(concurring in the result).
Although I would affirm Her’s conviction, I would do so on different grounds. I would not, as the court does, stretch beyond all bounds the forfeiture-by-wrongdoing doctrine in order to save this conviction. First, there is no need to apply the forfeiture doctrine; Vang’s statements to the police do not run afoul of the Confrontation Clause because they are not testimonial. More importantly, the court’s determination that application of the forfeiture doctrine requires no showing that the defendant intended to procure the unavailability of the victim is simply wrong.
I.
Whether Her’s conviction for domestic abuse murder under Minn.Stat. § 609.185(a)(6) (2006) should be affirmed hinges on whether Vang’s statements to Officer Baumhofer on March 23, 2004, describing an incident of domestic abuse were admissible at Her’s trial. On the record presented here, if the victim’s statements to the police are inadmissible, then the conviction must be reversed because there would be insufficient evidence to support a critical element of the charged offense — a past pattern of domestic abuse. If the statements are admissible, there is sufficient evidence to support the conviction. The court concludes that these statements are inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny because the State failed to meet its burden of proof. In essence, however, the court is holding that, based on an objective review *281of the facts presented in the record before us, Vang’s statements are testimonial.1 I disagree.
In holding that Vang’s statements to the police are testimonial, the court incorrectly reads Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), to hold that a statement to the police is always testimonial except when the statement is made as part of an ongoing emergency. But that is not what the Supreme Court held. The Court expressly held that, for a statement to be testimonial: (1) “the circumstances [must] objectively indicate that there is no such ongoing emergency”; and (2) “the primary purpose of the interrogation [must be] to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2273-74 (emphasis added). Thus, the absence of an emergency is not itself determinative of whether a statement is testimonial. Instead, as the Supreme Court in Davis made clear, before a statement will be found to be testimonial, there must be a showing that the statement was obtained for a testimonial purpose. Id. at 2273. We acknowledged this “primary purpose” requirement in State v. Warsame, 735 N.W.2d 684, 693 (Minn.2007) (“[Unformation about a victim’s injury and its cause may be useful in a later prosecution, but for Confrontation Clause purposes, it is the primary purpose of the interrogation that is dispositive.”).
Properly read, the Court’s emphasis on primary purpose indicates that inquiries meant to orient the police with a situation are not per se testimonial, even when no emergency exists. Whenever the police respond to a call, it is imperative that they be able to quickly obtain the information necessary to keep both themselves and the public safe:
As first responders to emergencies, police are often required to assess a party’s injuries and determine whether those injuries must be immediately addressed and whether the party requires additional assistance from paramedics or other health care professionals. In order to make that assessment, officers must inevitably learn the circumstances by which the party was injured, and if the circumstances of the questions and answers objectively indicate that gaming such information is the primary purpose of the interrogation, then the party’s statements are nontestimonial.
Warsame, 735 N.W.2d at 693. Without making an initial inquiry into what happened, police officers in the field will be simply unable to determine whether, in fact, there is an ongoing emergency and how to respond to the situation at hand. This analysis of the “purpose” requirement is entirely consistent with the Supreme Court’s treatment of “initial inquiries,” in which the Court recognized that, in the domestic violence context, police called to the scene need to assess the situation to ascertain the threat to their own and the victim’s safety, and that, as a result, the potential for exigencies “may often mean that ‘initial inquiries’ produce nontestimo-nial statements.” Davis, 126 S.Ct. at 2279.
There may, of course, be situations in which an officer’s initial orientation questions are primarily for the purpose of gathering evidence, as opposed to providing an effective response to the situation at hand. But that is not the situation presented here. Also, at some point the focus of an initial inquiry will shift from an assessment *282of the situation to an attempt to gather evidence, thus rendering further statements testimonial in nature. The officer’s purpose for asking questions in any given case, however, is a determination that will turn on the unique facts of that case.
Objectively looking at the facts of this case, it is apparent that Officer Baumhofer’s initial inquiries were not for the purpose of questioning Yang to gather facts concerning past events that would be potentially relevant to a future prosecution. Rather, her questions appear to have been for the purpose of determining whether Vang was in need of emergency assistance and whether Her was a danger to law enforcement officers or others.2 In that respect, this case is like Warsame, a case in which, over my dissent, the court held that the statements in question were non-testimonial. Warsame, 735 N.W.2d at 696. Officer Baumhofer testified that, when she arrived at the scene, Vang had fresh marks on her face and neck, was visibly upset, and was unable to speak coherently without great difficulty. An objective observer could have concluded from this that Vang might have needed medical assistance, and would have questioned her to ensure that she was not seriously injured and that no third party remained in danger. Such an objective observer would also have concluded that there was a need to ensure that neither the responding officers nor a third party was in ongoing danger. When Officer Baumhofer asked Vang what had happened, Vang stated that her husband had beaten her with a metal object and had attempted to lock her inside his car shortly before the police arrived. The circumstances that caused Officer Baumhofer to ask Vang what had transpired strongly suggest that her purpose was to ascertain whether an ongoing medical or other emergency existed. The fact that, in the end, Office Baumhofer evidently concluded that no such emergency existed does not make Vang’s statements in response to Baumhofer’s initial inquiries testimonial.
The four factors we considered in State v. Wright, 726 N.W.2d 464 (Minn.2007), further support the conclusion that Officer Baumhofer’s questions were for the purpose of determining whether there was an ongoing emergency. A^ we observed in Wright, it is relevant for a court determining the testimonial nature of a statement to ascertain: (1) whether the events described occurred contemporaneously with the questioning or in the past; (2) whether it objectively appeared that the declarant faced an ongoing emergency; (3) whether it objectively appeared that the police questions were necessary to resolve an *283emergency; and (4) the circumstances in which the declarant made her statements. Id. at 473 (citing Davis, 126 S.Ct. at 2276-77).
In addressing the Wright factors, it is important to remember that those factors are not a test, but merely relevant considerations to be taken into account when addressing the testimonial/nontestimonial distinction. To the extent the Wright factors inform the analysis of the purpose behind the questions posed to a witness, I do not question their relevance, but to the extent that other factors might better illuminate the purpose of the officer’s inquiries, those factors should be considered as well.
As to the first Wright factor, the fact that Vang described incidents that occurred in the past is not determinative of the purpose of the police inquiry. Only in rare instances — such as the 9-1-1 call at issue in Davis — will a victim ever provide information on the perpetrator’s actions as they are happening. Instead, most victims, as in Warsame, describe events that occurred in the past. See 735 N.W.2d at 687. Yet past events often provide facts about current exigencies — such as the manner in which the witness was injured. Though Vang’s statements regarded past actions by her husband, that does not mean that the police only questioned her for the purpose of gathering evidence. Determining whether a person needs immediate medical assistance and, if needed, what that assistance should be, necessarily requires the police to establish how the person’s injuries occurred.
The second Wnght factor — whether one could reasonably conclude that there was an ongoing emergency — has only limited relevance to the determination of the purpose behind police questioning. In some instances, the police could immediately assess that the victim is in no danger and that no emergency exists. See, e.g., Davis, 126 S.Ct. at 2271 (noting that victim quickly dispelled any impression of an emergency shortly after arrival of law enforcement). In such circumstances, the obvious lack of an emergency makes it more likely that the primary purpose of the police questioning was to gather evidence, and nothing more. In many circumstances, however, the answers to the officer’s initial questions will not dispel that officer’s reasonable belief that an emergency exists. The police could come upon an individual who seems calm, for example, only to learn that she is in shock or that a third party is in danger. In this case, Vang initially stated that Her attacked her with a weapon, attempted to kidnap her, and fled. Such statements would not by themselves have dispelled the impression that there existed an ongoing emergency, at least until further details were gathered.
The third Wright factor is directly relevant to the assessment of law enforcement purpose. Until it is made clear to responding law enforcement officers that there is no emergency, it is hard to conclude that the officers’ purpose in questioning a domestic violence victim is simply to gather evidence. In this case, only after it was made clear to Officer Baum-hofer that Vang did not need immediate medical assistance and that Her posed no danger to third parties could we conclude that the purpose of the questioning was to gather evidence.
The last factor — the declarant’s demean- or and surroundings — seems designed to further illustrate the purpose of the inquiries by law enforcement.3 Here, Vang, *284alone in a restaurant, presented fresh marks on her back and neck, and was visibly upset and unable to speak without great difficulty. These facts support the conclusion that Officer Baumhofer’s initial inquiries were for the purpose of assessing the situation and not for the purpose of gathering evidence to be used at some later judicial proceeding.
Given the record before us, I conclude that Vang’s statements in response to Officer Baumhofer’s initial inquiries were non-testimonial. Obviously, at some point during Officer Baumhofer’s encounter with Vang the purpose of the officer’s inquiries changed. We need not, however, determine the precise point when that change occurred because that point was sometime well after Vang indicated that Her had assaulted her with a metal object. Vang’s statement that Her had assaulted her with a metal object was nontestimonial and, therefore, not subject to exclusion under the Confrontation Clause.
Having reached that conclusion, I would also conclude that the statement fell within the excited utterance hearsay exception and was admissible.4 That evidence, along with the testimony from Vang’s cousin that, during the March 10, 2001, meeting of family members, Vang stated that her husband “kept abusing her,” as well as Vang’s uncle’s testimony that, during the same meeting, Vang reported three incidents of abuse, was sufficient to establish the “past pattern of domestic abuse” element required for a conviction under Minn. Stat. § 609.185(6). As a result, I would affirm Her’s conviction and end the inquiry.
II.
I know not why a declaration in court should be unavailing, unless made upon oath, if a declaration out of court was to criminate others than him who made it; nor why a man should have a constitutional claim to be confronted with the witnesses against him, if mere verbal declarations, made in his absence, may be evidence against him. I know of no principle in the preservation of which all are more concerned. I know none, by undermining which, life, liberty and property, might be more endangered. It is therefore incumbent on courts to be watchful of every inroad on a principle so truly important.
United States v. Burr, 25 F. Cas. 187, 193 (C.C.D.Va.1807) (No. 14,694) (Marshall, C.J.) (emphasis added).
In its most recent pronouncement on the forfeiture-by-wrongdoing doctrine,5 the *285United States Supreme Court stated in no uncertain terms that the doctrine is applicable only “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims.” Davis, 126 S.Ct. at 2280 (emphasis added).6 In complete disregard of this controlling statement of constitutional law, the court has taken upon itself to craft its own variation of the forfeiture doctrine— under which little more than being accused of a crime is sufficient to forfeit a defendant’s confrontation right — simply to save this conviction. Such use of the forfeiture-by-wrongdoing doctrine as a vehicle to make an end run around the Confrontation Clause is not just incorrect as a matter of law, but also bad public policy, in that a forfeiture doctrine lacking the element of intent is entirely limitless in its reach. In sum, today’s holding represents a significant undermining of the Sixth Amendment right to confrontation, a departure from the forfeiture doctrine as it was historically understood, and a distortion of the important, yet limited, purpose of the doctrine. In addition, it is in discord with the Court’s recent statements in Davis, and ignores 20 years of this court’s own precedent.
A. Historical Roots of the Confrontation Clause
The right to confrontation can only be understood in light of its historical roots. See Crawford, 541 U.S. at 42-43, 124 S.Ct. 1354 (“The Constitution’s text does not alone resolve this case. * * * We must therefore turn to the historical background of the Clause to understand its meaning.”). Similarly, exceptions to the confrontation right can be understood only in light of historical practice. See id. at 54, 124 S.Ct. 1354 (“The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the [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.” (emphasis added)). Thus, both the historical purpose of the confrontation right, as well as the origins of the forfeiture-by-wrongdoing exception to that right, must be examined if we are to understand that exception’s application today.
The right to confrontation precedes English law, dating back to at least Roman *286times. Crawford, 541 U.S. at 43, 124 S.Ct. 1354. Following the English conviction and execution of Sir Walter Raleigh for treason on the basis of hearsay evidence, however, that right gained particular prominence in English law. Id. at 44, 124 S.Ct. 1354. The absolute necessity of a confrontation right was understood by the founders of this country as well. While the Constitution was being ratified, the Antifederalists harshly criticized the lack of a federal right to confrontation, observing that written evidence offered without a chance for cross-examination was useless in the search for truth. Id. at 49, 124 S.Ct. 1354 (citation omitted). The historical importance of the right to confrontation was made even clearer by the right’s recognition as a bedrock principle applicable to the states through the 14th Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and the reaffirmation of the right’s precedence over considerations of reliability, as well as the established hearsay exceptions, Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354.
B. Origins and Development of the Forfeiture-by-Wrongdoing Exception
i. Historical Origins of the Forfeiture Exception
A number of cases from England and this nation’s colonial period recognized that a forfeiture of the right to confrontation might be found when a defendant had contrived to prevent a witness from testifying against him. James F. Flanagan, Confrontation, Equity, and the Misnamed Exception for “Forfeiture” by Wrongdoing, 14 Wm. & Mary Bill Rts. J. 1193, 1203-05 (2006). Notably, “the facts of [those] cases all involve witnesses rather than victims and acts occurring after the witness had been deposed or had testified!,] acts which are explained only by a desire to prevent testimony.” Id. at 1203-
04. Compare Harrison’s Case, 12 How. St. Tr. 834, 851 (Old Bailey 1692) (Eng.) (hearsay statement to coroner admitted where evidence showed defendant’s role in witness’s subsequent absence), with Lord Morley’s Case, 6 How. St. Tr. 770 (H.L. 1666) (Eng.) (witness’s hearsay statement inadmissible where defendant could not be shown to have caused witness’s unavailability).
Importantly, however, English law appears to have treated the forfeiture doctrine as a limited exception to a defendant’s right to a certain kind of confrontation, rather than an absolute nullification of the confrontation right as a whole. Under English law, it was a “general principle” that “to render a deposition of any kind evidence against a party * * * the party should have an opportunity to cross-examine the witness.” Henry Roscoe, A Digest of the Law of Evidence in Criminal Cases 71 (4th ed.1852) (citing numerous cases). Simply put, it had to be “shown that the deposition was taken in the presence of the prisoner, and that he had an opportunity of cross-examination.” Id. When certain circumstances were met, such as when the witness could not be found or the defendant had contrived to prevent the witness from testifying, see id. at 69-70 (describing various circumstances in which properly-conducted deposition could be admitted in place of live testimony), a properly-conducted deposition by a magistrate, with the defendant present and able to cross-examine the witness, would be admissible into evidence. See Robert Kry, Confrontation Under the Marian Statutes: A Response to Professor Davies, 72 Brook. L.Rev. 493, 498-502 (2007) (noting historical evidence that forfeiture was only applicable if defendant had opportunity to previously cross-examine *287the declarant).7 Understood this way, it appears that the forfeiture exception itself was originally of limited scope, and barred only the wrongdoer’s objection to the absence of the witness at trial, not an objection to the government’s total failure to afford him an opportunity for cross-examination.8
Crawford recognized this aspect of English common law, noting that the pretrial examination of a deceased witness could not be admitted unless the defendant had been given the opportunity to cross-examine that witness. 541 U.S. at 45, 124 S.Ct. 1354 (citing King v. Paine, (1696) 5 Mod. 163, 87 Eng. Rep. 584 (KB.)); see also 541 U.S. at 46-47, 124 S.Ct. 1354 (noting numerous other cases requiring prior cross-examination). This was despite the fact that the death, for whatever reason, of a witness was — like a forfeiture under English common law — considered an “exception” permitting the admission of a deposition at trial. See Roscoe, supra, at 69 (“[I]t is clear that should a witness be proved at the trial * * * to be dead ⅜ * * his deposition taken before the magistrate will be admissible in evidence. So also, if the witness is kept away by the practices of the prisoner.” (internal citations omitted)).
Lord Morley’s Case and Harrison’s Case had some impact on American jurisprudence, and a number of lower courts later agreed that a defendant’s attempt to prevent a witness from appearing in court could permit the admission of hearsay evidence against that defendant. See, e.g., Bergen v. People, 17 Ill. 426, 428 (1856) (“It is true, if a party in any case, spirits away his adversary’s witness, he ought not to profit thereby * * ⅞.”); Drayton v. Wells, 10 S.C.L. (1 Nott & McC.) 409, 410-11 (1819) (deeming admissible statements given in a previous trial on same matter if “the witness had been kept away by the contrivance of the opposite party”).9
Ultimately, in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), the Supreme Court recognized a narrow exception to the confrontation right that reflected the doctrine applied in the early English cases. In that case, Reynolds was accused of bigamy, and his second wife had *288testified against him in a previous trial for the same offense. Id. at 146, 159.10 A subpoena was issued for the wife to appear at Reynolds’ second trial, but she could not be located at the home she and Reynolds shared. Id. at 160. When asked where his wife was to be found, Reynolds simply replied, “[T]hat will be for you to find out.” Id. Based on those facts, the Court concluded that Reynolds had procured his wife’s unavailability so as to prevent her from testifying against him at trial. Id. Relying on that conclusion, the Court held that Reynolds’ right to confrontation was not violated by the admission of his wife’s previous testimony. Id.
Reynolds reveals the core purpose of the forfeiture exception. Reynolds had not been accused of merely committing a wrongful act, but had been found to have taken positive steps to ensure the absence of a witness against him. It was in this context of deliberate witness tampering that the Court stated, as repeated in this court’s opinion, that the Constitution “does not guarantee an accused person against the legitimate consequences of his own wrongful acts.” Id. at 158. Reynolds recognized the unique dangers posed by those who exploit the judicial system in the guise of asserting their Sixth Amendment rights, and crafted a narrow exception to that core constitutional right. The broad forfeiture doctrine set forth by the court today represents a substantial expansion of that narrow exception, one which finds little support in Reynolds.
Reynolds also implicitly recognized a prerequisite to application of the forfeiture doctrine that appears to have since been lost: the requirement that the defendant have had a previous opportunity to cross-examine the now-absent witness.11 In Reynolds itself, the testimony to which the defendant objected had been “sworn to by [the missing witness] on a former trial of the accused for the same offence.” Id. Thus, the hearsay at issue was unique in that it was not merely a declaration that the state sought to admit at trial, but rather testimony that the defendant had already had one opportunity to test by cross-examination.
The Court again addressed the forfeiture doctrine in Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 *289(1900). In that case, unlike Reynolds, the witness was unavailable at the defendant’s trial not because of any affirmative act by the defendant, but because of the apparent negligence of the government in allowing the witness to escape from custody shortly before the trial. Id. at 469, 20 S.Ct. 993. After citing Reynolds and other cases as support, the Court stated 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.” Id. at 471-74, 20 S.Ct. 998. Motes reinforced the point already made clear in Reynolds and earlier cases, that a forfeiture must be inexorably linked to a defendant’s intentional interference with the judicial process.12 Also, Motes was entirely consistent with a narrow view of the forfeiture doctrine — traceable back to English common law — under which a forfeiture could apply only if a previous opportunity for cross-examination had been presented.
Although the forfeiture doctrine has roots extending back as far as Reynolds and English law, it was not until the 1970s that the doctrine began to be applied in our nation’s courts. Flanagan, supra, at 1203-05, 1208-10.13 As the doctrine developed, it came to be understood that the forfeiture-by-wrongdoing exception was necessary for the limited purpose of “protecting the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness.” Steele v. Taylor, 684 F.2d 1193, 1201-02 (6th Cir.1982).14 Accordingly, by the 1990s, it was well-*290established that, for a forfeiture to apply, a “declarant-witness must be unavailable because of wrongdoing done by the defendant that was intended to and did procure the witness’s absence.” Flanagan, supra, at 1210-11 (emphasis added).15 This intent requirement is implicated in a substantial number of the cases that have addressed the issue. See, e.g., 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.Crim.P. 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, 353 (2007) (plurality opinion); Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d 158, 170 (2005); State v. Romero, 141 N.M. 403, 156 P.3d 694, 703 (2007). But see State v. Langley, 354 N.W.2d 389, 400 (Minn.1984). Other cases have noted that Federal Rule of Evidence 804(b)(6), which requires intent for a forfeiture, reflects the constitutional forfeiture doctrine. See, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir.2002); United States v. Cherry, 217 F.3d 811, 815 (10th Cir.2000). In addition, a number of states have encoded the forfeiture exception with the intent requirement intact. See, e.g., Cal. Evid.Code § 1350(a)(1) (1995); Del. R. Evid. 804(b)(6); Mich. R. Evid. 804(b)(6); N.D. R. Evid. 804(b)(6); Ohio R. Evid. 804(B)(6); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid. 804(b)(6).
The court cites a number of decisions as support for its departure from the forfeiture doctrine as it has been historically applied. It says much, though, that those contrary decisions either fail to actually provide such support or are of questionable persuasive value. In United States v. Cromer, for example, the Sixth Circuit rejected the government’s argument that a “foolish strategic decision” made by the defendant while personally conducting a cross-examination should result in a forfeiture of the confrontation right. 389 F.3d 662, 679 (6th Cir.2004). The Sixth Circuit, in the language now cited by this court, simply noted that a forfeiture may occur only upon a showing of some wrongful conduct by the defendant, such as murder or intimidation. Id. Cromer merely reaffirmed that actual wrongdoing is a necessary element of the forfeiture doctrine, and, lacking any such wrongdoing on the record, the court had no occasion to, and did not, express any opinion on whether an intent to silence need also be shown.
*291United States v. Rouco, 765 F.2d 983 (11th Cir.1985), is similarly inapposite. In Rou-co, the challenged statement was that of an undercover agent of the United States Bureau of Alcohol, Tobacco and Firearms who had purchased illegal weapons and cocaine from the defendant and whose identity as an undercover agent had become known to the defendant shortly before the defendant shot and killed the agent. Id. at 986-87. As a result of the defendant having killed the agent, the agent was not available to testify about the defendant’s illegal weapons and cocaine sales. Id. at 994. Thus, Rouco involved a classic case in which application of the forfeiture by wrongdoing is appropriate-the defendant in Rouco clearly acted upon a strong incentive to eliminate the chief witness against him related to the weapons and cocaine offenses. That incentive is at the very heart of the forfeiture doctrine, see Steele, 684 F.2d at 1201-02, and is wholly lacking in the case before us for decision.16 The court in United States v. Garcia-Meza, on the other hand, based its decision on its belief that Fed.R.Evid. 804(b)(6) provided no guidance as to the contours of the Confrontation Clause. 403 F.3d 364, 370 (6th Cir.2005). That particular conclusion is called into question, if not contradicted entirely, by the Supreme Court’s contrary statements in Davis. See 126 S.Ct. at 2280; see also infra Part II.B(ii). The Wisconsin Supreme Court relied on that same problematic conclusion, and further admitted that its decision was based on a belief that “the broad view of forfeiture by wrongdoing ⅜ * * utilized by various jurisdictions since Crawford’s release is essential.” State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518, 534-35 (2007) (emphasis added). A similar intent to circumvent Crawford was alluded to by the California Supreme Court. See People v. Giles, 40 Cal.4th 833, 55 Cal.Rptr.3d 133, 152 P.3d 433, 444 (2007), cert. granted, — U.S. -, 128 S.Ct. 976, 169 L.Ed.2d 800 (2008) (noting that Crawford made use of the forfeiture doctrine more necessary and “concluding] that, to protect the integrity of their proceedings, post -Crawford courts * * * have correctly applied the forfeiture doctrine in a necessary, equitable manner”). The Supreme Court in Davis explicitly rejected this kind of post-Crawford expansionism, and refused to “vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.” 126 S.Ct. at 2280. The court also claims that Moreno and Stechly support the existence of a “murder exception” to the Confrontation Clause. Neither case, however, involved a murder. See Moreno, 160 P.3d at 243 (sexual assault); Stechly, 312 Ill.Dec. 268, 870 N.E.2d at 338 (same). Thus, any support for a “murder exception” in either is dicta.
Viewed from a historical perspective, the court’s reliance on the existence of an unwritten “murder exception” to the Confrontation Clause is patently absurd. If such an exception existed, it would be readily apparent. It is not as if the victim’s absence at murder trials constitutes a peculiarly modern problem of which the Framers of the Sixth Amendment were unaware and could never have anticipated, yet the court cites nothing in ancient continental law, English case law, the Federalist Papers, the Antifederalist writings, Crawford, Davis, the numerous scholarly *292articles discussing the Sixth Amendment, or any case decided in the 400 years leading up to Crawford to indicate that there was historically such a thing as a “murder exception” to the confrontation right. Such an omission is telling. Given the sheer number of murder trials that have come through this nation’s courts, one would expect a “murder exception” to be solidly established if it was anything but a modern construct designed to evade Crawford. It is also curious that, despite the fact that many witness tampering cases involve the murder of the witness, see, e.g., Houlihan, 92 F.3d at 1278, the court cites no pr e-Crawford witness tampering cases indicating that intent need not be shown because of the application of a “murder exception.” If such an exception existed pr e-Crawford, it seems that more courts faced with witness tampering would have applied it, rather than go through the trouble' of analyzing whether the defendant intended to silence the witness.
In actuality, the court fails to identify any historical support for a “murder exception” to the Confrontation Clause simply because no such support exists. This is shown by the decision in Woodcock’s Case, (1789) 1 Leach 500 (Eng.), which directly addressed a circumstance in which the defendant’s murder had silenced the key witness against him. Woodcock stood accused of the murder of his wife, who died shortly after giving a signed statement to a magistrate. Id. at 500-01. Thus, the court was faced with an instance in which today’s greatly-expanded forfeiture doctrine would have been applied, if it had been available. In addressing whether that statement could be admitted to the jury, though, the court immediately noted a pressing dilemma: the statement “was not taken * ⅜ * in a case where the prisoner was brought before [the magistrate] in custody; the prisoner therefore had no opportunity of contradicting the facts it contains.” Id. at 502. If, as the court today contends, there was a broad “murder exception” to the confrontation right, then surely these facts would not have posed a problem for the Woodcock court, which was itself presented with a defendant charged with murdering his spouse. As the Woodcock court acknowledged, however, the lack of cross-examination would have barred the admission of the testimony if not for the exception for dying declarations, the application of which did not turn on the prisoner’s previous opportunity for cross-examination. Id. at 502-03.17 If, in fact, there was any need for the “murder exception” adopted by this court, cases such as Woodcock would have recognized as much, and the dying declaration exception would have been deemed unnecessary in murder prosecutions.18
In challenging the historical evidence, the court’s reasoning is fatally flawed. First, the court cites two civil cases for the proposition — one that I do not challenge— that there exists an equitable doctrine of “clean hands.” Neither case cited by the court, however, involves the blanket application of that doctrine to a criminal prosecution or even so much as hints that the doctrine may wholly trump the Confrontation Clause. See Glus v. Brooklyn E. Dist. *293Terminal, 359 U.S. 231, 231-33, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) (applying doctrine to action brought “under the Federal Employers’ Liability Act to recover damages for an industrial disease”); Wellner v. Eckstein, 105 Minn. 444, 446, 117 N.W. 830, 831 (1908) (addressing proper distribution of the property of an individual murdered by his wife).19 Further, to invoke the clean hands doctrine would be to forget that a forfeiture is triggered not by mere wrongful conduct, but by the acts of individuals who seek to undermine the judicial process. Davis, 547 U.S. at 832-33, 126 S.Ct. 2266.20 Relying on Lord Motley’s Case and McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847), the court next claims that it is actually applying the forfeiture doctrine as it was historically understood. As to Lord Morley’s Case, the court makes the error, discussed above, of reading that decision out of historical context. See Kry, supra, at 500-01 (pointing out that such a broad reading implicitly relies on an erroneous inference that cross-examination was not also a prerequisite of admissibility). The problem with the court’s use of McDaniel is that, despite that decision’s language seemingly imph-eating a forfeiture, the McDaniel court did not apply the forfeiture doctrine, resting instead on the exception for dying declarations.21 16 Miss. at 415, 419.
In addition to denying the historical evidence, the court also relies upon a laundry list of cases decided after Crawford. I do not deny that an ongoing modern trend has been to cast aside the historical protections of the Confrontation Clause so as to ensure that those accused of murder will be convicted. See, e.g., State v. Sanchez, 341 Mont. 240, 177 P.3d 444, 454 (2008) (basing decision not on historical application of forfeiture doctrine, but on “post-Crawford decisions”). Despite the court’s insistence, however, the contours of the Confrontation Clause and its exceptions are not determined by modern trends or majorities, but by the manner in which that clause was historically understood. See Crawford, 541 U.S. at 43, 124 S.Ct. 1354 (“We must * * * turn to the historical background of the Clause to understand its meaning.”); id. at 54, 124 S.Ct. 1354 (“[T]he [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.”). That history provides no foundation for an ill-conceived “murder exception” to the confrontation right. Instead, the historical evidence indicates the opposite, that the forfeiture *294doctrine was from its very inception a limited doctrine, one which recognized the core importance of a defendant’s opportunity to question the witnesses against him.
ii. Codification of the Forfeiture Exception in the Federal Rules of Evidence
In 1997, Federal Rule of Evidence 804(b)(6) was adopted, providing that the statements of an unavailable witness could be admitted “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.” When that rule was adopted, the law of forfeiture was so overwhelmingly uniform that the rule’s drafters “never questioned the intent element.” Flanagan, supra, at 1213. In particular, the drafters of the rule looked to United States v. Thevis, 665 F.2d 616 (5th Cir.1982). Flanagan, supra, at 1212. In Thevis, the Fifth Circuit recognized the dangers of an overbroad forfeiture rule as adopted by the court today, noting that the forfeiture doctrine
does not permit wholesale admission of hearsay evidence when a witness is unavailable. [Rather], a hearsay statement of a potential witness is admissible only if the government shows * * * that (1) the defendant caused the witness’ unavailability (2) for the purpose of preventing that witness from testifying at trial. Thus hearsay evidence would not be admissible simply because the witness was missing.
Thevis, 665 F.2d at 633 n. 17.
While the rules committee records indicate that the rule was “limited to witness tampering cases,” the committee declined to include an explicit reference to witness tampering because it believed the exception clearly applied “only when the object was to procure the witness’s absence.” Flanagan, supra, at 1213. The lack of any serious debate regarding the inclusion of an intent requirement in Rule 804(b)(6) makes even more clear that such intent is an integral part of the forfeiture doctrine.
Although the existence of a specific federal rule of evidence typically would have no meaningful impact on our consideration of a constitutional issue, in Davis the Supreme Court acknowledged the constitutional underpinnings of Rule 804(b)(6). In that decision, the Court observed that Rule 804(b)(6) “codifies the forfeiture doctrine.” 126 S.Ct. at 2280. This use of the word “codifies” carries particular significance. “Codification” is the process of “compiling, arranging, and systematizing * * * a discrete branch of the law, into an ordered code.” Black’s Law Dictionary 275 (8th ed.2004). The Court’s use of this particular term strongly suggests that Rule 804(b)(6) reflects the contours of the constitutional forfeiture doctrine.22 Seeing that Rule 804(b)(6) is a codification of the constitutional rule, it would follow that the constitutional rule similarly requires the element of intent.
Further, because the Davis Court addressed the forfeiture doctrine not as a matter of evidentiary law, but as a constitutional issue, its invocation of Rule 804(b)(6) is a strong indication of the proper content of the constitutional forfeiture rule. The Court clearly was not implying that a particular rule of evidence was to be applied on remand. In discussing the forfeiture rule, the Court was directing its comments to the Indiana Supreme Court, not a federal court bound by the federal rules of evidence. Nor could the Court *295have been interpreting Indiana evidentiary law, since it is well established that the Supreme Court does not decide state law. Cf. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 80 L.Ed. 158 (1935). Given that state courts are not bound by the federal rules of evidence, the Court’s mention of Rule 804(b)(6) indicates that the rule is rooted in constitutional requirements. If the Court had not meant to provide guidance on the constitutional forfeiture rule to the Indiana courts, any reference to Rule 804(b)(6) would have been unnecessary. Cf. Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (noting that the Federal Rules of Evidence are generally “nonconstitutional sources” of law). Only if Rule 804(b)(6) had a constitutional basis would it have been in any way relevant to the Indiana Supreme Court’s decision on remand, since Crawford generally severed confrontation analysis from the “vagaries of the rules of evidence.” 541 U.S. at 61, 124 S.Ct. 1354.
To say that the Rule 804(b)(6) codifies the forfeiture doctrine is not to say, as this court would insist, that the federal rule itself “has the power to force the common law and constitution to conform to its dictates.” Stechly, 312 Ill.Dec. 268, 870 N.E.2d at 351 (plurality opinion). Rather, it is to say that Rule 804(b)(6) is “a reflection of the common law, to describe how the common law in fact operates. That is what a ‘codification’ is.” Id. (citation omitted). Contrary to the court’s reading of Crawford, the mere fact that an exception to the confrontation right happens to be codified in the rules of evidence does not render that exception a nullity. For example, Fed.R.Evid. 804(b)(2) codifies the dying declaration hearsay exception, which the Supreme Court indicated may itself be a historical exception to the confrontation right. See Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354 (“The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed.”). Properly read, then, nothing in Crawford bars our acknowledgement of the constitutional basis of Rule 804(b)(6).
C. Equity and the Confrontation Right
■The court also distorts the Supreme Court’s statement in Crawford that the forfeiture doctrine is an equitable principle. In doing so, the court ignores the fact that the equitable balancing at the heart of the forfeiture doctrine is meant to respond to a particular harm — the subversion of the judicial process — not merely the general problems that arise whenever the absence of a witness makes it more difficult to obtain a conviction.
While the equitable balance clearly cuts in favor of preventing defendants from using the Sixth Amendment to exploit the judicial process, when there has been no showing that the defendant has manipulated the system to gain an unfair advantage at trial, there is no equitable interest to be balanced. See Moreno, 160 P.3d at 246 (“To find the forfeiture of a protection so integral to the truth-seeking process, quite apart from any design or attempt by the defendant to subvert that process, would * * * divorce the forfeiture by wrongdoing doctrine from its very reason for existing * * *.”). That is to say, without a showing having been made that the defendant has intentionally attempted to subvert the justice process, a court has simply no reason to engage in an equitable balancing involving such a core constitutional right. See Stechly, 312 Ill.Dec. 268, 870 N.E.2d at 349 (plurality opinion) (observing that the rationale behind the forfeiture rule is inapplicable when defendant lacked intent to silence, as it is “impossible to deter those who do not act intentionally”).
*296When the concerns attendant to witness tampering cases are set aside, the court’s unspoken “equitable interest” boils down to this: Crawford has made it substantially more difficult to admit the statements of murder victims at trial, and without such statements, murder convictions are harder to obtain. The Supreme Court, however, has already made it clear that this interest is insufficient to justify the wholesale evisceration of the Confrontation Clause. When the Davis Court was asked in no uncertain terms to allow “greater flexibility in the use of testimonial evidence” in domestic violence cases, the Court flatly refused. Davis, 126 S.Ct. at 2279-80. That refusal was not because the Court was unaware of the difficulties prosecutors face in cases involving domestic violence, however. In fact, the amici in Davis presented a substantial body of statistical evidence showing Crawford’s negative impact on domestic-violence prosecutions throughout the nation, and explicitly noted that the forfeiture doctrine’s intent requirement poses a barrier to the successful prosecution of violent offenders. See generally Brief of Amici Curiae the National Network to End Domestic Violence, et. al. in Support of Respondents, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Faced with these facts, the Court nevertheless refused to allow emotion to control its constitutional interpretation of the forfeiture doctrine, stating:
[Domestic violence] is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. But when 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. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.
Davis, 126 S.Ct. at 2279-80 (citation omitted). By focusing on those who “seek to undermine the judicial process,” the Court made clear the unique, specific harm that the forfeiture doctrine is crafted to prevent: intentional interference with the judicial process.
It is hard to misconstrue this statement as mere dicta, or as leaving the door open for the expansion of the forfeiture doctrine that this court now embraces — the Court was faced with an explicit request to allow a broader forfeiture exception to Crawford, and it responded by making clear that no court has the power to “vitiate constitutional guarantees” simply because “they have the effect of allowing the guilty to go free.” Id. at 2280. When the nation’s highest court makes clear that it will not expand the forfeiture doctrine, it is simply beyond our authority to act in its stead.
Nonetheless, both this court and Sanchez, 177 P.3d at 456, read a key phrase out of Davis so as to justify the creation of a “murder exception,” arguing that murder necessarily “undermine[s] the judicial process and its search for truth” and thus justifies the application of a forfeiture. Even if I were to assume that the absence of a witness sufficiently undermines the search for truth so as to justify encroachment on constitutional rights, neither Sanchez nor this court explain how a charge of murder, without more, shows that a defendant sought to undermine the judicial process. Without that crucial element, no forfeiture can result under a fair reading of
*297Davis. It is but speculation on the court’s part that Her sought to undermine the judicial process, unless the court would go so far as to claim that a murder defendant’s mere assertion of a confrontation objection is sufficient to show that he seeks to undermine the judicial process. Any implicit invocation of Her’s intent to prevent Vang’s testimony is particularly misplaced here, considering that such intent is not a necessary element of domestic abuse homicide or second-degree murder that had to be found by the jury beyond a reasonable doubt when rendering its verdict. See Minn.Stat. § 609.185(a)(6) (requiring sole mental element be that crime be committed with extreme indifference to human life); State v. Bradford, 618 N.W.2d 782, 800 (Minn.2000) (same); see also Minn.Stat. § 609.19, subd. 1(1) (2006) (requiring only intent to cause death). For the court to make its own finding of an intent to prevent testimony on this record is both improper as a matter of law and contrary to the evidence.23
Finally, I would be remiss if I did not comment on the breadth of the court’s “murder exception,” which is astounding. The court, quoting Sanchez, 177 P.3d at 456, notes that “the natural result of a deliberate killing is always that the victim is unable to testify.” The court further notes, “In that circumstance, where the defendant’s ‘intentional criminal act results in a victim-declarant’s death,’ the defendant will benefit from his ‘wrongdoing if the defendant can use the death to exclude the victim-declarant’s otherwise admissible testimony, regardless of whether the defendant specifically intended to silence the victim-declarant.’ ” As a result, the court, in agreement with the Montana Supreme Court, concludes that “ ‘[s]uch a result undermines the judicial process and threatens the integrity of court proceedings, and [that,] though courts may not ‘vitiate constitutional guarantees when they have the effect of allowing the guilty to go free,’ nor must they acquiesce in the destruction of the criminal-trial system’s integrity.’ ”
If every murder undermines the judicial process and threatens the integrity of court proceedings as the court concludes, does the murder defendant also forfeit his or her rights under the Fourth and Fifth Amendments as well as other rights under the Sixth Amendment? Does an individual’s attempt to hide or destroy a murder weapon result, on “equitable” grounds, in a forfeiture of the right to contest an illegal search of that individual’s home for that weapon? Or, put in this court’s broad terms, is it to be understood that every invocation of a constitutional right, by a defendant of whose guilt a court is certain, threatens the integrity of the judicial system? When the court’s reasoning is followed to its logical conclusion, the only answer to these questions is yes. Only by placing punishment of the guilty above the rights enshrined in the Constitution, however, might we in good conscience abide by such an answer. But, as the late Justice Brennan said so well:
This denigration of constitutional guarantees and constitutionally mandated *298procedures, relegated by the Court to the status of mere utilitarian tools, must appall citizens taught to expect judicial respect and support for their constitutional rights. Even if punishment of the “guilty” were society’s highest value— and procedural safeguards denigrated to this end — in a constitution that a majority of the Members of this Court would prefer, that is not the ordering of priorities under the Constitution forged by the Framers, and this Court’s sworn duty is to uphold that Constitution and not to frame its own. The procedural safeguards mandated in the Framers’ Constitution are not admonitions to be tolerated only to the extent they serve functional purposes that ensure that the “guilty” are punished and the “innocent” freed; rather, every guarantee enshrined in the Constitution, our basic charter and the guarantor of our most precious liberties, is by it endowed with an independent vitality and value, and this Court is not free to curtail those constitutional guarantees even to punish the most obviously guilty.
Stone v. Powell, 428 U.S. 465, 523-24, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (Brennan, J., dissenting). This court, charged with the duty of protecting constitutional rights, treads a dangerous path when it proclaims that a defendant’s exercise of a constitutional right undermines the integrity of the judicial system.
D. The Court’s Reliance on Langley
The court’s reliance on State v. Langley, 354 N.W.2d 389 (Minn.1984), to support its broad application of the forfeiture-by-wrongdoing doctrine is, at best, misguided. Although stare decisis requires a “compelling” reason before we will depart from precedent, it does not command blind deference to a wrongly decided ease. Here, there are compelling reasons to depart from Langley. First, the Langley court
engaged in no discussion or analysis of the doctrine, but simply stated its conclusion that the defendant there “should not be afforded” his Sixth Amendment rights as a shield to protect him from the ramifications of having murdered his wife Rose because the evidence was strong that he had been the instrument of the denial of his own right of cross-examination. Id. at 400. Absent any discussion and analysis, it is impossible to know the basis for the court’s conclusion. As troubling as the Langley court’s conclusion is, given the complete lack of any analysis underlying that conclusion, it is even more troubling given the record before that court. A review of the briefs in Langley indicate that neither party raised or briefed the applicability of the forfeiture-by-wrongdoing doctrine to the court. Further, the two cases relied on by the Langley court to reach the conclusion that a defendant need not have intentionally procured the absence of a witness for the forfeiture doctrine to apply do not support that conclusion. The Langley court relied on State v. Olson, 291 N.W.2d 203 (Minn.1980), and United States v. Carlson, 547 F.2d 1346 (8th Cir.1976). Id. In Olson, we applied the traditional formulation of the forfeiture doctrine, stating that one who “procures the absence of a witness by threats, bribes, concealment or intimidation” has forfeited his confrontation right. Olson, 291 N.W.2d at 207. We also noted that, absent a conspiracy, a forfeiture occurs “when a defendant threatens a witness after he has been apprehended and causes the witness to remain mute.” Id. (citing Motes, 178 U.S. at 471-74, 20 S.Ct. 993). Olson said nothing to suggest that the doctrine could be applied in the absence of intentional witness tampering. Similarly, Carlson considered the forfeiture doctrine necessary only to prevent defendants from exploiting the criminal justice process. See *299Carlson, 547 F.2d at 1359 (“[T]he law [should not] permit an accused to subvert a criminal prosecution by causing witnesses not to testify at trial who have, at the pretrial stage, disclosed information which is inculpatory as to the accused.”).
Finally, research indicates that Langley is an anomalous outlier.24 As noted above, our discussion in Olson does not stand for the proposition on which the Langley court relied. Nor has my research turned up any other Minnesota case before Langley that stands for the existence of a “murder exception” to the confrontation right. See, e.g., State v. Hansen, 312 N.W.2d 96, 103-05 (Minn.1981) (finding no forfeiture, citing to federal and state cases all involving threats to witnesses); Olson, 291 N.W.2d at 207; State v. Black, 291 N.W.2d 208, 214 (Minn.1980) (citing Carlson, noting threats made to witness by defendant). My research also indicates that, since Langley, there are no reported cases citing Langley as defining the breadth of the forfeiture-by-wrongdoing doctrine, nor have we decided any case applying the doctrine as set out in Langley. Indeed, we have not decided any subsequent case in which a forfeiture was found without a showing of witness tampering of some sort. See, e.g., Wright, 726 N.W.2d at 482 (remanding for determination of whether intent to procure witness’s unavailability was shown); State v. Fields, 679 N.W.2d 341, 347 (Minn.2004) (observing that defendant acted with intent to render witness unavailable); State v. Byers, 570 N.W.2d 487, 494-95 (Minn.1997) (noting defendant’s attempts at intimidating witness); State v. Peirce, 364 N.W.2d 801, 807 (Minn. 1985) (noting that defendant threatened to kill witness if he testified).
I would also note that, when “the reasons for [a] rule have ceased to exist,” we “ought not to blindly adhere to former decisions even though legally sound when the case was decided.” Johnson v. Chicago, B. & Q. R.R. Co., 243 Minn. 58, 69, 66 N.W.2d 763, 771 (1954). Langley was not legally sound when decided, and, until today, we have not followed it. Given the Court’s pronouncements in Davis and Crawford, there is no reason to begin following it now.
For all of the foregoing reasons, I concur only in the result.
. To hold that the State failed to meets its burden of proof to show that the statement is nontestimonial is the same as saying that the statement is testimonial, unless the court means to create a third category of "neutral” statements for purposes of Confrontation Clause jurisprudence.
. The court contends that this conclusion is mere speculation because there was no evidence of the "actual questions” asked. While the court is correct that there is no record of the questions asked, that fact, by itself, does not mean that the primary purpose of the questions, if any, that were asked was to establish or prove past events potentially relevant to a future prosecution. Davis itself rejected such an overemphasis on the questions asked by law enforcement, pointing out that "even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” 126 S.Ct. at 2274 n. 1 (emphasis added). Here, based on a review of the totality of the circumstances presented by the record before us, I conclude that Vang’s statement that her husband had beaten her with a metal object was not elicited for the purpose of developing evidence for a future prosecution. If, as the court suggests, the record is inadequate for making that determination, the appropriate response is a remand to the trial court to determine what questions, if any, were asked by Officer Baumhofer. See Warsame, 735 N.W.2d at 697 (remanding for further proceedings to properly apply Davis standard, with permission to further develop record as appropriate).
. If the declarant is in police custody, for example, it is particularly likely that she is in no danger and that the police questioning is for the purpose of gathering evidence. That *284does not necessarily mean, however, that there is no emergency. An individual might come to the police station to report that her child is missing, for instance. Her surroundings in that circumstance would indicate that she is not in danger, but no one would doubt that there is an ongoing emergency.
. Because the court does not make this point explicitly, and because it is of sufficient importance in the post-Crawford legal landscape, we must make clear the analysis that should be engaged in whenever a hearsay statement faces a Confrontation Clause objection. For any hearsay statement to be admitted against a criminal defendant, that statement must both overcome a Confrontation Clause objection and fit within a specific hearsay exception.
. Although the doctrine might more accurately be termed “waiver by wrongdoing,” given the requirement that intent be shown, the term "forfeiture” is most commonly used when discussing the doctrine. I attach no significance to the forfeiture label, particularly given the weight of the case law applying the doctrine and the fact that Federal Rule of Evidence 804(b)(6) terms itself a forfeiture rule while requiring that intent to silence the witness be shown. Contra People v. Giles, 40 Cal.4th 833, 55 Cal.Rptr.3d 133, 152 P.3d 433, 442-43 (2007), cert. granted, - U.S. -, 128 S.Ct. 976, 169 L.Ed.2d 800 (2008) *285(finding significant the use of the word "forfeiture” instead of "waiver”). Even if I did attach significance to the terminology used in describing the doctrine, we have previously treated this doctrine as a waiver of a constitutional right. See State v. Peirce, 364 N.W.2d 801, 807-08 (Minn.1985).
. The court asserts that the Supreme Court, despite taking the time in Davis to discuss the analytical underpinnings of the forfeiture doctrine, "was 'tak[ing] no position on the standards necessary to demonstrate ⅜ ⅝ * forfeiture.’ ” To reach this conclusion, the court reads an isolated phrase out of the context in which it was found. Read in full, the relevant statement reads:
We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, [284 F.3d 758, 762 (7th Cir.2002) ]. State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, [444 Mass. 526, 830 N.E.2d 158, 172 (2005)].
Davis, 126 S.Ct. at 2280 (emphases added). Both cases to which the Court cited discuss the burden of proof which must be met to establish a forfeiture, settling on the preponderance-of-the-evidence standard. Scott, 284 F.3d at 762; Edwards, 830 N.E.2d at 172. Far from disclaiming any opinion on the forfeiture doctrine itself, this statement reflects only that the Court was not making a final determination as to the burden of proof necessary for establishing a forfeiture.
. It would have been most unusual if, under English law, the mere absence of the declar-ant — a common occurrence in the hearsay context — were sufficient to eliminate the cross-examination requirement. Rather, it seems most natural to understand admissibility in such instances as resting on two distinct requirements: (1) a deposition at which the defendant was present to conduct a cross-examination; and (2) the existence of some exception, such as a forfeiture or the death of the witness.
. While this may not seem to be a "forfeiture” of anything, one must remember that cross-examination is more than the mere questions and answers, but also a chance to allow the trier of fact to assess for itself the credibility of a witness through the utilization of live testimony. Understood that way, the replacement of a live witness with an impersonal piece of paper would be a substantial forfeiture of an important aspect of a trial, particularly when the witness’s credibility is hotly contested.
.As Dean Wigmore would later summarize, “If the witness has been by the opponent procured to absent himself — this ought of itself to justify the use of his deposition or former testimony * ⅜ * for any tampering with a witness should once for all estop the tamperer from making any objection based on the results of his own chicanery.” John H. Wigmore, Evidence in Trials at Common Law § 1405 (James H. Chadbourn rev. ed.1974), cited in James F. Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems With Federal Rule of Evidence 804(b)(6), 51 Drake L.Rev. 459, 464 (2003). The forfeiture doctrine as set forth in both Wigmore and Drayton is entirely compatible with the narrow forfeiture rule embraced at English common law.
. The court argues that the context in which Reynolds arose is irrelevant to any subsequent interpretation of that decision, and that Reynolds’ broad, general language should itself be determinative. The Supreme Court has flatly rejected such attempts to dissociate its holdings from the context in which they arose. See Illinois v. Lidster, 540 U.S. 419, 424, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (“We must read this and related general language * * * as we often read general language in judicial opinions — as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.”). Thus, it is hard to cite the general language of Reynolds as support for a limitless forfeiture doctrine, given that no opportunity to consider such a doctrine was before the Court at that time.
. The court misreads this statement as an assertion that the modem forfeiture doctrine requires that there be a previous opportunity for cross-examination. Bound as I am by the decisions of the United States Supreme Court, I make no such argument — a point I make clear by noting that the original cross-examination requirement "appears to have since been lost.” Rather, I simply point out the historical limitations of the forfeiture doctrine so as to illustrate the extent to which this court now expands that doctrine. Where a forfeiture once required some previous opportunity for cross-examination, this court would now hold that an absolute forfeiture applies categorically to all murder defendants. In other words, what was once a carefully limited exception is now automatically applied. The extent of such a departure from the historical forfeiture doctrine could not be any more clear.
. The Court in Motes observed that the forfeiture doctrine was originally applicable, as a general rule, only to the witness’ sworn testimony before a magistrate or a coroner. 178 U.S. at 472, 20 S.Ct. 993. That the doctrine could only be triggered once the hearsay de-clarant had become an actual witness in the proceedings further indicates that the forfeiture doctrine is meant to prevent the defendant from interfering with that witness at a later time.
. As one commentator observes, it appears that the newfound interest in the forfeiture exception at this particular point in time was a response to the problems of witness tampering and loss of testimony that accompanied the war on organized crime and illegal narcotics. James F. Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems With Federal Rule of Evidence 804(b)(6), 51 Drake L.Rev. 459, 466 (2003).
. The court makes the unusual claim that the intent requirement of the forfeiture doctrine is inapplicable because Her has not been accused of witness tampering. In essence, the court has come to the circular conclusion that, when a defendant has not acted with the intent to disrupt the judicial process, no intent need be proven in order to find a forfeiture. Notably, the court cites no cases giving any plausible rationale for such a proposition. Rather than providing any real support, the fact that witness tampering is not presently at issue actually undermines the court’s conclusions, given that the forfeiture doctrine's purpose is to prevent witness tampering. Here, the court ignores the fact that the very purpose of the forfeiture doctrine is to address the unique problems presented by witness tampering, not the general problems presented whenever a prosecution witness happens to be unavailable. It is no mere coincidence that the intent requirement, at least pre-Craw-ford, appeared so regularly in witness tampering cases — those cases all involve individuals acting on the strong incentive to eliminate adverse witnesses. It is also not a mere coincidence, State v. Langley, 354 N.W.2d 389 (Minn.1984), notwithstanding, that there are so few forfeiture cases involving absent witnesses that do not involve the intentional tampering with a witness. When the court observes that witness tampering is not at issue in this case, it admits that the key concern behind the forfeiture doctrine — a defendant’s incentive to eliminate adverse witnesses — is lacking.
. In criticizing the conclusion I draw from the history of the forfeiture exception — that the exception has historically been grounded in intentional conduct aimed at preventing a witness from testifying — the court inadvertently reveals the crucial flaw in its reasoning. First, the court cites to an article that states, "historically, forfeiture was limited to witness-tampering cases, [but] after Crawford most courts have applied the doctrine * * * where witness tampering is not involved.” Myrna S. Raeder, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & Pol'y 759, 778 (2007) (emphasis added). In doing so, the court recognizes the historical underpinnings of the forfeiture-by-wrongdoing exception. Then, in its reliance on a series of cases decided since Crawford in support of its murder exception, the court establishes its willingness to ignore not only that history but also Crawford's mandate that the Confrontation Clause must be understood in the context of its historical roots. That is not to mention the fact that those post-Crawford cases on which Professor Raeder relies have been typified by their "lack of analysis, * * * apparent rote citation of language, and * * * disinclination to examine the facts of the precedents.” Flanagan, supra, at 1235.
. While the Rouco court did not make this point explicitly, it is notable that the two forfeiture cases to which it cited in reaching its decision — Carlson and Thevis — both applied a limited forfeiture doctrine, rather than an expansive doctrine automatically applicable to all murder defendants. This is of particular importance when it is remembered that Thevis, which required an intent to silence the witness, is binding precedent in the 11th Circuit. See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982).
. This, of course, is not to conflate the numerous modern hearsay exceptions with exceptions to the Confrontation Clause. The dying declarations exception, like the forfeiture doctrine, is unique in that it was historically considered an exception to the confrontation right. See Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354.
. In all likelihood, if this court is correct that there exists a “murder exception” to the Confrontation Clause, Woodcock’s Case reveals that exception's identity: the exception for dying declarations.
. While it is entirely possible that the court considers the right to confrontation of no more consequence than a statute of limitations, see Gins, 359 U.S. at 231-32, 79 S.Ct. 760, or the proper distribution of property, see Wellner, 105 Minn, at 446, 117 N.W. at 831, it is unlikely that the Framers or Sir Walter Raleigh would share that sentiment.
. Davis's focus on individuals who seek to undermine the judicial process is entirely consistent with the Court’s application of the clean hands doctrine in Glus. In that case, the Court determined that a statute of limitations was inapplicable when the party invoking the limitations period had misrepresented to the plaintiff the amount of time available in which to bring his claim. Glus, 359 U.S. at 235, 79 S.Ct. 760. Put simply, the defendants in Glus sought to undermine the judicial process by misstating the statute of limitations period upon which they later relied.
.It says much about the McDaniel court’s reasoning that the case upon which it relied for its constitutional interpretation itself rested on the dying declarations exception, as well as a particularly dubious claim that the right to confrontation was inapplicable because the person who overheard the victim’s statement, not the victim himself, was the witness of whom cross-examination was constitutionally mandated. Woodsides v. State, 3 Miss. (2 Howard) 655, 664-65 (1837).
. Decisions before Davis similarly recognized that Rule 804(b)(6) was a codification of the common law constitutional doctrine. See, e.g., United States v. Gray, 405 F.3d 227, 241 (4th Cir.2005); United States v. Ochoa, 229 F.3d 631, 639 (7th Cir.2000).
. The court protests that it does not, and need not, make a finding of such intent. It is simply unclear how the court can, as required by Davis, conclude that Her sought to undermine the judicial process without finding, at minimum, a specific intent to prevent Vang from testifying. Without any explanation by the court as to how it would address this problem, aside from a weak argument that the Davis Court failed to insert the word "only” into its opinion, it appears that the court has simply chosen to ignore all statements in Davis that it finds inconsistent with its ultimate conclusion. While the insertion of additional language would have likely made Davis clearer, the lack of a single word is but a slender reed upon which to hang one’s constitutional analysis.
. The court simply takes this statement out of context, arguing that other cases in our sister states — all decided decades after Langley — have reached similar results. That another jurisdiction articulated a constitutionally infirm justification for Langley decades after it was handed down does not alter the fact that Langley runs contrary to the absolute weight of the historical evidence — evidence determinative of the scope of the confrontation right, as well as any exceptions to that right. See Crawford, 541 U.S. at 43, 54, 124 S.Ct. 1354.