The opinion of the court was delivered by: Justice Freeman
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.
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 The appellate court affirmed (No. 1--01--2869 (unpublished order under Supreme Court Rule 23)), and defendant petitioned for leave to appeal to this court.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.
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 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 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.
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.
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 baby-sit 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 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 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 baby-sitting for M.M. in November 1998 (prior to defendant's baby-sitting 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 baby-sitting 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 baby-sitting." 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 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 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."
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."
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. 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, non-constitutional 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 to her mother, Grote, and Yates violated his rights under the confrontation clause.
I. Defendant's Confrontation Clause Claim
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 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).
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 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 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 non-testimonial 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.
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 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 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 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 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 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);*fn1 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 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.*fn2 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).
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."
There is sufficient evidence here that we cannot dismiss this argument out of hand. However, the applicability of the forfeiture-bywrongdoing 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.
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 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 non-testimonial 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.
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 ...