¶58 (dissenting) — Because Kim Mason’s confrontation rights were violated by the introduction of statements purportedly made by Hartanto Santoso, because the majority adopts and applies the doctrine of forfeiture by wrongdoing, and because it was not harmless error for the trial judge to inform the jury that the case did not involve the death penalty, I dissent.
Sanders, J.(1) The Admission of Out-of-Court Statements Violated Mason’s Right To Confrontation
¶59 The trial court admitted the testimony of four police officers and a victim’s advocate regarding statements Santoso allegedly made prior to his disappearance. Under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), testimonial statements must be subject to confrontation. The majority, after determining Corporal John Haslip’s statements and certain statements made by Linda Webb are testimonial7 under Crawford and *939Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), ultimately concludes, “[a]ny confrontation clause error is harmless in this case” as “[e]verything Santoso said to the police he said to others,” including his roommate, supervisor, treating physician, and sister. Majority at 927.
¶60 If admittance of just one of these statements is not harmless, reversal is required. For an error to be harmless, “it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Williams, 158 Wn.2d 904, 917, 148 P.3d 993 (2006). Applying this stringent standard to the present facts, we cannot conclude that the admittance of the officers’ testimony was harmless beyond a reasonable doubt simply because other witnesses’ testimony overlapped in subject matter with that of the officers.
¶61 Testimony from a law enforcement officer will likely impact a juror differently than if identical information is conveyed through the relative of a victim. Juries routinely consider all characteristics of witnesses (their relation to the parties, employment, and personal interests) in weighing the value or credibility of their testimony — that is, in fact, the purpose of a jury trial and why appellate courts defer (with regard to factual conclusions) to the judgment of the fact finder.
¶62 Because this court considers only the written record and is not privy to the expressions, demeanor, and body language of the witnesses, we are in no position to predict the effect such characteristics might have had on the jury’s decision-making, and we certainly may not presume which witnesses’ testimony the jury found compelling and which testimony tipped the balance in favor of a particular outcome. See State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). Thus, we cannot possibly conclude beyond a reasonable doubt that the outcome in this case would have been the same absent the testimony of the officers and the victim’s advocate.
*940 (2) Application of the Doctrine of Forfeiture hy Wrongdoing Is Inappropriate
¶63 As the majority notes, whether or not to adopt the doctrine of forfeiture is an issue of first impression for this court. The majority ultimately concludes “equity compels adopting the doctrine” and states,
[W]e will not allow Mason to complain that he was unable to confront Santoso when Mason bears responsibility for Santoso’s unavailability. Mason made his right impossible to implement; he has only himself to blame for its loss.
Majority at 925. The majority’s subsequent observation that the doctrine of forfeiture by wrongdoing necessarily requires the trial judge to “rule on the ultimate question: did the accused kill the alleged victim?” explains, quite succinctly, my hesitation in adopting such a rule. Majority at 926.
¶64 Under facts such as these (where the conduct rendering the declarant-victim unavailable is the very crime charged), the court must assume the defendant’s guilt prior to trial, an assumption which offends the presumption of innocence imbedded in our state and federal constitutions. See State v. Crediford, 130 Wn.2d 747, 759, 927 P.2d 1129 (1996) (“[E]very person accused of a crime is constitutionally endowed with an overriding presumption of innocence, a presumption that extends to every element of the charged offense.” (citing Morissette v. United States, 342 U.S. 246, 275, 72 S. Ct. 240, 96 L. Ed. 288 (1952))). For this reason, both state and federal courts have refused to apply the doctrine of forfeiture by wrongdoing to cases where the defendant is charged with the very same conduct that allegedly caused the unavailability of the witness; scholars have referred to such a phenomenon as “reflexive forfeiture.” See Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Isr. L. Rev. 506, 521-22 (1997) (“Suppose that the conduct that rendered the declarantvictim unavailable, rather than occurring at some time *941after the crime charged, was the crime charged.... In such a case, for the court to conclude that the accused committed the act rendering the declarant-victim unavailable, the court must also conclude that the defendant committed the criminal act charged, because those two acts are the same.” (emphasis added)).
¶65 In State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), the defendant was charged with sexual assault of a child. The State argued the defendant waived his right to confront the minor victim by intimidating her and threatening to punish her if she told anyone about the abuse. Id. at 699. But the court refused to hold the defendant had waived his right to physical confrontation, noting that the cases cited by the State involved defendants “scheming to obstruct justice by tampering with a witness after the crime in question had occurred . . . .” Id. The court distinguished such cases from the situation at bar where the defendant had threatened the victim “during the commission of the very crimes with which he is charged.” Id. The court concluded,
The constitutional right of confrontation would have little force ... if we were to find an implied waiver of that right in every instance where the accused, in order to silence his victim, uttered threats during the commission of the crime for which he is on trial.
Id.
¶66 Similarly, in People v. Maher, 89 N.Y.2d 456, 677 N.E.2d 728, 654 N.Y.S.2d 1004 (1997), the defendant was convicted of intentional murder, felony murder, and criminal contempt. Although New York had recognized the doctrine of forfeiture by wrongdoing, the court refused to apply it to the present facts, as application of the rule “would require the trial court... to decide the ultimate question for the jury in the same case, i.e., whether the defendant caused the victim’s death.” Id. at 462 (footnote omitted).
¶67 United States v. Lentz, 282 F. Supp. 2d 399 (E.D. Va. 2002), aff’d in part, rev’d in part on other grounds, 383 F.3d *942191 (4th Cir. 2004), presents facts similar to the case at bar. In Lentz the defendant was charged in a three-count indictment for kidnapping resulting in the death of Dorris Lentz. Id. at 409. Ms. Lentz’s body was never found. Id. The government sought to introduce statements of several witnesses who had conversations with Ms. Lentz regarding Ms. Lentz’s fear of the defendant and defendant’s prior threats and abuse. Id. The government argued the forfeiture by wrongdoing exception applied to all of Ms. Lentz’s statements because the defendant had “procured the unavailability of Ms. Lentz by killing her.” Id. at 426. The court, however, recognizing the illogic of applying the exception, observed,
Essentially, the Government asks the Court to find Defendant guilty of killing Ms. Lentz by a preponderance of the evidence in order to allow the evidence to be admitted to prove Defendant killed Ms. Lentz beyond a reasonable doubt.
Id. The court concluded that applying the exception would ignore the well-settled presumption of innocence and “deprive a defendant of his right to a jury trial [by] allow [ing] for a judge to preliminarily convict a defendant of the crime on which he was charged.” Id. (emphasis added). It makes no sense for the evidentiary rules of trial to depend upon the court’s pretrial determination of the defendant’s guilt or innocence.
¶68 Here, unfortunately, the majority’s adoption of a “clear and convincing” standard (as opposed to a preponderance of the evidence standard) does not cure the general illogic of the doctrine of forfeiture by wrongdoing. I would refrain from applying the doctrine to the present facts because doing so invades the province of the jury by forcing the judge to determine Mason’s guilt prior to his trial.
(3) It Was Not Harmless Error for the Trial Judge To Inform the Jury that Mason’s Case Did Not Involve the Death Penalty
¶69 During voir dire the trial judge informed the jury that Mason’s case did not involve a request for the death *943penalty. The majority determined, “it was error for the trial judge to inform the jury that the death penalty was not implicated” but concluded the error was harmless. Majority at 930-31. The majority provides an incoherent explanation of its determination, stating,
[W]e note defense counsel’s objection was, at best, lukewarm, and the record suggests that defense counsel may have encouraged rather than discouraged the judge. Further, no objection was advanced to the selection of any juror or to the panel. On this record, we find the error harmless.
Majority at 930-31.
¶70 In State v. Townsend, 142 Wn.2d 838, 840, 15 P.3d 145 (2001), we held it is error to inform the jury during voir dire that a case does not involve the death penalty. Townsend states, “[t]his strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury’s deliberations.” Id. at 846; see also State v. Reece, 79 Wn.2d 453, 457, 486 P.2d 1088 (1971) (“rehabilitation is a vital concern of the state; it is not a concern of the jury while it ponders the sole question of guilt or innocence”). We acknowledged in Townsend that “such instructions [regarding the death penalty], if anything, would only increase the likelihood of a juror convicting the petitioner.” Townsend, 142 Wn.2d at 847. Yet here, the majority inexplicably determines the judge’s mention of the death penalty was harmless.
¶71 Capital punishment is an issue both morally divisive and politically charged; as such, this is not an instance where it is either prudent or just to speculate as to whether the judge’s instruction influenced the outcome of Mason’s trial. In fact, if anything should leave us hesitant (or unwilling) to guess how a juror will react to certain information, it is the mention of capital punishment. The majority’s reasons for holding otherwise are neither clear nor coherent.
*944f 72 For this, and the reasons stated above, I dissent and would reverse Mr. Mason’s conviction.
Madsen, J., concurs with Sanders, J.
Reconsideration denied November 27, 2007.
Because the majority adopted the doctrine of forfeiture by wrongdoing, it declined to determine whether the statements of the other three officers were testimonial. The majority concluded, “any of the errors Mason claims were harmless. Mason either forfeited his confrontation objection with regard to Santoso or the error was harmless.” Majority at 922.