¶25 (concurring) — The text of Washington’s confrontation clause, article I, section 22, is strikingly different from its federal Sixth Amendment counterpart. Under our state constitution, the “accused shall have the right... to meet the witnesses against him face to face.” Const, art. I, § 22. By contrast, under the federal constitution, the accused enjoys the more limited right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. It is my view that in the appropriate circumstances, our constitution may provide greater protection than the Sixth Amendment. But because I read the majority’s result in this case to be consistent with my view, I concur.
Chambers, J.¶26 As the majority correctly observes, a majority of the divided court in State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998), concluded that article I, section 22 of the Washington State Constitution requires independent *393analysis. Majority at 391. Indeed the markedly different text alone (only one of the Gunwall factors), perhaps the most important factor, strongly supports a conclusion that Washington’s confrontation clause provides greater protections. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
f 27 I am also reluctant to rely upon State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), for any independent interpretation of article I, section 22. Contra majority at 391-92. Ryan was decided before our decision in Gunwall. When interpreting article I, section 22, the Ryan court found the section to be synonymous with — not different from — the Sixth Amendment. Ryan, 103 Wn.2d at 169.1 do not believe that, post-Gunwall, this is sustainable.
¶28 However, as the majority of this court in Foster observed, “face to face” and “confront” are consonant terms. My review of dictionaries and pertinent cases leads me to conclude that the phrases “meet the witnesses against him face to face” and “to be confronted with the witnesses against him” meant one and the same to our founders. See Foster, 135 Wn.2d at 459 (citing William C. Anderson, A Dictionary of Law 226 (1889) (defining the word “ ‘confront’ ” as to “ ‘bring face to face’ ”) and (citing Webster’s Third New International Dictionary 477, 811 (1986) (defining “ ‘confront’ ” to mean to “ ‘bring face to face’ defining “ ‘face’ ” to mean to “ ‘confront’ ”))). Be that as it may, the passage of time and pen seems to have changed the interpretation of the terms used by the federal courts. Compare Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) with Crawford v. Washington, 541 U.S. 36, 63, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (overruling Roberts). We should hew to the original understanding and jealously guard what the constitution promises.
¶29 I also agree with the majority today that the admission of the testimony of Victoria Doroshenko is a close question. Majority at 390.1 part company with the majority in its heavy reliance on the fact that Doroshenko was not a law enforcement officer. The fact that a statement is given to a government official is only one factor to be considered *394when determining whether evidence is “testimonial” for the purposes of the Sixth Amendment confrontation clause, albeit an important one. Crawford, 541 U. S. at 51-54.
¶30 Because I believe what is and is not testimonial under Crawford will be a thorny and difficult issue for trial judges, I offer my own observations. First, while Crawford declines to articulate a comprehensive definition of “testimonial,” it did provide several examples of what the core class of testimonial statements might be, including:
[(1)] ex parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; [(2)] extrajudicial statements . . . contained in formalized testimonial material, such as affidavit, depositions, prior testimony, or confessions; [and (3)] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for the use at a later trial.
Id. at 51-52 (citations omitted) (internal quotations marks omitted).
¶31 The last category, statements made under circumstances that would lead an objective witness to believe the statements would be available for use later at trial, will be the most difficult. Obviously the Crawford Court intended an “objective” test with respect to whether or not a statement would be available for use at trial at a later time. Objectively, I would conclude the statements made to Doroshenko were testimonial. While Doroshenko was not a law enforcement officer, she was also not merely a friend of the family. She testified that she had over 10 years’ experience as a volunteer investigator and confidential informant for the Federal Bureau of Investigation, United States Secret Service, Sumner Police Department, Tacoma Police Department, and various drug and gang task forces. Doroshenko’s first interview with T.C. took place approximately one week after Shafer had been arrested, and Doroshenko was aware that Shafer had been arrested and *395suspected of raping T.C. Doroshenko solicited statements from T.C. rather than T.C. making statements spontaneously. While the fact Doroshenko was a family friend tends to weigh in the opposite direction, in my view, an objective witness would understand from the totality of the circumstances that T.C.’s statements made to Doroshenko would be used at trial.
¶32 Second, we should apply an abuse of discretion standard to the admission or nonadmission of such statements, since whether or not they are testimonial is essentially a factual determination. E.g., State v. Davis, 154 Wn.2d 291, 301, 111 P.3d 844, cert. granted, 546 U.S. 975 (2005). In short, the trial court would not abuse its discretion in either admitting or excluding Doroshenko’s testimony.
¶33 Finally, regardless of whether or not the admission of Doroshenko’s testimony was error, even confrontation clause violations should be subject to harmless error analysis. If the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt, there is no error. State v. Palomo, 113 Wn.2d 789, 799, 783 P.2d 575 (1989). Here the properly admitted hearsay statements T.C. made to her mother describing the sexual contact she had with Shafer, the evidence of Shafer’s semen found on T.C.’s clothing, and T.C.’s explicit mouth gestures constitute overwhelmingly untainted evidence of guilt. Therefore, I too would affirm Shafer’s conviction and leave for another day when article I, section 22 provides greater protection than the Sixth Amendment.
J.M. Johnson, J., concurs with Chambers, J.