¶1concurring: I concur in the majority decision reversing the defendant’s convictions. However, I disagree with the majority that the defendant’s convictions must be reversed based upon its conclusion that the defendant did not have a meaningful opportunity to confront the witness against him.
¶2In my opinion, the basis for reversal of the defendant’s convictions does not turn upon whether the defendant had a meaningful opportunity to cross-examine the victim during the prehminary hearing. Instead, the defendant’s convictions must be reversed because they are based upon testimonial hearsay that was never subject to cross-examination before the finder of fact, a practice condemned by the United States Supreme Court’s recent opinions in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006).
¶3The instant case presents a unique procedural problem that has not been addressed by this or, as far as I can determine, any other jurisdiction. As the majority describes, the victim testified at the preliminary hearing and was subject to very limited cross-examination at that time. See slip op. at 4. After the prehminary hearing, *620the State moved to disqualify the victim as a witness pursuant to K.S.A. 60-460(dd) and to have her declared unavailable for purposes of trial. The trial court granted the State’s motion, and as a result, allowed the victim’s brother and mother, as well as a social worker, to testify at trial as to statements the victim made to them. The State concedes in its petition for review that these statements constituted testimonial hearsay.
¶4The distinguishing procedural issue presented by this case, however, is that the State never attempted to introduce a transcript of the victim’s preliminary hearing testimony. The effect of this omission was that, from the perspective of the jury as the finders of fact, the State’s case was based entirely on testimonial hearsay evidence that had never been subjected to the rigors of cross-examination. In my opinion, such a result is barred by the Supreme Court’s recent decisions concerning the Confrontation Clause of the Sixth Amendment.
¶5In Crawford, the Court held that the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Emphasis added.) 541 U.S. at 53-54; see also Davis, 547 U.S. at 821 (quoting Crawford). In so holding, the Court focused exclusively on the particular hearsay statement to be admitted — not on the individual declarant. I therefore read these cases to hold that if the State fails to produce either the declarant of a testimonial statement as a witness at trial or evidence (such as a preliminary hearing transcript) demonstrating that the statement in question has been subjected to adequate cross-examination by the defendant, the Confrontation Clause prevents the State from introducing additional testimonial statements of that declarant at trial through other means.
¶6The CrawfordCourt emphasized the important role of cross-examination with regard to testimonial hearsay as a procedural guarantee of the statements’ trustworthiness. According to the Court, this concern for assuring that the finders of fact were able to judge the statements’ reliability was enshrined in the Confrontation Clause:
*621“[T]he Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be rehable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of rehable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses ... is much more conducive to the clearing up of truth’); M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the Truth much better’).” Crawford, 541 U.S. at 61-62.
¶7The majority assumes that these concerns relating to the reliability of statements would be allayed if the defendant were afforded a full opportunity to cross-examine the victim at the prehminary hearing, regardless of whether the preliminary hearing transcript was ever offered as evidence at trial. According to the majority’s reasoning, even if the jury was completely unaware of this prior cross-examination, the victim’s hearsay statements made on any occasion to others concerning the crimes charged would have been admissible at trial through those other witnesses’ testimony.
¶8I disagree. Because I find that the requirements of unavailability and opportunity for cross-examination discussed in Crawfordand Davisrelate to the statement sought to be admitted at trial, not generally to the declarant who made that statement, I would hold that even a full cross-examination at some point previously in the proceedings would not allow a court to admit the victim’s statements by way of other witness’ testimony if the State did not first establish that such statements had been subjected to cross-examination by offering into evidence the previous transcript.
¶9Such a case is no different from a scenario where the declarant is available to testify but the State fails to call him or her as a witness during its case in chief. This court has repeatedly held that such actions are barred by the Confrontation Clause. See State v. Fisher, 222 Kan. 76, 82, 563 P.2d 1012 (1977). Just as we required in Fisherthat the State call a witness-declarant under K.S.A. 60-460(a) in order for that witness’ previous hearsay statements to be admissible, I would find that a State must likewise introduce evidence that the unavailable witness’ testimonial hearsay has been subject to cross-examination before it may introduce evidence of *622those statements under K.S.A. 60-460(dd). The defendant has no responsibility to introduce the declarant’s previous testimony or cross-examination, as a defendant is not required to prove his or her innocence at trial. See PIK Crim. 3d 52.02.
¶10There is no question that a defendant’s prior cross-examination of a witness during criminal proceedings authorizes the State under Crawfordand Davis, if the witness is subsequently found unavailable to testify, to admit that witness’ prior testimony at trial. See Crawford, 541 U.S. at 59 n.9. The statement admitted has been subjected to cross-examination, and the defendant’s right of confrontation has been preserved. See, e.g., State v. Stano, 284 Kan. 126, 141-42, 159 P.3d 931 (2007). That said, the decisions in Crawfordand Davisrelate to the previous statement sought to be admitted, not to other statements the absent witness may have made on any given occasion concerning the crime charged. See Crawford, 541 U.S. at 54 (stating that “the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine” [emphasis added]); 541 U.S. at 57(“prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine” [emphasis added]). As the Oregon Supreme Court explained in State v. Mack, 337 Or. 586, 593 n.6, 101 P.3d 349 (2004): “Under Crawford, the Confrontation Clause does not bar admission of a statement if the defendant had an opportunity to cross-examine the declarant when the statement was made [citation omitted], or, if not, has the opportunity to do so at trial [citation omitted].” The Confrontation Clause does not, however, sanction the admission of testimonial statements that have never been subject to cross-examination before a finder of fact.
¶11Furthermore, contrary to the majority’s assumptions, the Crawfordand Davisdecisions do not permit a district court to allow additional statements of the same declarant that have not been subject to cross-examination. If a court determines that these other statements are testimonial hearsay, the statements are inadmissible under Crawfordand Davis, notwithstanding the provisions of K.S.A. 60-460(dd).
¶12*623Thus, in my opinion, even assuming that the defendant in this case would have had the opportunity to fully cross-examine the victim during the preliminaiy hearing, it would remain true from the perspective of the juiy that the only evidence supporting the defendant’s conviction is testimonial hearsay in violation of Crawfordand Davis. Are all hearsay statements of a victim rendered admissible at trial because the defendant in the past had an opportunity to cross-examine the victim? In my opinion the answer is no! While the absent witness’ previous testimony may become admissible based upon a defendant’s prior right of cross-examination, Crawfordand Daviscondemn the admission of testimonial hearsay of what others say the witness said on other occasions concerning the charges filed.
¶13In this case, there is no question that the witnesses testifying about what the victim said are offering hearsay evidence as that term is defined by Kansas law. See K.S.A. 60-460 (defining hearsay as any “statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated”). The State conceded that these hearsay statements were testimonial for purposes of our Confrontation Clause analysis. 284 Kan. at 611-12. The full opportunity to cross-examine a victim on a previous occasion may ensure the admission of that victim’s testimony at trial, but even a full opportunity to cross-examine the victim does not ensure the admission of testimonial hearsay statements of the victim at trial. Such evidence remains inadmissible testimonial hearsay under Crawfordand Davisunless that evidence itself has been subjected to “the crucible of cross-examination.” Crawford, 541 U.S. at 61. To the extent that K.S.A. 60-460(dd) would allow the admission of such evidence, K.S.A. 60-460(dd) is unconstitutional.
¶14Crawfordprovides that “[wjhere testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Emphasis added.) 541 U.S. at 68. I would conclude that defendant’s convictions must be reversed because his convictions are based upon testimonial hearsay evidence in violation of Crawfordand Davis. This result occurs whether or not the defendant *624had a full opportunity to cross-examine the victim at preliminary hearing, because the State failed to introduce evidence at trial either that those testimonial statements had been subject to cross-examination or that there had been an opportunity for cross-examination, which is required by the Confrontation Clause.