¶ 59. (concurring in part, dissenting in part). The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him" (emphasis added). Article I, *304section 7 of the Wisconsin Constitution similarly provides: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face" (emphasis added).1 The operative word in each of these constitutional provisions is the word "all". Neither provision creates a homicide exception to the constitutional guarantee of confrontation. Yet, the majority's misconception of the doctrine of forfeiture by wrongdoing does precisely that, defeating the confrontation guarantee contained within the state and federal constitutions. Moreover, the majority fails to properly apply the recent decision of Davis v. Washington, 547 U.S. _, 126 S. Ct. 2266 (2006), in ascertaining whether statements made to certain witnesses in this case are testimonial or nontestimonial. Accordingly, I respectfully concur in part, and dissent in part.
HH
¶ 60. At issue in this case are numerous statements made by the homicide victim, Julie Jensen (Julie), to her neighbor, Tadeusz Wojt (Wojt), police officer Ron Kosman (Kosman), her physician, Dr. Richard Borman (Borman), and her son's teacher, Theresa DeFazio (DeFazio), as well as a letter she wrote to Detective Paul Ratzburg (Ratzburg). The circuit court on September 4, 2003, reviewed over 100 statements made by Julie and evaluated the reliability of these statements using the balancing test established in Ohio v. Roberts, 448 U.S. 56 (1980). The court ruled that parts of many of her statements were not excluded, while other parts were excluded. The court also reserved its ruling with respect to some of the statements *305until the trial, and reserved the right to reverse itself based on how the evidence was offered at trial. In addition, Julie's in-person statements to Kosman and her letter to Ratzburg were admitted in their entirety.
¶ 61. Mark Jensen (Jensen), the defendant, moved for reconsideration on the admissibility of Julie's statements in light of the United States Supreme Court ruling in Crawford v. Washington, 541 U.S. 36 (2004). After a hearing, the circuit court concluded that Julie's letter to Ratzburg and voicemail messages to Kosman were testimonial and therefore inadmissible under Crawford. The circuit court also determined that Julie's statements to Wojt and DeFazio were nontestimonial, and, therefore, the court's prior rulings on the admissibility of such statements remained in effect.
¶ 62. The majority concludes that the statements that Julie Jensen made to Kosman prior to her death and the statements made by her in her letter to Ratzburg constitute testimonial evidence, while the statements she made to Wojt and DeFazio constitute nontestimonial evidence.2 Majority op., ¶ 2. The majority concludes that the court's initial determination to admit the nontestimonial evidence was proper. Majority op., ¶ 58. As to the testimonial evidence, however, the majority adopts a broad forfeiture by wrongdoing doctrine and remands the case to the circuit court to determine whether the State can prove, by a preponderance of the evidence, that Mr. Jensen caused the unavailability of his wife. Id.
*306¶ 63. I disagree that all of the statements made by Julie to Wojt and to DeFazio are nontestimonial. I do agree with the majority that this court should adopt the doctrine of forfeiture by wrongdoing, and that, under a proper application of the doctrine, the burden be placed upon the State to establish the doctrine's applicability by a preponderance of the evidence. Because I conclude, contrary to the majority, that the forfeiture doctrine should be applied (1) where the defendant caused the absence of the witness and (2) did so for the purpose of preventing the witness from testifying, I respectfully dissent in part.
I — H HH
¶ 64. As noted previously, under the Sixth Amendment to the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him [or her]." In order to properly interpret this right of confrontation, we must understand the original intent of the Framers in adopting the Sixth Amendment.
¶ 65. In Crawford, the United States Supreme Court examined the historical background that culminated in the creation of this Sixth Amendment right of confrontation. Crawford, 541 U.S. at 43. The founding fathers' immediate source of the Confrontation Clause was English common law. Id. That common law tradition is one of live testimony in court subject to adversarial testing. Id.
¶ 66. The Court explained that in the 16th and 17th centuries, witnesses' statements against an accused could be read to the jury, and the accused was offered no opportunity to cross-examine his or her accuser. In reaction to some of these cases, "English law *307developed a right of confrontation that limited these abuses." Id. at 44. First, courts developed relatively strict rules of unavailability. Id. at 44-45. Second, "[o]ne recurring question was whether the admissibility of an unavailable witness's pretrial examination depended on whether the defendant had had an opportunity to cross-examine him." Id. at 45. For example, in 1696 the Court of King's Bench ruled that "even though a witness was dead, his examination was not admissible where 'the defendant not being present when [it Ayas] taken before the mayor... had lost the benefit of a cross-examination.' " Id. (quoting King v. Paine, 5 Mod. 163, 165, 87 Eng. Rep. 584, 585 (1696)). By the mid-1700s, the right of an accused to confront any witness against the accused was firmly rooted in English common law, and the right of confrontation was included in declarations of rights adopted by at least eight of the original colonies. Id. at 48. This right was ultimately included in the Sixth Amendment to the United States Constitution. Id. at 48-49. Indeed, several American authorities flatly rejected any special status that would allow for the admissibility of statements made to a coroner absent cross-examination. Id. at 47 n.2.
¶ 67. The Crawford court also reviewed the first judicial interpretations of the Confrontation Clause because these cases "shed light upon the original understanding of the common-law rule." Id. at 49. For example, the court in State v. Webb concluded "that depositions could be read against an accused only if they were taken in [the defendant's] presence." Id. (citing State v. Webb, 2 N.C. 103 (Super. L. & Equ. 1794)). Similarly, in State v. Campbell, South Carolina excluded the deposition of a deceased witness because the deposition was taken in the absence of the accused. Id. (quoting State v. Campbell, 30 S.C.L. 124 (App. L. 1844)). That court concluded:
*308[N]otwithstanding the death of the witness, and whatever the respectability of the court taking the depositions, the solemnity of the occasion and the weight of the testimony, such depositions are ex parte, and, therefore, utterly incompetent.
Id. (quoting Campbell, 30 S.C.L. 124).
¶ 68. The court in Crawford concluded that the history of the Confrontation Clause supports two inferences. Id. at 50. First, the principal purpose of the Confrontation Clause was to exclude the use of ex parte examinations as evidence against the accused. Id. Second, "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54 (emphasis added). The Crawford court emphasized that this right of confrontation under the Sixth Amendment "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. "3 Id. at 54 (citations omitted) (emphasis added). Moreover, the United States Supreme Court has recently reaffirmed its reliance on this narrow, historical interpretation of the Confrontation Clause as described in Crawford. Davis, 126 S. Ct. at 2274 n.1.
¶ 69. Based on this historical approach, the court in Crawford explicitly rejected the admission of otherwise inadmissible testimonial evidence based on the reliability test established in Ohio v. Roberts, 448 U.S. 56 (1980).4
*309This [Roberts] test departs from the historical principles identified above in two respects. First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations.
. . . Admitting statements deemed rehable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be rehable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.
The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.
Crawford, 541 U.S. at 60-62.
¶ 70. The court recognized that although there existed exceptions to the general rule of exclusion, "there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a *310criminal case." Crawford, 541 U.S. at 56 (emphasis in original). The Crawford court explained that this historical context suggests that the requirement of a prior opportunity for cross-examination was "dispositive, and not merely one of several ways to establish reliability." Id. at 55-56. The Crawford court unequivocally concluded:
Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.
Id. at 59 (footnote omitted).
H-I H-1 H-i
¶ 71. Testimonial statements cause the declarant to be a "witness" within the meaning of the Confrontation Clause. Davis, 126 S. Ct. at 2273. The court in Crawford did discuss a historical dictionary definition of "testimony." Crawford, 541 U.S. at 51. The court noted that the dictionary defined "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Relying on this definition of "testimony," the Crawford court concluded that "testimony" constitutes "[a]n accuser who makes a formal statement to government officers [and] bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Crawford court, however, declined to spell out a comprehensive definition of "testimonial."5 Crawford, 541 U.S. at 68.
*311¶ 72. In Davis, the United States Supreme Court recently shed some additional light on the difference between testimonial and nontestimonial evidence, in the limited context of police questioning:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis, 126 S. Ct. at 2273-74.
¶ 73. The Court in the Davis matter concluded that the declarant was speaking to the police officer about events as they were actually happening, rather than describing past events about an ongoing emergency, and that consequently the statements in question were not testimonial. Id. at 2276-77. The court later clarified that the police officer's interrogation of the witness in the Hammon6 matter was testimonial because it was clear that the interrogation was part of *312an investigation of past criminal events and that there was "no emergency in progress." Id. at 2278.
¶ 74. The court noted that this description was in the context of interrogations because the cases they were examining involved interrogations. The court explicitly recognized that simply because a statement is made in the absence of any interrogation does not necessarily mean the statement is nontestimonial. "The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Id. at 2274 n.1 (emphasis added). It is with the above constitutional principles in mind that I examine the statements to Wojt and DeFazio.
A
¶ 75. I begin with the statements allegedly made by Julie Jensen to Tadeusz Wojt. During the week of November 9, 1998, Julie Jensen told Mr. Wojt that she was upset because her marriage was in trouble, that she and the defendant argued about everything, that she suspected that the defendant was having an affair, and talked about a number of marital problems between the two of them. Similarly, Julie had conversations with Malgorzata Wojt on December 1 and 2, 1998, that were about day care and school, Julie getting a job, Julie's doctor appointment, some medicine she took, and the defendant being good to her. Because the "primary purpose" of these conversations between Julie and the Wojts was not "to establish or prove past events potentially relevant to later criminal prosecution[,]" I agree with the majority that the statements made during the *313week of November 9, and on December 1 and December 2, 1998, were nontestimonial. See majority op., ¶¶ 31-33.
¶ 76. The majority's analysis does not hold true for the remainder of the statements made by Julie to Mr. Wojt. On November 21, 1998, Julie told Wojt that the defendant was going to poison her. She described past events that would be potentially relevant to a criminal prosecution, including the defendant leaving syringes in a drawer and looking up something on the computer having to do with poison, and her finding notes written by him which had to do with poison. Wojt told her to call the police.
¶ 77. The very next day, Julie gave Wojt an envelope with instructions to give it to the police if anything happened to her. She also gave him a roll of undeveloped film, indicating that these were photographs of things the defendant would look up or note referencing poisoning. Earlier that day, she told Wojt that the defendant was trying to pressure her to eat or drink, and that he would become angry when she refused. She told Wojt that she called the police, but that they were not available. She did not sleep that night, and did not think she would live out the weekend.
¶ 78. On November 24, 1998, she asked Wojt to return the roll of film to her, as she was going to give it to the police. She repeated her fears to Wojt between November 24 and November 28, 1998, and to Ms. Wojt on November 29, 1998.
¶ 79. Clearly, the primary purpose of each of these conversations was to establish or prove past events potentially relevant to a later criminal prosecution, that of Julie's husband, the defendant. Indeed, as to the purpose of the statements, the circuit court recognized as much when it wrote: "Mrs. Jensen's statements to *314the Wojts ... could be viewed as remarks which were intended for the ears of the police, when viewed in conjunction with the conversations which she had with Officer Kossman." The reason that the circuit court rejected that conclusion was twofold.
¶ 80. First, the circuit court's decision of August 4, 2004, was based in part upon the fact that the United States Supreme Court "did not adopt in Crawford the argument that 'testimonial statements' include any 'statements that were made in circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Based on our decision in State v. Manuel, 2005 WL 75, ¶ 3, 281 Wis. 2d 554, 697 N.W.2d 811, we now know that the circuit court's conclusion was in error, as Wisconsin subsequently adopted that standard for testimonial evidence.
¶ 81. Second, in ruling on the evidence that would be available to the jury, the circuit court believed it would have to abandon neutrality and embrace the theme offered by the defendant that Mrs. Jensen's motives were suicidal and malicious. Yet, the circuit court recognized that Julie's statements could have been motivated by those purposes, as well as driven by many other considerations. The standard for determining whether evidence is testimonial is its potential relevance to a later prosecution. Given that the circuit court acknowledged that multiple purposes could be deduced from the proffer of evidence, and based its ruling on an erroneous view of the law, I would conclude that the statements in question meet the requisite standard for "testimonial."
¶ 82. The statements were also relevant to establish or prove past events that were potentially relevant to the prosecution of the defendant. The syringes had *315already been left in the drawer. The notes about poisoning had already been made by the defendant. She had already viewed the computer in relation to poisoning. She had already taken pictures of a number of these items. He had already tried to pressure her to eat or drink. As she indicated to Wojt when she gave him the envelope to give to the police, she wanted the police to have that information should anything happen to her. It is obviously relevant to the defendant's prosecution, or the State would not attempt to use it. And it was expressly her purpose to identify her killer should anything happen to her. These statements, given by Julie to the Wojts, were simply as testimonial as they come. I respectfully disagree with the majority's conclusion to the contrary.
B
¶ 83. Whether the statements made by Julie to DeFazio are testimonial presents a tougher question. After reviewing the statements from November 25 and December 2,1998, made by Julie to DeFazio, I conclude that the majority is correct in its determination that these statements are nontestimonial in nature. See majority op., ¶¶ 31-33. While these statements reflect, in part, past events potentially relevant to later prosecution, it cannot be seriously argued that Julie's purpose when making these statements was to establish or prove those past events.
IV
¶ 84. The right of confrontation is not absolute. The Crawford court explicitly recognized that one exception to the inadmissibility of testimonial evidence under the Confrontation Clause is the forfeiture by *316wrongdoing exception. Crawford, 591 U.S. at 62. That exception "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." Id. at 54 (citations omitted) (emphasis added).
¶ 85. The Crawford court relied on Reynolds v. United States, 98 U.S. 145 (1879), in concluding that the rule of forfeiture by wrongdoing exception "extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." Id. at 62 (citing Reynolds, 98 U.S. at 158-159).
¶ 86. In Reynolds, the United States Supreme Court discussed the application of the forfeiture by wrongdoing rule to the Confrontation Clause:
The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.
Reynolds, 98 U.S. at 158. Reynolds, in turn, relied on Lord Morley's Case, from 1666, in which the House of Lords held:
[I]n case oath should be made that any witness, who had been examined by the coroner and was then absent, was detained by the means or procurement of the *317prisoner, and the opinion of the judges asked whether such examination might be read, we should answer, that if their lordships were satisfied by the evidence they had heard that the witness was detained by means or procurement of the prisoner, then the examination might be read; but whether he was detained by means or procurement of the prisoner was matter of fact, of which we were not the judges, but their lordships.
Id. at 158 (emphasis added).
¶ 87. The court in Reynolds also noted that in Regina v. Scaife (17 Ad. & El. N. S. 242), a unanimous court determined thát "if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness, taken before a magistrate and in the presence of the prisoner, might be read." Id.
¶ 88. The Reynolds court explained that the forfeiture by wrongdoing rule "has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong." Id. at 159. Applying this principle to the facts before the court, where the witness had testified at a prior trial and the defendant had full opportunity of cross-examination, the court in Reynolds held the testimony admissible, explaining that
[t]he accused ... had full opportunity to account for the absence of the witness, if he would, or to deny under oath that he had kept her away. Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away.
Id. at 160.7
*318¶ 89. The United States Supreme Court again reaffirmed the forfeiture exception in Davis, stating "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Davis v. Washington, 126 S. Ct. at 2280. The Davis court reasoned: "[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce." Id. The Court took no position on the standards necessary to justify application of the doctrine of forfeiture, by wrongdoing, although it did cite Federal Rule of Evidence 804(b)(6) as codifying the doctrine, and that under the federal rule, the government has generally been held to the preponderance-of-the-evidence standard. Id. The Court also noted that state courts tend to follow the same practice as the federal rule. Id.
*319¶ 90. At common law, the forfeiture doctrine was applied in situations where the defendant's wrongful acts were committed with the purpose of preventing a witness from testifying, see Hon. Paul W. Grimm and Professor Jerome E. Diese, Jr., Hearsay, Confrontation, and Forfeiture by Wrongdoing: Crawford v. Washington, a Reassessment of the Confrontation Clause, 35 U. Balt. Law Forum 5, 32-33 (2004), and most modern courts have held to this rule. See e.g. United States v. Houlihan, 92 F.3d 1271, 1278 (1st Cir. 1996); United States v. Lentz, 282 F. Supp. 2d 399, 426 (E.D. Va. 2002). In other words, the forfeiture exception has been applied when an accused has made a witness unavailable, and when the accused's intent was to deny that witness's presence at the trial.
¶ 91. Federal Rule of Evidence 804(b)(4), adopted in 1997, even goes so far as to codify this requirement as an element of the Rule. It states that if the declarant is unavailable as a witness, the hearsay rule does not apply to any "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" (emphasis added). See, e.g., United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) (requiring that the government prove "the defendant (or party against whom the out-of-court statement is offered) acted with the intent of procuring the declarant's unavailability as an actual or potential witness" for a statement to be admitted under the forfeiture by wrongdoing doctrine) (citations omitted); State v. Alvarez-Lopez, 136 N.M. 309, 314 (2005) ("The elements that must be shown for Rule 804(b)(6) to apply are: (1) the declarant was expected to be a witness; (2) the declarant became unavailable; (3) the defendant's misconduct caused the unavailability of the *320declarant; and (4) the defendant intended by his misconduct to prevent the declarant from testifying.") (citations omitted). A defendant that is put on trial for murder cannot be deemed to have killed that person with the intent to deny that person's presence at the witness's own murder trial, unless a preponderance of the evidence establishes that the defendant in fact possessed the intent to keep the witness from testifying.8
¶ 92. The majority's discussion of United States v. Emery, 186 F.3d 921 (8th Cir. 1999) is illustrative. Majority op., ¶ 44. In Emery, the court concluded that the defendant forfeited his right to confrontation where he murdered a federal informant to keep the informant from testifying in another trial. Id. at 926. The court declined to accept his argument that the forfeiture doctrine should only be applied where the defendant procured the absence of the witness is the same case the witness was to testify in, as opposed to a subsequent homicide trial. Id.
¶ 93. The majority relies on recent cases from other jurisdictions that adopt the broad forfeiture doctrine the majority seeks to employ in this case. Majority op., ¶¶ 45-52. That doctrine is based on a newly created "reflexive forfeiture principle" first advocated by Professor Richard D. Friedman, in Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 *321(1997) (hereinafter Chutzpa).9 By doing so, however, the majority abandons the substantive doctrine that was adopted by the founders in favor of a far more expansive doctrine not contemplated by the founders or by the Sixth Amendment, contrary to Justice Scalia's admonition.10 Crawford, 541 U.S. at 54 (explaining that the right of confrontation under the Sixth Amendment "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding") (citations omitted) (emphasis added). The Sixth Amendment to the United States Constitution does not *322state that, "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him [or her], except in homicide cases." While other courts may feel free to disregard the very principles upon which the Confrontation Clause rests, our decision must be limited by the Constitution and the United States Supreme Court decisions interpreting it, i.e., Reynolds, Crawford and Davis.
¶ 94. In Crawford, Justice Scalia wrote that "[dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Crawford, 541 U.S. at 62. In a similar vein, applying the forfeiture doctrine to admit testimonial evidence when the defendant is on trial for the crime that rendered the witness unavailable, absent any showing that the defendant's purpose was to procure the absence of the witness to keep him or her from testifying at trial, places the cart before the horse.
¶ 95. The circuit court got it right when it noted that the broad forfeiture doctrine advocated by the State, which the majority now adopts, would render superfluous the doctrine of dying declarations. See generally Michael J. Polelle, The Death of Dying Declarations in a Post-Crawford World, 2006 Mo. L. Rev. 285. The circuit court discerned that both doctrines coexisted at common law at the time the Constitution was ratified. Thus, the circuit court properly reasoned that a current application of the forfeiture doctrine may not do away with the dying declaration doctrine. To quote the circuit judge:
If an accused forfeits or waives the right of cross-examination merely by killing the victim to "put her out of the way," then there would have been no reason for the development of the Dying Declaration Rule, which *323contains the added requirement that the declarant's statement have been made "while believing that the declarant's death was imminent." The existence of the Dying Declaration Rule makes sense only in an eviden-tiary framework in which the mere fact that the defendant can be convincingly shown to the judge to have killed the declarant does not, by itself, justify exception to the requirements of the Confrontation Clause.
¶ 96. I have no objection to applying the forfeiture doctrine in a criminal trial. That doctrine does not, however, create a homicide exception to the Confrontation Clause. I would not adopt the broad forfeiture doctrine set forth by the majority in this case. I would remand this matter to the circuit court to apply the common law forfeiture doctrine, as it existed at the time that the Constitution was ratified. The majority's broad new rule, I conclude, is unconstitutional.
¶ 97. For the foregoing reasons, I respectfully concur in part and dissent in part.
I agree with and join that part of the majority opinion that concludes that the statements to Kosman and the letter to Ratzburg were testimonial. I do not discuss these statements further. I also agree that the statements made by Julie to DeFazio are nontestimonial, for reasons stated later in. this opinion. At issue are the statements made by Julie to Wojt.
This principle has been totally abandoned by the majority in its adoption and application of a broad forfeiture by wrongdoing doctrine, as I will discuss later in this opinion.
We have previously recognized that Wisconsin follows the reliability standard established in Ohio v. Roberts, 448 U.S. 56 *309(1980), for evaluating the admissibility of nontestimonial evidence. State v. Manuel, 2005 WI 75, ¶ 3, 281 Wis. 2d 554, 697 N.W.2d 811.
In Wisconsin, at a minimum, testimonial evidence includes ex parte in-court testimony or its functional equivalent *311(such as affidavits, custodial examinations, prior testimony not subject to cross-examination by the defendant, or similar pretrial statements declarants would reasonably expect to be used prosecutorially), extrajudicial statements contained in formalized testimonial materials (such as affidavits, depositions, prior testimony, or confessions), and statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Manuel, 281 Wis. 2d 554, ¶¶ 37, 39.
Hammon v. Indiana, 547 U.S. _, 126 S. Ct. 2266 (2006) (decided in the same opinion as Davis v. Washington).
The majority does not address the fact that the doctrine of forfeiture by wrongdoing at common law merely provided that "if a witness is kept away by the adverse party, his testimony, taken on a former trial between the same parties upon the same *318issues, may be given in evidence." Reynolds v. United States, 98 U.S. 145, 158-59 (1879) (emphasis added). See also Adam Sleeter, Injecting Fairness into the Doctrine of Forfeiture by Wrongdoing, 83 Wash. U. Law Quarterly 1367, 1370-71. Thus, the historical rule was limited to where the witness was corruptly and wrongfully kept away, and the rule only allowed former trial evidence between the same parties upon the same issues to be admitted. This case does not involve former testimony at an earlier trial. In Crawford v. Washington, 541 U.S. 36, 54 (2004), the court stated that it would recognize "only those exceptions established at the time of the founding," which included the forfeiture doctrine (emphasis added). In Davis v. Washington, 547 U.S. _, 126 S. Ct. 2266, 2280 (2006), the court then discussed, without adopting, the version of the doctrine codified in Federal Rule of Evidence 804(b)(6), which does not limit the doctrine to cases in which testimony was given at an earlier trial. Neither Crawford nor Davis answered whether the scope of the forfeiture by wrongdoing exception must be limited to that which was recognized at the founding.
The court in Davis took "no position on the standards necessary to demonstrate" forfeiture by wrongdoing, but recognized that federal courts, relying on the Federal Rules of Evidence § 804(b)(6) (codifying the forfeiture doctrine) "have generally held the Government to the preponderance-of-the-evidence standard." Davis, 126 S. Ct. at 2280.1 accept that, for purposes of this opinion, the majority is not in error in adopting this standard. See majority op., ¶ 57.
Professor Friedman recognizes that reflexive application of the forfeiture doctrine is controversial, as well as "quite far-reaching." Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506, 508 (1997) (hereinafter Chutzpa). The majority declines, however, to adopt Professor Friedman's recommendation that "the court should not hold that the accused has forfeited [the confrontation right] unless the court is persuaded to a rather high degree of probability that the accused has rendered the declarant unavailable[.]" Id. at 519.
Professor Friedman's far-reaching approach, if fully embraced by the majority, would clearly lead to nonsensical applications. For example, Friedman suggests that "[t]he prosecution should bear the burden of taking all reasonable steps to protect whatever aspects of confrontation are possible given the defendant's conduct, and of demonstrating that it has done so." Chutzpa at 525. Thus, under the reflexive forfeiture principle advocated by Friedman, once Julie left the voicemail to Officer Kosman that indicated that she thought Jensen was trying to kill her, the State had an obligation to notify Jensen that Julie made the statement, and give him an opportunity to cross-examine her by way of videotape or deposition. Id. For obvious reasons, the majority does not advance that view. Yet, this is the proper application of Professor Friedman's reflexive forfeiture doctrine adopted by the majority in this case.