¶ 91. (concurring). This case, which follows in the wake of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), affirms the principle that out-of-court "testimonial" statements by witnesses are barred from criminal trials by the Confrontation Clause of the Sixth Amendment unless the witnesses are "unavailable" and the defendants against whom the statements are to be used have had a prior opportunity to cross-examine the witnesses. This exclusion of evidence applies irrespective of whether the statements are "reliable."
¶ 92. I join the majority opinion articulating this principle but write separately to emphasize that the principle has at least one major exception. As the Crawford court noted, "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining *623reliability." Id., 124 S. Ct. at 1370, (citing Reynolds v. United States, 98 U.S. 145, 158-59 (187[8])).
¶ 93. The exception thus stated is essential because it discourages defendants from killing, kidnapping, secreting, terrorizing, blackmailing, or conspiring with critical witnesses so that they become unavailable to testify. "The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong." Reynolds, 98 U.S. at 159. "It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one." Id.
¶ 94. Because the effect of the Crawford decision is to exclude certain testimonial hearsay that heretofore was thought to be admissible, it is vital for courts to enforce the exception to assure the integrity of criminal trials.
¶ 95. There is a great deal of authority supporting the principle that a defendant forfeits the constitutional right to confrontation by wrongdoing or misconduct causing the absence of a witness. This bedrock principle has been accepted by every court that has considered it. See, e.g., United States v. Dhinsa, 243 F.3d 635, 651-52 (2d Cir. 2001); United States v. Cherry, 217 F.3d 811, 814-15 (10th Cir. 2000); United States v. Emery, 186 F.3d 921, 927 (8th Cir. 1999); United States v. White, 116 F.3d 903, 911 (D.C. Cir. 1997); United States v. Houlihan, 92 F.3d 1271, 1278-79 (1st Cir. 1996); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir. 1982); United States v. Rivera, 292 F. Supp. 2d 827, 830 (E.D. Va. 2003); People v. Giles, 19 Cal. Rptr. 3d 843, 847-48 (Cal. Ct. App. 2004); People v. Pantoja, 18 Cal. Rptr. 3d 492, 499 n.2 (Cal. Ct. App. 2004); State v. Hallum, 606 N.W.2d 351, 355-56 (Iowa 2000); State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); People v. *624Salazar, 688 N.Y.S.2d 401, 403-04 (N.Y. Sup. Ct. 1999); see also 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 507.1 (2d ed. Supp. 2003).
¶ 96. Most jurisdictions require that the prosecution prove the defendant's wrongdoing by a preponderance of the evidence. Emery, 186 F.3d at 927; White, 116 F.3d at 912; Houlihan, 92 F.3d at 1280; Steele, 684 F.2d at 1201; Rivera, 292 F. Supp. 2d at 831; Hallum, 606 N.W.2d at 355-56. A few courts use the "clear and convincing evidence" standard of proof. U.S. v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982); Giles, 19 Cal. Rptr. 3d at 848.
¶ 97. The principle of forfeiture by wrongdoing has become so well accepted that in 1997, it was codified in the Federal Rules of Evidence:
Rule 804. Hearsay Exceptions; Declarant Unavailable
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
In recommending addition of the "forfeiture by wrongdoing" exception to the hearsay rule, the Advisory Committee on Rules noted that every federal circuit to consider the issue has recognized the exception, with most using a preponderance of the evidence standard to prove the misconduct. The Committee commented:
Subdivision (b)(6). Rule 804(b)(6) has been added to provide that a party forfeits the right to object on *625hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness. This recognizes the need for a prophylactic rule to deal with abhorrent behavior "which strikes at the heart of the system of justice itself." United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984). The wrongdoing need not consist of a criminal act. The rule applies to all parties, including the government.
Every circuit that has resolved the question has recognized the principle of forfeiture by misconduct, although the tests for determining whether there is a forfeiture have varied. See, e.g., United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); United States v. Potamitis, 739 F.2d 784, 789 (2d Cir.), cert. denied, 469 U.S. 918 (1984); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d 1346, 1358-59 (8th Cir.), cert. denied, 431 U.S. 914 (1977). The foregoing cases apply a preponderance of the evidence standard. Contra United States v. Thevis, 665 F.2d 616, 631 (5th Cir.) (clear and convincing standard), cert. denied, 459 U.S. 825 (1982). The usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage.
Notes of Advisory Committee on Rules — 1997 Amendments to Federal Rules of Evidence.
¶ 98. To sum up, corrupt efforts to preclude the testimony of witnesses cannot be permitted to succeed. It is incumbent upon courts to enforce this principle in the post-Crawford era.
¶ 99. I am authorized to state that Justices JON E WILCOX and PATIENCE D. ROGGENSACK join this concurrence.