(concurring).
¶ 60. With great reluctance, I concur in the decision to reverse the defendant's conviction and remand for a new trial. I agree with the conclusion that the admission of John Stuart's preliminary examination testimony violated the defendant's right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), and that admission of this testimony did not constitute harmless error. Under the circumstances of this case, the defendant did not have an adequate opportunity to challenge the credibility of the witness's testimony. This does not mean that John Stuart's testimony would not have been admissible under different circumstances; nor does it mean that I am backing away from the court's articulation of the harmless error rule in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. I write separately to reiterate that under Crawford, confrontation requirements may be relaxed in situations where a defendant forfeits the right to cross-examination by wrongdoing or collusion.
HH
1 61. The lead opinion correctly notes that this is the third time this case has come to our court. Lead op., *684¶ 1. The first time was on February 23, 1999. After an emergency hearing in the midst of Paul Stuart's trial, a majority of this court voted to reverse the court of appeals, which had affirmed the circuit court's decision to exclude the preliminary hearing testimony of John Stuart.
¶ 62. John Stuart had testified at a preliminary examination on August 13, 1998. He had been cross-examined by his brother's attorney, though not extensively. At trial, however, he made himself "unavailable" by asserting the privilege against self-incrimination.
¶ 63. Called to testify on February 10, 1999, John asked for a brief delay so that he could consult with his attorney. Upon his return, the following colloquy occurred:
The Court: Are you intending to plead the Fifth in regard to all questions asked of you?
Mr. Stuart: Yes, sir. I've been advised to plead the Fifth.
The Court: Okay. I'm not sure what the State intends to do here.
Ms. Karaskiewicz: The State would give him use immunity.
The Court: The State is willing to offer you use immunity, which means whatever you say cannot be used against you to prosecute you in regard to those matters.
¶ 64. John Stuart continued to refuse to testify. This prompted Assistant District Attorney Susan Karaskiewicz to explain that "when I spoke to Mr. *685Stuart he told me he was shafted by me personally because I was the prosecutor on his case." She pointedly denied this claim.
¶ 65. Paul Stuart's attorney then inquired about "transactional immunity" for John, so that if he testified in a manner different from his testimony at the preliminary examination, he could not be prosecuted for perjury. The State refused that request.
¶ 66. District Attorney Robert Jambois reasoned that the court could not give the defendant a license to commit perjury. He added: "The witness [John Stuart] has given statements that he fears his brother, that he believes his brother is a homicidal maniac and dangerous." A few moments later, in open court, John asserted the Fifth Amendment privilege against self-incrimination before the jury.
¶ 67. The following morning, February 11, the court addressed John Stuart again. Still he refused to testify. District Attorney Jambois was permitted to ask the witness whether he had met with a person named Art Herbst, and John admitted that he had. This produced an explosive exchange among John's attorney (Douglas Henderson), Paul's attorney (Robert Bram-scher), and the district attorney.
Mr. Bramscher: Perhaps Mr. Jambois should make an offer of proof why he wants that question answered and why it is relevant.
Mr. Jambois: ... I will indicate the relevance of this line of inquiry. It is the State's view, your Honor, that this witness's assertion of his Fifth Amendment right is a *686ruse. . . . He's involved in a conspiracy involving Mr. Art Herbst and involving Mr. Henderson and Mr. Bramscher. He does not want to testify in a manner that incriminates his brother or having his brother convicted of first degree intentional homicide. He met with Mr. Herbst a number of hours on Saturday and last night.
Mr. Bramscher: It was Sunday. Perhaps you want to get your facts correct.
Mr. Jambois: Sunday. He met with Mr. Art Herbst last night [Wednesday]. I believe Mr. Bramscher would not have his representative meet with' a represented witness without getting the authorization from Mr. Henderson to meet with him. The fact such a meeting took place further indicates this witness is not in good faith asserting the Fifth Amendment right.
Mr. Jambois: ... I believe Mr. Henderson and Mr. Bramscher are working together in keeping this witness off the stand. The witness is not legitimately pursuing the Fifth Amendment privilege. He does not want to testify against his brother.
Mr. Jambois: I think, your Honor, in deciding about... the admission of his preliminary hearing testimony ... as a practical matter the Court would be *687interested in knowing whether this witness's unavailability was strongly encouraged by the defense.... If that is a factor that influences his unavailability, it would seem that would be a factor the Court would consider in deciding whether ... to admit his preliminary hearing testimony. (Emphasis added.)
¶ 68. At this point, Attorney Bramseher acknowledged meeting with John Stuart but he asserted that the witness wanted to change his testimony.
¶ 69. In the end, John would not testify. As a result, he was held in contempt. After the court denied the State's motion to admit John's preliminary examination testimony, the State filed an emergency appeal. The court of appeals affirmed the circuit court. On February 23, a majority of this court reversed after learning that John's testimony at the preliminary hearing was subject to some cross-examination, was consistent with a prior statement he made to police, and was also consistent with the testimony of several other witnesses.
¶ 70. When the trial resumed, the circuit court admitted John Stuart's testimony. Unable to cross-examine the witness, the defendant's attorney sought to discredit his testimony by other means. He moved the court to take judicial notice that there were two open Kenosha County felony cases against John Stuart at the time he was cooperating with the prosecution. The court denied the motion, stating that the "jury will be informed that John Stuart had four prior convictions, and that will be the end of what we know about John Stuart." Lead op., ¶ 16.
¶ 71. Paul Stuart was eventually convicted.
*688¶ 72. Two years later, claiming newly discovered evidence, Paul's attorney arranged for John to be brought to Kenosha from the Waupun Correctional Institution for a post-conviction hearing. The following exchange occurred:
Mr. McLinden: Did your brother Paul tell you at Wau-pun words to the effect, quote, hey, I never told you that I shot that guy, how could you do this to me, close quote? And did you tell your brother Paul words to the effect, quote, I know you didn't shoot him but it was the only way they would drop the charges against me, close quote?
Mr. Stuart: You have part of that right and part of that wrong. The part about Paul stating that he said to me that I never shot that man, he did say the words to me while I was walking back from school... . And Paul did state what you just said, but my comments back to him was I'm sorry about what happened but that's what happened and you know what happened and I'm not going to buy 11 years to lie for you so you can go free and I have to do another 11 years, one being five years for perjury and the other six years added on for repeater....
Mr. Stuart: I love my brother, but he's going to have to stand up to the fact that he did what he did and you cannot continue trying to bring others down for him.
I already bought two years already. The judge himself knows that he had to
*689hit me with contempt of court, and I already bought two years for trying to help him [Paul] in the first place and I'm not going to buy ho more. And I'm being honest. I'll put my hand on a Bible and I'll take a lie detector test. (Emphasis added.)
¶ 73. This later testimony of John Stuart completely confirmed the State's suspicions about John's motivation for making himself unavailable at his brother's trial.
II
¶ 74. In Crawford, the Supreme Court held that an out-of-court statement that qualifies as testimonial is not admissible under the Confrontation Clause, unless (1) the witness is unavailable; and (2) the defendant had a prior opportunity to cross-examine the witness. In this case, there is no dispute that the witness, John Stuart, made himself unavailable. There is also no dispute that the defendant cross-examined the witness at the preliminary examination. The issue is whether the prior cross-examination presented an adequate opportunity to cross-examine, in conformity with standards described in Mancusi v. Stubbs, 408 U.S. 204, 213-16 (1972), California v. Green, 399 U.S. 149, 165-68 (1970), and Pointer v. Texas, 380 U.S. 400, 406-08 (1965).
¶ 75. This court properly concludes that the defendant's confrontation rights were violated because he did not have adequate opportunity for cross-examination.
¶ 76. In hindsight, the State had the benefit of this court's ruling on the preliminary examination testimony. It did not have to develop a new theory to justify the admissibility of John's testimony, because it *690could rely on our ruling plus Ohio v. Roberts, 448 U.S. 56 (1980), and State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982).
¶ 77. In my view, the State could have argued that John Stuart's preliminary examination testimony was admissible because of the transparent collusion between the witness and the defendant. The judicial system cannot be rendered powerless to deal with wrongdoing designed to benefit a defendant on trial.
¶ 78. The Supreme Court has explicitly recognized this situation. See State v. Hale, 2005 WI 7, ¶¶ 91-98, 277 Wis. 2d 593, 691 N.W.2d 637 (Prosser, J., concurring) (citing Crawford, 541 U.S. at 62 and Reynolds v. United States, 98 U.S. 145, 158-59 (1878)).
¶ 79. Confrontation rules may be relaxed in situations where the defendant forfeits the right to cross-examination by wrongdoing or collusion.
¶ 80. Here the witness was the defendant's brother. He met with the defendant's attorney and/or his representative for several hours immediately before and during trial. He told the court he was "advised" to plead the Fifth Amendment. The State offered use immunity so that the witness had no legitimate fear of prosecution for anything other than perjury. Still he would not testify. It is very hard to imagine that the witness would not have testified if the defendant had not been a brother whom he either loved or feared.
¶ 81. This case is exceptional and permits a departure from the strict rules of Crawford, yet the circuit court's denial of the defendant's motion to impeach the witness was an error too serious to ignore under Harvey. Had the defendant's motion to impeach his brother's credibility through third parties been granted, I would be voting differently, not because the error would have been harmless but because there would *691have been no error. To conclude otherwise would undermine the fact-finding process in our judicial system.
¶ 82. I therefore respectfully concur.