¶34 (dissenting) — The confrontation clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI.9 As *396a consequence, hearsay evidence of a testimonial statement is inadmissible in a criminal trial, unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The majority holds that T.C.’s allegations of sexual assault were non-testimonial statements and that admission of hearsay evidence of those allegations did not violate the confrontation clause. I disagree.
Sanders, J.*396I. T.C.’s Statements Were Testimonial Because a Reasonable Person Would Expect the State To Use Them in an Investigation or Prosecution
f 35 Whether or not a particular statement is testimonial is indeed a fact-specific question courts must answer on a case-by-case basis. See State v. Davis, 154 Wn.2d 291, 295, 111 P.3d 844, cert. granted, 546 U.S. 975 (2005). The police didn’t solicit T.C.’s statements. And she certainly didn’t have any expectations concerning their use. Majority at 389-90. Both are relevant facts. But neither is dispositive. The majority incorrectly assumes that the question at issue is whether the speaker knew the police would use the statement. In fact, it is whether a reasonable person would expect the police to use the statement. See Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549, 557 (2005); United States v. Brito, 427 F.3d 53 (1st Cir. 2005). And whether or not T.C. expected the police to use her statements, a reasonable person certainly would.
A. Statements Made to Nongovernment Agents May Be Testimonial
¶36 Statements made to the police are indeed generally testimonial. Crawford specifies that the term testimonial “applies at a minimum” to statements made to government *397agents. Crawford, 541 U.S. at 68 (emphasis added). A statement “knowingly given in response to structured police questioning” is testimonial under “any conceivable definition.” Id. at 53 n.4. See also Davis, 154 Wn.2d at 301 (finding testimonial 911 calls “generated by a desire to bear witness”); State v. Walker, 129 Wn. App. 258, 261, 118 P.3d 935 (2005) (finding testimonial any statement “elicited in response to structured police questioning in the course of a police investigation”).
¶37 But a statement made to a private individual may also be testimonial. In re E.H., 355 Ill. App. 3d 564, 823 N.E.2d 1029, 1037, 291 Ill. Dec. 443 (holding “it is the nature of the testimony rather than the official or unofficial nature of the person testifying that determines the applicability of Crawford and the confrontation clause”), appeal granted, 215 Ill. 2d 597, 833 N.E.2d 2, 295 Ill. Dec. 520 (2005). Cf. Bruton v. United States, 391 U.S. 123, 138, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (Stewart, J., concurring) (“[A]n out-of-court accusation is universally conceded to be constitutionally inadmissible against the accused.”); California v. Green, 399 U.S. 149, 179, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (Harlan, J., concurring) (“[T]he Confrontation Clause was meant to constitutionalize a barrier against. . . absentee witnesses.”). “ ‘A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not.’ ” Richard D. Friedman & Bridget McCormack, Dial-In Testimony, 150 U. Pa. L. Rev. 1171, 1241 n.276 (2002) (quoting Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L. J. 1011, 1042-43 (1998)). See also Richard D. Friedman, Grappling with the Meaning of “Testimonial,” 71 Brook. L. Rev. 241, 260 (2005) (“If the declarant anticipates that the statement, or the information asserted in it, will be conveyed to the authorities and used in prosecution, then it is testimonial, whether it is made directly to the authorities or not.”). Specifically, a “parent, teacher or doctor who suspects child abuse and questions the child for the purpose of confirming *398her suspicions is in fact seeking ‘testimonial’ statements.” Robert A. Aronson, The Law op Evidence in Washington § 804.04 [1] [c], at 804-29 (2005). So T.C.’s statements to her mother may well be testimonial.
B. Crawford Requires an Objective Test
¶38 An interpretation of “testimonial” focusing on the intent of the declarant “is unduly narrow, does not fully comport with the thrust of Crawford, is inconsistent with the trend in other jurisdictions, and is more difficult to apply than the approach adopted in other jurisdictions.” Aronson, supra, § 804.04[l][c], at 804-23. Rather, a statement is testimonial if it provides “the functional equivalent of uncross-examined, in-court testimony.” Davis, 154 Wn.2d at 301. See also Friedman, Grappling with the Meaning of “Testimonial,” supra, at 249 (suggesting statement testimonial if it “performs the function of testimony”). So, the appropriate inquiry is whether a statement serves the function of testimony. And a statement can function as testimony whether or not the speaker actually expects the State to use it. See In re E.H., 823 N.E.2d at 1037 (holding “the declarant’s state of mind is hardly a consideration when determining whether there has been a confrontation violation”). The actual intentions of the person who made the statement are irrelevant.
¶39 Thus, as I emphasized in Davis, the logic of Crawford demands “an objective evaluation of whether a reasonable person would know that his statements could be used to prosecute.” Davis, 154 Wn.2d at 307 (Sanders, J., dissenting). See also Chris Hutton, Sir Walter Raleigh Revived: The Supreme Court Re-Vamps Two Decades of Confrontation Clause Precedent in Crawford v. Washington, 50 S.D. L. Rev. 41, 71 (2005) (noting “the subjective standard has been overwhelmed by the objective standard”). Crawford didn’t “spell out a comprehensive definition of ‘testimonial,’ ” 541 U.S. at 68. But it did offer several helpful “formulations” of the “core, class of ‘testimonial’ statements.” Id. at 51. These include “ ‘pretrial statements *399that declarants would reasonably expect to be used prosecutorially’ ” and “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe the statement would be available for use at a later trial.’ ” Id. at 51-52 (emphasis added) (quoting briefs).
¶40 This language — reasonable, objective — inescapably implies that objective criteria distinguish testimonial and nontestimonial statements. “The proper inquiry is whether a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting a crime.” Gonsalves, 833 N.E.2d at 558. See also Brito, 427 F.3d at 61 (“The testimonial hearsay inquiry focuses on whether a reasonable declarant, similarly situated . . . would have had the capacity to appreciate the legal ramifications of her statement.”); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding statement nontestimonial because not made “under circumstances in which an objective person would ‘reasonably believe that the statement would be available for use at a later trial’ ” (quoting Crawford, 541 U.S. at 51-52)); United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (holding statement testimonial if “a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime”); People v. Cortes, 4 Misc. 3d 575, 594, 781 N.Y.S.2d 401 (2004) (holding statement testimonial if reasonable person would know it “is likely to be used in investigation or prosecution of a crime”); People v. Sisavath, 118 Cal. App. 4th 1396, 13 Cal. Rptr. 3d 753, 758 n.3 (2004) (“ [I]f the statement was given under circumstances in which its use in a prosecution is reasonably foreseeable by an objective observer, then the statement is testimonial.”). See also Friedman, Grappling with the Meaning of “Testimonial,” supra, at 249 (suggesting “statement is testimonial if it transmits information for use in litigation”). And a “reasonable person” expects the police to use an allegation of sexual assault.
*400¶41 Apparently, the majority is unfamiliar with the vagaries of the apocryphal “reasonable person.” It actually concedes that a statement is testimonial if “a reasonable person in the declarant’s position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime.” Majority at 390 n.8. But inexplicably, it proceeds to premise its conclusions on the expectations of a “reasonable three-year-old child.” Id. And of course, a “reasonable person” cannot have the subjective expectations of a three-year-old child. Certainly, the “circumstances” surrounding a statement are relevant. But they cannot include the competence of the speaker. An “objective” test that considers subjective characteristics is no objective test at all.
C. Under an Objective Test, T.C.’s Statements Were Clearly Testimonial
¶42 Essentially, the majority holds that the State can use hearsay evidence of T.C.’s statements as testimony because she cannot testify herself. But hearsay evidence of an out-of-court statement is simply a “ ‘weaker substitute for live testimony.’ ” State v. Rohrich, 132 Wn.2d 472, 480, 939 P.2d 697 (1997) (quoting United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986)). The confrontation clause prohibits the introduction of hearsay evidence of a child’s out-of-court statement after the child testifies. Rohrich, 132 Wn.2d 472. Perversely, the majority permits it when the child never testifies at all. T.C. said out-of-court exactly what the State would expect her to say on the stand. And if a statement is testimonial in court, it is testimonial at home, too. Cf. Friedman & McCormack, 150 U. Pa. L. Rev., supra, at 1242 (suggesting “if any significant time has passed since the events it describes, the statement is probably testimonial”).
¶43 Obviously, an incompetent child witness like T.C. can’t herself form subjective expectations regarding the future use of her statements. But the “intent of the declarant” cannot determine whether a statement is testi*401monial because “the Confrontation Clause was intended to protect the defendant’s right to cross-examine witnesses whose statements may lead to his conviction.” Aronson, supra, § 804.04[l][c], at 804-24. So we must evaluate her statements from an objective perspective. They are testimonial if a reasonable, competent person in a similar position would expect the State to use them in investigating or prosecuting a crime. See Hutton, supra, at 70 (noting that in child witness cases, “courts focus on whether an objective witness would view the statements as designed for prosecutorial purposes”). Such a statement is objectively testimonial because the State could use it in place of testimony.
¶44 While a statement “generated by a desire to bear witness” is testimonial, a “call for help to be rescued from peril” is not. Davis, 154 Wn.2d at 301. But how to distinguish one from another? The answer is elementary. “Any assertion, taken as the basis of an inference to the existence of the matter asserted, is testimony, whether made in court or not.” 2 John Henry Wigmore, Evidence in Trials at Common Law § 479, at 640 (James H. Chadbourn rev. ed., 1979), quoted in In re E.H., 823 N.E.2d at 1036. Thus, a statement “offered to prove the truth of the matter asserted” is testimonial. In re E.H., 823 N.E.2d at 1036. Cf. Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). And a statement “used to prove merely that the statement had been made” is not. Dutton, 400 U.S. at 88. But the State did not offer hearsay evidence of T.C.’s statements merely to prove she made them. It offered hearsay evidence of those statements as proof of what they asserted, intending them to implicate Shafer. Consequently, the statements were clearly testimonial.
¶45 Of course, some casual, incidental statements are nontestimonial. See Crawford, 541 U.S. at 51. Areasonable, competent person expects a statement to “be available for use at a later trial” only if there’s reason to believe it concerns a criminal violation. And a seemingly innocuous statement may ultimately prove relevant to a criminal *402charge. But an allegation of sexual assault is never “a casual remark to an acquaintance” or an “off-hand, overheard remark.” Id. at 51. It simply beggars belief to suggest that a reasonable, competent person would not expect the police to use an allegation of sexual assault in investigating and prosecuting a crime.
f 46 A crime report is a testimonial statement, but an “excited utterance . . . ‘made without reflection or deliberation’ ” is not. Davis, 154 Wn.2d at 301 (quoting People v. Corella, 122 Cal. App. 4th 461, 18 Cal. Rptr. 3d 770, 776 (2004)). But T.C. wasn’t in danger when she made the statements to her mother and Doroshenko. She didn’t make an “excited utterance.” She reported an alleged crime as best she was able, by telling her mother it took place. See Friedman, Grappling with the Meaning of “Testimonial,” supra, at 271 (noting that “narrative statements by victims of completed crimes almost certainly are made with anticipation of prosecutorial use”). T.C. may not have understood the gravity of her statements. But a reasonable, competent person in her position certainly would. Her allegations of sexual assault were testimonial because a reasonable person would expect them to function as testimony. Therefore, the court should not have admitted hearsay evidence of them.
¶47 Consequently, I dissent.
An analogous provision in the Washington Constitution guarantees a criminal defendant “the right... to meet the witnesses against him face to face .. . .” Wash. Const, art. I, § 22. I agree with the concurrence that this provision may *396supplement the protections offered by the confrontation clause. However, because I believe that hearsay evidence of T.C. statements is inadmissible under the confrontation clause, I do not reach the question of whether certain nontesti-monial statements admissible under the confrontation clause are inadmissible under the Washington Constitution.