensitive interview” of the child on January 14,
1999, at Hope Children’s Hospital. (This was Grote’s second
interview with M.M.) Radz explained that he and Investigator Fogarty
and an assistant State’s Attorney were situated behind a one-way
mirror while the child sat on the floor of a playroom and spoke to
Grote. Radz was able to watch and listen to the interview. That
evening, Radz and some other officers found defendant at a pizza
parlor where defendant worked part-time. Radz arrested defendant
and transported him to the Alsip police station, arriving there shortly
after 7 p.m. Defendant was informed of his Miranda rights, and he
signed a Miranda rights waiver form.
    Delgado, the assistant State’s Attorney, testified that he arrived at
the Alsip police station at about 8:30 or 8:45 p.m. on January 14,
1999. At about 11 p.m., after discussing the case with officers and

                                  -7-
investigators, and after reading their reports, Delgado spoke to
defendant. According to Delgado, defendant told Delgado about the
incident, and agreed to put his statement in writing. At the jury trial,
Delgado read defendant’s statement, in which defendant admitted to
the abuse. However, according to defendant’s statement, he was
asleep when the abuse occurred and mistakenly thought M.M. was
Joan. When he realized it was M.M. and not Joan, defendant ended
the incident. He told M.M. that it was an accident and told her not to
tell anyone because if her mother found out, she would be mad at
M.M.
     The main witness for the defense at the jury trial was Brenda
Galete, the babysitter who had insisted, on January 13, 1999, that
M.M. be taken to the hospital. Galete testified that she began
babysitting for M.M. in November 1998 (prior to defendant’s
babysitting for M.M. in December 1998). At that time, Galete noticed
that M.M. was “very afraid of men,” she was “always fidgety,” and
she would never leave Galete’s side. M.M. also acted “very strange
around her mother.” Galete testified that she babysat for M.M. “at
least a couple [of] times a week,” and that Joan had other people
babysitting as well. Galete stated, contrary to Joan’s testimony, that
Joan’s nephew, Bob Reilly, who lived in Joan’s apartment building,
“babysat a lot” for M.M.
     Galete testified further that, three or four days before January 13,
1999, the day when M.M. went to the hospital, Galete mentioned to
Joan that M.M. was “acting strange” and that Galete thought there
had been “some kind of sexual abuse.” On January 13, M.M. told
Galete about the incident of sexual abuse by “Bob.” According to
Galete, M.M. “never really specified which Bob.” In her testimony at
the jury trial, Galete stated: “There are too many Bobs babysitting.”
Galete was the first person M.M. told about the incident. As a result
of her conversation with M.M., Galete went to Joan’s place of
employment and insisted that they take M.M. to the hospital. Galete
stated that, while they were in the car en route to the hospital, Galete
did not remember hearing Joan ask M.M. what happened. According
to Galete, if Joan asked M.M. questions while they were in the car,
Galete did not hear what Joan was asking. This testimony differed
from that of Joan, who stated that she did discuss the incident with
M.M. while they were in the car. On cross-examination, Galete stated

                                  -8-
that she thought “there [were] other people that molested” M.M.
Galete told the police that she thought Joan was molesting M.M.
     The defense also called two expert witnesses, a clinical
psychologist and a psychiatrist. In addition, defendant testified in his
own behalf. Robert Shapiro, the clinical psychologist, was sharply
critical of the interviewing techniques used by Grote and Yates. In
Shapiro’s view, Grote should have asked more questions to determine
the identity of “Bob.” According to Shapiro, Grote obtained enough
information from M.M. to conclude that the child had been sexually
abused “by someone,” but the information was “totally inadequate to
determine who did the abuse.” Shapiro also testified that, in his
opinion, Yates’ interview with M.M. was not reliable. Shapiro noted
that Yates used defendant’s name, “Robert Stechly,” in his opening
question to M.M. According to Shapiro, this question was improperly
leading. Shapiro stated: “You’re already throwing out a name. It’s
leading to the child.”
     Gregory Teas, the psychiatrist, testified that defendant had
difficulties with abstract thinking and did not understand the
ramifications of signing a statement. Teas also asserted that, in the 45
hours prior to defendant’s signing the statement at the Alsip police
station, defendant had gotten only one to three hours of sleep. In
Teas’ view, this sleep deprivation, coupled with defendant’s lack of
mental appreciation of the circumstances, played a role in defendant’s
decisionmaking the night he signed the statement. Defendant’s main
interest at the time he signed the statement, Teas asserted, was in
going home. “[H]e trusted the authorities[;] he felt that he did nothing
wrong.” According to Teas, defendant signed what he considered to
be a false statement because “he thought it was a fair thing to do to
get some sleep and so that the truth could come out the next day,
through further investigation.”
     In his testimony at the jury trial, defendant acknowledged that he
babysat for M.M. on one occasion, approximately the first Monday
in December 1998, but he denied that any sexual abuse took place.
Defendant denied touching M.M. on that or any other date. He also
denied having M.M. touch him in any inappropriate place. With
regard to the interrogation at the Alsip police station on the night of
January 13, 1999, defendant testified that he denied committing the
offense. However, by the time Assistant State’s Attorney Delgado

                                  -9-
began questioning him, defendant said he was getting tired of telling
the authorities that he “didn’t do it” and “trying to prove himself.”
Defendant told Delgado and Fogarty: “[I]f this is what you guys think
happened, I don’t care, write it down if you want to.” Defendant
signed the statement, even though he knew it was not true.
     Following the presentation of evidence, the jury was instructed
and began deliberations. The jury subsequently sent a note to the
judge stating: “Split on all counts.” The judge asked each of the jurors
the following question: “In your considered opinion, could further
deliberations possibly result in a verdict?” Each juror answered “no.”
The judge declared a mistrial.
     Defendant waived his right to a second jury trial, and requested
a bench trial instead. The parties then stipulated that, if they were to
call witnesses at the bench trial, they would call the same witnesses
who testified at the jury trial, and their testimony would be the same
as it was at the jury trial. The judge stated that he “well
remember[ed]” the facts of the case and the testimony of each
witness. He added that he had taken “copious notes during the course
of the jury trial” and had reviewed those notes. The judge found
defendant guilty on all counts.
     Defendant moved for a new trial, arguing that (1) the evidence
was insufficient to prove him guilty beyond a reasonable doubt, and
(2) the court erred in (a) declaring the victim unavailable for trial and
(b) allowing Ann Grote, Perry Yates, and Joan G. to testify as to the
victim’s hearsay statements. According to defendant, the hearsay
testimony of these three witnesses was neither reliable nor credible
evidence. The motion for a new trial was denied. The court sentenced
defendant to six years in prison.
     On appeal, defendant raised two arguments. First, he contended
that the trial court erred in admitting M.M.’s hearsay statements.
According to defendant, the State failed to meet its statutory burden
of showing that the hearsay statements were reliable. See 725 ILCS
5/115–10 (West 1998). Defendant noted that the State failed to call
Brenda Galete, the babysitter who was the initial outcry witness, to
testify at the reliability hearing. In defendant’s view, Galete’s
testimony “was critical to showing all the circumstances that led to
the subsequent [hearsay] statements and for determining their
reliability.”

                                  -10-
     Defendant also argued that the trial court erred in declaring M.M.
unavailable to testify. According to defendant, the testimony of
psychologist Nancy Machonkin, the sole witness at the unavailability
hearing, was insufficient to establish that M.M. was unable to testify
at trial.
     The appellate court affirmed the judgment of the circuit court. No.
1–01–2869 (unpublished order under Supreme Court Rule 23). With
regard to defendant’s argument that the State should have called
Galete, the initial outcry witness, to testify at the reliability hearing,
the appellate court stated: “The outcry witness, to whom the child
victim first reports the sexual assault, is not required to testify in
order for the child’s statements to be deemed reliable.” No.
1–01–2869 (unpublished order under Supreme Court Rule 23).
     The appellate court also rejected defendant’s unavailability
argument. The court concluded, contrary to defendant’s contention,
that Machonkin’s testimony was sufficient to show that M.M. was
unavailable to testify. The appellate court held: “[T]he trial court did
not abuse its discretion in determining, on the evidence presented,
that M.M. was legally unavailable for trial.”

                            DISCUSSION
    Before this court, defendant renews the reliability and availability
arguments that he advanced in the appellate court below. Defendant
contends that the State failed to meet its burden of establishing the
reliability of M.M.’s hearsay statements, and the circuit court
therefore erred in admitting these statements. Defendant also argues
that the circuit court erred in declaring M.M. unavailable to testify.
The State responds that the circuit court was well within its discretion
in finding the statements reliable and finding M.M. unavailable to
testify, and urges that we affirm the circuit court’s rulings on these
issues.
    In addition, defendant advances an alternative argument that was
not presented to the appellate court. Defendant now contends that the
admission of M.M.’s hearsay statements violated his sixth
amendment right to confront the witnesses against him, and therefore
these statements should not have been admitted. He bases his
argument on the Supreme Court’s decision in Crawford v.

                                  -11-
Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004),
which was decided after the appellate court rendered its decision in
this case. There, the Supreme Court held that the “testimonial”
hearsay statements of a witness who does not testify at trial are
inadmissible against a criminal defendant unless the witness is
unavailable to testify and the defendant had a prior opportunity for
cross-examination. In the case at bar, defendant argues that M.M.’s
statements were testimonial hearsay as contemplated in Crawford.
Defendant contends that, because he had no opportunity to cross-
examine M.M., the admission of her statements violated the
confrontation clause under Crawford.
     The State raises a host of counterarguments to defendant’s
Crawford-based confrontation clause claim. The State contends
initially that we ought not even consider the argument, for two
reasons: defendant waived the argument by failing to raise it below,
and defendant forfeited the protection of the confrontation clause
because his conduct was responsible for M.M.’s unavailability for
trial. On the merits of the confrontation clause claim, the State argues
that the statements made by M.M. were not “testimonial” and thus did
not trigger the confrontation clause’s protection, because M.M. was
not aware that her statements could be used in future prosecution and
because none of the statements were made directly to representatives
of law enforcement. Finally, the State argues that any confrontation
clause violation which we may find to have occurred was in any event
harmless.
     As a general rule courts avoid deciding constitutional questions
when other, nonconstitutional grounds exist for resolving the case.
See, e.g., People v. Lee, 214 Ill. 2d 476, 482 (2005); In re Detention
of Swope, 213 Ill. 2d 210, 218 (2004), quoting In re S.G., 175 Ill. 2d
471, 479 (1997). Thus we ordinarily first would turn to defendant’s
arguments regarding reliability and availability, before addressing
Crawford and the confrontation clause. However, as the State notes,
defendant’s reliability and availability arguments are both couched in
constitutional terms. Moreover, the far-reaching changes Crawford
and its progeny have wrought to confrontation clause analysis may
well impact our consideration of these other issues as well.
Accordingly, we believe the most efficient route will be to turn first
to defendant’s new argument: that introduction of M.M.’s statements

                                 -12-
to her mother, Grote, and Yates violated his rights under the
confrontation clause.



             I. Defendant’s Confrontation Clause Claim
                             A. Introduction
    The sixth amendment to the United States Constitution, which
was adopted in 1791, provides that
            “In all criminal prosecutions, the accused shall enjoy the
        right to a speedy and public trial, by an impartial jury of the
        State and district wherein the crime shall have been
        committed, which district shall have been previously
        ascertained by law, and to be informed of the nature and cause
        of the accusation; to be confronted with the witnesses against
        him; to have compulsory process for obtaining witnesses in
        his favor, and to have the Assistance of Counsel for his
        defence.” U.S. Const., amend. VI.
That portion of the sixth amendment which provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right *** to be
confronted with the witnesses against him” is known as the
confrontation clause. This right extends to the states through the
fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed.
2d 923, 927-28, 85 S. Ct. 1065, 1069 (1965). See also Ill. Const.
1970, art. I, §8 (amended 1994) (“In criminal prosecutions, the
accused shall have the right *** to be confronted with the witnesses
against him or her”).
    In 1980, the United States Supreme Court established a general
framework for confrontation clause analysis in Ohio v. Roberts, 448
U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). There, the Court
held that
            “when a hearsay declarant is not present for cross-
        examination at trial, the Confrontation Clause normally
        requires a showing that he is unavailable. Even then, his
        statement is admissible only if it bears adequate ‘indicia of
        reliability.’ Reliability can be inferred without more in a case
        where the evidence falls within a firmly rooted hearsay
        exception. In other cases, the evidence must be excluded, at

                                 -13-
        least absent a showing of particularized guarantees of
        trustworthiness.” Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608,
        100 S. Ct. at 2539.
The Roberts framework for confrontation clause analysis lasted for
nearly two decades, and section 115–10 of our Code of Criminal
Procedure of 1963 was tailored to suit the constitutional requirements
therein delineated. See 725 ILCS 5/115–10 (West 2000).

                        B. Crawford and Davis
    However, in 2004 the Supreme Court fundamentally altered its
approach to confrontation clause analysis. In Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004),
the Court considered the appeal of a criminal defendant who was
convicted based in part on statements his wife made during an
interview while in police custody. The defendant’s wife did not testify
at trial, because of defendant’s invocation of spousal privilege.
However, the trial court admitted her out-of-court statements, over
defendant’s confrontation clause objection, after determining that
they bore “particularized guarantees of trustworthiness.”
    The Court overruled Roberts and held that the admission of the
statement against defendant violated the confrontation clause. The
Court began by revisiting the historical origins of the confrontation
clause, noting that it was a reaction against the civil law practice of
admitting at trial statements made outside of court, in response to
questioning by justices of the peace or other officials. Crawford, 541
U.S. at 43-50, 158 L. Ed. 2d at 187-92, 124 S. Ct. at 1359-63. The
Court labeled the political trials of the sixteenth and seventeenth
centuries the most “notorious” examples of this practice (Crawford,
541 U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360), and
specifically noted the trial of Sir Walter Raleigh. There, Lord
Cobham, Raleigh’s alleged accomplice, accused Raleigh in both an
out-of-court examination and a letter, both of which were admitted at
Raleigh’s trial as evidence against him. The judges rejected Raleigh’s
pleas for Cobham to be brought to court to testify in person, and the
jury convicted Raleigh and sentenced him to death. Crawford, 541
U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360. The Court in



                                 -14-
Crawford went on to note subsequent reforms in English law, as well
as practices in the Colonies.
    The Court’s historical review led the Court to two conclusions
regarding the confrontation clause:
                “First, the 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. ***
                                 ***
            The historical record also supports a second proposition:
        that the Framers would not have allowed 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.” Crawford,
        541 U.S. at 50-54, 158 L. Ed. 2d at 192-94, 124 S. Ct. at
        1363-65.
These two propositions led the Court to conclude that the protections
provided by the Roberts framework were insufficient in the context
of “testimonial” statements. Crawford, 541 U.S. at 61-62, 158 L. Ed.
2d at 199, 124 S. Ct. at 1370-71. Rather, “[w]here testimonial
statements are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” Crawford, 541 U.S. at 68-69, 158 L. Ed.
2d at 203, 124 S. Ct. at 1374. However, the Crawford Court explicitly
declined to define what exactly makes a statement “testimonial.” See
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
The Court noted a few possible definitions but rather than attempting
a comprehensive definition, simply held that whatever the definition
of “testimonial hearsay” might be, “interrogations by law
enforcement officers fall squarely within” it. Crawford, 541 U.S. at
53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. The Court held that the
recorded statement at issue in Crawford, “knowingly given in
response to structured police questioning, qualifies” as having been
the product of an interrogation “under any conceivable definition.”
Crawford, 541 U.S. at 53 n.4, 158 L. Ed. 2d at 194 n.4, 124 S. Ct. at
1365 n.4. See also Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193,
124 S. Ct. at 1364 (“Statements taken by police officers in the course


                                 -15-
of interrogation are also testimonial under even a narrow standard”);
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374
(“Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations,” which are “the modern practices
with closest kinship to the abuses at which the Confrontation Clause
was directed”).
     More recently, the Court returned to the confrontation clause and
added to the Crawford jurisprudence. In Davis v. Washington, 547
U.S. __, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), the Court
considered statements from two distinct appeals in which criminal
defendants raised confrontation clause challenges to out-of-court
statements which had been admitted at their trials. In the first case,
the statements were made in the context of an emergency call to a 911
operator. In the second case, the statements were made to police
officers at the scene of a domestic altercation, after the altercation had
ended. The Court concluded the statements to the officers at the scene
of the domestic disturbance were testimonial (Davis, 547 U.S. at __,
165 L. Ed. 2d at 241-42, 126 S. Ct. at 2278), but the statements to the
911 operator were not (Davis, 547 U.S. at __, 165 L. Ed. 2d at 240-
41, 126 S. Ct. at 2276-77). The differing results were not based on
any distinction between police officers and 911 operators per se,
because the Court assumed for purposes of analysis that 911 operators
were agents of law enforcement. Davis, 547 U.S. at __ n.2, 165 L. Ed.
2d at 238 n.2, 126 S. Ct. at 2274 n.2. Rather, the Court clarified or
modified its holding in Crawford to hold that statements to law
enforcement officials are not always testimonial. The Court held that
whether such statements were testimonial depended on the
intent–more specifically, objective manifestations of intent–of the
police when taking the statement:
         “Statements are nontestimonial when made in the course of
         police interrogation under circumstances objectively
         indicating that the primary purpose of the interrogation is to
         enable police assistance to meet an ongoing emergency. They
         are testimonial when the circumstances objectively indicate
         that there is no such ongoing emergency, and that the primary
         purpose of the interrogation is to establish or prove past
         events potentially relevant to later criminal prosecution.”

                                  -16-
        Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at
        2273-74.



                           C. The Case at Bar
                                 1. Waiver
    As previously noted, the State argues initially that defendant has
waived any confrontation clause claims by not raising them below.
We reject this argument. “Crawford announced a new rule regarding
the effect of the confrontation clause on the admission of hearsay
statements in criminal prosecutions.” People v. Sisavath, 118 Cal.
App. 4th 1396, 1400, 13 Cal. Rptr. 3d 753, 756 (2004); see also
People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004). “ ‘A new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or
not yet final.’ ” Sisavath, 118 Cal. App. 4th at 1400, 13 Cal. Rptr. 3d
at 756, quoting Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d
649, 661, 107 S. Ct. 708, 716 (1987); People v. Ford, 198 Ill. 2d 68,
72-73 (2001). It would be manifestly unfair to hold defendant to have
waived claims by not raising them at trial when those claims are
based on a rule which was only announced during the pendency of his
appeal to this court.

                     2. Forfeiture by Wrongdoing
    The State argues in the alternative that defendant should not be
permitted to raise a confrontation clause claim because he himself is
to blame for M.M.’s unavailability. The State’s argument is based on
the equitable doctrine of forfeiture by wrongdoing. As the Supreme
Court stated in Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124
S. Ct. at 1370, “the rule of forfeiture by wrongdoing (which we
accept) extinguishes confrontation claims on essentially equitable
grounds.” According to this rule, “one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to
confrontation.” Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S.
Ct. at 2280. See also Reynolds v. United States, 98 U.S. 145, 158, 25
L. Ed. 244, 247 (1879) (“The Constitution gives the accused the right
to a trial at which he should be confronted with the witnesses against

                                  -17-
him; but if a witness is absent by his own wrongful procurement, he
cannot complain if competent evidence is admitted to supply the
place of that which he has kept away”).
    The parties differ on the application of this doctrine. Defendant
argues that his confrontation rights are forfeited only if he intended
to cause the witness to be unavailable for trial. He contends that there
is no evidence that he intended to preclude M.M. from testifying
against him and, accordingly, he should retain his right to confront
her. The State advocates for a broader approach, arguing that the
doctrine of forfeiture by wrongdoing accepted by the Court in
Crawford “does not require an intent to prevent the witness from
testifying.” The State contends that the doctrine focuses on the
defendant’s wrongdoing and its result, rather than on the defendant’s
motive. The State argues that M.M. is unavailable for trial solely
because of defendant’s assault and, accordingly, he has forfeited his
right to confront her, regardless of whether he had any intent to
prevent her from testifying.
    Courts are split on the intent requirement. Some courts have held
that intent is an element of the doctrine (see, e.g., People v. Melchor,
362 Ill. App. 3d 335 (2005), appeal allowed, 218 Ill. 2d 551 (2006)
(table); Commonwealth v. Edwards, 444 Mass. 526, 540, 830 N.E.2d
158, 170 (2005); State v. Alvarez-Lopez, 136 N.M. 309, 315, 98 P.3d
699, 705 (2004)), but as the State and the dissent note, the majority
of decisions are to the effect that the defendant’s intent is not
relevant. See Gonzalez v. State, 195 S.W.3d 114, 119 n.25 (Tex.
Crim. App. 2006), quoting J. Kroger, The Confrontation Waiver Rule,
76 B.U.L. Rev. 835, 854, 875-77 (1996).
    Depending on one’s understanding of the theoretical
underpinnings of the rule, support can be found for both views. The
doctrine serves the public policy of protecting “the integrity of the
adversary process by deterring litigants from acting on strong
incentives to prevent the testimony of an adverse witness.” Steele v.
Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982). See also United States
v. Thompson, 286 F.3d 950, 962 (7th Cir. 2002) (noting that “[t]he
primary reasoning behind this rule is *** to deter criminals from
intimidating or ‘taking care of’ potential witnesses against them”).
When the rule is considered in this light, it makes sense to limit its
application to those situations in which the defendant intended to

                                 -18-
procure the witness’ unavailability. It is, after all, impossible to deter
those who do not act intentionally. However, the Supreme Court has
stated that the doctrine of forfeiture by wrongdoing is rooted in the
equitable “maxim that no one shall be permitted to take advantage of
his own wrong” (Reynolds, 98 U.S. at 159, 25 L. Ed. at 248). This
understanding of the foundation of the rule lends support to the
conclusion that any wrongdoing which results in a witness’
unavailability should vitiate the confrontation right, because
otherwise the defendant would benefit from his wrongful conduct.
    However, although the foundation supplied in Reynolds may be
capable of supporting a very broad rule, the doctrine the Supreme
Court actually applied in that case was extremely narrow. The rule the
Court endorsed in Reynolds permits admission only of prior
“testimony, taken on a former trial between the same parties upon the
same issues.” Even such evidence was held admissible only when the
defendant “corruptly” or “wrongfully” kept the witness away.
Reynolds, 98 U.S. at 158-59, 25 L. Ed. at 247-48. Moreover,
Reynolds unequivocally imposed an “intent” requirement.
Notwithstanding the broad basis for the rule, when the Reynolds
Court discussed the guarantees of the confrontation clause, it stated
that the Constitution grants an accused “the privilege of being
confronted with the witnesses against him; but if he voluntarily keeps
the witnesses away, he cannot insist on his privilege. If, therefore,
when absent by his procurement, their evidence is supplied in some
lawful way, he is in no condition to assert that his constitutional rights
have been violated.” (Emphasis added.) Reynolds, 98 U.S. at 158, 25
L. Ed. at 247. The statement that the accused forfeits his
confrontation rights when he “voluntarily” keeps the witnesses away
is a clear expression of intent. Regardless of whether a broader rule
could exist as a matter of equity, the rule laid down by the Supreme
Court in Reynolds contemplates an accused intentionally procuring a
witness’ absence.
    The Supreme Court’s much more recent decision in Davis
indicates that this remains the law. In reaffirming the rule, Davis
stated:
        “We may not, however, vitiate constitutional guarantees when
        they have the effect of allowing the guilty to go free.
        [Citation.] But when defendants seek to undermine the

                                  -19-
        judicial process by procuring or coercing silence from
        witnesses and victims, the Sixth Amendment does not require
        courts to acquiesce. While defendants have no duty to assist
        the State in proving their guilt, they do have the duty to
        refrain from acting in ways that destroy the integrity of the
        criminal trial system.” (Emphasis added and omitted.) Davis,
        547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280.
The Court here clearly states that not all conduct which happens to
result in a witness’ unavailability will constitute forfeiture by
wrongdoing. Rather, only that conduct through which a defendant
“seek[s] to undermine the judicial process” or “destroy the integrity
of the criminal trial system” qualifies. This strongly connotes a
requirement of intent. An act of assault, however heinous and
reprehensible in its own right, is not without more an attempt to
“undermine the judicial process.” It becomes such only when the
assault is motivated at least in part by an intent to interfere with or
impede the process of a trial at which all witnesses with relevant
knowledge appear and testify and are subject to cross-examination.
    Another statement in Davis reinforces our conclusion. Federal
Rule of Evidence 804(b)(6) provides an exception to the hearsay rule
when the declarant is unavailable and the prior out-of-court statement
is “offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability
of the declarant as a witness.” Fed. R. Evid. 804(b)(6). The State and
the dissent concede, as they must, that Rule 804(b)(6) contains an
intent requirement, but argue that the equitable doctrine of forfeiture
by wrongdoing is broader than Rule 804(b)(6). However, in Davis the
Supreme Court stated that Rule 804(b)(6) “codifies the forfeiture
doctrine.” Davis, 547 U.S. at ___, 165 L. Ed. 2d at 244, 126 S. Ct. at
2280. Accord United States v. Gray, 405 F.3d 227, 241 (4th Cir.
2005); United States v. Dhinsa, 243 F.3d 635, 653 (2d Cir. 2001);
United States v. Ochoa, 229 F.3d 631, 639 (7th Cir. 2000);United
States v. Cherry, 217 F.3d 811, 815 (10th Cir. 2000); Commonwealth
v. Edwards, 444 Mass. 526, 830 N.E.2d 158 (2005); State v. Henry,
76 Conn. App. 515, 533, 820 A.2d 1076, 1087 (2003). In other
words, Rule 804(b)(6) and the equitable doctrine are coextensive,
because the former is a legislative enactment of the latter. See Black’s
Law Dictionary 252, 1420 (7th ed. 1999) (“codification” is “[t]he

                                 -20-
process of compiling, arranging, and systematizing the laws of a
given jurisdiction, or of a discrete branch of the law, into an ordered
code”; a “codifying statute” is “[a] law that purports to be exhaustive
in restating the whole of the law on a particular topic, including prior
caselaw as well as legislative provisions”). Thus, according to the
Supreme Court–and the numerous other courts to have so held–Rule
804(b)(6) and its intent requirement reflect the common law equitable
doctrine.
    Considering Rule 804(b)(6) when analyzing the common law
equitable doctrine of forfeiture by wrongdoing does not conflict with
the statement in Crawford that the protection afforded by the
confrontation clause does not depend on “the vagaries of the [r]ules
of [e]vidence.” See United States v. Garcia-Meza, 403 F.3d 364, 370
(6th Cir. 2005), quoting Crawford, 541 U.S. at 61, 158 L. Ed. 2d at
199, 124 S. Ct. at 1370. This takes the statement from Crawford
entirely out of context. Crawford was concerned with rejecting the
notion that a defendant’s confrontation clause rights are adequately
protected so long as the rules against hearsay are satisfied. Rule
804(b)(6) was not at issue in Crawford; it was not even mentioned.
Moreover, our point here is not that Rule 804(b)(6) has the power to
force the common law and constitution to conform to its dictates, but
rather that Rule 804(b)(6) was intended to be a reflection of the
common law, to describe how the common law in fact operates. That
is what a “codification” is. See Black’s Law Dictionary 252 (7th ed.
1999).
    The dissent contends that the advisory committee’s notes
establish that Rule 804(b)(6) is “designed to deter” witness
tampering, “especially in the area of gang or organized crime.” Slip
op. at 69 (Thomas, C.J., dissenting, joined by Karmeier, J.). The
committee notes at the time subsection (b)(6) was adopted provide:
            “Rule 804(b)(6) has been added to provide that a party
        forfeits the right to object on hearsay grounds to the
        admission of a declarant’s prior statement when the party’s
        deliberate wrongdoing or acquiescence therein procured the
        unavailability of the declarant as a witness. This recognizes
        the need for a prophylactic rule to deal with abhorrent
        behavior ‘which strikes at the heart of the system of justice
        itself.’ United States v. Mastrangelo, 693 F.2d 269, 273 (2d

                                 -21-
        Cir. 1982), cert. denied, 467 U.S. 1204 (1984). The
        wrongdoing need not consist of a criminal act. The rule
        applies to all parties, including the government.” Fed. R.
        Evid. 804, Notes of Advisory Committee on Rules–1997
        Amendments.
Nothing here indicates that the rule was intended to be as limited in
application as the dissent suggests. See also 4 S. Saltzburg, M. Martin
& D. Capra, Federal Rules of Evidence Manual §804.02(16), at
804–35 (9th ed. 2006) (noting that although the rule was “derived
from cases that have held that a criminal defendant forfeits his right
to confrontation if he causes or acquiesces in the witness’
unavailability,” the rule “is not limited to criminal cases” but applies
to “any party” who procures a witness’ absence, including parties in
civil cases and the prosecution in a criminal case). Regardless, given
the Supreme Court’s statement that the rule “codifies” the common
law doctrine, any statement by the advisory committee suggesting
otherwise would seem irrelevant.
    What, then, of the numerous cases finding intent irrelevant to the
doctrine? In short, they are all distinguishable. First, nearly all such
cases predate Davis and the statements therein, e.g., that the doctrine
contemplates an effort to “undermine the judicial process” and that
Rule 804(b)(6) “codifies,” i.e., reflects, the common law doctrine. See
United States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005); United
States v. Emery, 186 F.3d 921 (8th Cir. 1999); United States v. Miller,
116 F.3d 641 (2d Cir. 1997); United States v. Mayhew, 380 F. Supp.
2d 961 (S.D. Ohio 2005); Gonzalez v. State, 155 S.W.3d 603, 610-11
(Tex. App.–San Antonio 2004), aff’d, 195 S.W.3d 114 (Tex. Crim.
App. 2006);1 People v. Hale, 277 Wis. 2d 593, 691 N.W.2d 637
(2005); People v. Bauder, 269 Mich. App. 174, 712 N.W.2d 506
(App. 2005); State v. Meeks, 277 Kan. 609, 88 P.3d 789 (2004);
People v. Moore, 117 P.3d 1 (Colo. App. 2004); Commonwealth v.
Salaam, 65 Va. Cir. 405 (2004). Of the few cases which postdate

  1
   Although the decision affirming the Texas appellate court was filed two
days after Davis, the Court of Criminal Appeals of Texas declined to
address whether intent was required for forfeiture by wrongdoing, because
the court held that the requisite intent could be inferred in the
circumstances of the case at bar. Gonzalez, 195 S.W.3d at 124-25.

                                  -22-
Davis, none even acknowledge the statement therein that Rule
804(b)(6) “codifies” the common law rule. See United States v.
Natson, No. 4:05–cr–21 (M.D. Ga. November 22, 2006); Grayson v.
Carey, No. CIV S–03–1694–MCE–KJM (August 9, 2006) (findings
and recommendations by United States Magistrate Judge Kimberly
J. Mueller), adopted by district court, No. 2:03–cv–1694–MCE–KJM
(September 8, 2006); People v. Vasquez, No. 04CA0729 (Colo. App.
November 30, 2006), cert. granted, No. 07SC50 (March 26, 2007);
State v. Brooks, No. W2004–02834–CCA–R3–CD (Tenn. Crim. App.
August 31, 2006), appeal granted, No. W2004–02834–SC–R11–CD
(January 22,                2007).         But      see     Brooks,
No.W2004–02834–CCA–R3–CD (Tipton, J., concurring and
dissenting) (noting this language from Davis and stating that “if
Justice Scalia’s statement in Davis regarding the rule codifying the
doctrine represents his usual clarity, I do not think we can ignore the
defendant’s intent in considering whether the forfeiture doctrine
applies”). Second, so far as our research has discerned, every case
holding intent irrelevant has involved the defendant’s murdering the
witness. As our appellate court has observed, “the prevailing view, in
situations other than the unique situation detailed above, [is that] the
intent or motive of a defendant in engaging in the conduct he does is
relevant to whether the forfeiture by wrongdoing rule is invoked.”
Melchor, 362 Ill. App. 3d at 351.2 The reason that it is nevertheless
accurate to state that the majority of cases have found intent irrelevant
is simply a numbers game–most cases to consider the question have
involved the murder of the witness. Henderson, 35 Kan. App. 2d at
253, 29 P.3d at 654-55, appeal granted, No. 04–92251–AS
(September 19, 2006).


     2
       Of particular relevance to this case, intent has been required in
prosecutions for domestic violence (State v. Wright, No. AO3–1197 (Minn.
January 25, 2007)), a type of case which Davis acknowledged is
“notoriously susceptible to intimidation or coercion of the victim to ensure
she does not testify at trial” (Davis, 547 U.S. at ___, 165 L. Ed. 2d at 243-
44, 126 S. Ct. at 2279-80), as well as child sexual abuse (State v.
Henderson, 35 Kan. App. 2d 241, 253, 129 P.3d 646, 655 (2006), appeal
granted, No. 04–92251–AS (September 19, 2006)), the type of crime at
issue in the instant case.

                                    -23-
    Moreover, although the above authority is distinguishable on the
bases we have discussed, it might also be reconcilable with the
general rule that intent is required. Notwithstanding that some cases
contain broader language, the above cases have essentially held that
the prosecution need not prove that the defendant committed murder
with the intent of procuring the victim’s absence. This is consistent
with presuming such intent when the wrongdoing at issue is murder.
When a defendant commits murder, notwithstanding any protestation
that he did not specifically intend to procure the victim’s inability to
testify at a subsequent trial, he will nonetheless be sure that this
would be a result of his actions. Murder is, in this sense, different
from any other wrongdoing in which a defendant could engage with
respect to a witness–more than a possibility, or a substantial
likelihood, a defendant knows with absolute certainty that a murder
victim will not be available to testify. Although we express no
opinion on the topic, as it is not before us on this appeal, the total
certainty that a murdered witness will be unavailable to testify could
theoretically support presuming intent in the context of murder, while
requiring proof of intent in all other situations.
    Regardless, we find the cases involving murder distinguishable.
As our appellate court has noted, outside of the context of murder, the
authorities uniformly require proof of intent. See Melchor, 362 Ill.
App. 3d at 351. Our review of Reynolds and Davis leads us to agree
with this conclusion. Accordingly, we hold that the State must prove
that the defendant intended by his actions to procure the witness’
absence to invoke the doctrine of forfeiture by wrongdoing.
    The State argues, however, that even if intent is relevant, the
doctrine still ought to be applied in the case at bar because defendant
did indeed intentionally procure the witness’ absence. The State notes
that both the victim’s mother and Grote testified that the victim had
told them defendant had warned her not to recount the incident. The
victim’s mother said that the victim told her that defendant had said
he would hurt her if she discussed it. Although defendant only
specifically cautioned the victim against telling her mother about the
incident, the State argues that defendant’s threats and warnings were
intended to and did intimidate the victim generally, as evinced by the
victim’s statements to Machonkin that she did not want to testify
because, in part, she was “scared.”

                                 -24-
    There is sufficient evidence here that we cannot dismiss this
argument out of hand. However, the applicability of the forfeiture-by-
wrongdoing rule requires a factual determination that this court is ill-
equipped to make in the first instance. The State did not rely on the
theory of forfeiture by wrongdoing at trial because the circuit court
ruled the evidence admissible–and because, of course, Crawford was
not decided until this case was already on appeal. But if defendant is
to be permitted to raise his confrontation clause claim for the first
time on appeal, the State must equally be permitted to raise the
responsive argument of forfeiture by wrongdoing. Accordingly, we
believe the appropriate procedure is to remand the cause to the circuit
court for a hearing on forfeiture by wrongdoing.
    The Supreme Court has given some guidance regarding such
hearings. Although the Court has not itself explicitly endorsed a
specific burden of proof, the Court did note in Davis that both federal
and state courts tend to hold that the State’s burden of proof in a
hearing on forfeiture by wrongdoing is a preponderance of the
evidence. Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at
2280. The Court also observed with apparent approval a state court
ruling permitting consideration of “ ‘hearsay evidence, including the
unavailable witness’s out-of-court statements’ ” at such hearings.
Davis, 547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280,
quoting Edwards, 444 Mass. at 545, 830 N.E.2d at 174. We agree
with both of these propositions, and direct that they be followed on
remand.
    However, it would be a waste of judicial resources for us to
remand without first considering the merits of the underlying
confrontation clause claim. The issue has been fully briefed before
this court, and if the confrontation clause claim is invalid, after all,
there is no reason for the circuit court to waste judicial resources in
attempting to evaluate whether defendant waived it. Accordingly, we
turn to the merits of defendant’s confrontation clause claims.

                              3. Merits
                  a. General Analytical Framework
   After Crawford, a testimonial statement of a witness who does
not testify at trial is never admissible unless (1) the witness is

                                 -25-
unavailable to testify, and (2) the defendant had a prior opportunity
for cross-examination. Crawford, 541 U.S. at 53-54, 158 L. Ed. 2d at
194, 124 S. Ct. at 1365. Moreover, Davis made clear that the
confrontation clause has no application to nontestimonial statements.
Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273 (“It is
the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause” (emphasis
added)); Davis, 547 U.S. at __, 165 L. Ed. 2d at 238, 126 S. Ct. at
2274 (noting that Crawford had “suggested” that the confrontation
clause applies only to testimonial hearsay and stating that “[a]
limitation so clearly reflected in the text of the constitutional
provision must fairly be said to mark out not merely its ‘core,’ but its
perimeter”).
     Thus, the threshold question in confrontation clause analysis is,
Are the statements at issue “testimonial”? If not, the confrontation
clause places no restriction on their introduction (although they are
still subject to “traditional limitations upon hearsay evidence” (see
Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273)). If
the statements are testimonial, the next question is, Will the declarant
testify? If so, the confrontation clause again places no restriction on
the introduction of the declarant’s prior hearsay statements, as the
defendant will have the opportunity to cross-examine–confront–the
declarant. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124
S. Ct. at 1369 n.9. Finally, if the statements are testimonial and the
declarant will not testify, then the statements are inadmissible unless
both (a) the declarant is unavailable to testify, and (b) the defendant
had a prior opportunity to cross-examine the declarant. Crawford, 541
U.S. at 53-54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365.

                    b. “Testimonial Statements”
     The Court has thus far declined to define a “testimonial”
statement. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct.
at 1374. Rather, as previously noted, the Court’s approach has been
to steer away from generalized, abstract pronouncements and instead
to focus on the particular statements under consideration.



                                 -26-
    However, although Crawford “did not set forth a detailed
framework for addressing whether a statement is ‘testimonial’ ”
(Davis, 547 U.S. at __, 165 L. Ed. 2d at 246, 126 S. Ct. at 2282
(Thomas, J., concurring in the judgment and dissenting in part)), the
Court did analyze the text of the confrontation clause itself, and in so
doing suggested a two-part test for determining when a statement is
testimonial. The Court began with the language of the confrontation
clause, noting that it gives a defendant the right to be “confronted
with the witnesses against him.” The Court looked to an early version
of Webster’s dictionary, which defined “witnesses” as those who
“ ‘bear testimony.’ ” Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192,
124 S. Ct. at 1364, quoting 1 N. Webster, An American Dictionary of
the English Language (1828). In turn, the Court noted, “testimony”
was defined as a “ ‘solemn declaration or affirmation made for the
purpose of establishing or proving some fact.’ ” Crawford, 541 U.S.
at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364, quoting 1 N. Webster,
An American Dictionary of the English Language (1828). Thus, those
“witnesses” whom the confrontation clause gives a defendant the
right to confront are those who bear “testimony,” i.e., solemn
declarations for the purpose of establishing or proving some fact
germane to the defendant’s prosecution.3

                             a) Solemnity
    Thus, there would appear to be two components to a “testimonial”
statement. First, it must be made in solemn fashion. Crawford, 541
U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364; Davis, 547 U.S.
at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276 (quoting Crawford and
noting that “[t]he solemnity of even an oral declaration of relevant


   3
    Although the Court did not dwell overly long on this formulation in
Crawford, it does appear clear that the Court intended this discussion as a
textual analysis of the confrontation clause. See Crawford, 541 U.S. at 42-
43, 158 L. Ed. 2d at 187, 124 S. Ct. at 1359 (referring to above discussion
as an understanding of the meaning of the phrase “witnesses against”). The
importance of the discussion is further illustrated by the fact that the Court
repeatedly returned to this definition and its two components in its
subsequent discussions of “testimonial.” See generally Davis, 547 U.S. __,
165 L. Ed. 2d 224, 126 S. Ct. 2266.

                                    -27-
past fact to an investigating officer is well enough established by the
severe consequences that can attend a deliberate falsehood”). In fact,
the requirement of solemnity is a matter with regard to which the
Davis majority and dissent were in agreement. See Davis, 547 U.S.
at __, 165 L. Ed. 2d at 246, 126 S. Ct. at 2282 (Thomas, J.,
concurring in the judgment and dissenting in part) (“the plain terms
of the ‘testimony’ definition we endorsed [in Crawford] necessarily
require some degree of solemnity before a statement can be deemed
‘testimonial’ ”). The majority and dissent differed on whether the
statements at issue in that case satisfied the solemnity requirement,
with the majority reasoning that solemnity was established by the
potential “severe consequences” of lying to a police officer (Davis,
547 U.S. at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276), whereas the
dissent would have required the statements to be made in a setting
with a higher degree of formality, possibly only if Miranda warnings
had been issued (Davis, 547 U.S. at __, 165 L. Ed. 2d at 246-47, 126
S. Ct. at 2282-83 (Thomas, J., concurring in the judgment and
dissenting in part)).

              b) Intended to Establish a Particular Fact
    The second requirement is that the statement must be intended to
establish a particular fact. With respect to this requirement, the focus
is on whether, at the time the statement was made, the witness was
acting in a manner analogous to a witness at trial, describing or giving
information regarding events which had previously occurred. See
Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at 2273-74
(statements in response to police questioning are nontestimonial when
primary purpose of questioning is to “enable police assistance to meet
an ongoing emergency”; responses to police questions are testimonial
when “there is no such ongoing emergency, and [ ] the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution”); Davis, 547 U.S.
at __, 165 L. Ed. 2d at 242, 126 S. Ct. at 2278 (statements which,
after the fact, “deliberately recounted, in response to police
questioning, how potentially criminal past events began and
progressed,” are testimonial “because they do precisely what a
witness does on direct examination” (emphasis in original)).


                                 -28-
            1) Intent of Questioner vs. Intent of Declarant
    Regarding this second prong, the parties differ on whose
perspective–whose “intent”–is dispositive. Defendant argues that a
statement is testimonial if it is elicited “for the primary purpose of
obtaining evidence with which to prosecute the offender.” In other
words, defendant would have us look to the perspective, the intent, of
the person eliciting the statement. The State, by contrast, urges us to
focus exclusively on the perspective of the declarant. In the State’s
view, the objective circumstances at the time that a testimonial
statement is given must be such that the declarant would reasonably
expect that his statements might be used in future judicial
proceedings–that he would recognize that he is, in effect, “bearing
witness” against the accused.
    Each approach has its difficulties. Defendant’s exclusive focus on
the intent of the listener raises the obvious problem of statements
which were not “elicited.” For example, although in Crawford the
Court described the trial of Sir Walter Raleigh as one of the “most
notorious instances” of the type of abuse against which the
Confrontation Clause was designed to defend (Crawford, 541 U.S. at
44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360), Davis acknowledged
that Lord Cobham’s letter against Raleigh “was plainly not the result
of sustained questioning” (emphasis omitted) (Davis, 547 U.S. at __
n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1). The State’s
exclusive focus on the declarant’s intent, on the other hand, could
lend itself to abuse by the State, by increasing use of statements
gathered without the declarant’s knowledge–for instance undercover
interviews of witnesses.

        a) Statements Produced Through Police Interrogation
    Crawford and Davis have begun to map out the contours of
“whose intent matters.” Because both cases involved statements
produced by police interrogations, the matter is clearer in that context.
In Crawford, the Court stated that “Statements taken by police
officers in the course of interrogations are [] testimonial under even
a narrow standard.” Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193,
124 S. Ct. at 1364. This broad formulation is devoid of reference to
the intent of the declarant, which implies that rather than the


                                  -29-
declarant’s intent, the police intent to obtain information for
prosecution is all that is relevant. In Davis, the Court explained that
this was precisely its meaning:
          “When we said in Crawford [citation] that ‘interrogations by
          law enforcement officers fall squarely within [the] class’ of
          testimonial hearsay, we had immediately in mind (for that was
          the case before us) interrogations solely directed at
          establishing the facts of a past crime, in order to identify (or
          provide evidence to convict) the perpetrator.” Davis, 547 U.S.
          at __, 165 L. Ed. 2d at 239-40, 126 S. Ct. at 2276.
In Davis, the Court recognized that not all police interrogations were
for the purposes of gathering information for prosecution, however,
and modified the broad rule it announced in Crawford:
          “Statements are nontestimonial when made in the course of
          police interrogation under circumstances objectively
          indicating that the primary purpose of the interrogation is to
          enable police assistance to meet an ongoing emergency. They
          are testimonial when the circumstances objectively indicate
          that there is no such ongoing emergency, and that the primary
          purpose of the interrogation is to establish or prove past
          events potentially relevant to later criminal prosecution.”
          Davis, 547 U.S. at __, 165 L. Ed. 2d at 237, 126 S. Ct. at
          2273-74.
The Court also noted that police focus could potentially shift from
emergency assistance to future prosecution, such that during the
course of a given interrogation some statements in response to
questioning could be testimonial and others not. Davis, 547 U.S. at
__, 165 L. Ed. 2d at 241, 126 S. Ct. at 2277. See also In re T.T., 351
Ill. App. 3d 976, 992-93 (2004) (holding that child’s statements to
doctor for the purpose of medical diagnosis and treatment were
nontestimonial, but identification of attacker in same interview was
testimonial).
     It is clear, therefore, that when the statements under consideration
are the product of questioning by the police (or those whose “acts
[are] acts of the police” (Davis, 547 U.S. at __ n.2, 165 L. Ed. 2d at
238 n.2, 126 S. Ct. at 2274 n.2)), we must focus on the intent of the
questioner in eliciting the statement. Moreover, our evaluation of that


                                  -30-
intent must rely on objective circumstances, not testimony from the
officer as to his actual subjective intent. Davis, 547 U.S. at __, 165 L.
Ed. 2d at 237, 126 S. Ct. at 2273-74.

           b) Suggested Requirement of Police Involvement
     The Court has not yet had occasion to apply the confrontation
clause to statements other than those made in response to police
interrogation. Indeed, the Court left open the questions not only
“when” but “whether” statements made to persons other than law
enforcement personnel are “testimonial.” (Emphasis added.) Davis,
547 U.S. at __ n.2, 165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2.
     Stepping into the breach, the State argues that only statements
made to law enforcement personnel can be testimonial. In support of
its government-involvement requirement, the State points to
Crawford’s focus on the historical background of the confrontation
clause in determining the clause’s original meaning. Based on this
historical review, Crawford arrived at a narrow list of four “modern
practices with closest kinship to the abuses at which the
Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 158
L. Ed. 2d at 203, 124 S. Ct. at 1374. These practices included: “prior
testimony at a preliminary hearing, before a grand jury, or at a former
trial; and *** police interrogations.” Crawford, 541 U.S. at 68, 158
L. Ed. 2d at 203, 124 S. Ct. at 1374. The State argues that a statement
is testimonial only “if it is produced by virtue of one of these ‘modern
practices,’ ” each of which features government involvement in the
production of a testimonial statement. In the State’s view, “statements
made to nongovernment officials simply cannot constitute
‘testimonial’ statements under the Crawford paradigm.” We disagree.
     In listing the “modern practices” to which the State refers,
Crawford stated:
         “We leave for another day any effort to spell out a
         comprehensive definition of ‘testimonial.’ Whatever else the
         term covers, it applies at a minimum to prior testimony at a
         preliminary hearing, before a grand jury, or at a former trial;
         and to police interrogations. These are the modern practices
         with closest kinship to the abuses at which the Confrontation



                                  -31-
         Clause was directed.” (Emphasis added.) Crawford, 541 U.S.
         at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
This passage clearly states that the term “testimonial” applies, at a
minimum, to these “modern practices.” By prefacing this assertion
with the phrase, “Whatever else the term covers,” the Court implies
that “testimonial” could include statements generated in ways other
than these “modern practices.” The State’s assertion that a testimonial
statement must have been produced by virtue of one of these practices
finds no support in this passage in Crawford.
    Moreover, while there is language in Crawford emphasizing the
role of government officers in creating testimony, Crawford imposes
no per se rule that a testimonial statement must be made to a
government agent. R. Friedman, Grappling With the Meaning of
“Testimonial”, 71 Brook. L. Rev. 241, 262 (2005). Nor does Davis,
which specifically cautioned that the Court’s opinion ought not to be
read as implying that statements in the absence of police interrogation
are “necessarily nontestimonial.” Davis, 547 U.S. at __ n.1, 165 L.
Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1.
    Indeed, the trial of Sir Walter Raleigh suggests the opposite
conclusion. As previously noted, part of the evidence against Raleigh
was a letter by Lord Cobham, which “was plainly not the result of
sustained questioning.” (Emphasis omitted.) Davis, 547 U.S. at __
n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1. Nevertheless,
Crawford cited the Raleigh trial as a “notorious” example of the civil
law abuses against which the confrontation clause was directed
(Crawford, 541 U.S. at 44, 158 L. Ed. 2d at 188, 124 S. Ct. at 1360),
abuses characterized by the admission of “testimonial” out-of-court
statements as evidence against the accused, without benefit of cross-
examination.
    There is an additional objection to the State’s requirement of
government involvement. The State’s argument relies heavily on the
premise that there is a strong historical basis for such a requirement.
But learned historians have described the theory that there must be
government involvement as “profoundly ahistorical.” R. Friedman &
B. McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1248
(2002). In England, state prosecutors did not become the norm for
ordinary crime until the nineteenth century. Friedman, 71 Brook. L.
Rev. at 261. Prior to that time, most prosecutions were private

                                 -32-
lawsuits. 150 U. Pa. L. Rev. at 1248. “Until the state assumed the
management of crime in the nineteenth century and professional
police forces took over the pursuit and apprehension of suspects, the
gathering of evidence, and the preparation of cases *** these matters
were left largely to the private initiative of the victim.” J.M. Beattie,
Crime and the Courts in England 1660-1800 35 (1986). And “the
right to confront was established long before [the nineteenth century];
indeed, in the sixteenth century Thomas Smith described the criminal
trial as an ‘altercation’ between accuser and accused.” Friedman, 71
Brook. L. Rev. at 261. Thus the State’s main argument in support of
its requirement of government involvement–that this requirement was
rooted in historical practice that predated the adoption of the sixth
amendment–has little basis in legal history.
     Notwithstanding the foregoing, the State points to decisions
where, according to the State, the courts concluded that “statements
made to nongovernment officials simply cannot constitute
‘testimonial’ statements under the Crawford paradigm.” Many of
these decisions deal only cursorily with the issue of whether a
testimonial statement requires government involvement. These
decisions contain little, if any, analysis regarding this question, and
we find them unpersuasive.
     A decision cited by the State that does contain some analysis of
this issue is United States v. Savoca, 335 F. Supp. 2d 385 (S.D.N.Y.
2004). There, a defendant sought to exclude statements given by his
codefendant to his live-in girlfriend. The court concluded that the
statements were not testimonial and therefore were not barred under
Crawford. The court cited several reasons for this conclusion, one of
which was that the statements were not made to a government
official. According to the court, Crawford was meant to apply only to
testimonial statements that were “made in the context of some
governmental action.” Savoca, 335 F. Supp. 2d at 392. The court
based this conclusion on the premise that all of the examples of
testimonial statements listed in Crawford were “made to an authority
figure in an authoritarian environment.” Savoca, 335 F. Supp. 2d at
393.
     We disagree with Savoca’s premise and reasoning. First, even if
the premise were correct, and all of the examples did share the trait
the court observed, they were merely examples–the Court never stated

                                  -33-
any governmental involvement requirement and indeed, in Davis,
made clear that it had not done so. See Davis, 547 U.S. at __ n.2, 165
L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2 (“our holding today makes
it unnecessary to consider whether and when statements made to
someone other than law enforcement personnel are ‘testimonial’ ”).
Moreover, we disagree with Savoca’s premise that all of the examples
are statements “made to an authority figure in an authoritarian
environment” (Savoca, 335 F. Supp. 2d at 393), because one of the
examples was a simple affidavit. Surely, although some notaries
public might be “authority figures” they certainly are not all, nor do
they all work in environments which can fairly be described as
“authoritarian.” The universal rule Savoca sought to infer simply is
not there.
    The Court has not as yet given any indication that testimonial
statements must be made to a government officer, and our own
review of the authorities and the historical background–specifically
Raleigh’s case–leads us to the conclusion that statements can be
testimonial even if not made directly to agents of the state.

         c) Statements Made Outside of Police Interrogation
    Accordingly, the question remains how to determine whether
statements are testimonial when they are made outside this context.
We believe that the only proper focus is on the declarant’s intent:
Would the objective circumstances have led a reasonable person to
conclude that their statement could be used against the defendant?
    The Davis Court’s focus on the interrogator’s motive when the
statements are the product of police interrogation is not inconsistent
with focusing on the intent or motive of the declarant in other cases.
See, e.g., State v. Scachetti, 711 N.W.2d 508, 513 (Minn. 2006)
(central question is “ ‘whether either a declarant or a government
questioner is acting, to a substantial degree, in order to produce a
statement for trial’ ”), quoting State v. Bobadilla, 709 N.W.2d 243,
252 (Minn. 2006). Davis itself made clear that even with regards to
questions elicited in the course of a police interrogation, “it is in the
final analysis the declarant’s statements, not the interrogator’s
questions, that the Confrontation Clause requires us to evaluate.”
Davis, 547 U.S. at __ n.1, 165 L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274


                                  -34-
n.1. Moreover, it is important to remember that in Davis the Court
was dealing only with statements produced in response to police
questioning. The Court clearly left for another day any discussion of
rules for evaluating “whether and when statements made to someone
other than law enforcement personnel” (Davis, 547 U.S. at __ n.2,
165 L. Ed. 2d at 238 n.2, 126 S. Ct. at 2274 n.2) or statements “made
in the absence of any interrogation” (Davis, 547 U.S. at __ n.1, 165
L. Ed. 2d at 237 n.1, 126 S. Ct. at 2274 n.1) might be “testimonial.”
    We believe that by focusing on the interrogator’s intent, the Court
was most likely acknowledging the reality that when a declarant is
supplying information in response to direct police questioning, the
declarant is rarely “in the driver’s seat.” Although ultimately it is the
declarant’s intent to which the confrontation clause looks, it is
governmental abuse against which the clause is designed to guard.
Thus, given that the ultimate question is whether the statement is
being made “ ‘for the purpose of establishing or proving some fact’ ”
(Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364,
quoting 1 N. Webster, An American Dictionary of the English
Language (1828)), like “what a witness does on direct examination”
(emphasis omitted) (Davis, 547 U.S. at __, 165 L. Ed. 2d at 242, 126
S. Ct. at 2278), it is the government’s motives that are paramount
when the government is directly involved in eliciting the statements
at issue. This does not determine the proper focus when evaluating
statements other than those produced by a government interrogation,
however.
    Before Davis was decided, many authorities concluded that the
declarant’s intent was paramount in all evaluations of whether a
statement was testimonial. Authorities have noted that at least two of
the three proposed definitions of “testimonial” in Crawford focus on
the declarant’s perspective in giving the statement. See, e.g., M.
Raeder, Remember the Ladies and the Children Too: Crawford’s
Impact on Domestic Violence and Child Abuse Cases, 71 Brook. L.
Rev. 311, 318 (2005); cf. People v. Vigil, 127 P.3d 916, 925 (Colo.
2006) ( “the ‘common nucleus’ shared by the Supreme Court’s three
formulations of testimonial evidence [citation] centers upon the
declarant’s reasonable expectations”). The declarant-centered
approach is favored by Professor Richard Friedman of the University
of Michigan Law School, one of the scholars whose works Crawford

                                  -35-
relied upon (see, e.g., Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 198,
124 S. Ct. at 1370) “in framing its re-definition of the Confrontation
Clause.” United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004).
Friedman, who has been closely associated with the testimonial
approach to the confrontation clause (Cromer, 389 F.3d at 673),
argues in favor of a definition of “testimonial” based on the
declarant’s anticipation that the statement would likely be used in
prosecution. Friedman, 71 Brook. L. Rev. at 251-52, 255-59.
Friedman asserts: “To be testimonial, it must appear from the
perspective of the witness that the statement is transmitting
information that will, to a significant probability, be used in
prosecution.” Friedman, 71 Brook. L. Rev. at 259.
    An earlier version of this definition was adopted by the Sixth
Circuit Court of Appeals in Cromer. After referring to pre-Crawford
work by Friedman, Cromer concluded that his proposed definition of
“testimonial” was “both well-reasoned and wholly consistent with the
purpose behind the Confrontation Clause.” Cromer, 389 F.3d at 674.
According to Cromer, the “proper inquiry” in a testimonial analysis
“is whether the declarant intends to bear testimony against the
accused.” Cromer, 389 F.3d at 675. This intent, Cromer held, “may
be determined by querying whether a reasonable person in the
declarant’s position would anticipate his statement being used against
the accused in investigating and prosecuting the crime.” Cromer, 389
F.3d at 675. See also Vigil, 127 P.3d at 925 (quoting favorably
Cromer’s explanation of this “proper inquiry”) (collecting cases).
    We agree with Professor Friedman and the Cromer court that
outside of the context of statements produced in response to
government interrogation, it is the declarant’s perspective which is
paramount in a testimonial analysis.

           1) Objective Manifestations vs. Subjective Intent
    However, even in this context we believe Davis can offer some
guidance. There, the Court did not look to the actual subjective intent
of the police officer conducting the interrogation leading to the
statements in question. Rather, the Court clearly stated that the proper
inquiry is what “the circumstances objectively indicate” the purpose
of the interrogation to be. Davis, 547 U.S. at __, 165 L. Ed. 2d at 237,


                                 -36-
126 S. Ct. at 2273-74. There is no reason to believe that the
applicability of the confrontation clause would depend on objective
manifestations of intent when the statement is the product of police
interrogation but would depend on actual subjective intent outside of
this context. Accordingly, in our view, the proper question is not
whether the declarant actually did intend or foresee that his statement
would be used in prosecution. Rather, the question is whether the
objective circumstances indicate that a reasonable person in the
declarant’s position would have anticipated that his statement likely
would be used in prosecution. See Cromer, 389 F.3d at 675;
Friedman, 71 Brook. L. Rev. at 252.

                          2) Child Declarants
    The fact that the instant case involves a child declarant
complicates the issue, however. See Lagunas v. State, 187 S.W.3d
503, 519 (Tex. Ct. App. 2005) (“Courts around the nation have
struggled with the application of Crawford to child witnesses”).
Application of the objective approach to child witnesses raises the
question of whether the child’s age ought to be taken into account. In
other words, when we speak of an “objective person” in the
declarant’s position, does that mean an objective witness the same
age as the child, or an objective adult? There is authority for both
views. One case holding that age should not enter into the equation
is Sisavath, 118 Cal. App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758 n.3
(rejecting the notion that “an ‘objective witness’ should be taken to
mean an objective witness in the same category of persons as the
actual witness–here, an objective four year old”). Citing Sisavath, the
Maryland Court of Appeals has also concluded that a child’s age
should not play a part in resolving whether a statement is testimonial.
See State v. Snowden, 385 Md. 64, 90-91, 867 A.2d 314, 329 (2005)
(concluding that “an objective test, using an objective person, rather
than an objective child of that age, is the appropriate test for
determining whether a statement is testimonial in nature”).
    Both Snowden and Sisavath based their holdings on the important
rights of criminal defendants which the confrontation clause serves
to protect. However, the statements at issue in both cases were made
in response to structured questioning which was clearly intended to
produce testimony for trial. In Sisavath, for instance,

                                 -37-
        “[The interview] took place after a prosecution was initiated,
        was attended by the prosecutor and the prosecutor’s
        investigator, and was conducted by a person trained in
        forensic interviewing. Under these circumstances, it does not
        matter what the government’s actual intent was in setting up
        the interview, where the interview took place, or who
        employed the interviewer. It was eminently reasonable to
        expect that the interview would be available for use at trial.”
        Sisavath, 118 Cal. App. 4th at 1403, 13 Cal. Rptr. 3d at 758.
Similarly, in Snowden,
             “[The interviewer’s] participation in this matter was
        initiated, and conducted, as part of a formal law enforcement
        investigation. The children were interviewed at the behest of
        Detective Davey of the Montgomery County Police
        Department, who was actively involved in the investigation.
        ***
             *** Any argument as to the logistics or style of the
        interviews blatantly disregards the undeniable fact that the
        express purpose of bringing the children to the facility to be
        interviewed was to develop their testimony for possible use at
        trial.” (Emphasis added.) Snowden, 385 Md. at 84-85, 867
        A.2d at 325-26.
Because both Snowden and Sisavath predated Davis, the courts
focused on the declarant’s intent in making the statements at issue
and believed that ignoring the declarant’s age was the only way to
protect the rights of the defendant. In the wake of Davis, however, the
“objective circumstances” of the statements at issue in those cases
would almost certainly lead courts to their being found testimonial
without looking to the declarant’s intent. Accordingly, we find
Sisavath and Snowden to be of minimal guidance. After Davis, the
means those courts chose–to disregard the age of the declarant–is no
longer required to achieve the end the courts sought to serve–to
protect the confrontation clause rights of defendants when police or
their proxies question child victims.
    On the other hand, numerous courts have held that in the case of
a child’s statement, age is among the circumstances which are
relevant to evaluating whether the declarant would have reasonably


                                 -38-
anticipated that his statement would be available for use at
subsequent trial. See, e.g., Scachetti, 711 N.W.2d at 514 (victim’s
statements in earlier case were not testimonial because “the three-
year-old victim was not acting to preserve testimony for trial because
children of that age are ‘simply unable to understand the legal system
and the consequences of statements made during the legal process’ ”),
quoting Bobadilla, 709 N.W.2d at 255-56; Vigil, 127 P.3d at 925 (“an
assessment of whether or not a reasonable person in the position of
the declarant would believe a statement would be available for use at
a later trial involves an analysis of the expectations of a reasonable
person in the position of the declarant. Expectations derive from
circumstances, and, among other circumstances, a person’s age is a
pertinent characteristic for analysis”); In re D.L., 2005–Ohio–2320,
¶20 (a child’s statements are testimonial under Crawford if “ ‘the
circumstances surrounding the contested statements led the three-
year-old to reasonably believe her disclosures would be available for
use at a later trial, or that the circumstances would lead a reasonable
child of her age to have that expectation’ [citation]”); Lagunas, 187
S.W.3d at 519 (holding that a child’s age and emotional state are
factors to be considered in determining whether her statements were
testimonial); State v. Brigman, 171 N.C. App. 305, 312-13, 615
S.E.2d 21, 25-26 (2005) (taking child’s age into account in
determining that her statements were nontestimonial).
    In addition to the above authority, Professor Friedman has written
directly on the issue of child witnesses:
         “the younger and less mature and understanding a child is, the
         less likely her statement should be considered testimonial,
         subject to the Confrontation Clause, and therefore, all other
         things being equal, the more likely the statement should be
         admitted. This conclusion, however, is really not paradoxical
         at all. Even statements by very young children may be highly
         probative. But very young children are not yet at a stage
         where they can be expected to take the responsibility of being
         a witness–the responsibility of speaking under oath, subject
         to questioning by the accused, under the implicit injunction,
         ‘Look me in the eye and say that.’ With respect to very young
         children–I will not try to say here just how young–we should
         admit their statements for what they are worth, without

                                 -39-
         pretending that the children have the capacity to act like
         adults.” (Emphasis omitted.) R. Friedman, The Conundrum of
         Children, Confrontation, and Hearsay, 65 Law & Contemp.
         Prob. 243, 251-52 (2002).
     In accordance with the weight of authority, as well as Professor
Friedman’s analysis, we believe that the better view is to treat the
child’s age as one of the objective circumstances to be taken into
account in determining whether a reasonable person in his or her
circumstances would have understood that their statement would be
available for use at a later trial.
     Like other courts which have considered the issue of what makes
a statement testimonial, we believe it would be fruitless to attempt to
provide an exhaustive list of factors which may potentially enter into
the “testimonial” calculus and the weight to be accorded them. See,
e.g., United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005);
T.T., 351 Ill. App. 3d at 991-92 (“Vague standards are manipulable,
and *** if the State could simply use the surrogate testimony of social
workers provided that certain formalities–like a scheduled interview
at a government office in a question-and-answer format–were absent,
then prosecutors would have less motivation to acclimate the child
witness to the courtroom setting”). As Crawford and Davis make
clear, this determination must be made on a case-by-case basis. Each
case must be resolved on its own merits, and a pertinent factor in one
case may not carry much weight in another. In this case, because the
parties differ on the issue of whether the age of a child declarant may
ever be taken into consideration, and because there is a divergence of
opinion on the topic amongst the courts of our sister states, we have
held that factor may be considered. This is not to say that age will
necessarily be determinative in every case. We have simply held that
it is among the circumstances potentially relevant to evaluating
whether the objective circumstances of the statement would have led
a reasonable declarant to understand that his or her statement could
be used in a subsequent prosecution of the defendant.

                             c. Application
     We turn now to an examination of the hearsay statements at issue
in the case at bar to determine whether they are testimonial. As noted,


                                 -40-
M.M.’s statements to three persons were admitted at trial. Those
individuals were Joan G., M.M.’s mother; Ann Grote, a nurse/clinical
specialist in charge of the child-abuse team at Hope Children’s
Hospital; and Perry Yates, the school social worker at Lawn Manor
Primary Center, where M.M. was in kindergarten in 1998-99. We first
review the circumstances under which the statements were made.
    On January 13, 1999, Brenda Galete drove M.M. to Joan’s place
of employment. Galete went inside to get Joan, and told her that
M.M. was to be taken to the hospital. Joan went with Galete to the
car, sat next to to M.M., put her arm around her, and asked her what
was wrong. M.M. told Joan that “Bob had done something to her.”
During the drive to the hospital, M.M. described the incident of
sexual abuse. She also told Joan that her assailant had told M.M. he
would hurt her if she told her mother about what had happened.
    When they arrived at Christ Hospital, Joan and M.M. went to the
emergency room. While they were there, Ann Grote, the clinical
specialist in charge of the hospital’s child-abuse team, came to the
emergency room and met Joan and M.M. The responsibilities of
Grote’s position were to receive all referrals regarding any type of
abuse, “whether it be physical or sexual abuse.” Because there was
potentially a two- to three-hour wait before M.M. could be examined,
Grote took Joan and M.M. to her office in another building where
Grote could speak to M.M., then bring M.M. back to the emergency
room so she could be examined.
    Joan waited in a nearby area while Grote took M.M. into a
playroom that was connected to Grote’s office. Grote began her
interview with M.M. by asking her why she had come to the hospital.
M.M. said “she was there because of what Bob had done to her.”
M.M. described for Grote the incident of sexual abuse that she had
previously described to her mother. M.M. told Grote that she “didn’t
want to do it” but that Bob “made her do it.” M.M. added that she
“didn’t like” Bob and she was “mad[ ] at him.” At the conclusion of
this interview, Grote took Joan and M.M. back to the emergency
room, where M.M. was then examined by a doctor. After bringing
M.M. back to the emergency room, Grote informed Joan that she
would file a report, contact the police, and verify that the Department
of Children and Family Services was notified.


                                 -41-
     The next day, January 14, 1999, Perry Yates, the social worker at
M.M.’s school, received a telephone call from Joan G. Yates testified
that the information Joan gave him “put [him] in a position where
[he] had to make a mandated report based on the information that the
mother had given [him].” Yates testified that he “had a legal
obligation to check it out.” Yates received Joan’s permission to speak
to M.M. individually, and he brought M.M. to his office, where he
interviewed her. Yates began the interview by asking M.M., “[W]hat
can you tell me about Robert Stechly[?]” M.M. then described
essentially the same incident of sexual abuse that she had recounted
for Grote and her mother.
     Later that same day, at about 3 p.m., M.M. returned to the hospital
for another interview with Grote. This interview was observed by an
assistant State’s Attorney and two police officers, who were seated
behind a one-way mirror. Grote began the interview by asking M.M.
if she could remember why she had come to the hospital the previous
day. M.M. “said she could remember[;] it was because of what Bob
had done to her.” M.M. again described the incident of sexual abuse.
At trial, Grote was asked if M.M. told her how she felt at the time of
the incident. Grote stated: “She said she was mad, she said that she
didn’t like it, she didn’t want to do it, but he told her she had to.” At
Grote’s suggestion, M.M. took two anatomically correct dolls,
undressed the male doll, and demonstrated the actions she had told
Grote that defendant had forced her to perform.
     We will begin with the clearest case: M.M.’s second conversation
with Grote. At this time M.M. had already told Grote what happened.
Based on what she had heard, Grote contacted the police department,
and then conducted a second interview to review the same facts for
the benefit of two police officers standing hidden behind a one-way
mirror. The objective circumstances leave no room for doubt that at
this time Grote was acting on behalf of the police in order to gather
information for possible prosecution. Under Davis, this was
unquestionably a testimonial statement.
     We believe that M.M.’s first conversation with Grote and her
conversation with Yates were also testimonial statements under
Davis. Both Grote and Yates conducted their interviews of M.M. after
Joan apprised them of some of what M.M. had told her–in other
words, once they were aware that abuse may have occurred. Although

                                  -42-
Grote was a registered nurse, nothing in the record indicates that she
conducted the first interview for purposes of treatment in this case.
Grote did testify that one of her responsibilities was making sure that
the appropriate follow-up medical procedures took place with the
alleged child abuse victims in the hospital, but she also testified that
in this case she told Joan after the first interview only that she would
be notifying “the appropriate authorities,” i.e., the Department of
Children and Family Services and the police. Grote testified further
that after the second interview, she did not know what happened with
M.M., because her “piece was done.” Yates testified that he only
initiated the conversation because what Joan told him led him to
conclude that he “had to make a mandated report” and “had a legal
obligation to check it out.” The record does not reflect any action by
either Grote or Yates subsequent to their interviews other than
informing the Department and/or the police of what they had learned.
We believe that the objective circumstances indicate that the primary
purpose of these interviews was to gather information for purposes of
an investigation and possible prosecution of criminal conduct.
     We do not hold that any person who conducts an interview in
order to gather information for a possible future prosecution is
necessarily acting as an “agent of law enforcement” at the time, such
that his acts may be said to be “acts of the police.” In this case,
however, we believe that Grote and Yates were so acting. It is
significant that in this case neither Grote nor Yates appears to have
taken any action as a result of their interviews of M.M. other than
contacting the authorities–the Department of Children and Family
Services, law enforcement, or both. Their interviews appear to have
been for the sole purpose of gathering information in order to pass it
along to the authorities.
     Our conclusion is supported by the fact that at the time of their
interviews of M.M., Grote and Yates were both “mandated reporters.”
See 325 ILCS 5/4 (West 2000) (mandated reporters include, inter
alia, any “hospital administrator and personnel engaged in
examination, care and treatment of persons,” “school personnel,”
“registered nurse,” and “social worker”). This means that by virtue of
their positions, they both had a legal obligation, under penalty of
criminal law, to report to the Department of Children and Family
Services once they had reasonable cause to believe that a child known

                                 -43-
to them in their professional capacity was abused or neglected. 325
ILCS 5/4 (West 2000). Mandated reporters are required to “testify
fully in any judicial proceeding resulting from such report, as to any
evidence of abuse or neglect, or the cause thereof.” 325 ILCS 5/10
(West 2000). Moreover, the Department is required, “to the fullest
extent possible,” to
             “cooperate with and *** seek the cooperation and
         involvement of all appropriate public and private agencies,
         including *** law enforcement agencies, [and] courts of
         competent jurisdiction ***.” 325 ILCS 5/7.1 (West 2000).
Thus, by virtue of their status as mandated reporters both Yates and
Grote were legally required to report to the Department and then to
testify, and the Department itself was also required to cooperate with
law enforcement. These facts substantially buttress our conclusion
that in this case, in conducting their interviews of the victim M.M.,
Grote and Yates were acting as agents of law enforcement for
purposes of confrontation clause analysis. See T.T., 351 Ill. App. 3d
at 989-91 (taking into account statutes governing mandated reporters
in holding that child’s statement to social worker was testimonial for
purposes of confrontation clause analysis). We are not holding that
every mandated reporter acts as an agent of law enforcement in every
interview, but merely that Grote’s and Yates’ status as mandated
reporters supports our conclusion in this case based on the fact that
their actions appear to have had no other purpose than to obtain
information to pass on to the authorities.
    However, M.M.’s statement to her mother is of a different nature.
First, Joan was not acting as an agent of law enforcement. According
to Joan’s testimony, at the time this statement was made, Joan had
only been told that her daughter needed to go to the hospital. Joan
immediately left work and was sitting next to M.M. in the backseat
of the car on the way there. When Joan asked M.M. “what happened,”
she surely would only have feared hearing how her child had been
injured. Nothing suggests that Joan would have had any hint that
M.M.’s response would recount a criminal act. Even assuming that
Galete’s contrary version of events was true, and that Galete did tell
Joan of M.M.’s allegation of abuse before the ride to the hospital, we
believe Joan’s primary motivation was simple parental concern. On


                                -44-
the facts of this case, Joan was in no way acting on behalf of law
enforcement, attempting to gather evidence for a future prosecution.
    Accordingly, we must look at the statement from the perspective
of M.M., the declarant. M.M. was five years old. She was sitting next
to her mother in the backseat of a car on a ride to a hospital. Her
mother asked her what had happened. From M.M.’s perspective, she
was explaining to her mother the reason for the trip to the hospital.
We see nothing in these circumstances to support the conclusion that
an objective declarant in M.M.’s position would have anticipated that
her statement to her mother likely would be used in prosecution. We
note that it is also debatable whether M.M.’s statement in this context
was infused with sufficient solemnity to be deemed testimonial. See
Davis, 547 U.S. at __, 165 L. Ed. 2d at 240, 126 S. Ct. at 2276;
Davis, 547 U.S. at __, 165 L. Ed. 2d at 246-47, 126 S. Ct. at 2282-83
(Thomas, J., concurring in the judgment and dissenting in part).
    Accordingly, M.M.’s two statements to Grote and her statement
to Yates were testimonial. Because defendant had no prior
opportunity to cross-examine M.M. with regard to these statements,
their admission was a violation of the confrontation clause under
Crawford. M.M.’s hearsay statement to her mother, on the other
hand, was not testimonial. Accordingly, the admission of this
statement was not error under Crawford.
    We feel compelled once more to note the limited extent of our
holding. We do not conclude in this case that statements made to
family members can never be testimonial, nor that statements given
to social workers or medical personnel or other mandated reporters
are always testimonial. Instead, we decide merely that, under the
circumstances in this case, M.M.’s hearsay statements to Grote and
Yates were testimonial, and her statement to her mother was not.
    The State protests that neither Grote nor Yates, the school social
worker, functions as “an arm of the prosecution” merely because they
are mandated reporters, and calls our attention to In re C.J., 166 Ill.
2d 264 (1995). The State argues that we there clearly held that
Department employees are not state agents simply because they are
required to investigate suspected abuse and neglect. The State calls
our attention to the specific statement that we “reject out of hand any
notion that [Department] child protective service investigators,
simply by virtue of their mandate to investigate reports of suspected

                                 -45-
child abuse and neglect, are a prosecutorial arm of the State.” C.J.,
166 Ill. 2d at 269.
    The case is distinguishable. First, in this case, we have not found
Grote and Yates to have been acting on behalf of law enforcement
merely based on their status as mandated reporters. Our conclusion is
instead based primarily on the circumstances surrounding the
statements they took from M.M., especially the fact that they appear
to have done nothing as a result of taking those statements other than
contacting the authorities. The fact that they are mandated reporters
merely buttresses our conclusion. Moreover, C.J. was an appeal from
a circuit court ruling dismissing a delinquency petition because a
Department investigator had destroyed potentially exculpatory
material. We held it would be entirely unfair to impute responsibility
for the destroyed evidence to the State’s Attorney, especially in light
of the fact that there was “no evidence to support the conclusion that
the [Department] investigator here functioned, intentionally or
otherwise, as an aid in the prosecution of this case.” C.J., 166 Ill. 2d
at 270. The situation here is different–in this case the question is
whether it is fair for a criminal defendant to be tried based on hearsay
statements without the opportunity to confront the declarant, when the
persons taking the statements took no action other than to pass them
on to the authorities, and moreover the persons taking the statements
had a legal obligation to transmit them to the Department (325 ILCS
5/4 (West 2000)) and subsequently to testify in any case arising
therefrom (325 ILCS 5/10 (West 2000)), and the Department had a
legal obligation to cooperate with law enforcement agencies to the
fullest extent possible (325 ILCS 5/7.1 (West 2000)). In addition to
the statement from C.J. to which the State draws our attention, we
also said in that case that “where DCFS acts at the behest of and in
tandem with the State’s Attorney, with the intent and purpose of
assisting in the prosecutorial effort, DCFS functions as an agent of
the prosecution.” (Emphasis added.) C.J., 166 Ill. 2d at 270, citing
People v. Robinson, 157 Ill. 2d 68 (1993) (imputation of such
knowledge requires an individualized focus on the factual
circumstances). We do not believe that the framers intended to permit
the government to evade the requirements of the confrontation clause
by the simple expedient of placing responsibility for investigation



                                 -46-
with a separate agency of government with a legal responsibility to
cooperate with law enforcement.
    The State also argues that, if the statements at issue in the case at
bar are deemed testimonial, the admission of these statements was
harmless beyond a reasonable doubt. We disagree.
      Crawford violations are subject to harmless-error analysis.
People v. Patterson, 217 Ill. 2d 407 (2005). The test is whether it
appears beyond a reasonable doubt that the error at issue did not
contribute to the verdict obtained. Patterson, 217 Ill. 2d at 428. There
are
        “three different approaches for measuring error under this
        harmless-constitutional-error test: (1) focusing on the error to
        determine whether it might have contributed to the
        conviction, (2) examining the other evidence in the case to see
        if overwhelming evidence supports the conviction, and (3)
        determining whether the improperly admitted evidence is
        merely cumulative or duplicates properly admitted evidence.”
        Patterson, 217 Ill. 2d at 428, citing People v. Wilkerson, 87
        Ill. 2d 151, 157 (1981).
Under none of the three approaches can the error in this case be
considered harmless. The evidence in question consists of several
adults who were unacquainted or only slightly acquainted with M.M.
testifying as to her out-of-court statements regarding the precise
conduct at issue. The statements were quite clear and were relatively
consistent with each other and with the statement M.M. made to her
mother. This was strong evidence which a fact finder would surely
have taken into account. As we have noted, “[t]he statements of a
victim identifying her attacker and describing the attack are extremely
powerful evidence of a defendant’s guilt. It would be difficult to
argue that such statements did not contribute to [a guilty] verdict.”
Patterson, 217 Ill. 2d at 436. Nor is it fair to characterize the
improperly admitted evidence as “merely cumulative” of Joan’s
testimony. It is true that M.M.’s two statements to Grote and
statement to Yates were substantially similar to her statement to Joan.
However, the fact that the testimony was coming from adults who had
no personal stake in the matter at hand, no acquaintance with Joan or
defendant, and little or no acquaintance with M.M., and the strong
similarity of the statements, gave them a power beyond simple

                                  -47-
duplication of Joan’s testimony as to what her daughter told her.
Additionally, both Grote and Yates testified as to M.M.’s
demonstration of the conduct at issue through the use of dolls,
another fact reinforcing the believability of those statements and
distinguishing them from M.M.’s statement to Joan. Moreover, and
especially critically, the conversation between M.M. and Yates began
with Yates simply asking M.M. what she could tell him “about
Robert Stechly.” That M.M. recounted the events in question in
response to a generic query about the defendant is crucial evidence.
The defense at trial was not that there was a question whether M.M.
was the victim of abuse–defendant’s expert agreed that she most
likely was–but that there was a reasonable doubt as to the identity of
her abuser. The improperly admitted statements cannot fairly be
considered to be merely duplicative of properly admitted evidence.
    This leaves the question whether the properly admitted evidence
in the case constitutes “overwhelming evidence support[ing] the
conviction,” the sole remaining way in which this testimony might be
found not to have contributed to the finding of guilt, and therefore be
deemed harmless. Here we part company with the dissent. The dissent
would find the error harmless because the properly admitted
evidence, specifically the testimony of Joan, the testimony of Grote,
and defendant’s confession, is overwhelming. The dissent relies
principally on defendant’s statement to the police as well as Joan’s
testimony that in the car on the way to the hospital M.M. told her that
“Robert Stechly” was the person who abused her. The dissent also
notes that the abuse was described nearly identically in Galete’s and
Joan’s trial testimony regarding what M.M. told them and in
defendant’s statement to the police. Examination of the record reveals
some troubling inconsistencies in this evidence, however, which lead
us to conclude that the evidence was not so overwhelming as to
render it clear beyond a reasonable doubt that the constitutional error
was harmless.
    For example, although M.M.’s description of the abuse to Galete
was very similar to what the child told her mother, there is a reason
that Galete was a witness for the defense, rather than for the
prosecution. Specifically, Galete testified that Bob Reilly, the victim’s
cousin, frequently babysat the victim, contradicting Joan’s testimony
that he never did so. Galete testified that M.M. only identified the

                                  -48-
abuser as “Bob,” and Galete further testified that she had informed
the police that she believed that people other than defendant,
including Joan, the child’s mother, had sexually assaulted her. Thus
not only did Galete directly contradict Joan’s testimony on the key
point of whether Bob Reilly had babysat M.M.–Joan testified that he
had never done so–Galete also implicitly made clear that she believed
that M.M. had not told the complete truth about her abuse.
     Moreover, although Joan testified that on the date that the victim
was taken to the hospital Galete refused to tell her what was wrong,
Galete testified that she did tell Joan that the victim had been sexually
molested and that Joan “really didn’t show any feeling in response.”
Finally, Galete testified that she did not hear any conversation
between the victim and her mother in the car on the way to the
hospital. Although she admitted that she was in the front seat and the
victim and her mother were in the back, this does call into question
the foundation of one of the primary pieces of competent evidence on
which the dissent relies, namely, Joan’s testimony regarding her
conversation with M.M. on the way to the hospital. Galete’s father,
who was driving the car to the hospital, also testified that he heard no
conversation between Joan and M.M. Galete’s testimony that she did
tell Joan about the abuse before they drove M.M. to the hospital is
also supported by the testimony of Grote. Grote testified that when
M.M. was brought to the hospital Joan recounted that M.M. had told
Galete about having been abused. Grote testified that Joan did not tell
her that M.M. had directly spoken to Joan about the matter, even
though that conversation in the car would have occurred only minutes
before. Joan never told Grote that she had spoken with M.M. in the
car.
     Moreover, Joan’s testimony that M.M. identified her assailant as
“Robert Stechly”–using not only defendant’s last name, but his full
first name–was in direct conflict with Joan’s testimony at the section
115–10 hearing. There, Joan testified only that the child told her
“Bob” had assaulted her. Joan testified four separate times on direct
examination as to what M.M. told her “Bob” had done, and on cross-
examination, engaged in the following exchange:
            “Q. [defense counsel:] Now, in the car when you were on
        the way to the hospital, she told you what had happened,
        details of the incident?

                                  -49-
            A. Yes.
            Q. Did she tell you who?
            A. She told me in the back of the car that day.
            Q. Who it was?
            A. Who did that, yes.
            Q. Who had sexual contact?
            A. Yes.
            Q. And she said Bob?
            A. Yes.
            Q. And you understood that to be Bob Stechly?
            A. Yes sir.” (Emphases added.)
This calls into serious question Joan’s trial testimony that the child
referred to defendant by his full first and last names. In this regard it
is also noteworthy that no other witness ever testified that the child
used defendant’s full name, even though it would arguably have been
more logical for the child to identify her assailant by his full name to
a stranger, rather than to her mother, who was the defendant’s
girlfriend.
    Defendant’s confession, it is true, is surely strong evidence
against him. However, at trial, defendant recanted his confession,
claiming that he only made it because he was tired and believed that
the truth would later come out. He introduced expert testimony to the
effect that he was unable to understand his Miranda rights. In
argument at defendant’s bench trial, defense counsel noted, “I think,
if you listen to him on the stand, he does have, how should I say, he
does suffer from a mental disability, unfortunately.” The members of
this court are, of course, wholly unable to evaluate the accuracy of
this description, as we were not present at defendant’s trial to observe
his demeanor, but we note that the State did not dispute this
characterization in its argument in response.
    The dissent implies a great deal of skepticism for defendant’s
recantation, but whether or not we personally find the recantation
believable on the cold record before us is not the question we must
answer, as we are not members of defendant’s jury. The question
before us is: Was the properly admitted evidence against
defendant–consisting primarily of his confession, and the testimony

                                  -50-
of the mother and Galete–such compelling and overwhelming
evidence of guilt that it is clear beyond a reasonable doubt that the
improperly admitted evidence made no difference to the fact finder?
That evidence being the testimony of impartial, neutral adults that the
child told the exact same story as she told her mother three more
times, demonstrating the conduct at issue with dolls–and that one of
these recountings of what transpired was in response to the general
question “what can you tell me about Robert Stechly”?
     We must answer this question in the negative. The child’s
consistent repetition of the story strongly reinforced its believability.
This reinforcement could easily have overridden any doubt which
might have arisen in light of the significant conflicts and
inconsistencies between Galete’s testimony, the testimony of the
victim’s mother, and defendant’s confession. The fact that M.M.’s
statement to Yates was the product of a generic inquiry regarding
defendant is evidence that it would be truly impossible for a fact
finder not to have taken into account in this trial which turned on the
identity of M.M.’s abuser. We cannot conclude that the properly
admitted evidence was so overwhelmingly in favor of guilt that it is
clear beyond a reasonable doubt that the child’s repetition of the story
on three separate occasions played no part in the fact finder’s
conclusion.
     Our conclusion that the evidence against defendant was not
overwhelming is buttressed by the fact that the jurors at defendant’s
first trial were unable to agree on a verdict. See People v. Gibson,
136 Ill. 2d 362, 382-83 (1990) (“The jurors at the defendant’s first
trial were unable to agree on a verdict in the case, and the resulting
mistrial illustrates fully the closeness of the evidence in the case”).
The dissent argues that it is inappropriate to consider the fact that
defendant’s jury was unable to reach a verdict, suggesting that to do
so is equivalent to the approach taken by the appellate court in People
v. Nitz, 219 Ill. 2d 400 (2006). The situation in Nitz is not even
remotely similar to the case at bar. There, the appellate court analyzed
a jury’s mix of guilty and not-guilty verdicts and “speculated” as to
how the jury might have ruled on a question with which it was not
presented after “purporting to read the minds of the trial jurors.” Nitz,
219 Ill. 2d at 413-14. Here, by contrast, we are making the entirely
unremarkable assertion that the fact that a jury of defendant’s peers

                                  -51-
was unable to reach a verdict as to his guilt tends to show that the
evidence against him was not utterly overwhelming. This fact is
especially pertinent in light of the fact that the jury heard and took
into account the strong and compelling evidence that we have now
concluded was improperly admitted. Even with that evidence before
it, the jury could not reach a verdict. Thus, it is a fair inference that
the properly admitted evidence may not have been entirely
overwhelming. Nor does the riposte that the circuit court was able to
reach a finding carry much weight, in light of the fact that like the
jury, the court had before it and considered the evidence we have now
found inadmissible. In this case it would be inappropriate to apply the
presumption that in a bench trial judges base their findings only on
competent evidence (People v. Todd, 178 Ill. 2d 297, 330 (1997);
People v. Tye, 141 Ill. 2d 1, 26 (1990)), in light of the fact that at the
time of defendant’s trial, Crawford had not yet been decided and thus
the statements to Grote and Yates were competent, admissible
evidence so far as the trial judge knew.
     We cannot conclude beyond a reasonable doubt that the
admission of these hearsay statements did not contribute to the
finding obtained. The properly admitted evidence was certainly
sufficient to sustain defendant’s conviction, however, so there is no
double jeopardy bar to retrying defendant on these charges. People v.
Daniels, 187 Ill. 2d 301, 310 (1999). If the evidence is as
overwhelming as the dissent believes, defendant will very likely be
convicted once again. Moreover, defendant’s convictions may be
upheld without a retrial if on remand the circuit court concludes that
defendant lost his confrontation rights pursuant to the doctrine of
forfeiture by wrongdoing. But unless that doctrine is applicable, the
admission of these statements was error of sufficient severity as to
defy a characterization of harmlessness.
     Accordingly, we remand to the circuit court for a hearing on
forfeiture by wrongdoing. In this hearing, the State’s burden of proof
is a preponderance of the evidence. See Davis, 547 U.S. at ___, 165
L. Ed. 2d at 244, 126 S. Ct. at 2280 (and authorities cited therein).
The circuit court may take into consideration “ ‘hearsay evidence,
including the unavailable witness’s out-of-court statements.’ ” Davis,
547 U.S. at __, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280, quoting
Edwards, 444 Mass. at 545, 830 N.E.2d at 174. The question is

                                  -52-
whether defendant sought “to undermine the judicial process by
procuring or coercing silence from” M.M. Davis, 547 U.S. at __, 165
L. Ed. 2d at 244, 126 S. Ct. at 2280. If the court concludes that
defendant did forfeit his confrontation clause claim by wrongdoing,
then the conviction and sentence may be reinstated; otherwise,
defendant must receive a new trial. At that trial, the statements to
Yates and Grote must be excluded from evidence unless M.M.
testifies.

                           II. Section 115–10
    Having concluded that M.M.’s hearsay statement to her mother is
not testimonial, we must address defendant’s argument that this
statement did not meet the requirements of section 115–10 of the
Code of Criminal Procedure (725 ILCS 5/115–10 (West 1998)),
which is the statutory hearsay exception for sexual abuse victims
under the age of 13. Under section 115–10, a child’s out-of-court
complaints of a sexual offense may be admitted if (1) the time,
content, and circumstances of the statement provide sufficient
safeguards of reliability, and (2) the child either (a) testifies at the
proceeding, or (b) is unavailable as a witness and there is
corroborating evidence of the act which is the subject of the
statement. In the case at bar, the trial court found that the time,
content, and circumstances of M.M.’s hearsay statements, including
her statement to her mother, provided sufficient safeguards of
reliability to be admissible. The trial court also found that M.M. was
legally unavailable for trial.
    Before this court, defendant argues that the State failed to meet its
burden of establishing the reliability of M.M.’s hearsay statements,
and the circuit court therefore erred in admitting these statements.
Defendant also argues that the circuit court erred in declaring M.M.
unavailable to testify. The appellate court below affirmed the circuit
court’s findings as to reliability and availability. We agree with the
appellate court that, with regard to M.M.’s statement to her mother,
the reliability and unavailability requirements of section 115–10 were
met. A trial court’s rulings on evidentiary matters will not be reversed
absent a clear abuse of discretion. People v. Hall, 195 Ill. 2d 1, 20-21
(2000). Fear and youth are factors to be considered in determining
whether a child witness is unavailable. T.T., 351 Ill. App. 3d at 984.

                                  -53-
Reliability is judged based on the totality of the circumstances
(Wright, 497 U.S. at 819-20, 111 L. Ed. 2d at 654-55, 110 S. Ct. at
3148-49), but relevant factors include consistent repetition, use of
terminology unexpected of a child of similar age, and lack of motive
to fabricate. People v. McMillan, 231 Ill. App. 3d 1022, 1026 (1992).
There was ample evidence supporting the circuit court’s rulings
regarding reliability and unavailability, and we find no abuse of
discretion in the circuit court’s ruling admitting M.M.’s statement
under section 115–10.
    The partial concurrence argues that the circuit court abused its
discretion in finding M.M. unavailable, relying on People v. Johnson,
118 Ill. 2d 501 (1987). That case is distinguishable in critical respects.
First, Johnson involved only Supreme Court Rule 414, a rule of
general application to all criminal cases. In contrast, section 115–10
deals specifically with “the difficulty in convicting persons accused
of sexually assaulting young children.” People v. Holloway, 177 Ill.
2d 1, 9 (1997). The Johnson court expressly limited its holding
importing the standards of Federal Rule 804 to proceedings involving
Rule 414: “the mere unwillingness of an otherwise available witness
to testify simply does not rise to the high level of the Federal Rule
804 standards. Hence, it cannot constitute excusable unavailability for
purposes of our Rule 414.” (Emphasis omitted and added.) Johnson,
118 Ill. 2d at 509-10. Neither Johnson, nor either of the post-Johnson
cases on which the partial concurrence relies, involved section
115–10. See People v. Caffey, 205 Ill. 2d 52, 100-01 (2001) (adult
witness asserting privilege); People v. Ramey, 152 Ill. 2d 41, 70-73
(1992) (adult witness asserting lack of memory). This court has never
invoked Federal Rule of Evidence 804 or relied on Johnson in
reviewing the admission of statements pursuant to section 115–10.
Indeed, Johnson could not have been intended to apply to statements
admitted pursuant to section 115–10 because at the time Johnson was
decided, section 115–10 did not permit introduction of the out-of-
court statement of an “unavailable” child witness. People v. Rocha,
191 Ill. App. 3d 529, 537 (1989).
    Moreover, this court in Johnson invited legislative action to
address reluctant child witnesses, thus suggesting that a specific
statute to address that situation might merit a different result:


                                  -54-
              “[W]e feel compelled to acknowledge the special
         difficulties presented by cases such as these, where the
         witness in question is a young child whose fear and reticence
         is probably nonvolitional and hence understandable.
         However, it is our view that any attempts to resolve these
         difficulties must be initiated by the legislature.” Johnson, 118
         Ill. 2d at 510.
As our appellate court has noted, the amendment to section 115–10
to permit the introduction of children’s out-of-court statements when
the child is unavailable appears to be precisely the legislative
resolution for which this court called in Johnson. Rocha, 191 Ill. App.
3d at 537. In cases involving section 115–10, our appellate court has
declined to apply the broad Johnson holding that unwillingness can
never constitute unavailability. See, e.g., People v. Coleman, 205 Ill.
App. 3d 567, 582-83 (1990); Rocha, 191 Ill. App. 3d at 536-37. This
holding finds support in decisions of this court which have
distinguished section 115–10 from other, analogous statutes. See
People v. Bowen, 183 Ill. 2d 103, 114 (1998) (“Bastien is not
dispositive of this case, because of fundamental differences in both
the provisions and purposes of section 115–10 and former section
106A–2”). In the context of child witnesses, numerous other
jurisdictions have concluded that unwillingness or inability to testify
should constitute unavailability. See Rocha, 191 Ill. App. 3d at 537-
38, and cases cited therein. Our appellate court has concluded that by
the amendment to section 115–10 the legislature intended “to include
within the meaning of ‘unavailable’ witnesses those children who are
unable to testify because of fear, inability to communicate in the
courtroom setting, or incompetence.” Rocha, 191 Ill. App. 3d at 539.
See also T.T., 351 Ill. App. 3d at 984. We agree with these opinions.
Notwithstanding our holding in Johnson that unwillingness to testify
cannot constitute unavailability to testify for purposes of Rule 414,
we believe that in the separate specific context of section 115–10,
unavailability includes those child witnesses who are unable to testify
because of fear.
    The circuit court should not make an unavailability determination
lightly, of course, but that brings us to the second critical difference
between this case and Johnson. There, the circuit court received no
expert testimony or evidence as to the child’s unavailability. Indeed,
the circuit court never even made a finding that the children were

                                  -55-
unavailable to testify. In the instant case, by contrast, Machonkin
testified as an expert witness at the availability hearing. She stated
that in her professional opinion, forcing M.M. to testify would inflict
upon her “trauma symptoms.” It is true that Machonkin
acknowledged that there were steps the court could take to attempt to
decrease the likelihood that the child would suffer psychological
harm. However, she stated that it could take up to a year for such
techniques to work and they might never work, a distinct possibility
in light of the fact that Machonkin herself had never been able to
persuade the victim to discuss what had happened.
    Under these circumstances, we cannot find the circuit court to
have abused its discretion in finding M.M. unavailable to testify.

                           CONCLUSION
    We agree with the appellate court that the circuit court’s decision
that M.M.’s hearsay statement to her mother was admissible under
section 115–10. However, we disagree with the appellate court that
the circuit court properly found M.M.’s hearsay statements to Grote
and Yates were admissible. Because the admission of the statements
to Grote and Yates was not harmless error, we reverse the appellate
court’s judgment affirming defendant’s conviction and sentence. This
cause is remanded to the circuit court for a hearing on the issue of
forfeiture by wrongdoing and for further proceedings in conformity
with this opinion.

                                 Appellate court judgment reversed;
                                   cause remanded with directions.

    JUSTICE KILBRIDE, concurring in part and dissenting in part:
    In my opinion, the statutory hearsay exception contained in
section 115–10 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115–10 (West 1998)), was not satisfied because the evidence
presented at the hearing did not establish that M.M. was unavailable
to testify. M.M.’s hearsay statements should have been excluded on
that basis.
    Moreover, in addressing the confrontation clause claim, I believe
the plurality applies an incorrect standard for determining whether an

                                 -56-
out-of-court statement by a child declarant is testimonial. I would
hold that the critical inquiry in determining whether a statement is
testimonial is whether a reasonable adult in the declarant’s position
would have anticipated that his or her statement likely would be used
in a criminal prosecution. A reasonable adult in M.M.’s position
would have believed her statements to her mother, the registered
nurse, and the school social worker identifying defendant as the
perpetrator would be used in a prosecution against defendant. Thus,
M.M.’s statements to each of those people were testimonial and
should not have been admitted without satisfying the requirements of
the confrontation clause.
    In my view, the plurality’s analysis of both the section 115–10
issue and the confrontation clause claim is faulty. I, however, agree
with the plurality’s ultimate holding on the confrontation clause claim
that defendant’s convictions must be reversed and the cause
remanded for a hearing on forfeiture by wrongdoing. Accordingly, I
concur in the judgment with respect to the confrontation clause claim
and respectfully dissent on the section 115–10 issue.

                           I. Section 115–10
    The threshold issue in this case is whether M.M.’s statements are
admissible under the statutory hearsay exception in section 115–10.
See People v. Lee, 214 Ill. 2d 476, 482 (2005) (courts should avoid
addressing a constitutional question if a case can be decided on other
grounds). Under section 115–10, a child’s out-of-court statements
concerning a sexual offense are admissible if: (1) there are sufficient
safeguards of reliability; and (2) the child either testifies or is
unavailable to testify and there is corroborating evidence of the act
that is the subject of the statement. 725 ILCS 5/115–10(b) (West
1998).
    Here, the plurality has failed to apply this court’s established
precedent to the unavailability determination. This court’s decision
in People v. Johnson, 118 Ill. 2d 501 (1987), as well as subsequent
cases relying on Johnson, strongly support a finding that the circuit
court abused its discretion in finding M.M. unavailable to testify.
    In Johnson, the defendant was charged with aggravated indecent
liberties with a child. The trial court ordered the testimony of the five-
year-old victim and her seven-year-old brother to be recorded on

                                  -57-
videotape outside the presence of the jury. Johnson, 118 Ill. 2d at 505.
During her testimony, the victim became frightened and stopped
speaking. At that point, the trial court granted the State’s motion to
remove defendant from the courtroom during her testimony. Johnson,
118 Ill. 2d at 505. Defendant was allowed to view the testimony on
a video monitor outside the courtroom. Johnson, 118 Ill. 2d at 505.
After defendant was removed, the parties completed the direct, cross,
and redirect examination of the victim. Johnson, 118 Ill. 2d at 505.
The testimony of the victim’s brother was recorded outside the
presence of the jury, but with defendant present. Johnson, 118 Ill. 2d
at 506.
     The appellate court held that the videotaping procedure was
authorized under Supreme Court Rules 414 and 206(f) (87 Ill. 2d Rs.
414, 206(f)). Johnson, 118 Ill. 2d at 507. Rule 414 allows the trial
court to order a deposition for use at trial in criminal cases when a
substantial possibility exists that the testimony will be “ ‘unavailable
at the time of hearing or trial.’ ” Johnson, 118 Ill. 2d 507, quoting 87
Ill. 2d R. 414(a). Thus, the critical issue in Johnson was whether the
children were “unavailable” to testify within the meaning of Rule
414. Johnson, 118 Ill. 2d at 508.
     This court rejected the appellate court’s determination that the
children were unavailable to testify because the trial court believed
they would be fearful or unable to speak in front of the jury. Johnson,
118 Ill. 2d at 508. This court held that unavailability “is a narrow
concept, subject to a rigorous standard.” Johnson, 118 Ill. 2d at 509.
The court looked to Federal Rule of Evidence 804 for examples of
sufficient reasons for finding a witness unavailable. Under Federal
Rule 804, a witness may be declared unavailable due to privilege,
persistent contemptuous refusal to testify, lack of memory, death, or
illness. Johnson, 118 Ill. 2d at 509. Mere unwillingness or reluctance
to testify does not constitute excusable unavailability under Federal
Rule 804. Johnson, 118 Ill. 2d at 509. Therefore, this court held that
unwillingness to testify cannot be the basis for a finding of
unavailability under Supreme Court Rule 414. Johnson, 118 Ill. 2d at
509-10. This court concluded that “a witness’ mere reluctance to
testify cannot be accepted as a good enough reason to permit the use
of out-of-court testimony.” Johnson, 118 Ill. 2d at 510.
     Subsequent to Johnson, this court has continued to look to
Federal Rule of Evidence 804 in determining whether a witness is

                                 -58-
unavailable to testify. See People v. Caffey, 205 Ill. 2d 52, 100-01
(2001); People v. Ramey, 152 Ill. 2d 41, 70-73 (1992). In this case,
however, neither the appellate court nor the plurality has applied our
established precedent.
    The plurality asserts that Johnson “is distinguishable in critical
respects.” Slip op. at 53. But the distinctions noted by the plurality do
not affect the core issue, the meaning of the term “unavailable” in the
context of a child witness. Johnson is indistinguishable on that point
because it involved whether child witnesses were unavailable to
testify. The plurality also states that this court has never relied on
Johnson in reviewing the admission of statements under section
115–10. Slip op. at 54. My research has not revealed any prior
decision of this court specifically defining the standard for
unavailability under section 115–10. That explains the plurality’s
reliance only upon appellate court cases for the applicable standard
for reviewing the statements at issue here. The fact that this court has
not previously relied on Johnson in this context is perhaps
understandable given that this court has not addressed the definition
of unavailability under section 115–10.
    Further, the plurality claims that “the amendment to section
115–10 to permit the introduction of children’s out-of-court
statements when the child is unavailable appears to be precisely the
legislative resolution for which this court called in Johnson.” Slip op.
at 54. If the legislature intended to redefine unavailability of child
witnesses in response to Johnson, however, one would expect an
express statement in the statute redefining that term. Yet, there is
nothing in section 115–10 indicating that a different standard for
unavailability should be used than the one employed by this court in
Johnson. See 725 ILCS 5/115–10 (West 1998). The amendment to
section 115–10 does not indicate a legislative intent to alter the
definition of unavailability in the context of child witnesses. To the
contrary, the amendment without any change to the accepted standard
in Johnson indicates the legislature’s approval of this court’s
construction of that term.
    I would also note that the plurality’s ultimate conclusion on the
standard to be applied is confusing. The plurality wavers between
stating unwillingness to testify is sufficient to constitute unavailability
and asserting inability to testify is required. Slip op. at 55. In fact, the
plurality’s final word on the matter is “[n]otwithstanding our holding

                                   -59-
in Johnson that unwillingness to testify cannot constitute
unavailability to testify for purposes of Rule 414, we believe that in
the separate specific context of section 115–10, unavailability
includes those child witnesses who are unable to testify because of
fear.” (Emphasis in original.) Slip op. at 55. The plurality fails to
recognize that unwillingness to testify and inability to testify are
entirely different standards. In fact, the apparent standard adopted by
the plurality of inability to testify caused by fear is consistent with
Johnson because it requires more than mere reluctance or
unwillingness. See Johnson, 118 Ill. 2d at 509-10.
     I would hold that the core rule in Johnson that unwillingness or
reluctance to testify cannot constitute unavailability is applicable
here. I agree that fear and other similar factors are proper in
determining whether a child witness is unavailable to testify. To meet
the standard in Johnson, however, there must be an inability to testify
because of fear or another factor, not mere reluctance or
unwillingness. As this court stated in Johnson, “mere reluctance to
testify cannot be accepted as a good enough reason to permit the use
of out-of-court testimony.” Johnson, 118 Ill. 2d at 510.
     Here, the sole witness at the availability hearing was Nancy
Machonkin, a clinical child psychologist hired by M.M.’s father to
determine the potential impact of testifying upon M.M. As noted in
the plurality opinion, Machonkin testified that M.M. expressed
unwillingness and reluctance to testify. M.M. told Machonkin that she
did not want to talk about the alleged abuse and would not talk about
it. Slip op. at 5. Although Machonkin testified that M.M. would likely
experience anxiety, sleep disturbance, and difficulty in concentrating
if she were forced to testify, on cross-examination Machonkin
acknowledged that there were steps the court could take to minimize
the stress of testifying. Significantly, Machonkin testified that M.M.
could possibly become acclimated to the courtroom in as little as two
weeks by visiting the courtroom when it was empty, talking to the
judge in chambers, and meeting the people who would be asking her
questions.
     Based on Machonkin’s testimony, the trial court found M.M.
unavailable to testify. The court noted that M.M. had refused to
discuss the incident with Machonkin, and concluded that testifying
would subject M.M. to fear and anxiety that would further traumatize
her.

                                 -60-
    The evidence presented at the availability hearing essentially
shows that M.M. expressed an unwillingness and reluctance to testify.
There was no showing that M.M. was unable to testify because of fear
or any other factor. In fact, Machonkin testified that the stress of
testifying could potentially be overcome in as little as two weeks by
acclimating M.M. to the courtroom and the trial process.
Nevertheless, no effort was made to acclimate M.M. All of M.M.’s
statements were admitted based solely on the trial court’s acceptance
of Machonkin’s untested conclusion that testifying would subject
M.M. to fear and anxiety. In contrast, in a case relied upon heavily by
the plurality, the trial court determined that the child witness was
unavailable only after she stopped testifying during direct
examination, and after the trial court and the prosecutor made
extensive efforts to get her to resume testifying. T.T., 351 Ill. App. 3d
at 985-86.
    In this case, M.M. did not testify at trial. I also note that the trial
court did not have M.M. testify at the availability hearing to make a
direct observation of her reported fear and anxiety. The trial judge did
not even speak to M.M. in chambers to observe her demeanor.
Instead, the court simply deferred to Machonkin’s opinion that it was
not in M.M.’s best interest to testify and that she was unavailable,
despite the concession that M.M.’s stress could potentially be
overcome in as little as two weeks. The evidence here shows a mere
untested reluctance to testify. Reluctance alone is insufficient to
support a finding of unavailability under the standard adopted by this
court in Johnson.
    The trial court’s ruling was unsupported by application of this
court’s precedent. In my view, the failure to apply this standard was
an abuse of discretion. The statutory hearsay exception in section
115–10 was not satisfied because the evidence does not establish that
M.M. was unavailable to testify. M.M.’s hearsay statements should
not have been admitted under section 115–10, and the trial court’s
ruling was prejudicial error. Thus, it is unnecessary to address
whether admission of M.M.’s statements violated the confrontation
clause. The plurality has, nonetheless, chosen to base its holding on
defendant’s confrontation clause claim. Therefore, I will also address
that issue.

                    II. Confrontation Clause Claim

                                   -61-
     In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124
S. Ct. 1354 (2004), the Supreme Court reaffirmed the importance of
the constitutional right to confrontation. The Court held that a
testimonial hearsay statement of a witness who is unavailable to
testify may not be admitted against a criminal defendant unless the
defendant had a prior opportunity to cross-examine the witness.
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
The Crawford Court explicitly declined to give a comprehensive
definition of “testimonial statements.” See Crawford, 541 U.S. at 68,
158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Nonetheless, as noted by the
plurality, many authorities have concluded that the focus in
determining whether a statement is testimonial is always on the
declarant’s intent in giving the statement. Slip op. at 35. Significantly,
“[t]he declarant-centered approach is favored by Professor Richard
Friedman of the University of Michigan Law School, one of the
scholars whose works Crawford relied upon [citation] ‘in framing its
re-definition of the Confrontation Clause.’ ” Slip op. at 35, quoting
United States v. Cromer, 389 F.3d 662, 673 (6th Cir. 2004). Professor
Friedman has asserted that “[t]o be testimonial, it must appear from
the perspective of the witness that the statement is transmitting
information that will, to a significant probability, be used in
prosecution.” R. Friedman, Grappling With the Meaning of
“Testimonial,” 71 Brook. L. Rev. 241, 259 (2005). The plurality
agrees that the declarant’s perspective is the focus in a testimonial
analysis outside the context of statements produced by government
interrogation. Slip op. at 36.
     The plurality, however, concludes that the Supreme Court’s recent
decision in Davis v. Washington, 547 U.S. ___, 165 L. Ed. 2d 224,
126 S. Ct. 2266 (2006), modified or clarified the analysis with respect
to statements made to government officials. Slip op. at 16. According
to the plurality, Davis held that the intent of a police officer in taking
a statement determines whether the statement is testimonial. Slip op.
at 16. I disagree with that conclusion.
     In Davis, the Supreme Court held that:
             “Statements are nontestimonial when made in the course
         of police interrogation under circumstances objectively
         indicating that the primary purpose of the interrogation is to
         enable police assistance to meet an ongoing emergency. They
         are testimonial when the circumstances objectively indicate

                                  -62-
        that there is no such ongoing emergency, and that the primary
        purpose of the interrogation is to establish or prove past
        events potentially relevant to later criminal prosecution.”
        Davis, 547 U.S. at ___, 165 L. Ed. 2d at 237, 126 S. Ct. at
        2273-74.
In my view, this holding does not indicate a shift in the focus to the
intent of the police officer in taking the statement. Rather, the holding
indicates that the perspective of the declarant is still the focus of the
inquiry. The circumstances presented by the police interrogation are
viewed from the perspective of the declarant, and the question is what
those circumstances objectively indicate to the declarant concerning
the primary purpose of the interrogation.
    In Davis, the Court stated that “even when interrogation exists, it
is in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires us to
evaluate.” Davis, 547 U.S. at ___ n.1, 165 L. Ed. 2d at 237 n.1, 126
S. Ct. at 2274 n.1. The plurality acknowledges that “ultimately it is
the declarant’s intent to which the confrontation clause looks.” Slip
op. at 35. I would hold that the focus in determining whether a
statement is testimonial remains on the declarant’s intent.
    The plurality also concludes that a child’s age “is among the
circumstances potentially relevant to evaluating whether the objective
circumstances of the statement would have led a reasonable declarant
to understand that his or her statement could be used in a subsequent
prosecution of the defendant.” Slip op. at 38. In my opinion, the cases
holding that a child’s age should not be considered in determining
whether a statement is testimonial are persuasive and should be
followed. See People v. Sisavath, 118 Cal. App. 4th 1396, 1402 n.3,
13 Cal. Rptr. 3d 753, 758 n.3 (2004); State v. Snowden, 385 Md. 64,
90-91, 867 A.2d 314, 329 (2005).
    In Sisavath, the court rejected the notion that “an ‘objective
witness’ should be taken to mean an objective witness in the same
category of persons as the actual witness–here, an objective four year
old.” Sisavath, 118 Cal. App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758
n.3. Instead, the court found that the Supreme Court likely meant that
a statement is testimonial if its use in a criminal prosecution is
reasonably foreseeable to an objective observer. Sisavath, 118 Cal.
App. 4th at 1402 n.3, 13 Cal. Rptr. 3d at 758 n.3.


                                  -63-
    In Snowden, the court recognized that the confrontation clause is
designed to protect the fundamental rights of the accused. Snowden,
385 Md. at 90, 867 A.2d at 329. The court noted that the interest in
protecting victims from testifying may never outweigh the explicit
confrontation clause guarantee of the right to be confronted with the
witnesses at trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing
Coy v. Iowa, 487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108
S. Ct. 2798, 2802-03 (1988). The court, therefore, concluded that “an
objective test, using an objective person, rather than an objective
child of that age, is the appropriate test for determining whether a
statement is testimonial in nature.” Snowden, 385 Md. at 90-91, 867
A.2d at 329.
    Under the plurality’s holding, the protections of the confrontation
clause will not apply to an entire category of out-of-court statements
by young children. The plurality holds that a child’s age may be
considered in determining whether a reasonable declarant would
understand that his or her statement could be used in a subsequent
prosecution. Slip op. at 40. Very young children, however, are simply
not aware of the existence of the criminal justice system and are,
therefore, incapable of anticipating that their statements likely would
be used in a prosecution. Thus, under the plurality’s decision, the
confrontation clause will not apply to statements of children under the
age where they become aware of the criminal justice system, at least
when the statement is made to someone other than a government
agent.
    This result cannot be squared with the confrontation clause. The
confrontation clause provides that a criminal defendant “shall enjoy
the right *** to be confronted with the witnesses against him.” U.S.
Const., amend. VI. The plain language of this constitutional provision
indicates that it applies to all witnesses. There is no express exception
for testimony of child witnesses, and the Constitution contains no
provision creating a testimonial privilege for them. Child witnesses
often provide the critical evidence in criminal prosecutions. The
plurality’s holding simply does not comport with either the express
language of the confrontation clause or the Supreme Court’s decision
in Crawford.
    I would note that there are ways to satisfy a defendant’s right to
confrontation while mitigating any potential impact of testifying on
a child witness. In this case, Nancy Machonkin, a clinical child

                                  -64-
psychologist, testified that M.M. could possibly become acclimated
to the courtroom in a short time by visiting the courtroom when it was
empty, talking to the judge, and meeting the attorneys and other
participants in the trial. Defendant suggests that M.M.’s anxiety or
fear might have been reduced by allowing her to testify with her
mother nearby or by testifying in a room other than the courtroom.
Further, M.M. could have been allowed to testify by closed-circuit
television if certain requirements were met. See 725 ILCS 5/106B–5
(West 1998). Testimony by closed-circuit television was an option in
this case that may have greatly reduced any adverse effects of
testifying. See 725 ILCS 5/106B–5 (West 1998). Although these and
other steps may possibly be taken to acclimate a child to testify, the
interest in protecting children from testifying may not outweigh the
explicit constitutional right to be confronted with the witnesses at
trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing Coy v. Iowa,
487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108 S. Ct. 2798,
2802-03 (1988).
     In sum, I believe that the same test should be applied to all
witnesses in determining whether a statement is testimonial. That test
is whether the circumstances objectively indicate that a reasonable
adult in the declarant’s position would anticipate that his or her
statement likely would be used in a criminal prosecution.
     I agree with the plurality that M.M.’s statements to Ann Grote and
Perry Yates were testimonial. Those statements were made in a
sufficiently solemn setting to be considered testimonial. The objective
circumstances indicate that the primary purpose of those interviews
was to collect information for a possible criminal prosecution. Based
on the objective circumstances, a reasonable adult would have
anticipated that the statements would be used in a criminal
prosecution.
     I disagree, however, with the plurality’s determination that
M.M.’s statement to her mother, Joan G., was not testimonial. The
record shows that M.M. informed her babysitter, Brenda Galete, of
the sexual abuse by “Bob.” Galete went to Joan’s place of
employment. After locating Joan, Galete informed her that M.M.
needed to be taken to the hospital because Galete believed M.M. was
being sexually molested. Joan got into the backseat of the car with
M.M. Galete did not hear any conversation between Joan and M.M.
on the ride to the hospital.

                                 -65-
    Joan testified that Galete came to her workplace and stated they
needed to take M.M. to the hospital. Galete did not tell Joan the
reason that M.M. needed to go to the hospital. Joan got into the
backseat of the car, put her arm around M.M., and asked her, “What’s
wrong?” M.M. stated that “Bob had done something to her.” M.M.
then described the incident of sexual abuse by “Bob.”
    First, I believe that these statements were made with sufficient
solemnity to be considered testimonial. M.M. was driven to her
mother’s workplace. Her mother got off of work, came to the car, and
sat in the backseat with M.M. Her mother, who is undoubtedly an
authority figure to M.M., asked her, “What’s wrong?” M.M. certainly
would have understood that she may be subject to discipline if she did
not treat this matter seriously after having her mother take time off of
work. These facts indicate that this was an important matter. The
seriousness of the situation was apparent. Thus, I would find that the
solemnity requirement was established.
    The next question, then, is whether the circumstances objectively
indicate that a reasonable adult in M.M.’s position would anticipate
that her statement likely would be used in a prosecution. The focus is
on whether “the witness was acting in a manner analogous to a
witness at trial, describing or giving information regarding events
which had previously occurred.” Slip op. at 28. In response to her
mother’s question, M.M. described an incident of sexual abuse by
“Bob.” Thus, M.M. gave information concerning an event that had
previously occurred. Her statement did not focus on her physical
condition or any injury she may have suffered. A reasonable adult in
M.M.’s position would recognize that the acts she was describing
constituted a serious criminal offense. Based on these facts, I would
find that a reasonable adult in M.M.’s position would anticipate that
her statement likely would be used in a prosecution.
    I would, therefore, find that M.M.’s statements to her mother,
Grote, and Yates were testimonial. The admission of those statements
violated the confrontation clause because defendant did not have a
prior opportunity to cross-examine M.M.
    I agree with the plurality that admission of the statements in
violation of the confrontation clause cannot be deemed harmless
error. I also agree with the portion of the plurality opinion addressing
forfeiture by wrongdoing.


                                 -66-
                            III. Conclusion
    In my opinion, this appeal should have been decided based solely
on the section 115–10 issue. See Lee, 214 Ill. 2d at 482 (constitutional
questions should be avoided if a case can be decided on other
grounds). The hearsay exception in section 115–10 was not satisfied
because the evidence did not establish that M.M. was unavailable to
testify. M.M.’s statements to her mother, Grote, and Yates should
have been excluded as inadmissible hearsay. Defendant’s convictions
should be reversed and the cause remanded for a new trial without
admission of those hearsay statements.
    I also disagree with the plurality’s analysis of the confrontation
clause claim. While the plurality holds that only the statements to
Grote and Yates were testimonial, I would hold that those statements
as well as the one to M.M.’s mother were testimonial and should not
have been admitted without satisfying the requirements of the
confrontation clause. Nonetheless, I agree with the plurality’s
ultimate judgment on the confrontation clause claim reversing
defendant’s convictions and remanding the cause for a hearing on
forfeiture by wrongdoing.
    In this case, the other members of this court are divided and
without my vote for one of their positions it would not be possible to
secure the constitutionally required concurrence of four judges for a
decision (see Ill. Const. 1970, art. VI, §3). This appeal would be
dismissed with the effect being the same as an affirmance by an
equally divided court of the decision under review. See People v.
Griffith, 212 Ill. 2d 57, 58 (2004), citing Perlman v. First National
Bank of Chicago, 60 Ill. 2d 529, 530 (1975). In my opinion, affirming
the appellate court’s decision upholding defendant’s convictions is
not the appropriate result, particularly given that Crawford was not
decided until after the appellate court rendered its decision.
Defendant, therefore, did not have the opportunity to present his
claim based upon Crawford in the appellate court, and he would be
denied any relief on that claim if the appellate court judgment were
simply affirmed. Thus, I reluctantly concur specially in the judgment
on the confrontation clause claim reversing defendant’s convictions
and remanding the cause for a hearing on forfeiture by wrongdoing.
I respectfully dissent on the section 115–10 issue.



                                 -67-
    CHIEF JUSTICE THOMAS, dissenting:
    I agree with the plurality’s conclusion that the child’s statement
to her mother was admissible. I also agree with the conclusion that
the child’s statements to Grote and Yates were “testimonial” under
the Crawford/Davis framework.
    I dissent because I believe that the plurality wrongly holds that the
child’s statements to Grote and Yates amounted to reversible error
and were not harmless in light of the overwhelming evidence against
defendant that was properly admitted. I also disagree with the
plurality’s analysis of the forfeiture-by-wrongdoing issue. I believe it
should have been unnecessary to address the forfeiture issue given
that the admissions of the improper statements were harmless error.
Assuming arguendo that the forfeiture issue had to be addressed,
however, I would find that the cause should be remanded for a
determination of whether defendant forfeited his confrontation rights
by his own wrongdoing, but I would not limit that inquiry, as the
plurality does, to the consideration of whether defendant intended to
threaten the victim into not testifying. For all of these reasons and as
more fully explained below, I respectfully dissent.

                     I. Forfeiture by Wrongdoing
    The plurality concludes that the doctrine of forfeiture by
wrongdoing focuses on a defendant’s intent rather than his
wrongdoing. Under the plurality’s view, a defendant should be able
to escape the common law forfeiture doctrine if his motive for
assaulting the victim did not include preventing the victim from later
testifying as a witness. I do not believe that this is a correct
application of the doctrine.
    There is no requirement of intent when it is the defendant’s
assault or murder of the victim that causes the witness’ unavailability.
United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005)
(“There is no requirement that a defendant who prevents a witness
from testifying against him through his own wrongdoing only forfeits
his right to confront the witness where, in procuring the witness’s
unavailability, he intended to prevent the witness from testifying”);
People v. Giles, No. S129852 (March 5, 2007).
    In Giles, the Supreme Court of California recently conducted an
extensive discussion of the common law forfeiture doctrine and held

                                  -68-
that a defendant forfeits his confrontation rights if the witness is
genuinely unavailable to testify and “the unavailability [is] caused by
defendant’s intentional criminal act.” Giles, slip op. at 25. The Giles
court further held that there is no requirement that the defendant
intend to prevent the witness from testifying when committing the
criminal act. Giles, slip op. at 18. In so holding, the California
Supreme Court adopted the reasoning of its Court of Appeal, stating
that
        “ ‘[f]orfeiture is a logical extension of the equitable principle
        that no person should benefit from his own wrongful acts. A
        defendant whose intentional criminal act renders a witness
        unavailable for trial benefits from his crime if he can use the
        witness’s unavailability to exclude damaging hearsay
        statements by the witness that would otherwise be admissible.
        This is so whether or not the defendant specifically intended
        to prevent the witness from testifying at the time he
        committed the act that rendered the witness unavailable.’ ”
        Giles, slip op. at 18-19.
Other courts have applied forfeiture in cases where the defendant is
charged with the same homicide that rendered the witness
unavailable, rather than with some underlying crime about which the
victim was going to testify. See United States v. Emery, 186 F.3d 921,
926 (8th Cir. 1999); United States v. Miller, 116 F.3d 641, 667-68 (2d
Cir. 1997); State v. Meeks, 277 Kan. 609, 615, 88 P.3d 789, 794
(2004).
    The plurality claims that the lone policy behind the forfeiture
doctrine is to deter witness intimidation and that this purpose is not
served if the doctrine is applied in the absence of an intent to prevent
testimony because it is “after all, impossible to deter those who do not
act intentionally.” Slip op. at 18. But the true purpose behind the
common law doctrine of forfeiture by wrongdoing is broader than the
plurality recognizes and should not be confused with the federal
statutory hearsay exception, which does have the limited purpose of
addressing witness intimidation. In that regard, Federal Rule of
Evidence 804(b)(6) provides a statutory hearsay exception for “[a]
statement offered against a party that has engaged or acquiesced in
wrongdoing that was intended to, and did, procure the unavailability
of the declarant as a witness.” Fed. R. Evid. 804(b)(6). Obviously,
this provision requires an intent to prevent the witness from

                                  -69-
testifying. The historical impetus behind the rule indicates that it was
designed to deter the incentive to tamper with witnesses (Fed. R.
Evid. 804(b)(6), Advisory Committee’s Note), especially in the area
of gang or organized crime, which was thought to be on the increase
in the 1980s and early 1990s just prior to the rule’s promulgation (L.
Birdsong, The Exclusion of Hearsay Through Forfeiture by
Wrongdoing–Old Wine in a New Bottle–Solving the Mystery of the
Codification of the Concept into Federal Rule 804(b)6, 80 Neb. L.
Rev. 891, 905-07 (2001)). See also People v. Giles, slip op. at 9-10
(Federal Rule 804(b)(6) is simply an expression of the rule applied in
the glut of witness tampering cases that began to appear in the 1960s
and 1970s when the federal government began placing greater
emphasis on the prosecution of organized crime and drug activity).
     In contrast to the statutory hearsay exception of the federal rule,
the common law doctrine of forfeiture by wrongdoing has a broader
grasp. The United States Supreme Court in Crawford v. Washington,
541 U.S. 36, 62, 158 L. Ed. 2d 177, 199, 124 S. Ct. 1354, 1370
(2004), noted that “the rule of forfeiture by wrongdoing (which we
accept) extinguishes confrontation claims on essentially equitable
grounds.” Crawford never mentioned Rule 804(b)(6), but instead
referred to the common law doctrine, reaching all the way back to the
132-year-old case of Reynolds v. United States, 98 U.S. 145, 25 L.
Ed. 244 (1879). Reynolds emphasized that the common law rule “has
its foundation in the maxim that no one shall be permitted to take
advantage of his own wrong.” Reynolds, 98 U.S. at 159, 25 L. Ed. at
248. By reaching back to the common law underpinnings of the
doctrine rather than simply referring to the federal rule, Crawford is
strong support for the position that intent to prevent a witness from
testifying is not always required for application of the common law
forfeiture doctrine.
     Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982), explained
that the common law forfeiture doctrine has dual purposes: in
addition to being a strong incentive to prevent witness tampering, it
is also based on something similar to the equitable doctrine of clean
hands. Steele elaborated on the broader purposes of the doctrine as
follows: “The law prefers live testimony over hearsay, a preference
designed to protect everyone, particularly the defendant. A defendant
cannot prefer the law’s preference and profit from it, as the Supreme


                                 -70-
Court said in Reynolds, while repudiating that preference by creating
the condition that prevents it.” Steele, 684 F.2d at 1202.
    The Sixth Circuit Court of Appeals emphatically debunked the
notion that a defendant must always intend to prevent a witness from
testifying before losing his confrontation rights on account of his
wrongdoing, explaining that
        “[t]hough the Federal Rules of Evidence may contain such a
        requirement [of intent], see Fed. R. Evid. 804(b)(6), the right
        secured by the Sixth Amendment does not depend on, in the
        recent words of the Supreme Court, ‘the vagaries of the Rules
        of Evidence.’ Crawford, 124 S. Ct. at 1370. The Supreme
        Court’s recent affirmation of the ‘essentially equitable
        grounds’ for the rule of forfeiture strongly suggests that the
        rule’s applicability does not hinge on the wrongdoer’s motive.
        The Defendant, regardless of whether he intended to prevent
        the witness from testifying against him or not, would benefit
        through his own wrongdoing if such a witness’s statements
        could not be used against him, which the rule of forfeiture,
        based on principles of equity, does not permit.” Garcia-Meza,
        403 F.3d at 370-71.
    The plurality claims that the forfeiture doctrine applied in
Reynolds was “extremely narrow” and that the case “unequivocally
imposed an ‘intent’ requirement.” Slip op. at 19. The plurality is
wrong on both counts.
    The doctrine applied in Reynolds was not narrow. Rather, the
Court merely employed language targeted to address the specific facts
presented to it, before turning to the broader purposes of the forfeiture
doctrine. The plurality relies on the specific language to the exclusion
of the general, and thereby misinterprets the forfeiture doctrine.
    In Reynolds, the defendant was indicted on a bigamy charge in the
Territory of Utah. The government wanted to call one of defendant’s
alleged wives as a witness, but when the subpoena was delivered, the
defendant told the officer that the subject was not home, that he
would not tell the officer where she was, and that she would not
appear in the case. Unable to locate the witness on a return visit the
next day, the government immediately attempted to introduce her
prior testimony from a former bigamy trial involving the same
defendant. The court allowed the testimony, and the defendant was


                                  -71-
convicted. The defendant eventually appealed to the United States
Supreme Court, contending that the admission of the testimony
violated his confrontation rights.
    The Supreme Court affirmed the defendant’s conviction, noting
that
            “[t]he Constitution gives the accused the right to a trial at
        which he should be confronted with the witnesses against
        him; but if a witness is absent by his own wrongful
        procurement, he cannot complain if competent evidence is
        admitted to supply the place of that which he has kept away.
        The Constitution does not guarantee an accused person
        against the legitimate consequences of his own wrongful acts.
        It grants him the privilege of being confronted with the
        witnesses against him; but if he voluntarily keeps the
        witnesses away, he cannot insist on his privilege. If, therefore,
        when absent by his procurement, their evidence is supplied in
        some lawful way, he is in no condition to assert that his
        constitutional rights have been violated.” Reynolds, 98 U.S.
        at 158, 25 L. Ed. at 247.
The above-quoted language is specific to the facts and does not
attempt to explain the general parameters of the common law
forfeiture doctrine in all cases. Later in its analysis, however,
Reynolds did turn to the general, equitable basis for the rule:
        “The rule has its foundation in the maxim that no one shall be
        permitted to take advantage of his own wrong; and,
        consequently, if there has not been, in legal contemplation, a
        wrong committed, the way has not been opened for the
        introduction of the testimony. We are content with this long-
        established usage, which, so far as we have been able to
        discover, has rarely been departed from. It is the outgrowth of
        a maxim based on the principles of common honesty, and, if
        properly administered, can harm no one.” Reynolds, 98 U.S.
        at 159, 25 L. Ed. at 248.
    Unlike the plurality, most courts have not interpreted Reynolds as
fashioning an “intent” requirement. See, e.g., United States v. Garcia-
Meza, 403 F.3d 364 (6th Cir. 2005); United States v. Emery, 186 F.3d
921 (8th Cir. 1999); United States v. Miller, 116 F.3d 641 (2d Cir.
1997); United States v. Natson, 444 F. Supp. 2d 1296 (M.D. Ga.


                                  -72-
2006); Grayson v. Carey, No. 2:03–cv–1694–MCE–KJM (E.D. Cal.
2006); People v. Giles, No. S129852 (March 5, 2007); Gonzalez v.
State, 155 S.W.3d 603, 610 (Tex. App.–San Antonio 2004); State v.
Meeks, 277 Kan. 609, 88 P.3d 789 (2004); People v. Vasquez, No.
04CA0729 (Colo. App. November 30, 2006), cert. granted, No.
07SC50 (March 26, 2007); State v. Brooks, No.
W2004–02834–CCA–R3–CD (Tenn. Crim. App. August 31, 2006)
(unpublished order), leave to appeal granted (January 26, 2007);
People v. Bauder, 269 Mich. App. 174, 184-85, 712 N.W.2d 506,
513-14 (2005); State v. Moore, 117 P.3d 1 (Colo. App. 2004);
Commonwealth v. Salaam, 65 Va. Cir. 405 (2004). Giles is
representative of the above-authority in noting that Reynolds “did not
suggest that the rule’s applicability hinged on [the defendant’s]
purpose or motivation in committing the wrongful act.” Giles, slip op.
at 8.
     The plurality vigorously argues that the federal rule codified the
common law rule in all respects, thereby settling the question of
whether intent is always required in every case. For this proposition,
the plurality relies upon language from Davis v. Washington, 547
U.S. ___, ___, 165 L. Ed. 2d 224, 244, 126 S. Ct. 2266, 2280 (2006),
where the Court stated in passing that it was taking “no position on
the standards necessary to establish *** forfeiture, but federal courts
using Federal Rule of Evidence 804(b)(6), which codifies the
forfeiture doctrine, have generally held the Government to the
preponderance-of-the-evidence standard.”
     The language relied upon by the plurality is clearly dicta in so far
as it can be claimed to support a requirement of intent. Davis did not
in any way purport to settle the question of whether intent is required
when it is the assault or murder of the witness that causes the
witness’s unavailability. It was not even argued in Davis that the
witness was unavailable due to any specific conduct on the part of the
defendant. Nor was it argued that the witness was unavailable as a
result of a direct assault or murder of the victim. Rather, the
government, joined by various amici, made only a general argument
that domestic violence cases require greater flexibility in the use of
testimonial statements because the crime is “notoriously susceptible
to intimidation or coercion of the victim to ensure that she does not
testify at trial.” Davis, 547 U.S. at ___, 165 L. Ed. 2d at 244, 126 S.
Ct. at 2279-80. It was in responding to this general argument that the

                                  -73-
Court noted that “when defendants seek to undermine the judicial
process by procuring or coercing silence from witnesses and victims,
the Sixth Amendment does not require courts to acquiesce.” Davis,
547 U.S. at ___, 165 L. Ed. 2d at 244, 126 S. Ct. at 2280. There is
nothing remarkable about this statement given the context in which
it was made and that all prior precedent is in agreement.4 Thus, Davis
does not “strongly connote” a requirement of intent, as the plurality
claims, when it is the assault or murder of the witness that directly
causes the witness’ unavailability. See slip op. at 20.
    The plurality leaves out from its block quote of Davis (see slip op.
at 19) the rest of the paragraph it is quoting from, which goes on to
state: “We reiterate what we said in Crawford: that ‘the rule of
forfeiture by wrongdoing ... extinguishes confrontation claims on
essentially equitable grounds.’ [Citation.] That is, one who obtains
the absence of a witness by wrongdoing forfeits the constitutional
right to confrontation.” Davis, 547 U.S. at ___, 165 L. Ed. 2d at 244,
126 S. Ct. at 2280. The plurality does note this principle at the
beginning of its analysis, but then abandons it. Unfortunately, the
language the plurality abandons is the core principle on which the
forfeiture-by-wrongdoing doctrine rests. That it encompasses the
more narrower concern of witness intimidation does not negate its
broader application.
    Cases that have been decided after Davis do not interpret its
language the same way that the plurality does. Recent cases have held
that Davis does not impose a requirement that a defendant intend to
prevent a witness from testifying in every case before the common
law forfeiture doctrine may be applied. Giles, slip op. at 8, 18 (Davis
reaffirmed the equitable nature of the forfeiture doctrine and does not
require an intent requirement in nonwitness-tampering cases); United


    4
     The Supreme Court of California in Giles recently considered this
language from Davis and concluded that it “only describes the traditional
form of witness tampering cases–in the context of the domestic violence
cases therein where the victims did not testify at trial–without limiting the
forfeiture doctrine to witness tampering cases. More important, Davis
reaffirmed the equitable nature of the forfeiture by wrongdoing doctrine
and declared that Crawford, in overruling Roberts, supra, 448 U.S. 56, did
not destroy the ability of courts to protect the integrity of their proceedings.
(Davis, supra, 126 S. Ct. at p. 2280.)” Giles, slip op. at 19 n.5.

                                     -74-
States v. Natson, 444 F. Supp. 2d 1296 (M.D. Ga. 2006) (the common
law forfeiture doctrine is broader than the federal hearsay exception,
as it provides that a defendant who eliminates a witness forfeits any
constitutional right to confront that witness regardless of defendant’s
motive); People v. Vasquez, No. 04CA0729 (Colo. App. November
30, 2006) (neither Davis nor Reynolds impose a requirement of intent
under the common law forfeiture by wrongdoing doctrine adopted by
Crawford); State v. Brooks, No. W2004–02834–CCA–R3–CD (Tenn.
Crim. App. August 31, 2006) (unpublished order) (unlike the
statutory hearsay exception, the common law forfeiture by
wrongdoing doctrine is applied regardless of defendant’s intent in
committing a homicide), leave to appeal granted (Jan. 26, 2007);
Grayson v. Carey, No. 2:03–cv–1694–MCE–KJM, slip op. at 2, 18-
19 (E.D. Cal. August 10, 2006) (once a court has found as a
preliminary matter that the defendant’s conduct caused the witness’
absence, the Reynolds court would recognize that there is no error in
admitting the absent witness’ testimony even where the defendant
argues that his assault of the victim was without “premeditation or
malice”). Given that the use of the word “codifies” in Davis was
obviously dicta and that it was not written to address any argument
about an “intent” requirement, it is not surprising that these five post-
Davis cases did not find the language significant or even feel the need
to mention it when discussing Davis.
    The plurality acknowledges that the vast majority of courts hold
intent irrelevant when it is the murder of the witness that causes the
witnesses unavailability and the defendant is on trial for that very
murder. The plurality claims that these cases are distinguishable
because they all predate Davis. But Giles, Natson, Vasquez, Brooks
and Grayson–all holding intent irrelevant–were all decided after
Davis.
    The plurality also claims that the present case is distinguishable
because the witness was not murdered, but only assaulted, and murder
is different because “a defendant knows with absolute certainty that
a murder victim will not be able to testify” and intent can therefore be
presumed. See slip op. at 24. The plurality cites no authority for this
proposition, probably because it makes no sense. Many times the
conduct that leads to a homicide is committed without an “absolute
certainty” that the conduct will result in death, yet alone that it will
result in the would-be witness being unable to testify. It is disturbing

                                  -75-
that under the plurality’s approach, if a defendant assaulted a victim
by hitting him over the head and the victim subsequently died from
his injuries, statements made by the victim before he died would be
admissible at the murder trial. But if instead of dying the same victim
went into a coma and remained permanently on life support, any
statements made before the victim went into the coma would not be
admissible at a trial for battery or attempted murder. Additionally, the
plurality’s argument on this point is inconsistent with its claim that
the federal rule of evidence “codified” the common law doctrine.
     The plurality also emphasizes that most, if not all, of the cases to
hold intent irrelevant involved the death of the victim. But this is
obviously because it is a much rarer case for the victim to somehow
survive a defendant’s attack and yet be unavailable to testify within
the meaning of the sixth amendment. Wisely, the chief authority I
discuss above does not limit the forfeiture rule’s application to cases
involving the death or murder of the victim. See United States v.
Garcia-Meza, 403 F.3d 364 (6th Cir. 2005) (defendant’s wrongdoing
must merely prevent the witness’ unavailability); People v. Giles, slip
op. at 25 (the rule applies when the witness is “genuinely unavailable
to testify” and “the unavailability is caused by the defendant’s
intentional criminal act”).
     Aside from domestic violence cases, most crime victims that are
not killed would want to testify against their assailants, provided they
are left physically and mentally capable of doing so. Domestic
violence cases are different, however, because those cases have a low
victim-cooperation rate, which is usually due to either a general fear
of the defendant or some remaining partiality on the victim’s part
toward the defendant. It is not that the assault itself has left the victim
physically or mentally incapacitated. In sum, there is often an
insufficient causal connection between the wrongdoing and the
unavailability for application of the forfeiture doctrine in domestic
violence cases absent a showing that the defendant intended to
prevent the witness from testifying in connection with his conduct. It
is also questionable whether a domestic violence victim who simply
refuses to testify without any reason offered by the State is truly
“unavailable” within the meaning of the confrontation clause. For all
of these reasons, it is not surprising that the cases that find intent
irrelevant usually involve the murder of the victim.


                                   -76-
    In a footnote, the plurality does cite one nonhomicide case where
the forfeiture doctrine was at issue–State v. Henderson, 35 Kan. App.
2d 241, 253, 129 P.3d 646, 654 (2006), leave to appeal granted, No.
92251 (September 19, 2006)–a child sex abuse case where the court
required intent. See slip op. at 23 n.2. But Henderson is easily
distinguishable from the situation before us. The child in Henderson
was unavailable solely because of her age–she was only three years
old and was unable to understand the proceedings, the questions
asked, and her duty to testify truthfully. Unlike the present case, there
was no causal connection established between the defendant’s assault
and the witness’ unavailability. See Henderson, 35 Kan. App. 2d at
253-54, 129 P.3d at 655 (the court noted that “[c]ausation between
the action of the defendant and the witness’ absence appears key” and
the State did not cite any authority showing that the doctrine of
forfeiture had been applied solely due to age). Thus, Henderson is
actually consistent with my argument.
    The plurality cites People v. Melchor, 362 Ill. App. 3d 335, 351
(2005), appeal allowed, 218 Ill. 2d 551 (2006) (table), to imply that
it might support a rule that does not require “intent” if the defendant’s
wrongdoing results in the death of the victim. Melchor noted in dicta
that a defendant on trial for the actual murder of the witness whose
out-of-court testimony the prosecution wishes to present should
clearly not be allowed to escape the forfeiture-by-wrongdoing
doctrine based on his lack of a motive to prevent testimony when he
killed the victim. Melchor observed that “[s]uch a rule is certainly
logical; otherwise, defendants would be able to profit from their own
wrongdoing. ‘ “[W]hen confrontation becomes impossible due to the
actions of the very person who would assert the right, logic dictates
that the right has been waived.” ’ ” Melchor, 362 Ill. App. 3d at 351,
quoting Devonshire v. United States, 691 A.2d 165, 168 (D.C. App.
1997). Melchor went on to state that this exception to the intent
requirement should only be applied in the situation described above
and not where the defendant is “not on trial for killing the individual
whose testimony the prosecution sought to admit.” Melchor, 362 Ill.
App. 3d at 351.
    There is no principled basis, however, for distinguishing between
situations where the witness is unavailable because of a murder
committed by a defendant from situations where the witness is
unavailable because of an assault committed by a defendant. A

                                  -77-
witness can be just as unavailable to testify regardless of whether a
defendant’s assault leaves the witness dead, or in a comatose state on
life support, or in some way mentally or emotionally incapable of
testifying. See Parrot v. Wilson, 707 F.2d 1262 (11th Cir. 1983)
(witness suffering from mental condition was properly declared
unavailable where it was unlikely her condition would improve in the
next six months).
     The key inquiry should be on whether or not it is the defendant’s
wrongdoing that has prevented the witness from testifying when it is
the defendant’s assault or murder of the would-be witness that causes
her unavailability. The equitable doctrine of forfeiture by wrongdoing
simply does not allow a defendant to profit from wrongdoing that
prevents a witness’ testimony in such a case, and this is true
regardless of motive and regardless of whether the victim is left dead
or alive. All that should be required is a direct causal connection
between the wrongdoing (the assault) and the unavailability. The
plurality’s contrary approach in requiring a specific intent to prevent
testimony when committing the crime allows a defendant to convert
a constitutional shield into a sword.
     The two federal cases cited by the plurality are not helpful to its
position. See Steele, 684 F.2d at 1202; United States v. Thompson,
286 F.3d 950 (7th Cir. 2002). Steele, discussed above, noted the dual
purposes of the common law doctrine in a case where a defendant
purposely intimidated a witness, so the court did not have occasion to
address whether intent was required for application of the doctrine.
     Thompson is also inapplicable. There, the court never addressed
the common law doctrine of forfeiture by wrongdoing. Instead, the
court only entertained the government’s limited argument based on
Federal Rule of Evidence 804(b)(6), which by its plain language
requires intent. See Thompson, 286 F.3d at 961-62. Furthermore,
Thompson was decided over two years before Crawford “accepted”
the common law doctrine and noted that the sixth amendment right
does not depend on “the vagaries of the rules of evidence.” Crawford,
541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.
     For similar reasons, the two out-of-state cases relied upon by the
plurality–Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d
158 (2005), and State v. Alvarez-Lopez, 136 N.M. 309, 98 P.3d 699
(2004)–also do not support its position. In Edwards, the
Massachusetts Supreme Court held that when a defendant colludes

                                 -78-
with a witness to procure the witness’ unavailability, the defendant
forfeits his confrontation rights the same as if he had intimidated the
witness. Edwards, 444 Mass. at 539-40, 830 N.E.2d at 170. The court
did not consider whether a defendant must intend to prevent a witness
from testifying when it is the assault or murder of the victim that
renders the victim unavailable to testify. In Alvarez-Lopez, the New
Mexico Supreme Court considered the forfeiture doctrine only in the
context of Federal Rule of Evidence 804(b)(6). Alvarez-Lopez, 136
N.M. at 314, 98 P.3d at 704. Moreover, the situation there is easily
distinguishable because it did not involve an assault or murder of the
victim, but instead the “wrongdoing” at issue was that the defendant
made himself a fugitive from justice for seven years. Thus, the court
found that there was a lack of a sufficient causal connection between
the defendant’s “wrongdoing” and the witness’ unavailability.
Alvarez-Lopez, 136 N.M. at 314, 98 P.3d at 704. A lack of a causal
connection is not an issue, however, where it is the defendant’s direct
assault or murder of the witness that causes the unavailability.
     Some might suggest that if forfeiture by wrongdoing is applied to
cases where the defendant is on trial for the very crime that has
rendered the witness unavailable, the trial court will be required to
essentially conclude, as a predicate for admissibility of the evidence,
that the defendant is guilty of the very crime with which he is
accused. The supreme courts of the states of California and Kansas
have recently rejected this precise argument. See People v. Giles, No.
S129852 (March 5, 2007); State v. Meeks, 277 Kan. 609, 615, 88 P.3d
789, 794 (2004). This so-called “bootstrapping problem” does not
undermine the equitable reasons for the forfeiture doctrine, does not
present the trial court with any undue procedural difficulty, nor does
it preclude it from determining the preliminary facts necessary for an
evidentiary ruling merely because they coincide with an ultimate issue
in the case. See Giles, slip op. at 22. A court can determine forfeiture
as a preliminary factual issue as it would with any other hearsay
statement, and assuming the grounds for forfeiture have been proven
by a preponderance of the evidence, the court will admit the evidence.
Giles, slip op. at 22. This ruling will not infringe in any way upon the
ultimate question for the jury’s resolution–whether the defendant is
guilty beyond a reasonable doubt of the crime charged. Giles, slip op.
at 22. I agree with the Meeks and Giles courts’ assessments and would
adopt their analyses.

                                 -79-
    For all of the above reasons, I would remand for an evidentiary
hearing on the forfeiture question, but I would not limit it to a
determination of whether defendant threatened the victim into not
testifying, as the plurality does. Instead, I would have the inquiry
center on whether the witness was unavailable due to defendant’s
wrongdoing. Here, the record is replete with facts indicating a causal
connection between defendant’s wrongdoing and the unavailability
of the witness. Dr. Machonkin testified that the victim of tender age
was psychologically traumatized because of the assault, that her
symptoms would reemerge if she should be called to testify, and that
in the doctor’s expert opinion, the victim was legally unavailable to
testify. Under these facts, whether defendant forfeited his
confrontation rights with respect to the victim’s statements because
of his own wrongdoing should be a factual question to be determined
by the trial court in the first instance.
    Having explained how I would resolve the forfeiture-by-
wrongdoing issue differently than the plurality, I further note that I
would not have addressed the issue in the first place because I would
have found that the admissions of the child’s statements to Grote and
Yates were harmless. Thus, I would affirm defendant’s conviction
without any remand for further proceedings or a new trial.

                           II. Harmless Error
    The plurality acknowledges that Crawford violations are subject
to a harmless error analysis and that the test to be applied is “whether
it appears beyond a reasonable doubt that the error at issue did not
contribute to the verdict obtained.” Slip op. at 47. This court has
identified three approaches for measuring error under that test, which
are as follows: (1) focusing on the error to determine whether it might
have contributed to the conviction; (2) examining the other evidence
in the case to see if overwhelming evidence supports the conviction;
and (3) determining whether the improperly admitted evidence was
merely cumulative or duplicates properly admitted evidence. People
v. Patterson, 217 Ill. 2d 407, 428 (2005), citing People v. Wilkerson,
87 Ill. 2d 151, 157 (1981). The plurality believes that the evidence
was close and that it could not decide beyond a reasonable doubt that
the improper evidence did not contribute to the verdict. But I believe
that the opposite conclusion is apparent when considering the other
evidence that was properly admissible.

                                 -80-
    The plurality concludes, as I do, that the child’s statement to her
mother on the way to the hospital was correctly admitted. See slip op.
at 44-45. With respect to that statement, the mother testified that she
held her daughter close in the backseat of the car and asked her what
had happened. The child responded that she and “Robert Stechly”
were laying in bed and had taken a nap. The child then described an
incident of sexual abuse committed by defendant against her, stating
that “there was white stuff coming out of his pee pee,” and that he
pushed her head down to make her taste it. The child also told her
mother that defendant said that if she told about the incident, he
would hurt her. Thus, it is not surprising that the child spoke quietly
enough so that the conversation was not heard in the front seat of the
car. The other statements to Grote and Yates were essentially
cumulative of the one to the mother.
    The plurality’s fixation on the fact that the child did not refer to
defendant by his full name to babysitter Galete attempts to obfuscate
that the child did clearly identify her assailant to her mother. The
plurality’s argument on this point is inconsistent. On the one hand,
the plurality is trying to emphasize that there are other people named
Bob in the child’s life, but then when the child specifically identifies
a particular Bob, the plurality wants to discredit that identification by
claiming that it is “not logical” for the child to identify her assailant
by his full name to someone she knows. I fail to see the logic in the
plurality’s argument. But more importantly, the plurality does not
persuasively explain why defendant’s confession does not clear up
any possible doubt.
    The plurality admits the strong similarity between the properly
allowed statements to the mother and Galete and the improperly
admitted statements to Grote and Yates, but in an odd non sequitur
concludes that the similarity renders the statements noncumulative.
See slip op. at 47. It claims that a new trial is warranted because the
similarity of the statements served to strongly reinforce their
believability. Slip op. at 51.
    The plurality’s conclusion is peculiar because it completely
ignores that the believability of the child’s statement to her mother
was strongly reinforced by other competent testimony and evidence
presented in the case. The plurality seems to be creating a new
harmless error standard that holds that if some compelling additional
evidence of defendant’s guilt is thrown out, a defendant is entitled to

                                  -81-
have his conviction reversed even if the remaining evidence is
overwhelming and the discarded evidence is cumulative. This, of
course, is not and should not be the law.
    Turning to the other compelling and properly admitted evidence
in the case in addition to the child’s statement to the mother, I note
that defendant himself presented the testimony of Brenda Galete, the
child’s babysitter during the relevant period. Her testimony
corroborated the testimony of the mother, and certainly reinforced the
believability of the child’s statements. On cross-examination, Galete
testified that on January 13, 1999, she had a conversation with the
child in which the child told her that “Bob” had “pushed her head
down on his penis and made her lick stuff from his penis and that it
was sour and bitter.” The child did not like the taste of it so she
washed her mouth out. The child also said that she was afraid and
repeatedly said that she did not want to do it. Galete then relayed all
this information to police investigator Radz. Galete further testified
that the child did not specify which “Bob” had abused her. Finally,
Galete noted that two years had now passed since her conversation
with the child and with investigator Radz, and Galete could not now
remember whether she had told the investigator whether or not the
“Bob” the child referred to was the mother’s boyfriend. Radz,
however, testified that Galete had told him that the “Bob” the child
referred to was the mother’s boyfriend. It was undisputed that
defendant was the mother’s boyfriend at the relevant time.
    The plurality acknowledges that the child’s description of the
crime to babysitter Galete was very similar to what the child told her
mother, which was also very similar to the details confessed to by
defendant. But the plurality ignores this great similarity by venturing
off to remark that there was “a reason that Galete was a witness for
the defense, rather than for the prosecution.” Slip op. at 48. I agree
that there was a reason Galete was called as a witness for the defense.
But that reason is not the one the plurality implies. Galete was called
by the defense because she was unsure whether the child’s reference
to “Bob” as her abuser referred to defendant. Even though Galete’s
testimony favored the prosecution in light of the whole record,
defendant took the chance of calling her in hopes of supporting his
incredible trial testimony that he only confessed to the crime in
accurate detail because he thought the police would discover the real
truth later. Defendant’s detailed confession to the serious and

                                 -82-
embarrassing conduct involved here is enough to dispel all doubts
that defendant was the “Bob” the child identified.
    The plurality adopts defendant’s argument that there was some
confusion over whether defendant was the “Bob” referred to in the
child’s statements. But I believe that defendant’s written confession
to police, which was properly admitted, dispels beyond a reasonable
doubt any possible confusion about whether defendant was the
perpetrator of the crime. Before making oral and written confessions
to the police that acknowledged sexual contact with the child,
defendant was informed of his Miranda rights several times, which
included the following warning: “What you say can and will be used
against you in a court of law.” See Miranda v. Arizona, 384 U.S. 436,
469, 16 L. Ed. 2d 694, 720-21, 86 S. Ct. 1602, 1625 (1966) (the right
to remain silent must be accompanied by the explanation that
“anything said can and will be used against the individual in court”).
Defendant testified that he understood the rights explained to him and
that he voluntarily gave his written confession. This is not a case
where defendant challenged his confession as involuntary. Before
giving his written confession, defendant broke down and wept and
acknowledged that he sexually assaulted the child. Defendant’s
written statement then recounted an incident of oral sex with the
child, but outrageously claimed that it was instigated by the child
after they awoke from a nap. He admitted, however, that he told the
child that she could lick his penis. Defendant further claimed that he
told the child to get defendant’s penis out of her mouth when he
realized that it was the child and not her mother. He then took the
child to the washroom and made her use mouthwash to get “the stuff”
out of her mouth.
    By the time of trial, defendant changed his story to deny any
sexual contact and claimed that he only confessed because he was
tired, wanted to go home, and figured the police would discover the
real truth later. This trial testimony, however, was impeached by a
sworn statement defendant made in court on February 1, 2000, in
which he stated that everything in his written confession to police was
true and that that was why he signed it. Defendant’s new story at trial
was also of course impeached by defendant’s knowledge at the time
he made his confession that anything he said to police would be used
against him in court. Given the testimony of the mother, babysitter
Galete and the defendant’s own confession, I see no basis for the

                                 -83-
plurality’s failure to conclude that the error in the admission of the
statements to Grote and Yates was anything other than harmless
beyond a reasonable doubt.
     The plurality attempts to cast doubt on defendant’s detailed
confession (and also apparently defendant’s later swearing in open
court that his confession was true) by citing defense counsel’s
comment that defendant suffered from a “mental disability” and
therefore could not understand his Miranda rights. See slip op. at 50.
There are three problems with this point. First, it is beyond dispute
that arguments of counsel are not evidence and should not be
considered as such. Second, the plurality’s argument does nothing to
explain why defendant’s ratification of his confession in open court
was not legitimate. And third, the evidence at trial did not support
defense counsel’s argument that defendant could not understand his
Miranda rights because of cognitive difficulties.
     Defendant himself admitted he could read. Defendant’s own
expert testified that defendant had average grades in school, and
while an adult took truck-driving classes, graduating with excellent
grades. There were two court-appointed experts, and they both
testified on behalf of the State that defendant had the ability to
understand and waive Miranda rights. One of the experts
administered an IQ test where defendant scored only slightly below
average and nothing indicated that defendant’s written or verbal skills
were impaired. Moreover, one of the court-appointed experts also
testified that defendant’s confession in blaming the victim and
presenting a fantastic explanation was classic pedophile behavior.
     Even though the excluded evidence was merely cumulative of the
properly admitted evidence and the properly admitted evidence was
overwhelming, the plurality flails at the air to come up with some
reason why the improper evidence should not be considered
cumulative and why the proper evidence should not be considered
overwhelming. It points to the fact that some of the improper
evidence included demonstrations with dolls and that one of the
victim’s recollections was in response to the question, “Can you tell
me about Robert Stechly?” But even if this evidence could be viewed
as adding additional strength to the State’s case, it does not mean that
this court should deem it as “contributing to the finding” for purposes
of a harmless error analysis. Under the plurality’s approach, a new
trial would be warranted whenever evidence that is additionally

                                 -84-
damaging to the defense is excluded no matter the overwhelming
nature of the remaining evidence.
     Finally, the plurality attempts to justify its reversal based on the
circumstance that the first trial in this case ended in a mistrial.
However, the second trial was conducted by way of a stipulated bench
trial, and there is no indication at all that the trial court had any
trouble concluding that defendant was guilty beyond a reasonable
doubt. Furthermore, as our recent decision in People v. Nitz, 219 Ill.
2d 400, 413-14 (2006), makes clear, in deciding questions of plain or
harmless error, we do not look to the actual jurors and their subjective
mind-sets, but rather we are to look objectively at what a rational trier
of fact would do when confronted with the properly admitted
evidence. Thus, the fact that a mistrial was declared because some
other jury or fact finder in a different proceeding could not agree on
a verdict is completely irrelevant to our harmless error analysis. The
plurality’s consideration of the subjective mind-set of a previous trier
of fact amounts to an abandonment of its responsibility to look at the
evidence objectively.
     While a reviewing court in making its harmless error
determination should not become a “second jury” to determine
whether a defendant is “guilty,” a court should ask in a typical
appellate-court fashion, “whether the record contains evidence that
could rationally lead to a contrary finding.” Neder v. United States,
527 U.S. 1, 19, 144 L. Ed. 2d 35, 53, 119 S. Ct. 1827, 1839 (1999).
An otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt. Delaware v. Van
Arsdall, 475 U.S. 673, 681, 89 L. Ed. 2d 674, 684, 106 S. Ct. 1431,
1436 (1986). Given the two properly admitted, almost identical
statements of the child, along with defendant’s detailed confession
and his admission in open court that the confession was true, added
with defendant’s improbable explanation for having confessed to a
serious–and certainly embarrassing–felony offense, I believe that the
error was harmless.
     Because the properly admitted evidence was overwhelming, it is
not significant that the trial court considered the cumulative
statements to Grote and Yates as competent evidence. The child’s
properly admitted statements to her mother and Galete, along with
defendant’s confession, cleared up any doubt that he committed the

                                  -85-
crime. Thus, I fail to see why the admission of the statements to Grote
and Yates should not be deemed harmless error under an objective
analysis of the properly admitted evidence.

   JUSTICE KARMEIER joins in this dissent.




    JUSTICE GARMAN, also dissenting:
    I join in Chief Justice Thomas’ dissent with respect to his
harmless error analysis. I do not, however, join in his analysis of the
forfeiture-by-wrongdoing issue. In my view, the admissible evidence
was sufficient to support defendant’s convictions. Accordingly, it is
unnecessary to address any of the other issues raised in this appeal.




                                 -86-
