(dissenting). The majority opinion finds, ab initio apparently, that the victim’s attitude of forgiveness is the product of a deranged mind and is, therefore, proof of severe mental disorder that in itself proves the witness unavailable. While this position of the majority — equating the spirit of forgiveness with insanity — could be challenged on various grounds, I criticize it because it evidences the majority’s willingness to make findings of fact although the trial court has not done so. There is no evidence whatsoever that the witness’ willingness to forgive her alleged attacker was the “product” of mental illness. What the majority tends to *148prove is that the witness, as a matter of religious belief, does not approve of our system of law enforcement and does not deign to respond to a command of the court. But this, too, is a finding that an appellate court cannot make. This line of inquiry has nothing whatsoever to do with the unavailability of a witness.
A part of the evidence the majority assertedly relies upon — that the witness suffers from catatonia — is certainly at odds with the proof that she makes frequent visits to see her assailant. She is apparently not incapacitated for that purpose.
The record in respect to unavailability is confusing— and no wonder. The eventual determination by Judge Corbett was made on the basis of a stale, months-old record. No findings on the basis of up-to-date evidence were made in respect to the witness’ physical or mental condition at or about the time of trial. The conclusions of the trial judge were based on evidence not then probative; and, contrary to intimations of the majority, there was no burden on the defendant to prove the witness was available.
Justice Abrahamson’s dissent adequately explores the record and demonstrates that the findings and conclusions of the trial court comport with neither the evidence nor the law. The well intentioned efforts of the majority are equally ineffective for the same reasons; and to the extent that the majority makes findings on the basis of conflicting evidence or evidence from which a factfinder could reach different inferences, the majority exceeds its jurisdiction as an appellate court.
We cannot forget that the right of confrontation is a constitutional right afforded to an accused as a defense against the power of the state — a power which may be abused. While the very purpose of criminal prosecutions is to protect society from violations of its peace and dignity, an essential ingredient of societal well being is the *149conviction of only the guilty. Our constitutional forefathers had reason to fear the state; hence, witnesses or other evidence must be produced by the state in court if a conviction is to be had. Only in rare cases can it be said, consistent with the constitution, that a witness is “unavailable” to appear and testify in person. In such case — and I conclude, under the evidence, this is not one —prior cross-examined testimony may be used.
The constitutional right to confrontation is not to be diluted by invocation of victim’s rights. One who is convicted in violation of the confrontational right is a victim of the state. This court should not be a party to such victimization. To do so diminishes the rights of all victims — victims of criminal acts and victims of the occasional excesses of the state. Victims of crime and victims of government excess both must be protected by the courts. We do not afford succor or protection to victims of crime by abandoning or explaining away for insubstantial and unfounded reasons the cherished and venerable constitutional right to confront witnesses.
I dissent.
SHIRLEY S. ABRAHAMSON, J.(dissenting). The defendant raises only one issue for review: whether the circuit court abused its discretion in determining that the victim-witness was “unavailable” to testify at trial within the meaning of sec. 908.04(1) (d), Stats. 1981-82. Unless the witness is “unavailable,” admission of her previous testimony violates the hearsay rule, sec. 908.045, 1981-82, and this defendant’s constitutional rights to confront and cross-examine the witness. Because I believe that the record does not show that the witness was “unavailable” and because I believe that the majority opinion seriously undermines this court’s and the legislature’s efforts to protect victims and witnesses by invoking the concept of victim’s rights in an incongruous context, I dissent.
*150I.
The dispositive issue in this case is whether the circuit court abused its discretion in determining that this witness was unavailable for purposes of admitting hearsay evidence. The exercise of discretion “contemplates a process of reasoning which depends on facts that are in the record or are reasonably derived by inference from the record, and yields a conclusion based on logic and founded on proper legal standards.” Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982). I conclude that the circuit court abused its discretion both by failing to take factual evidence into account and by applying incorrect legal standards to the facts it considered.
The statutes define “unavailability” as the witness’s inability “to be present or to testify at the hearing because of . . . [a] then existing . . . mental illness or infirmity.” Sec. 908.04(1) (d), Stats. 1981-82.1 (Emphasis added.) The majority opinion recognizes that the circuit court determines unavailability in this case by applying the following test {supra, pp. 141, 142) : are the circumstances of the case such that “the act of testifying again” causes “a significant probability of worsening the condition” of the witness who “is presently diagnosed as being severely mentally ill” so that the circuit court could not reasonably require the proponent to produce the witness ? The test is a difficult one; it is not easy for the circuit court to excuse the witness from testifying.
Other courts interpreting evidentiary rules similar to sec. 908.04(1) (d), Stats. 1981-82, have promulgated similar criteria to guide the trial court. The trial court must look at the witness’s mental illness or infirmity existing at the time the witness is to testify, and the mental illness or infirmity must be so severe that the witness’s at*151tendance or testimony is rendered “relatively impossible and not merely inconvenient.” People v. Gomez, 26 Cal. App. 3d 225, 230, 103 Cal. Rptr. 80, 84 (1972). The trial court must also recognize that because testifying may cause psychological or emotional harm to witnesses, the court must distinguish between available and unavailable witnesses on the basis of the degree of harm the witness will suffer as a result of testifying. The trial court must balance the harm to the witness against the fundamental principle that a witness is required to testify, cf. State v. Gilbert, 109 Wis. 2d 501, 512, 326 N.W.2d 744 (1982). A witness is unavailable if testifying would exacerbate the mental illness or infirmity to cause long-term harm that is far greater than the harm that testifying ordinarily causes to victims of and witnesses to similar crimes. Warren v. United States, 436 A.2d 821, 829-30 (D.C. App. 1981).
The following factors are relevant to determine unavailability :
(1) the psychological history of the witness;
(2) the nature of the mental illness or infirmity at the time of testifying;
(3) the probability of the act of testifying having an effect on the witness’s mental illness or infirmity;
(4) the degree and duration of infirmity anticipated as a result of testifying;
(5) the expected duration of the mental illness or infirmity preventing testifying and whether the court could continue the trial to accommodate the witness’s testimony.
These factors are helpful but not exhaustive. See Warren v. United States, 436 A.2d 821, 830 n. 18 (D.C. App. 1981) ; People v. Williams, 93 Cal. App. 3d 40, 155 Cal. Rptr. 414, 420-21 (1979) ; People v. Gomez, 26 Cal. App. 3d 225, 230, 103 Cal. Rptr. 80, 83-84 (1972) ; People v. Lombardi, 332 N.Y.S.2d 749, 750-51, 39 A.D.2d 700 (1972) ; Peterson v. United States, 344 F.2d 419, 425 (5th *152Cir. 1965); 5 Wigmore, Evidence, sec. 1406, p. 219 (Chad-bourn rev.1974).
The state, like other proponents of certain hearsay evidence, has the burden of proving that the witness is “unavailable.” Ohio v. Roberts, 448 U.S. 56, 65, 74-75 (1980). I conclude that the state did not carry its burden of proof and that the circuit court abused its discretion by failing to take into account the factual evidence that showed that the witness was not unavailable.
Under sec. 908.04(1) (d), Stats. 1981-82, the circuit court must first determine the witness’s psychological history and the nature of the mental illness or infirmity. The circuit court, learning about the witness from the testimony of Dr. Busby, found that the witness suffered from acute schizophreniform disorder.
Dr. Busby testified that to a reasonable degree of scientific or medical certainty the witness suffered from “acute schizophreniform disorder,” as defined in Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980) (DSM III).2 Dr. Busby noted that according *153to a previous system of diagnostic nomenclature the witness’s mental illness could be classed as “schizophrenia.”3 When asked whether the witness would recover, he answered he “really couldn’t say” but that it was “possible that she would continue to improve over the X number of years, maybe two or three, maybe five or ten, and perhaps eventually recover spontaneously in that manner.” The doctor also testified that with help it was possible that she might recover more quickly.
Dr. Busby’s testimony is confusing and internally inconsistent. As the majority here recognizes, the distinction between the diagnoses of schizophrenia and acute schizophreniform disorder is not semantic, but substan*154tive. Supra, p. 136, n. 6. Schizophrenia and acute schizo-phreniform disorder are different diseases.4 Although they have identical manifestations, schizophrenia may last for several years, while acute schizophreniform disorder lasts from two weeks to six months. The trial in this case took place six months after the original diagnosis when the witness might be expected to have recovered if the diagnosis of acute schizophreniform disorder was correct.
Faced with this potentially confusing testimony as to whether the witness suffered from schizophrenia or acute schizophreniform disorder, the circuit court (Judge Ziev-ers presiding) stated that it “is satisfied that the witness [L.L.] had been diagnoses [sic] and was suffering from acute schizophreniform disorder which the court finds continues to exist ... so as to warrant a declaration of unavailability.” (Emphasis added.) This court must assume that the circuit court understood the doctor’s testimony, the medical terms, and the characteristics of acute schizophreniform disorder before it made a finding of fact that the witness suffered from this particular disorder.
Because a finding that the witness’s mental illness was short-term is inconsistent with the circuit court’s ruling that the witness was unavailable, the majority is compelled to ignore the circuit court’s finding of acute schizo-phreniform disorder {supra, p. 136, n. 6) in order to reach the result it does, that is, upholding the circuit court’s ruling that the witness was unavailable. Rather than accept the circuit court’s finding of fact as to the nature of the mental illness or infirmity, the majority substitutes its own findings for that of the circuit court. The majority finds that the witness suffered from “schizophrenia” *155{swpra, p. 140) and “became a catatonic schizophrenic”5 {supra, p.146).
I cannot join the majority’s incursion into the circuit court’s realm of expertise as the trier of fact and the majority’s willingness to ignore this court’s dictates that the “weight of the evidence and the credibility of the witnesses are matters resting within the province of the trier of fact.” The majority had best heed its own admonition to the court of appeals that an appellate court is precluded from “making any factual determinations where the evidence is in dispute.” Wurtz v. Fleischman, 97 Wis. 2d 100, 107, and n. 3 at 107, 293 N.W.2d 155 (1980).
Moreover, the majority’s finding that the witness suffered from schizophrenia and is a catatonic schizophrenic is against the great weight and clear preponderance of the evidence. The witness’s conduct is, as I shall explain later, consistent with Dr. Busby’s diagnosis of and the circuit court’s finding of acute schizophreniform disorder, not schizophrenia.
After determining the psychological history and nature of the mental illness or infirmity, the circuit court should then consider whether the mental illness was in existence at the time her testimony was to be given. The circuit court concluded the illness was extant. After reading the record, I conclude that the state did not carry its burden of proving that the illness existed either six weeks before trial at the time of Judge Zievers’s ruling on unavailability or at the time of trial.
*156Dr. Busby’s testimony at the December hearing concerning the witness’s illness was based on a diagnosis he had made in September-October while the witness was under his care. By the time she left his care in October, she had already improved 10 to 20 percent. He had not seen or spoken to her (except once or twice by phone) during the nearly two-month interval between her discharge from the hospital and his testimony. Dr. Busby’s observations about the continuing nature of the witness’s illness were based on his conversations with the witness’s parents, primarily her father, who knew that if his daughter was suffering from a mental illness she might be excused from testifying. Dr. Busby testified that the father, a protective and loving parent, was doing everything he could to prevent his daughter from testifying. Faced with the doctor’s lack of recent personal information, the biased source of the doctor’s more recent information, and the diagnosis of acute schizophreniform disorder, a disease which could terminate within two weeks of its onset, the circuit court was aware that Dr. Busby’s testimony was stale.
The circuit court did not rule on the question of unavailability until January 16, 1981, by which time three months had elapsed since Dr. Busby had seen the witness. More important, the defendant produced evidence at the January 16 hearing that appears to contradict the majority’s characterization of the witness as a “catatonic schizophrenic” and the circuit court’s finding that the mental illness or infirmity Dr. Busby described existed as of January 16. The defendant testified that the witness had voluntarily initiated contact with him, that she had sent him a Bible, had asked him to put her on his visiting list, and had visited him in prison. Her letters to the defendant, which are part of the record, stated that she had forgiven him.
The circuit court (Judge Zievers) stated that this new evidence “neither adds nor detracts” from Dr. Busby’s *157testimony and ruled the witness unavailable. I believe that the circuit court abused its discretion in ignoring these facts. An exercise of discretion, as this court has stated, “contemplates a process of reasoning which depends on facts that are in the record.” Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982). The facts support Dr. Busby’s diagnosis and the circuit court’s finding of acute schizophreniform disorder because they show that the witness was functioning much more normally than when she was diagnosed. The facts refute Dr. Busby’s prediction that the victim might not recover for two or more years.
Even if the circuit court did not abuse its discretion in January in ruling that the witness was unavailable, the circuit court (Judge Corbett presiding) abused its discretion when it again declared the witness unavailable at trial in March.
The majority asserts that the- only reason the circuit court reconsidered the witness’s unavailability in March was because of a change of judges {supra, pp. 140, 141) and that this reconsideration was unnecessary. The majority implies that any error Judge Corbett might have made in redetermining unavailability is irrelevant. I disagree.
The time interval between the medical examination of the witness and the determination of unavailability is highly relevant to the trial court’s determination of whether the witness is unavailable at the time the testimony is to be given. Warren v. United States, 436 A.2d 821, 830 (D.C. App. 1981) ; Sheehan v. State, 65 Wis. 2d 757, 765-66, 223 N.W.2d 600 (1974) ; United States v. Benfield, 593 F.2d 815, n. 4 at 817 (8th Cir. 1979). If the mental illness or infirmity is of a temporary nature, as is acute schizophreniform disorder, the trial court should grant a continuance to allow the witness to testify before the jury where the charges are serious, the testi*158mony is essential, and the trial could be postponed to allow the testimony. Peterson v. United States, 344 F.2d 419, 425 (5th Cir. 1965) ; 5 Wigmore, Evidence, sec. 1406, p. 219 (Chadbourn rev. ed. 1974).
I view it as constitutionally incumbent upon the trial court in a criminal case to require the state to keep it informed as to the mental illness or infirmity of a witness who has been ruled unavailable up until the time that the witness is to testify; to hold otherwise would be to allow a possibly temporary illness, albeit severe, to deprive defendants of their right to confront and cross-examine witnesses.
Even accepting the majority’s premise that Judge Cor-bett had no duty to reopen the issue of the witness’s unavailability, Judge Corbett thought he had such a duty and allowed the defendant to reopen the issue. Judge Corbett held a hearing on the matter and concluded that the witness continued to be unavailable. This ruling is based on an erroneous summary of Dr. Busby’s testimony and a failure to consider the only evidence presented at this hearing.
This second hearing on availability occurred at the trial that began on March 3, 1981, four and one-half months after Dr. Busby’s last contact with the witness, more than two months after Dr. Busby’s testimony, and six weeks after the circuit court’s first ruling that the witness was unavailable. Judge Corbett made his ruling at this second hearing without Dr. Busby’s testimony or Judge Zievers’s findings before him. The transcript was not then available. The judge’s sole knowledge of the contents of Dr. Busby’s testimony came from the assistant district attorney’s recollection of it. She neither had a transcript of the testimony nor testified under oath. She informed the court that the witness suffered from “a schizoid disorder” and that Dr. Busby’s prognosis was that “without psychiatric counseling that it would take approximately three *159to four years before she could recover if she would.” This recollection was inaccurate. A “schizoid disorder” is neither schizophrenia nor acute schizophreniform disorder,6 and Dr. Busby did not testify that the witness’s recovery would take three to four years. Nonetheless, Judge Cor-bett gave the assistant district attorney’s summary of Dr. Busby’s diagnosis and prognosis great weight.
Furthermore, Judge Corbett ignored the evidence that the defendant adduced. The defendant introduced evidence that the witness had continued to visit the defendant twice a week, that she was working and contemplating going to nursing school, and that she seemed “well.” The majority dismisses this evidence without any explanation other than hinting that only testimony from a professional could be sufficient to show that the witness was no longer unavailable. (Supra, pp. 138-139). This factual evidence, though, is consistent with the diagnosis of a mental illness that could have run its course by that time.
The record reveals that even the state had serious doubts that the witness was “unavailable” at the time of trial. The state subpoenaed the witness two weeks before trial, even though Judge Zievers had previously ruled that the witness was unavailable. The assistant district attorney testified under oath that when the district attorney’s office learned of the witness’s visits to the defendant, it decided it “would be better to produce the victim for the jury if at all possible if she were able or willing to testify” and to present Dr. Busby to explain the witness’s unwillingness to answer any questions. Shortly after being subpoenaed, the witness telephoned the assistant district attorney and read passages from the New Testament7 relating to forgiving one’s brothers, and *160told the assistant district attorney that “if you have a dispute with your brothers you’re not to go to the courts but rather you’re to confront your brother with the wrong and if your brother admits it and you can settle it between yourselves then you are to forgive your brother and you will be forgiven in heaven, or something like that.” The witness quoted other passages stating that there should be “no lawsuits before pagans, and the witness stated she did not believe in the court system, and she was not going to testify” because she had forgiven the defendant; she would appear at his sentencing.
On the basis of this information, the assistant district attorney decided to rely upon Judge Zeivers’s ruling that the witness was unavailable for psychiatric reasons, rather than attempt to elicit her testimony and explain it (or lack of it) at trial.
I conclude that the circuit court and the majority have erred in accepting the assistant district attorney’s value judgment that the witness’s explanation of her desire to live in accordance with religious teachings is a manifestation of a continuing severe mental illness or infirmity. It is not clear from the record that the witness manifested symptoms of an illness rather than exhibited her religious beliefs. Dr. Busby testified that the witness came from a religious family. A growing number of lawyers share the witness’s religious beliefs and do not believe in the adversary system.8
*161The district attorney’s office clearly recognized that the witness was capable of being present and testifying and that it could explain the witness’s refusal to testify to the trier of fact. If the witness were incompetent to testify, the circuit court, not the prosecutor, should make this determination. Mental illness or infirmity does not necessarily render a witness incompetent, that is, untrustworthy as a witness to observe, remember, and recount. McCormick, Evidence, sec. 62, pp. 140-41; sec. 253, p. 611 (2d ed. 1972) ; 2 Wigmore, Evidence, sec. 492 (Chadbourn rev. 1979). See also sec. 906.01, Stats. 1981-82; 59 Wis. 2d R157-R160; Weinstein and Berger, Weinstein’s Evidence, par. 601 [03], pp. 601-25-601-28; 601[04], pp. 601-29-601-33 (1982). If the witness’s credibility was questionable, the jury, not the prosecutor or the circuit court, should resolve this issue. Sec. 906.07, Stats. 1981-82. The majority confuses the interrelated concepts of unavailability because of mental illness or infirmity, competency, and credibility.
I conclude that the evidence is insufficient for a circuit court to conclude that the mental illness was “then existing.” Even if the mental illness were then existing, there was no evidence that testifying would worsen it, and if so, to what extent. Dr. Busby stated that there was a “high probability” that if the witness testified she might suffer “anywhere from a moderate to a substantial relapse and return of her symptoms.” He never explained what symptoms might reappear and how long the relapse would last. Dr. Busby appears to have based this prediction on his concern that the testimony would cause the witness to relive the assault and that this recollection, *162not the act of testifying in itself, would cause a relapse. The witness’s initiating contact with the defendant without suffering a relapse rebuts Dr. Busby’s theory that the witness’s confrontation with the event would cause a relapse. I conclude that the state did not, as a matter of law, introduce sufficient evidence to prove that this witness was “unavailable.”
The circuit court was able to ignore the import of the facts proved by applying erroneous legal standards to them. Judge Corbett apparently shifted the burden of proof from the state to prove “unavailability” to the defendant to prove “availability.” Judge Corbett also erred in requiring the defendant, not the state, to produce the witness. The burden is on the proponent of hearsay evidence to make good-faith efforts to procure the witness’s attendance. Barber v. Page, 390 U.S. 719 (1968); Ohio v. Roberts, 448 U.S. 56, 74 (1980) ; United States v. Lynch, 499 F.2d 1011, 1024 (D.C. Cir. 1974). The assistant district attorney testified that she had subpoenaed the witness two weeks before trial but the state did not attempt to enforce the subpoena because it did not think that the witness wanted to testify. The circuit court chastised the defendant for not compelling the witness’s presence at trial instead of requiring the state to enforce the subpoena for its chief witness.
The circuit court further erred as a matter of law by implicitly finding the witness unavailable because she was reluctant to testify, not because she suffered from a then existing mental illness. The circuit judge stated that he would be “out of his cotton-picking mind” if he “blamed the district attorney or the assistant district attorney for not bringing her in when she said she’s going to refuse to testify and didn’t take an oath and didn’t believe in the whole system and the fact that she has now forgiven this man and that the Bible tells her so. Especially in view of the fact that Judge Zievers had heretofore on January *16316th declared her unavailable, I think [the assistant district attorney] had every right to rely on that.”9
A witness cannot be declared “unavailable” simply because the prosecutor or circuit court concludes that the witness might not want to testify. The witness must “persist in refusing to testify concerning the subject matter of [her] statement despite an order of the judge to do so.” Sec. 908.04(1) (b), Stats. 1981-82. (Emphasis added.) When another individual’s liberty is at stake, the decision to allow a witness to be exempt from the public duty to testify must be made by the trial court, not the witness or the state.
For the reasons set forth, I conclude that the circuit court abused its discretion in this case in declaring the witness unavailable.
II.
Although the majority affirms the circuit court’s ruling that the witness was unavailable under sec. 908.04(1) (d), Stats. 1981-82, and acknowledges that the defendant concedes that his constitutional rights were not violated if the witness is “unavailable,” supra, p. 141, the majority opinion continues. The majority in dicta discusses the constitutional issues and attempts to bolster its affirmance of the circuit court’s ruling by reference to victims’ rights, thereby making a mockery of the legislature’s, this court’s, and society’s concern for victims.
*164Chapter 949, Stats. 1981-82, upon which the majority relies, has nothing to do with court testimony; it provides compensation for victims of crimes. Chapter 950, upon which the majority also relies, concerns the rights of victims and witnesses in the criminal justice system. As the majority notes, this chapter was enacted to recognize the “civil and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies.” Sec. 950.01. Nothing in Chapter 950 indicates that the legislature believes that treating the witness with “dignity, respect, courtesy and sensitivity” includes excusing the witness from testifying.
I, like the majority, am concerned about protecting the victims of crimes from harassment and stress in the criminal justice system. As this court pointed out in State v. Gilbert, 109 Wis. 2d 501, 515, 326 N.W.2d 744 (1982), the judiciary “has not been oblivious to concerns about the emotional health of witnesses,” and the judiciary must “attempt to accommodate the needs” of victim-witnesses and the court system “within the context of the public policy of achieving justice through the adversary system.” Id. at 516. In Gilbert we urged courts and lawyers to use the tools available in the criminal justice system to eliminate or lessen the burden on witnesses “while making [their] testimony available in the criminal proceeding.” Id. at 517.
In this case, there was no evidence that at the time of trial this witness feared the defendant or wished to be protected from him. The record shows that the witness did not want to testify because she had forgiven the defendant. As far as I can tell, the detriment that testifying will cause to the witness in this case is that she might view her testimony as conflicting with her religious beliefs and that she might not be willing to repeat her damaging preliminary examination testimony.
This court recognized, as early as 1907, that a defendant’s right to confront and cross-examine witnesses is *165“one of the most sacred and valuable safeguards of the citizen,” “is an essential and fundamental requirement for a fair trial,” and is fundamental to our system of criminal justice. Spencer v. State, 132 Wis. 509, 511, 112 N.W. 462 (1907). See also State v. Bauer, 109 Wis. 2d 204, 208, 325 N.W.2d 857 (1982) ; Sheehan v. State, 65 Wis. 2d 757, 764, 223 N.W.2d 600 (1974) ; Mattox v. United States, 156 U.S. 237, 242-43 (1895). The witness in this case is not unavailable, and this is not one of the rare cases where the fundamental constitutional right of confrontation must give way. State v. Bauer, 109 Wis. 2d 204, 213, 325 N.W.2d 857 (1982) ; Hagenkord v. State, 100 Wis. 2d 452, 473, 302 N.W.2d 421 (1981); State v. Olson, 75 Wis. 2d 575, 592-93, 250 N.W.2d 12 (1976).
This court, the circuit courts, and the state must remember that even though we must have compassion for a victim-witness, a basic tenet of our legal system is that the public has a right to every person’s evidence. We must be willing to change the legal system to accommodate the needs of the witness, but we must preserve the basic concepts of justice and fairness. In a criminal case the accused’s liberty and the rights secured by the United States and Wisconsin Constitutions must be protected. The majority’s invocation of the high ideals of victims’ rights to secure an unconstitutional conviction in this case does a grave injustice to witnesses and victims.
Because I believe that the majority has ignored critical facts in this case that reveal that this particular witness was not “unavailable” at the time of trial, I dissent.
This rule is identical to Federal Rule of Evidence 804(a) (4). 59 Wis. 2d R302-303.
“295.40 Schizophreniform Disorder. The essential features are identical with those of Schizophrenia with the exception that the duration, including prodromal, active and residual phases, is less than six months but more than two weeks. Schizophreniform Disorder is classified outside the category of Schizophrenic Disorders because evidence suggests a greater likelihood of emotional turmoil and confusion, a tendency toward acute onset and resolution, more likely recovery to premorbid levels of functioning, and the absence of an increase in the prevalence of Schizophrenia among family members compared with the general population. The six-month criterion has been chosen because several studies indicate that this is the best single waxy of differentiating these two disorders to maximize the difference in their external correlates. . . .
“Differential Diagnosis. Since the diagnostic criteria for Schizophrenia and Schizophreniform Disorder differ only in duration of illness, most of the discussion of differential diagnosis in the text for Schizophrenia . . . applies equally to Schizophreni-*153form Disorder, with the exception that the clinical picture in Schizophreniform Disorder is more often characterized by emotional turmoil, fear, confusion, and particularly vivid hallucinations.
“Diagnostic criteria for Schizophreniform Disorder.
“A. Meets all of the criteria for Schizophrenia . . . except for duration.
“B. The illness (including prodromal, active, and residual phases) lasts more than two weeks bust less than six months.”
Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980), pp. 199-200 (emphasis added).
“Acute” is a descriptive term attached to the diagnosis. Referring to a disease, “acute” means “having a sudden onset and a short, but rather severe, course; opposed to chronic, which designates a relatively slow onset and a protracted, but mild, course. . . .” Schmidt, 1 Attorneys’ Dictionary of Medicine p. A-65 (1982).
“Schizophrenia’ is “no longer regarded as a single mental disorder but as a group of mental disorders.” The principal types of schizophrenia are simple, paranoid, catatonic and hebephrenic. Schizophrenia is marked by “withdrawal from and indifference to one’s surroundings, delusions of personal power or of persecution, hallucinations, unpredictable behavior, and deterioration of personality. . . .” Schmidt, 1 Attorneys’ Dictionary of Medicine, p. S-29 (1982).
For diagnostic criteria for schizophrenia, see Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980) pp. 188-90.
See description of schizophrenia and acute schizophreniform disorder in notes 2 and 3, supra.
“Catatonic schizophrenia” is “a form of schizophrenia characterized by disturbances in mobility or movement, ranging from complete inhibition (e.g., stupor) to frenzied activity. There may be severe regression, so that the bodily requirements of the patient (such as feeding or elimination) must be attended to by others.” Schmidt, 1 Attorneys’ Dictionary of Medicine, p. S-29 (1982).
“Schizoid” is defined as a designation of an “unsocial, introspective type of personality or person,” or “pertaining to, or resembling schizophrenia; like schizophrenia.” Schmidt, 1 Attorneys’ Dietionary of Medicine, p. S-28 (1982).
Matthew 18:15, 5:38, 5:33; Corinthians 6:1.
The Christian Legal Society, formed in 1961, has a membership of about 4,000 lawyers, law students, and judges who believe that because the Bible bars Christians ■ from suing one another (Corinthians 1:6), the “lawyer’s role in legal disputes should be one of peacemaker and reconciler rather than that of adversary.” These lawyers try to take into account what they view as God's law as well as man’s and support the Center for Law and Religious Freedom and a national network of ten Christian Conciliation Service centers to foster their philosophy. Most of the lawyers apparently agree that the Scriptures bind them to preach “forgive*161ness, reconciliation, mediation and confession in order to steer their clients — especially Christian ones — away from secular courts. ‘It is better to be defrauded than to take another believer to court,’ ” stated the group’s director. Martin, Jesus: The Ultimate Plea Bargainer? Christian Lawyers Congregate, 4 National Law Journal, March 1, 1982, pp. 3, 45.
Judge Corbett went on to say that if the district attorney had evidence that the witness was “available within the meaning of the statute,” he would fault the state for not bringing her in. The record shows that the district attorney did have such evidence, though, as did the court, and the district attorney even subpoenaed the witness. Judge Corbett, however, chose to ignore these facts, deferring instead to the psychiatrist’s stale prognosis that the witness would not be available by the time of trial.