¶35 (dissenting) — As part of Timothy John Dobbs’s two-week campaign of harassing and stalking C.R., Dobbs warned C.R. not to call the police. Despite these threats, C.R. called the police after Dobbs pounded on her door and slashed her tires.
¶36 Three days later, Dobbs apparently fired several shots into C.R.’s residence. Despite Dobbs’s threats not to call the police, C.R. again called the police. Later that same evening, C.R. ran to her neighbor’s house, screaming that Dobbs was present and had a gun. The neighbor called the police, and C.R. told the police about Dobbs’s threats and her fear that he would kill her.
¶37 The police apprehended and jailed Dobbs. The next night, Dobbs called from the jail and left a voice mail pleading with her not to go forward with charges and threatening her if she proceeded. Despite Dobbs’s threats, C.R. played the voice message for the police and showed them two threatening text messages he had sent a few days earlier.
¶38 There is no evidence of any other threats by Dobbs against C.R. for the next two months, while Dobbs was confined in jail. Thus, before Dobbs was arrested and jailed, C.R. repeatedly reported Dobbs’s threats and attacks to police. Two months later, without any further known threats by Dobbs and while Dobbs was still jailed, C.R. failed to attend his trial.
I. The state did not provide clear, cogent, and convincing evidence that Dobbs caused C.R.’s absence at trial
¶39 The majority concludes that these facts clearly, cogently, and convincingly prove that Dobbs’s actions caused *19C.R.’s absence at trial. But the majority’s conclusion is mere speculation in light of the multiple plausible theories for C.R.’s nonappearance. It is certainly possible that Dobbs’s phone call and voice message to C.R., along with his earlier acts of intimidation and harassment, dissuaded C.R. from testifying. However, it is also quite possible that she had some other motive: if the situation with Dobbs calmed after November 10, she may have decided she did not want him to be convicted. She may also have been intimidated by the prospect of appearing in court or may have had a personal distaste for cooperating with law enforcement once the original threat had dissipated. As early as November 17 she was not showing up for appointments at the police station, and no evidence suggested it was because she was afraid. We do not know what occurred in the months between her sworn statement to police on November 10 and her absence from trial on January 25 to change C.R.’s perspective (even assuming she ever intended to testify); we can only speculate. Where the evidence supports multiple inferences as to the cause of a witness’s failure to appear, we cannot conclude that the evidence of causation is clear, cogent, and convincing. See Wilkie v. Simonson, 51 Wn.2d 875, 877-78, 322 P.2d 870 (1958) (where evidence adduced sustains two equally plausible theories, the party with the burden of proof has failed to meet its burden).
¶40 Indeed, to reach its conclusion, the majority overlooks the remarkable dearth of evidence connecting Dobbs’s actions to C.R.’s nonappearance. None of the officers or civilian witnesses who were in contact with C.R. leading up to the trial offered any evidence on whether C.R. had mentioned a plan not to appear or offered any reasons why C.R. might not appear. Officers contacted C.R. several times after the incident on November 10. And notably, Officer Michael Headley spoke with her the night before the start of trial, and C.R. assured Headley that she would be at trial. Civilian witnesses James Applebury and Sarah Ellis lived *20next to C.R. throughout this period.3 They both offered testimony to support the charges, but neither offered any evidence to explain why C.R. declined to appear.
¶41 The majority’s conclusion is not only speculative, it is counterintuitive. Dobbs’s threats did not prevent C.R. from contacting police before he was arrested and jailed. The majority concludes somewhat implausibly that once behind bars, Dobbs somehow instilled such a fear in C.R. so as to prevent her from testifying at the very trial that would ensure her continued safety by placing Dobbs behind bars for a considerable period of time.
¶42 Under the majority’s analysis, every defendant who threatens a witness not to contact police or to testify automatically forfeits the right to cross-examine the witness. The majority authorizes a court to admit the witness’s prior statements about the crime without any evidentiary support that the threats caused the witness’s absence. Indeed, that is what happened here. The State presented evidence of threats, which had never before prevented C.R. from contacting the police and accusing Dobbs; the trial court concluded that the threats caused C.R.’s absence from trial; and the majority affirms without requiring evidence that Dobbs’s threats caused the absence. The majority’s reasoning is summarized by its assertion, “While Dobbs has the right to confront witnesses against him, he forfeited his right to confront C.R. when he chose to threaten her with violence for cooperating with the legal system.” Majority at 5 (emphasis added). Although the majority later acknowledges that the doctrine of forfeiture by wrongdoing requires proof that the defendant “causes the witness to be unavailable,” id. at 11, the majority fails to find that proof in this case.
¶43 The clear, cogent, and convincing standard of evidence is deliberately difficult: it does not permit courts to assume a link between a defendant’s wrongful behavior and *21a witness’s absence where there may be none. To allow such a weak showing to become Washington’s standard for “clear, cogent, and convincing” would swallow the rule of confrontation. Indeed, it is difficult to imagine a domestic violence case that would not involve threats or actions designed to cause fear in the recipient. Accordingly, the State should at least be required to produce more evidence than was presented here.
¶44 Not only does the majority fail to find proof of causation, it finds little support in the leading cases, State v. Mason, 160 Wn.2d 910, 162 P.3d 396 (2007), and Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008). In both Mason and Giles, the evidence unequivocally established that the defendant prevented the witness from testifying — in both cases the defendant silenced the witnesses by murder. Even in the face of such clarity, we noted that “ 'a defendant’s loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation.’ ” Mason, 160 Wn.2d at 926 (quoting People v. Geraci, 85 N.Y.2d 359, 367, 649 N.E.2d 817, 625 N.Y.S.2d 469 (1995)); U.S. Const. amend. VI. This loss is a danger we refused to take lightly: although the defendant may find other avenues to challenge an incriminating statement’s veracity, the Sixth Amendment enshrines the proposition that none approaches the effectiveness of cross-examination. See Crawford v. Washington, 541 U.S. 36, 61-62, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (“The [Confrontation] Clause thus reflects a judgment . . . about how reliability can best be determined.”).
¶45 These cases additionally demonstrate that we are concerned about a bootstrapping phenomenon peculiar to this context sometimes called “reflexive forfeiture.” Establishing forfeiture by wrongdoing requires a preliminary finding of fact that the defendant’s wrongful conduct prevented the witness’s testimony. Mason, 160 Wn.2d at 926. This, by itself, is not unusual: evidentiary questions frequently require a judge to make crucial pretrial findings pursuant to ER 104. Id. However, “the issue of forfeiture by *22wrongdoing is unique in that the trial judge must often rule on the ultimate question: [e.g.J did the accused kill the alleged victim?” Id. (emphasis added). Indeed, that was the case here because the trial judge had to determine whether Dobbs had committed stalking, felony harassment, and intimidating a witness to decide whether those same acts had procured C.R.’s absence. In this way, establishing forfeiture sometimes requires presupposition of the very guilt the defendant sought to challenge through confrontation, thus ensnaring him or her in a circular trap. Anytime a set of unconfronted, extrajudicial statements tend both to incriminate the defendant and establish grounds for forfeiture, that defendant could lose any opportunity to challenge their accuracy and truthfulness through cross-examination.
¶46 To guard against these dangers, we held that to establish forfeiture, the prosecution must provide clear, cogent, and convincing evidence that the defendant intended to prevent the witness from testifying and that the defendant’s wrongful conduct actually caused the witness’s nonappearance. Id. at 926-27. While acknowledging that conventional pretrial decisions are typically made on a preponderance of the evidence, we concluded that in this context, “the stakes are simply too high to be left to a mere preponderance standard.” Id.4
f 47 In short, our case law makes clear that “the right of confrontation should not be easily deemed forfeited by an accused.” Id. at 927. When we articulate the “clear, cogent, and convincing” standard, this court is commenting on the degree of confidence the trier of fact should have in the *23correctness of its factual conclusions, rather than requiring a certain level of statistical probability. In re Det. of Brooks, 145 Wn.2d 275, 297, 36 P.3d 1034 (2001), overruled on other grounds by In re Det. of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003). This formulation properly reflects the fact that probability with respect to the standard of proof is a measure of the subjective belief of the trier of fact. We require a high degree of confidence under the “clear, cogent, and convincing” standard, which falls just short of “beyond a reasonable doubt,” the category reflecting the highest degree of certainty. While the evidence in this case is sufficient to prove by a preponderance of the evidence that Dobbs caused C.R.’s failure to appear, it fails to rise to the required level of clear, cogent, and convincing evidence.
¶48 Nor does the majority derive support from State v. Fallentine, 149 Wn. App. 614, 618, 215 P.3d 945 (2009), in which witness Anthony Clark made statements to an investigator implicating the defendant, Fallentine, in an arson. Clark and Fallentine were both charged with the arson. Clark later pleaded guilty but refused to testify against Fallentine at trial, despite being ordered by the trial judge to testify. Clark, who was apparently a juvenile, explained to his social worker that he did not want to “ ‘have to look over [his] shoulder all the time’ ” and that Fallentine had threatened to “ ‘put a hit’ ” on him if he testified. Id. at 622-23. Moreover, there was evidence that Clark had low self-esteem; was a “ ‘follower’ ”; did not want to return to foster care under any circumstances; and was motivated to have an ongoing relationship with his sister and Fallentine, even though he was afraid of Fallentine. Id. at 621. After Clark’s first interview with the arson investigator, the social worker said Clark told her that Fallentine carried a firearm and was dangerous, Clark felt he could not get away from Fallentine, and he was worried what would happen if Fallentine found him. After Clark’s second recorded interview with the investigator, he appeared “ ‘frightened, hyper-vigilant and somewhat paranoid.’ ” Id. at 621-22. The social *24worker found Clark on the floor in a fetal position, sobbing. Id. On this basis, the court was persuaded that Fallentine’s threats were the reason Clark refused to appear in court. Id. at 623. The court of appeals affirmed, reasoning, “Viewed in the light most favorable to the State, the evidence shows Fallentine told Clark if Clark testified against him, he would be killed, and that threat actually prevented Clark from testifying.” Id. (footnote omitted).
¶49 Contrary to the majority, I would find that the evidence that Fallentine’s threats caused Clark not to testify was much stronger than the evidence that Dobbs’s threats caused C.R. not to testify. Here, the State adduced no direct evidence of causation and offered only circumstantial evidence. The circumstantial evidence showed a pattern of abuse giving rise to general fear but failed to connect that fear to C.R.’s decision not to testify. We simply do not know why C.R. failed to appear, and to conclude otherwise on these facts would permit a virtual presumption of forfeiture anytime a witness fails to appear after a defendant’s threatening or violent behavior.
¶50 The majority rightly sympathizes with the injustice inherent in domestic violence situations and rightly seeks to protect C.R. and others from Dobbs. Intimate partner abuse is endemic in this State: nearly one in five women experience injury from their partner and almost one-half of all female homicide victims perish at the hands of their current or former partner. Lillian Bensely, Wash. State Dep’t of Health, Health of Washington: Domestic Violence (2004) (updated 2013). These issues must be taken seriously. However, we cannot allow a difficult case to vitiate this court’s role as the guardian guarantor of constitutional protections. The majority eviscerates the constitutional rights of many in order to punish one, building bad law on bad facts.
*25II. The erroneous admission of C.R.’s unconfronted testimony was not harmless beyond a reasonable doubt
¶51 Because I would find a violation of the confrontation clause, I analyze whether the conviction should be reversed due to the error or whether the error was harmless, in which case the conviction may stand.
¶52 A violation of the confrontation clause at trial is harmless only if the State can show “ ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). By contrast, if the conviction is nonetheless supported by “ ‘overwhelming untainted evidence,’ ” we deem the confrontation clause error harmless. Mason, 160 Wn.2d at 927 (quoting State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005)).
¶53 Here, I would find that the trial court’s admission of C.R.’s statements was not harmless beyond a reasonable doubt with respect to Dobbs’s convictions for stalking, felony harassment, or intimidating a witness. Each of these convictions was heavily supported by C.R.’s unconfronted testimony. In both of her sworn written statements to police, C.R. complained that Dobbs had been making death threats and harassing her for two weeks. This evidence would carry substantial weight with a trier of fact, supporting the charges of stalking and felony harassment. And C.R. identified a threatening voice mail from a man she identified as Dobbs urging her not to testify — evidence supporting the witness intimidation charge. Witness James Apple-bury’s untainted testimony may have helped corroborate some of these statements from C.R. but falls short of providing overwhelming independent support for these three convictions.
¶54 Dobbs’s conviction for drive-by shooting presents a closer question, but here too I am unable to conclude, beyond a reasonable doubt, that C.R.’s statements did not *26at least contribute to the verdict. Applebury’s testimony might, by itself, have been sufficient to establish the conviction. Applebury testified that he saw a car he recognized as Dobbs’s pull into the alley and then heard and saw gunshots coming from the alley. This occurred, according to Applebury, almost immediately after he saw someone he believed was Dobbs leaving the vicinity of C.R.’s apartment. And a trajectory analysis of two nearby bullet holes corroborated his account. However, C.R.’s sworn statement from November 10 identified Dobbs as the shooter even more unambiguously: “he got angry & shot 2x at my garage where there is [sic] 2 bullet holes ....” Pl.’s Ex. 37. And her earlier sworn statement on November 7 relayed his previous threats to shoot her. I cannot conclude, beyond a reasonable doubt, that the trier of fact would have found Dobbs guilty of drive-by shooting in the absence of C.R.’s unconfronted statements.
¶55 By contrast, the admission of C.R.’s statements was harmless beyond a reasonable doubt with respect to Dobbs’s convictions for unlawful possession of a firearm and obstruction of a law enforcement officer. The conviction for unlawful possession of a firearm required the State to prove both that Dobbs had a previous conviction for a serious offense and that he was subsequently in possession of a firearm. See RCW 9.41.040(l)(a). Dobbs has such a previous conviction (attempted robbery in the first degree), and Applebury testified that he directly observed Dobbs with a handgun on the evening of November 10. Finally, Dobbs’s conviction for obstructing a law enforcement officer is not based on C.R.’s statements at all, but rather on Officer Nicholas Woodard’s account that Dobbs fled after being ordered to halt.
¶56 When evidence admitted at trial is later found to violate the confrontation clause, remand for retrial is the appropriate remedy. Jasper, 174 Wn.2d at 120. Therefore, because C.R.’s unconfronted statements may have contributed to them, Dobbs’s convictions for stalking, felony ha*27rassment, intimidating a witness, and drive-by shooting should be reversed and retried.
¶57 To conclude, a defendant’s Sixth Amendment confrontation right is forfeited only upon clear, cogent, and convincing evidence that (1) the defendant acted with specific intent to procure the witness’s absence and (2) the defendant’s wrongful conduct is the actual cause of that witness’s absence. I would hold that Dobbs did not forfeit his right to confront C.R. C.R.’s unconfronted, extrajudicial statements to police were therefore admitted in violation of Dobbs’s Sixth Amendment rights. This error was of a constitutional dimension, and I cannot conclude that it was harmless beyond a reasonable doubt. Thus, I would reverse the Court of Appeals and remand for retrial on the charges of stalking, felony harassment, intimidating a witness, and drive-by shooting.
¶58 I dissent.
Madsen, C.J., and Gordon McCloud, J., concur with Wiggins, J.James Applebury is C.R.’s landlord, and Sarah Ellis is C.R.’s neighbor.
Although Washington’s use of the clear, cogent, and convincing standard is more exacting than the preponderance of evidence required by a majority of jurisdictions, see Mason, 160 Wn.2d at 926-27, this formulation of the forfeiture inquiry is not unique. The United States Court of Appeals for the Fourth Circuit, for instance, permits forfeiture of the confrontation right only where “ ‘(1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness.’ ” United States v. Dinkins, 691 F.3d 358, 383 (4th Cir. 2012) (quoting United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005)).