(concurring) — The majority holds Smith’s constitutional right to confront witnesses was violated and the charges should be dismissed. I agree. However, I write separately because the majority suggests hearsay statements against a defendant could be admitted in some circumstances under RCW 9A.44.120 without the hearsay declarant actually testifying, even when available for trial. Such an application of RCW 9A.44.120, in my view, violates the defendant’s right to confront witnesses against him as guaranteed by the Sixth Amendment.20
The confrontation clause generally requires a witness against the defendant to either testify in court or be “unavailable” before that witness’s hearsay statement may be admitted. Ohio v. Roberts, 448 U.S. 56, 65, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597 (1980); State v. Ryan, 103 Wn.2d 165, 169-70, 691 P.2d 197 (1984) (following Roberts). To understand “unavailable” as used in RCW 9A.44.120, we must keep the requirements of the confrontation clause in mind, reading the statute to conform to the Constitution. See State v. Rohrich, 132 Wn.2d 472, 476, 939 P.2d 697 (1997).
For purposes of the confrontation clause, a witness is “unavailable” only after a good-faith effort by the prosecu*141tion to obtain the witness’s presence at trial is unsuccessful. Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); Ryan, 103 Wn.2d at 171. But the majority erroneously suggests what is needed is a good-faith effort to secure particular testimony from the child. Majority at 136.
Barber held “a witness is not ‘unavailable’. . . unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber, 390 U.S. at 724-25 (emphasis added). California v. Green reiterated this rule: “We held that [the unavailability] exception would not justify the denial of confrontation where the State had not made a good-faith effort to obtain the presence of the allegedly ‘unavailable’ witness.” 399 U.S. 149,162, 90 S. Ct. 1930, 1937, 26 L. Ed. 2d 489 (1970) (emphasis added). And in Ohio v. Roberts the Court held “[t]he basic litmus of Sixth Amendment unavailability is established: ‘[A] witness is not “unavailable” for purposes of. . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.’ ” Roberts, 448 U.S. at 74 (quoting Barber, 390 U.S. at 724-25). In State v. Ryan we recognized the same: “Unavailability in the constitutional sense... requires the prosecutor to make a good faith effort to obtain the witness’ presence at trial.” 103 Wn.2d at 171 (citing Roberts, 448 U.S. at 74) (emphasis added). Actually bringing the witness to the stand and asking relevant questions on direct examination is clearly what is intended. The response, if any, is beside the point.
But the majority treats a witness as “available” only after closed-circuit television is sought and obtained. This suggests a witness must not only be present but also able to testify effectively and comfortably. But the confrontation clause requires no such thing. In a criminal case a witness must be questioned by the prosecution on direct about the contents of the witness’s hearsay statement if it is to be admitted. See Rohrich, 132 Wn.2d at 478. This is necessary to allow effective cross-examination. Id. The confrontation *142clause is then satisfied regardless of any particular response from the witness.
In California v. Green the Supreme Court made clear the substance of a witness’s testimony is irrelevant to the requirements of the clause:
[T]he State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green.
Green, 399 U.S. at 167-68. This theme was sounded again in United States v. Owens where a prior identification was admissible even though the witness could no longer make the same identification at trial due to memory loss. 484 U.S. 554, 560-62, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). The presence of the witness allowed for cross-examination under oath in view of the jury. This was sufficient to satisfy the confrontation clause regardless of how the witness testified. Id. at 560-61. In State v. Clark we similarly found it irrelevant to the right of confrontation that a witness claimed her prior statements had been lies. The prior statements were nonetheless admissible and her hearsay declarations, even when controverted by live testimony, were consistent with the confrontation right of the accused. State v. Clark, 139 Wn.2d 152, 159-60, 985 P.2d 377 (1999). Again it was enough that the witness testified and the defense had an opportunity for cross-examination. Id. at 161.
In all of these cases the opportunity for cross-examination was key. Cross-examination has been characterized as "the ‘greatest legal engine ever invented for the discovery of truth.’” Green, 399 U.S. at 158 (quoting 5 John Henry Wigmore, Evidence § 1367 (3d ed. 1940)). This court has recognized that cross-examination is an indispensable com*143ponent of the confrontation clause because of its role in truth finding. See Rohrich, 132 Wn.2d at 477-78. The majority loses sight of this essential point.
The availability of closed-circuit television-aided testimony was narrowly upheld as constitutional by the Supreme Court in Maryland v. Craig on the grounds that it aided the important public policy of prosecuting child molesters without further traumatizing their victims. 497 U.S. 836, 850, 852, 110 S. Ct. 3157, 3166, 3167, 111 L. Ed. 2d 666 (1990). Yet even the majority in that case stopped far short of allowing a witness to avoid testifying altogether. The majority upheld the statute in part because it still allowed all core elements of the right of confrontation except an actual face-to-face encounter:
Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness’ demeanor—adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition.
Craig, 497 U.S. at 851. In Craig the court was closely split with four justices dissenting. The dissenting justices argued that the right of confrontation should not be made to yield to public policy and that face-to-face confrontation was an essential component of the confrontation right. Craig, 497 U.S. at 862 (Scalia, J., dissenting).
But in any case, neither the majority nor the dissent in *144Craig, nor any other holding, ever suggested that someday testimony could be dispensed with entirely when an available witness is not called to the stand. The confrontation clause continues to require a witness who is available to be present must testify if his or her statement is to be used against a defendant.
The reasoning applied by the majority not only conflicts with the confrontation clause, it also misconstrues RCW 9A.44.150. That statute requires a “motion of the prosecuting attorney” to use closed-circuit television. RCW 9A.44.150 (1). The court’s involvement arises only upon the prosecution’s motion: “[T]he court may allow a child to testify in the presence of the defendant but outside the presence of the jury, via closed circuit television, if the court finds, upon motion and hearing outside the presence of the jury, that the child will suffer serious emotional distress.” RCW 9A.44.150(l)(d) (emphasis added). The majority erroneously reads into the statute a duty of the court to “consider the use of closed-circuit television pursuant to RCW 9A.44.150 if there is evidence that the child victim may be able to testify in an alternative setting.” Majority at 139. Nothing in the statute contemplates such a role for the court. Neither does the statute give the court discretion to deny the request for closed-circuit television on the basis of costliness as the majority suggests. RCW 9A.44.150 provides the prosecution with a powerful tool for obtaining testimony from child witnesses via closed-circuit television at state cost, but fundamentally the responsibility for deciding whether to use this tool in a particular case remains with the prosecution. If the prosecution does not request the use of this equipment and chooses not to put a witness who is available to be present on the stand, the result dictated by the confrontation clause is the exclusion of the nontestifying witness’s hearsay statements.
Here the court allowed the admission of hearsay statements by a nontestifying witness against the defendant although the witness was available to be present at trial. Regardless of the availability of closed-circuit television *145equipment, this violates the Sixth Amendment confrontation right of the defendant.
I therefore concur.
Reconsideration denied February 19, 2003.
It may be that article I, section 22 of the state constitution would provide greater protection than the Sixth Amendment, as the majority notes, but where the parties have not briefed this issue we will decline to consider it further.