may not offer proof of a prior statement that is testimonial in nature unless (1) the accused has had, will have, or has forfeited the opportunity to “be confronted with” the witness who made the statement, and (2) the witness is unavailable to testify at trial. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“[T]he Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.”). The constitutional requirement that a witness be “unavailable” before his prior testimony is admissible stands on separate footing that is independent of and in addition to the requirement of a prior opportunity for cross-examination. See Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (<HOLDING>), cited with approval in Crawford, 541 U.S. at
holding that admission of a witness prior identification statement where the witness could not remember the basis for the identification did not violate the confrontation clause or fedrevid 802 holding that the admission of prior testimony that had been subjected to crossexamination violated the confrontation clause because the state did not prove that the witness was unavailable holding that testimonial hearsay statements of a witness who does not appear at trial are inadmissible under the confrontation clause of the sixth amendment unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness holding that the confrontation clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for crossexamination holding prior statement subject to crossexamination when made does not violate confrontation clause