(dissenting).
I respectfully dissent. Our court rests its remand decision on the false conclusion that Giles v. California, — U.S.-, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), announced a new rule of law changing the requirements of the forfeiture-by-wrongdoing doctrine. Based on that false conclusion, our court concludes that remand is necessary to give the State an opportunity to develop a factual record regarding Her’s intent to procure Vang’s unavailability.1 Such a reading of Giles is without legal support and is absurd. The stark reality, which the court would like to ignore, is that Giles was not an announcement of a new rule or principle of law2 but rather the rejection of various courts’ attempts to create a murder exception, lacking any basis in common law, to the forfeiture-by-*878•wrongdoing doctrine. Any question on this point was answered by the Giles Court itself when it said, “We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter. The judgment of the California Supreme Court is vacated.” Giles, 128 S.Ct. at 2693.
To be clear, in Giles, the United States Supreme Court noted that since the 1600s the forfeiture-by-wrongdoing doctrine has permitted “the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.” Id. at 2683. The Court further noted that “[t]he manner in which the rule [has been] applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.”3 Giles, 128 S.Ct. at 2684. The Court concluded that in cases in which the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying, the testimony was excluded unless another exception applied. Id. at 2684. The Court explained:
In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law’s uniform exclusion of unconfronted incul-patory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent’s broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive.
Id. at 2688.4
Notwithstanding the fact that for over 400 years the forfeiture-by-wrongdoing doctrine has required a showing that the defendant intended to procure the witness’s absence for the purpose of preventing the witness from testifying, our court *879still insists that at the time of State v. Her (Her I), 750 N.W.2d 258 (2008), the “forfeiture-by-wro.ngdoing doctrine did not depend on a showing that desire to silence the victim motivated the killing in cases where the unavailable witness was also the murder victim.” That insistence cannot credibly be maintained. The Supreme Court is charged with the task of interpreting the Federal Constitution and our court’s misapplication of the forfeiture-by-wrongdoing doctrine in one case, State v. Langley, 354 N.W.2d 389 (Minn.1984), could not and did not create a different constitutional standard for Minnesota as opposed to the rest of country. See Webster v. Reprod. Health Servs., 492 U.S. 490, 518, 109 S.Ct. 3040,106 L.Ed.2d 410 (1989) (holding that apart from a constitutional amendment, the United States Supreme Court “is the only body able to make needed changes” to the Constitution).
Yet, in its decision today, our court still fails to acknowledge that Langley was simply a perversion of the forfeiture doctrine crafted for unknown and unexplained reasons to make an end run around the Confrontation Clause. While our Langley decision speaks for itself, that is all it does. As noted in my concurrence iii Her I, in the years between Langley and Her I, our court did not cite or otherwise follow Langley’s forfeiture-by-wrongdoing approach. See Her I, 750 N.W.2d at 298-99 (Page, J., concurring).5 Instead, every ease before Langley and every case after Langley, with the notable exception of Her I, followed the approach reaffirmed by the Supreme Court in Giles.6 Langley cannot be said to be anything other than an anomalous outlier. Our court’s reliance on Langley in Her I for the existence of ah unwritten “murder exception” to the Confrontation Clause was absurd then, and our court’s insistence that until Giles Minnesota’s Confrontation Clause standard was somehow different than the rest of the country is equally absurd now. Having failed to raise or establish at trial Her’s intent to prevent Vang from being a witness at trial, the State is not entitled to a remand for , a second bite at the apple.
ANDERSON, PAUL H., Justice (dissenting).■ I join in the dissent of Justice Page.
. A remand to allow the State an opportunity to develop the factual record on an issue is appropriate when at the time of trial the law did not require the State to establish a factual record on the issue in question. State v. Wright (Wright II), 726 N.W.2d 464, 482 (2007). The State waives the right to raise an issue by failing to take advantage of an opportunity to build a factual record when it has ample opportunity to do so. See Garza v. State, 632 N.W.2d 633, 637 (Minn.2001). Having had the opportunity at trial in this case and having failed to raise the forfeiture issue then, the issue has been waived.
. We have held that a Supreme Court holding constitutes a new rule of law “if it ‘breaks new ground,’ 'imposes a new obligation on the States or the Federal Government,' or was not ‘dictated, by precedent existing at the time the defendant's conviction became final.' ” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004), abrogation recognized by (quoting Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). The Court’s holding in Giles did not "break[] new ground” or "impose[] a new obligation on the state, or federal government” and was "dictated by precedent existing at the time the defendants conviction became final.” See id.
. A witness having been "detained by the means or procurement of the prisoner,” provided a basis to read testimony previously given at a coroner’s inquest. Lord Morley's Case, 6 How. St. Tr. 769, 770-71 (H.L.1666); Queen v. Scaife, 117 Q.B. 238, 242, 117 Eng. Rep. 1271, 1273 (K.B.1851) ("kept away”); Hanison's Case, 12 How. St. Tr. 833, 851 (H.L.1692) ("made him keep away”); see also Motes v. United States, 178 U.S. 458, 471-74, 20 S.Ct. 993, 44 L.Ed. 1150 (1900) (holding that it would not be "consistent with the [Confrontation Clause] to permit the deposition or statement of an absent witness (taken at an examining trial) to be read at the final trial, when it does not appear that the witness was absent by the suggestion, connivance or procurement of the accused.”); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1879) (holding that when a witness is absent by the defendant’s "wrongful procurement,” the defendant "is in no condition to assert that his constitutional rights have been violated” if "their evidence is supplied in some lawful way.”).
. The Federal Rules of Evidence provide further evidence, if any is needed, that Giles was simply a reaffirmation of the common law forfeiture-by-wrongdoing doctrine. In 1997, the Supreme Court approved a Federal Rule of Evidence, entitled "Forfeiture by wrongdoing,” which applies only when the defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed. R.Evid. 804(b)(6). The Court described 804(b)(6) as a rule "which codifies the forfeiture doctrine.” Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224, (2006).
. See, e.g., Wright II, 726 N.W.2d at 475-76; State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); State v. Byers, 570 N.W.2d 487, 494-95 (Minn.1997); State v. Peirce, 364 N.W.2d 801, 807-08 (Minn.1985); State v. Hansen, 312 N.W.2d 96, 103-105 (1981), abrogation on other grounds recognized by State v. Bobadilla, 709 N.W.2d 243, 248 (Minn.2006); State v. Olson, 291 N.W.2d 203, 206-07 (Minn.1980); State v. Black, 291 N.W.2d 208, 213-14 (Minn.1980), abrogation on other grounds recognized by State v. Jones, 556 N.W.2d 903, 909 (Minn.1996). Interestingly, in Her I, our court recognized that with the exception of murder cases, application of the forfeiture-by-wrongdoing doctrine in Minnesota required a showing that the defendant intended to procure the absence of the witness. 750 N.W.2d at 270 (holding that Wright II and similar cases are not controlling because "imposing the additional motive element [in murder cases] is inconsistent with the equitable notions underlying the forfeiture-by-wrongdoing doctrine”).
. In addition to the Minnesota cases cited above, see also United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996); United States v. Thevis, 665 F.2d 616, 630 (5th Cir.1982), superseded by rule on different grounds, Fed. R.Evid. 804(b)(6), as recognized in United States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir.2001); United States v. Carlson, 547 F.2d 1346, 1359-60 (8th Cir.1976); People v. Moreno, 160 P.3d 242, 247 (Colo.2007); Devonshire v. United States, 691 A.2d 165, 168 (D.C.1997); People v. Stechly, 225 Ill.2d 246, 312 Ill.Dec. 268, 870 N.E.2d 333, 348-53 (2007) (plurality opinion); Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d 158, 165-70 (2005); State v. Romero, 141 N.M. 403, 156 P.3d 694, 701-03 (2007).