dissenting.
I dissent from Part III of the majority opinion — and I vote to reverse the Marshall Circuit Court’s judgment and to remand this case for the trial court to vacate Appellant’s conditional Alford plea — because the trial court’s finding that “the Commonwealth has shown that [the confidential informant] is unavailable for the trial of this matter which is scheduled to begin October 18, 2000” is clearly erroneous. Although the majority opinion correctly observes that this issue comes before the Court in an abnormal procedural posture, the trial court’s unavailability determination permitted the Commonwealth to introduce the witness’s deposition testimony at Appellant’s scheduled trial — as was clear from the face of the trial court’s order, which provided that the “deposition ... shall be preserved for presentation at the trial in the Marshall Circuit Courtroom.” By entering a conditional plea under RCr 8.09, Appellant preserved his right to appeal the trial court’s finding, and the majority opinion thus accurately describes the issue presented as “whether the trial judge correctly deemed the confidential informant ‘unavailable’ for Confrontation Clause purposes.”1 In my view, the trial court’s unavailability determination is clearly erroneous because the Commonwealth utterly failed to demonstrate its inability to procure the witness’s attendance at trial “by process or other reasonable means.”2
The commentary to KRS 804(a)(5) explains that it was drafted to conform to Confrontation Clause jurisprudence:
Proof of inability to serve a subpoena was once uniformly regarded as a sufficient showing of unavailability of the declarant. The Supreme Court of the United States has made it clear that more of a showing of unavailability is required to satisfy the Confrontation Clause when hearsay is offered against an accused: the prosecution must demonstrate a good-faith effort to procure the attendance of the declarant at trial. By requiring an offering party to show inability to procure attendance “by process or other reasonable means,” this provision intends to require a good faith effort to procure the attendance of the declarant at trial even when he is beyond the court’s jurisdiction.3
And, as such, we have interpreted KRE 804(a)(5) as “put[ting] the onus” on the party offering the hearsay to show that it attempted to produce the witness.4 The Commonwealth made no such showing in this case.
An inspection of the record reveals that the Commonwealth provided virtually no information to the trial court — let alone “substantial evidence” that would support the trial court’s finding — regarding any good faith efforts it made to secure the witness’s attendance at trial. In fact, the *86full extent of the Commonwealth’s proof consists of: (1) a written pleading stating that “the confidential informant in this matter is residing in another state in the Teen Challenge program of South Dakota” and that “[h]e will not receive a ‘pass’ to leave the facility until February”; and (2) a later on-the-record “clarification” of the Commonwealth’s belief that the witness’s ineligibility for a “pass” made him unavailable to testify at trial because “[n]ot letting him go makes me think that he’s unable to attend.... If I’m unable to go to the bathroom, that means I can’t go.” Although I infer from these statements that the Commonwealth made some inquiry — of some unspecified person or persons — as to the witness’s availability to travel to Kentucky in October 2000, there is nothing in the record to contextualize this information or explain how it helps to answer the relevant inquiry. More significantly, however, the Commonwealth provided no description of what attempts, if any, it actually made to “procure the de-clarant’s attendance by process or other reasonable means.” Even if I adopt the broadest possible construction of the Commonwealth’s terse explanations and assume that the Commonwealth contacted the powers-that-be at the Teen Challenge Program and attempted to arrange for the witness’s temporary release so that he could travel voluntarily to Kentucky and testify at the trial, but was unsuccessful because the program “refused to let him go,” I would conclude that such efforts would fall far short of a good-faith effort to secure the witness’s attendance.
In his Motion for a Protective Order, Appellant directed the trial court’s attention to the fact that “the Commonwealth has not even attempted to subpoena the witness” and that “[t]here are procedures available to the Commonwealth to secure an out of state subpoena which have not been used.” The trial court, however, found that the witness would be unavailable to testify at trial notwithstanding: (1) pre-KRE precedent in which this Court began its unavailability analysis by examining the possibility of using the Uniform Act’s procedures to compel a witness’s attendance; 5 and (2) our predecessor’s description of a defendant’s failure to seek an out-of-state subpoena under the Uniform Act as a “lack of diligence” supporting the trial court’s denial of a motion for a continuance.6 Today’s majority opinion magnifies the trial court’s error by finding the unavailability determination supported by substantial evidence despite the Commonwealth’s failure even to attempt to utilize the Uniform Act to obtain the witness’s presence at trial. And, by observing simply that “some state courts have held otherwise,” 7 the majority manages to obscure *87the fact that its holding adopts a view that has been rejected by the majority of jurisdictions that have considered this issue.8
Further, it appears that the only rationale for the majority’s holding is rank speculation that a South Dakota court might have declined to issue the process requested if it concluded that requiring the witness to attend the trial would cause some unspecified “undue hardship” undocumented in the record. Of course, “the possibility of refusal is not the equivalent of asking and receiving a rebuff,”9 and it simply “cannot be said that a [South Dakota] court would have necessarily found the existence of such hardship.”10 The confidential informant was not being held against his will in a prisonlike setting.11 Teen Challenge of the Dakotas is a faith-based, voluntary residential treatment program to which prospective students must apply for admission.12 Although I understand the desire not to jeopardize the witness’s continued participation in the program, there is nothing in this record to suggest that Teen Challenge of South Dakota would have expelled him from the program — simply because he was not yet eligible for a “pass” — if he was temporarily absent to testify as a material witness in a felony trial at the request of, or in response to process originating from, the Commonwealth of Kentucky.13 In any event, what is missing from the record in this case is any indication that the Commonwealth investigated whether the witness’s appearance at trial would have affected his status in the program or that it explored any alternatives — e.g., offering to provide compensation for an escort from Teen Challenge to accompany the witness to Kentucky. In sum, although the Commonwealth can demonstrate its good faith efforts by showing that a sister state’s courts actually declined to issue a sum*88mons under the Uniform Act,14 the Commonwealth cannot demonstrate such efforts by rationalizing its own inaction.15
As I see nothing resembling a good faith effort on the part of the Commonwealth to secure this witness’s attendance at trial, I believe that the trial court’s finding of unavailability was clearly erroneous. Accordingly, I would reverse the judgment and remand the matter to the trial court for further proceedings — i.e., a trial where Appellant has an opportunity for face-to-face confrontation of the material witnesses for the Commonwealth.
STUMBO, J., joins this dissenting opinion.
. Majority Opinion, 103 S.W.3d 72, 82 (2003). It would not affect the substance of the inquiry, however, to characterize it as one involving merely the interpretation of our Rules of Evidence. See ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK, § 8.45(IV) at 433 (3d ed. Michie 1993) (“The unavailability criteria of KRE 804(a)(5) — if construed according to the drafters expressed intention — is indistinguishable from the confrontation criteria of Barber v. Page [390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)]..... A showing that would meet the requirements of the evidence rule would simultaneously satisfy the constitutional dictates of the Confrontation Clause.”).
. KRE 804(a)(5).
. Commentaiy to KRE 804, Evidence Rules Study Commission, Final Draft (1989).
. Justice v. Commonwealth, Ky., 987 S.W.2d 306, 313 (1999).
. Carter v. Commonweath, Ky., 782 S.W.2d 597, 600 (1990) ("Elam’s presence at the deposition was procured using the Uniform Non-Resident Witness Act, KRS 421.250, but the Commonwealth could not use the same act to arrange his presence at trial because the Commonwealth did not know his whereabouts at the time of trial.").
. Wooldridge v. Commonwealth, Ky., 459 S.W.2d 404, 406 (1970) ("Appellant’s first claim of error is that the court erroneously denied him a continuance because of the absence of a[n] [out-of-state] witness.... It does not appear that appellant sought to procure his attendance under KRS 421.250 .... We do not believe the trial judge abused his discretion in view of the lack of diligence on appellant's part." (emphasis added)). Cf. Abney v. Commonwealth, Ky.App., 588 S.W.2d 714, 715 (1979) (”[T]here was ample time [for the defendant] to invoke the provisions of the Uniform Act to secure the attendance of witnesses who were absent from this jurisdiction.”).
.Majority Opinion, supra note 1 at 83.
. See Milton Roberts, Annotation, Sufficiency of Efforts to Procure Missing Witness' Attendance to Justify Admission of His Former Testimony—State Cases, 3 A.L.R.4th 87 (1981) ("[M]any courts ... have held that the prosecution’s failure to utilize ... the Uniform Act or other available extradition procedure showed a lack of diligence to procure the absent witness’ attendance precluding the use of his former testimony at the trial; however a few courts have held the contrary.” (emphasis added)); Breeden v. State, 95 Md.App. 481, 622 A.2d 160, 171 (1983) (recognizing that its holding "is consistent with the trend of decisions in other states .... ” (emphasis added)); State v. Gray, 616 S.W.2d 102, 105 (Mo.App.1981) ("A heavy majority of the cases which have considered this matter since the Barber decision hold that the prosecution must attempt to utilize the Uniform Act, if available, in order to show a good faith effort on its part to produce the witness at trial.” (emphasis added)).
. Barber v. Page, supra note 1 at 390 U.S. 719, 724, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255, 260.
. In re Terry, 4 Cal.3d 911, 95 Cal.Rptr. 31, 484 P.2d 1375, 1389-1390 (1971), cert. dismissed, 404 U.S. 980, 92 S.Ct. 348, 30 L.Ed.2d 295 (1971).
. But even if he were, that fact alone would not justify a finding of unavailability. Barber v. Page, supra note 1 at 390 U.S. 719, 723, 88 S.Ct. 1318, 1321, 20 L.Ed.2d 255, 259 (”[T]he State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma.”).
. Information about Teen Challenge of the Dakotas is available at: http:www.teenchal-lenge.com/brookings.
. In fact, I would reference, as anecdotal evidence to the contraiy, that in Stallworth v. Commonwealth, 102 S.W.3d 918, 919 (2003). The Appellant was permitted to reenter the Teen Challenge Program located in Hot Springs, Arkansas after absconding (and ending upon on the lam) after his prior admission into the program. In fact, the same trial *88judge presided in both Stallworth and this case.
. See State v. Gray, supra note 8 at 106.
. See Breeden v. State, supra note 8 at 166, 174 n. 13 (despite out-of-state witness’s explanation that "he was residing in a monastery in Puerto Rico and in the process of becoming a Jesuit priest” and that "after a discussion with the head priest, he learned that he would not be available until [nineteen (19) months after the trial],” court holds that “[u]ntil the procedures of the Act ran their course, no one could say that his compulsory attendance could not have been at an earlier date.”)