¶56 (concurring in result) — Although I concur with the result the majority reaches, I write separately to express the view that the doctrine of forfeiture by wrongdoing should not be adopted by this court, particularly in a factual circumstance such as we have here. In that regard, I agree with Justice Sanders’s conclusion that where the alleged conduct that rendered the declarantvictim unavailable forms the factual basis for the charge against the defendant, the doctrine should be eschewed. Dissent at 940. For a trial court to determine, during the trial, that the defendant has committed the charged crime, *938albeit by a standard less than “beyond a reasonable doubt,” is offensive to the presumption of innocence that must prevail throughout the trial. In Washington, judges regularly instruct jurors to “keep an open mind and not decide any issue in the case until it is submitted to [them] for [their] deliberation.” 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.01, at 5 (2d ed. 1994). Trial judges should not be held to a lesser standard.
Alexander, C.J.*938¶57 I concur in the result here, though, because everything Hartanto Santoso said to Detectives John Berberich, Anne Malins, and Kristi Roze, as well as to Linda Webb, he said to other persons who testified at trial. Consequently, the confrontation clause error is harmless.
C. Johnson, J., concurs with Alexander, C.J.