author: RUSSELL A. ANDERSON, Justice.

text:
    Doua YANG, et al., Plaintiffs, Lao Xiong, Appellant, v. VOYAGAIRE HOUSEBOATS, INC., defendant and third-party plaintiff, Respondent, B.J.M., Inc., defendant and third-party plaintiff, Respondent, v. Lao Xiong, Appellant, Doua Yang, et al., Third-Party Defendants.
    Nos. A03-1842, A03-2000.
    Supreme Court of Minnesota.
    Aug. 4, 2005.

      Patrick J. Sauter, Steven M. Sitek, Paula Duggan Vraa, Rider, Bennett, LLP, Minneapolis, MN, for Appellant.
    John M. Colosimo, Mitchell J. Brunfelt, Colosimo, Patchin, Kearney & Brunfelt, Ltd., H. Jeffrey Peterson, Andrew R. Peterson, Cope & Peterson, Ltd., Virginia, MN, for Respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

This case concerns the enforceability of exculpatory and indemnification clauses in a houseboat rental agreement between appellant Lao Xiong and respondent Voya-gaire Houseboats, Inc. After Xiong and members of his vacationing party suffered carbon monoxide poisoning on board the houseboat, they brought personal injury actions against Voyagaire. In this appeal from summary judgment, we are asked to review the decisions of the courts below that (1) the exculpatory clause in the houseboat rental agreement is enforceable, barring Xiong’s claims against Voyagaire; and (2) the indemnification clauses in the houseboat rental agreement are enforceable, requiring Xiong to indemnify Voya-gaire for the claims by the other members of his vacationing party. We conclude that the exculpatory and indemnification clauses in the houseboat rental agreement are not enforceable, holding that Voyagaire’s rental of the houseboat to Xiong constitutes a public service and that the exculpatory and indemnification clauses violate public policy. We therefore reverse and remand to the district court.

Voyagaire is located on the shore of Crane Lake, near Voyageurs National Park in northern Minnesota. Voyagaire promotes itself as having “the largest houseboat rental operation in the Midwest.” Voyagaire’s website describes the houseboats as “floating homes,” which for over 40 years “have been accommodating small and large groups of explorers, families and fishing parties.” Voyagaire offers at least seven models of houseboats, for daily and weekly rental. In addition, Voy-agaire operates a lodge with a restaurant and 12 lodge rooms.

In 2002, Xiong began planning a vacation with his girlfriend and her extended family. Xiong contacted Voyagaire by telephone to inquire about renting a houseboat. After several calls, Xiong reserved a houseboat for a week. As required by Voyagaire’s policy, Xiong paid in advance for the houseboat — “a couple thousand” dollars. Xiong later contacted Voyagaire and upgraded to a “Deluxe Sportcruiser— 440” model, a houseboat with five double beds; a penthouse bedroom; toilet and shower facilities; a kitchen area, including a refrigerator, stove, microwave, and sink; air conditioning; a built-in generator; and a swim platform with a water slide.

On June 8, 2002, Xiong’s vacationing party, consisting of six adults and four children, met in Minneapolis and traveled as a group to Crane Lake. When they arrived, Xiong met with James Janssen, an owner of Voyagaire, who presented Xiong with a houseboat rental agreement. No one representing Voyagaire had mentioned the rental agreement before. After looking at the agreement, Xiong told Janssen that he did not understand it. The rental agreement contained exculpatory and indemnification clauses, which provide in relevant part:

In consideration for being permitted the use of Voyagaire Houseboats equipment, the Renter, Lao Xiong, his/her family, relatives, heirs and legal representatives do hereby waive, discharge and covenant not to sue Voyagaire Houseboats * * *, any affiliated companies, or any of its officers or members for any loss or damage, or any claim or damage or any injury to any person or persons or property, or any death of any person or persons whether caused by negligence or defect, while such rental equipment is in my possession and/or under my use as in accordance to the terms stated in this agreement.
I agree to keep said equipment safe and return it to Voyagaire Houseboats station from which it was rented and in as good condition as when received, and in default thereof, I agree to pay all loss and damage they may sustain by reason of any such failure and I further agree at my cost and expense, to defend and save Voyagaire Houseboat[s] harmless on account of any and all suits or demands brought or asserted by reason of injuries to any person, persons or property whatsoever caused by the use or operation of said equipment while in my possession and to pay all judgments, liens or other encumbrances that may be levied against Voyagaire Houseboats or the said equipment on account of the use thereof. It is further understood and agreed upon that the undersigned will be liable for all fines, penalties, citations, warnings, and forfeitures imposed for violations of the law while the equipment is being held used or operated pursuant to this agreement. Renter agrees that the Owner maintains no control over Renter’s use of vessel except as set forth in this Agreement. Therefore, Renter shall indemnify and hold harmless Owner from and against all claims, actions, proceedings, damage and liabilities, arising from or connected with Renter’s possession, use and return of the boat, or arising at any time during the term of this rental.

Janssen reportedly told Xiong that he did not understand the rental agreement either, but assured Xiong that an optional $25 per day insurance fee “would cover everything that could happen to the boat.” Xiong “took his word,” accepted the insurance, and signed the rental agreement. If Xiong had not signed the agreement, Voy-agaire would not have allowed him to rent the houseboat.

After Xiong signed the agreement, he was taken to the houseboat. Xiong was unfamiliar with houseboat operations, so a Voyagaire employee showed him certain features of the houseboat. The employee also told Xiong about Voyagaire’s hospitality service for guests who had problems or needed supplies while using the houseboat. According to Xiong, Voyagaire never specifically warned him about the risks of carbon monoxide poisoning.

Near the end of the week — the evening of June 13 or the early morning of June 14, 2002 — several members of the vacationing party began feeling drowsy and nauseated. A member of the party radioed for help, and Xiong and five other persons were taken to Falls Memorial Hospital in International Falls. Each was treated for carbon monoxide poisoning and released the same day.

The Voyagaire employee who responded to the emergency call discovered that a carbon monoxide detector wire, which was located behind the back of a kitchen drawer, had been disconnected. Xiong denies that he or any member of his party disconnected the detector, and Xiong denies hearing an alarm sound.

The source of the carbon monoxide was not determined. Xiong suggested that a defective generator led to the carbon monoxide exposure. Voyagaire suggested that the carbon monoxide exposure was caused by the party’s efforts to make adjustments to the cooking stove and furnace on the houseboat.

Xiong sued Voyagaire in St. Louis County District Court, alleging that he “sustained severe and permanent injuries, including permanent brain damage,” as a result of his exposure to carbon monoxide. According to the complaint, Voyagaire’s negligence included failing to maintain the houseboat in a safe and habitable condition; failing to perform proper inspections of the houseboat; failing to comply with applicable regulations and requirements relating to “proper ventilation of vessels” and “proper safety equipment and devices”; and failing to warn of dangerous conditions aboard the houseboat, including potential exposure to carbon monoxide. The other nine members of Xiong’s party also sued Voyagaire in three separate actions, making similar allegations of negligence. The district court consolidated the cases for trial.

Voyagaire denied that it was negligent and alleged that Xiong’s claims were barred by the exculpatory clause in the rental agreement. Voyagaire also brought a third-party action against Xiong, alleging that he had agreed to indemnify Voyagaire from any claim or lawsuit arising from his use and operation of the houseboat. Voya-gaire moved for summary judgment, seeking to enforce the exculpatory and indemnification clauses in the rental agreement. Xiong filed a cross-motion for summary judgment, arguing that the exculpatory and indemnification clauses are unenforceable. The district court granted Voya-gaire’s motion for summary judgment. The district court later issued a clarifying order dismissing Xiong’s claims and requiring Xiong to indemnify Voyagaire for the claims of the remaining nine plaintiffs.

The court of appeals affirmed summary judgment. Yang v. Voyagaire Houseboats, Inc., Nos. A03-1842 & A03-2000, 2004 WL 2049843 (Minn.App. Sept.14, 2004). The court of appeals concluded that Xiong’s claims are barred by the exculpatory clause because “(1) Voyagaire does not provide a necessary or public service; (2) renting a houseboat is a recreational activity; (3) there was no disparity in bargaining power; and (4) the contract is not ambiguous.” Id. at *4. The court of appeals also concluded that Xiong is required to indemnify Voyagaire for the claims of the other nine plaintiffs because “the indemnification clause is sufficiently clear, sufficiently broad, and is not void on public-policy grounds.” Id. at *6. We granted review to determine the enforceability of the exculpatory and indemnification clauses in the houseboat rental agreement.

I.

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Christensen v. Milbank Ins. Co., 658 N.W.2d 580, 584 (Minn.2003). Here, we view the facts in the light most favorable to Xiong, the party against whom summary judgment has been granted. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Whether a clause in a rental agreement — a contract provision — is ambiguous is a question of law reviewed de novo. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn.2003). The construction and effect of an unambiguous contract also are questions of law. Id.

II.

We first examine the enforceability of the exculpatory clause in the houseboat rental agreement. Exculpatory clauses are “not favored,” and they are “strictly construed against the benefited party.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn.1982). An exculpatory clause is unenforceable if it is ambiguous in scope, purports to release the benefited party from liability for intentional, willful or wanton acts; or contravenes public policy. Id. In determining whether an exculpatory clause violates public policy, we consider (1) whether there was a disparity in bargaining power between the parties and (2) the types of services being offered or provided, taking into consideration whether they are public or essential services. Id.; see also Restatement (Second) of Contracts § 195(2)(b) (1981) (stating that “[a] term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if * * * the term exempts one charged with a duty of public service from liability to one to whom that duty is owed.”).

In this case, we focus our analysis on the public policy considerations. We conclude that the dispositive factor in determining the enforceability of the exculpatory clause here is the type of service that Voyagaire offers. In examining whether the service being offered is a public or essential service, we “consider whether it is the type generally thought suitable for public regulation.” Schlobohm, 326 N.W.2d at 925. “Types of services thought to be subject to public regulation have included common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Id. (footnotes omitted). In contrast, courts generally have held that contracts relating to recreational activities “do not fall within any of the categories where the public interest is involved.” Id. at 925-26 (citations omitted).

Xiong asserts that the exculpatory clause in the houseboat rental agreement is not enforceable because ‘Voyagaire essentially functions as an ‘innkeeper’ ” by providing sleeping accommodations to the public. See Minn.Stat. § 327.70, subds. 3-4 (2004) (defining an “innkeeper” as “an owner or operator” of a “hotel, motel, resort, boarding house, bed and breakfast, furnished apartment house or other building, which is kept, used or advertised as, or held out to the public to be, a place where sleeping or housekeeping accommodations are supplied for pay to guests for transient occupancy”). Xiong further asserts that “houseboat rental is subject to public regulation as a resort,” and refer-enees Minn.Stat. § 157.15, subd. 11 (2004), which states:

“Resort” means a building, structure, enclosure, or any part thereof located on, or on property neighboring, any lake, stream, skiing or hunting area, or any recreational area for purposes of providing convenient access thereto, kept, used, maintained, or advertised as, or held out to the public to be a place where sleeping accommodations are furnished to the public, and primarily to those seeking recreation for periods of one day, one week, or longer, and having for rent five or more cottages, rooms, or enclosures.

See also Minn.Stat. §§ 157.011-.22 (2004) (addressing the licensing and regulation of food, beverage, and lodging establishments, including resorts); Minn. R. 4625.0100-2355 (2005) (establishing standards for lodging establishments, including hotels, motels, and resorts).

Voyagaire, on the other hand, argues that the exculpatory clause is enforceable because renting houseboats “is a purely recreational activity” and is not a necessary or public service. Although Voya-gaire acknowledges that it “may be considered an innkeeper in its capacity as a hotel and lodge,” Voyagaire contends that its rental of houseboats is separate from its functions as a resort. As the court of appeals noted, the statutory definition of resort “does not mention houseboats,” see Minn.Stat. § 157.15, subd. 11, and a “houseboat” is defined elsewhere in Minnesota Statutes as a “motorboat,” see Minn. Stat. § 103G.245, subd. 4(2) (2004). Yang, 2004 WL 2049843, at *3.

We disagree with Voyagaire’s characterization of the houseboats as merely “recreational equipment.” Voyagaire’s own website describes the houseboats as “floating homes.” Although not anchored to the ground, the houseboat that Xiong rented has five double beds, a penthouse bedroom, a kitchen area, a toilet, and shower. See also Minn.Stat. § 103G.245, subd. 4(2) (defining a “houseboat” for purposes of public waters work permits as a motorboat that has “a permanent enclosed superstructure housing, at a minimum, built-in sleeping, cooking, and toilet facilities”).

By offering houseboats for daily and weekly rental on Crane Lake, Voya-gaire was furnishing sleeping accommodations to members of the public seeking recreation. These constitute resort functions. See Minn.Stat. § 157.15, subd. 11 (defining “resort”). Consequently, we conclude that the services offered by Voya-gaire — including the rental of houseboats — qualify Voyagaire as a “resort” subject to regulation under Chapter 157 of Minnesota Statutes. As a resort offering sleeping accommodations to the public in its lodge rooms as well as on its houseboats, Voyagaire meets the statutory definition of an “innkeeper” in Minn.Stat. § 327.70, subds. 3-4.

Therefore, it is appropriate to treat Voyagaire as an innkeeper providing a public service in determining the enforceability of the exculpatory clause in the houseboat rental agreement. Innkeepers generally have a duty to take reasonable action to protect their guests. See Connolly v. Nicollet Hotel, 254 Minn. 373, 380, 95 N.W.2d 657, 663 (1959) (stating that an “innkeeper owes a duty to the public to protect it against foreseeable risk of danger attendant upon the maintenance and operation of his property”); Restatement (Second) of Torts § 314A(2) (1965) (stating that an innkeeper has a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm). This duty applies regardless of whether the guests are occupying lodge rooms or houseboats. We conclude that as a matter of public policy, Voyagaire cannot circumvent its duty to protect its guests by requiring the guests to sign a rental agreement containing an exculpatory clause that purports to release Voyagaire from liability for the resort’s negligence. See 2 J.D. Lee & Barry A. Lindahl, Modern Tort Laiv: Liability & Litigation § 22:10 (2d ed.2002) (noting that “[a]t common law, a hotel or innkeeper could not contract away liability for negligence” because “[t]he innkeeper was bound by a public or quasi-public duty”). Therefore, we conclude that the exculpatory clause in the houseboat rental agreement is contrary to public policy and is not enforceable.

III.

Next, we examine the enforceability of the indemnification clauses in the houseboat rental agreement. “Agreements seeking to indemnify the indemnitee for losses occasioned by its own negligence are not favored by the law and are not construed in favor of indemnification unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it.” Nat’l Hydro Sys. v. M.A. Mortenson Co., 529 N.W.2d 690, 694 (Minn.1995) (quotations omitted). We also will not enforce an indemnification clause if it is contrary to public policy. See, e.g., Zerby v. Warren, 297 Minn. 134, 144, 210 N.W.2d 58, 64 (1973) (concluding that an indemnity agreement that seeks to relieve a party of the consequences of a violation of a public duty imposed by statute is void); 8 Richard A. Lord, Williston on Contracts § 19:19 (4th ed.1998) (stating that indemnity clauses are not upheld if they tend to promote a breach of a duty to the public); cf. Minn.Stat. § 337.02 (2004) (stating that “[a]n indemnification agreement contained in, or executed in connection with, a building and construction contract” is generally unenforceable).

There are two indemnification clauses in the houseboat rental agreement. The first clause provides:

I further agree at my cost and expense, to defend and save Voyagaire Houseboats] harmless on account of any and all suits or demands brought or asserted by reason of injuries to any person, persons or property whatsoever caused by the use or operation of said equipment while in my possession * * *.

The second clause provides:

Renter shall indemnify and hold harmless Owner from and against all claims, actions, proceedings, damage and liabilities, arising from or connected with Renter’s possession, use and return of the boat, or arising at any time during the term of this rental.

Again, we focus our analysis on the public policy considerations. As noted in our discussion of the enforceability of the exculpatory clause, Voyagaire is a resort that provides a public service by furnishing sleeping accommodations to the public. Consequently, it is appropriate to treat Voyagaire as an innkeeper for purposes of determining the enforceability of the indemnification clauses. As a matter of public policy, innkeepers cannot shift liability for their own negligence onto the guests they have a duty to protect. It makes no difference that the guests are sleeping on a houseboat rather than in on-land sleeping accommodations. Therefore, we conclude that the indemnification clauses in the houseboat rental agreement, which purport to require Xiong to indemnify Voyagaire for Voyagaire’s negligence, violate public policy and are unenforceable.

Considered in a broader context, it would be unfair to hold a private individual liable for the negligence of a business that resulted in serious injuries to several people, particularly where the individual was not warned about the specific risks involved — in this case, the risks of carbon monoxide exposure. Moreover, as a practical matter, shifting liability to a private individual like Xiong likely would result in the loss of compensation to injured parties. See Lee & Lindahl, supra, § 20:4 (explaining that unlike an exculpatory clause, “an indemnity agreement does not deny compensation to the party injured, but instead determines who will bear the loss”). Voy-agaire has not cited a court decision from anywhere in the country that has enforced an indemnification clause under similar circumstances. Instead, “[t]he modern trend is to not enforce indemnity agreements of this type (where the indemnitee holds an innocent party liable for its own negligence) on public policy grounds.” Madsen v. Wyo. River Trips, Inc., 31 F.Supp.2d 1321, 1325 (D.Wyo.1999) (refusing to enforce an indemnification clause in an agreement for a river rafting trip, stating that the “unprecedented attempt to hold a private citizen to an indemnity contract for a service that he himself purchased will not stand”).

We conclude that the exculpatory and indemnification clauses in the houseboat rental agreement are unenforceable on public policy grounds. We hold that the district court erred when it granted summary judgment. Accordingly, we remand to the district court for further proceedings consistent with our decision.

Reversed and remanded.

      . Respondent Inc. owns the houseboat and leased the houseboat to Voyagaire. Despite how this case is captioned, it appears that there is no Minnesota corporation named Voyagaire Houseboats, Inc. However, there is a limited liability partnership named J & G Enterprises of KAB, LLP, which does business as Voyagaire Lodge and Houseboats. In accordance with the parties' stipulation, the district court granted the motions of Xiong and other plaintiffs to amend their complaints to add J & G Enterprises of KAB, LLP, as defendants. It appears that James Janssen and his wife, Gretchen Janssen, operate Voya-gaire Lodge and Houseboats. The Janssens also are principals in B.J.M., Inc. Unless otherwise noted, respondents will be referred to collectively as "Voyagaire.” We leave it to the district court to determine the proper party defendants on remand.

      . Voyagaire also brought third-party actions against the other five adult members of the vacation party as members of a joint enterprise with Xiong. Voyagaire alleged that the adult members of the vacationing party agreed to assume all the risks associated with the use and operation of the houseboat and they agreed to be bound by the exculpatory and indemnification clauses in the houseboat rental agreement. In denying Voyagaire's motion for summary judgment, the district court determined that Xiong and the adult members of the vacationing party were not engaged in a joint enterprise and therefore the other members of the party are not bound by the exculpatory and indemnification clauses in the rental agreement. These issues, including the existence of a joint enterprise, are not before us.

      . Although our decision on the enforceability of the exculpatory clause rests primarily on the nature of the service that Voyagaire offers, the circumstances here, viewed in the light most favorable to Xiong, suggest that there was some disparity in bargaining power between Voyagaire and Xiong. Voyagaire required Xiong to pay the rental fee — "a couple thousand” dollars — in advance; Voyagaire did not tell Xiong about the rental agreement until he had traveled for over four hours to get to Crane Lake; Voyagaire told Xiong that insurance would cover "everything that could happen to the boat” after Xiong had indicated that he did not understand the language in the rental agreement; and Voyagaire would have refused to rent the houseboat to Xiong unless he signed the rental agreement. In addition, Xiong presented evidence that the nearest houseboat rental company was over 65 miles away and did not have any houseboats available, although Voyagaire asserts that there were "other lodging and recreational activities available throughout the area.”

      . Voyagaire maintains that houseboats do not constitute part of the resort because "[i]t is the rental of cottages, rooms or other land enclosures which qualifies it as a resort.” (Emphasis added.) However, the adjective "land” is not part of the statutory definition of resort, and the definition specifically includes structures or enclosures on a lake. See Minn.Stat. § 157.15, subd. 11.

      . Although our emphasis here is on the public policy factors, we also determine that the indemnification clauses are not enforceable because the language is not clear and unequivocal. See Nat’l Hydro Sys., 529 N.W.2d at 694. Strictly construed, the indemnification clauses do not contain language that (1) specifically refers to negligence, (2) expressly states that the renter will indemnify Voya-gaire for Voyagaire’s negligence, or (3) clearly indicates that the renter will indemnify Voya-gaire for negligence occurring before the renter took possession of the houseboat. Overall, we cannot say that the language in the indemnification clauses fairly apprised Xiong of an obligation to indemnify Voyagaire not only for his own negligence that occurred while he was using the houseboat, but also the negligence of Voyagaire that occurred before the rental term began.
      We reject the court of appeals’ suggestion that the requirement of clear and unequivocal language concerning the scope of the indemnification clause applies only in the context of building and construction contracts. See Yang, 2004 WL 2049843, at *5. Although many of our indemnification decisions have involved the construction setting, we never have indicated that the requirement of clear and unequivocal language applies only to building and construction contracts. Moreover, indemnification clauses in building and construction contracts are now governed by statute, which makes indemnification clauses in those types of contracts generally unenforceable. See Minn.Stat. § 337.02.

      . In Schlobohm, we stated in dicta that "an indemnity clause and an exculpatory clause differ in form," but "they are usually given the same treatment by the courts." 326 N.W.2d at 922 n. 3. Although we give the exculpatory clause and the indemnification clauses the same treatment here because the public policy considerations are similar, we caution against too much reliance on our observation in Schlobohm. We examine the enforceability of exculpatory and indemnification clauses under different standards. Indemnification clauses are subject to greater scrutiny because they release negligent parties from liability, but also may shift liability to innocent parties.

      . Voyagaire maintains that "[tjhere has been no evidence in the record to suggest negligence on the part of Voyagaire,” arguing that that "[tjhe reasonable inference is that Lao Xiong and/or his guests disconnected the carbon monoxide detector,” and that the carbon monoxide exposure resulted from the plaintiffs’ "adjustments to a propane cookstove and furnace aboard the houseboat.” However, at one point, James Janssen himself theorized that the wires to the carbon monoxide detector on the houseboat became disconnected when a kitchen drawer pulled the wires loose. In addition, Voyagaire repaired the generator on the houseboat five days after the carbon monoxide exposure occurred, and Voyagaire later removed the generator from the houseboat. In any event, these arguments are not relevant to the issue of the enforceability of the indemnification clauses. Furthermore, in view of Xiong's denials, these are fact issues inappropriate for resolution on summary judgment. See Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 432 (Minn.2002) (explaining that "[i]n a summary judgment motion, a court may not weigh the evidence or make factual determinations, but is required to view the evidence in the light most favorable to the nonmoving party”).

      . In response to Xiong’s motion to strike certain material in Voyagaire's submissions, we hereby order the following pages stricken from the appendix of respondent Voyagaire Houseboat as material outside the record: pages 5-10, 12-15, 21, and 26-27.


source: Caselaw Access Project

author:
ANDERSON, RUSSELL A., Justice.
      PAGE, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Brian Alexander CLIFTON, Appellant.
    No. A03-1964.
    Supreme Court of Minnesota.
    Aug. 4, 2005.

      Lawrence Hammerling, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Minneapolis, MN, for Appellant.

      Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Sr., Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Brian Alexander Clifton was convicted, following a jury trial in Henne-pin County District Court, of premeditated first-degree murder for the shooting death of Steven Earl Nix and sentenced to life imprisonment. On appeal, Clifton asserts he was denied a fair trial by the admission of evidence that a state’s witness had been threatened after testifying at an earlier trial, the submission of a no-adverse inference jury instruction and prosecutorial misconduct in closing argument. By pro se supplemental brief, Clifton makes additional claims. We affirm.

In February 2002, Steven Nix was charged with attempted murder in connection with the shooting of Clifton’s brother Victor at a party in North Minneapolis. Following a jury trial in June 2002, Nix was acquitted. On the day the jury returned the verdict, Clifton and his family met with the Nix trial prosecutor and victim advocate outside the courtroom. Clifton was very angry. As the prosecutor explained that the criminal case was over, Clifton made some comments, the gist of which was that “this could be taken care of some other way.” Clifton was also overheard swearing that he was “going to kill” or “get” Nix. Over the summer of 2002, Clifton was seen making threatening gestures towards Nix when they crossed paths in the Tangletown neighborhood of North Minneapolis.

On September 23, 2002, at around 7:00 p.m., Nix and his friend Darryl Neal were parked on a residential street in Tangle-town, “hanging out” in Neal’s 1987 GMC Jimmy. Neal was in the driver’s seat and Nix was in the front passenger’s seat with the window down. Neal had been smoking marijuana and Nix had been drinking cognac. Neal’s friend Calvin Combs, who had asked for a ride to another part of town to purchase some marijuana, was in the cargo area working on a mechanical problem with the rear window.

Clifton and his cousin Claudell Walker were also in the area, and as Walker approached Clifton to ask if he could borrow Clifton’s car, Walker saw Clifton walk up to the GMC Jimmy and shoot Nix in the head. The gun jammed when Clifton tried to fire another shot. Neal jumped out of the vehicle to determine if he’d been hit and Combs jumped out the back window. Neal then got back into the vehicle, found Nix unresponsive and bleeding from the head, and immediately drove him to North Memorial Hospital.

Hospital personnel took Nix into the stabilization room where he remained unconscious, had no response to stimulation and was having difficulty breathing. A CT scan showed that a bullet had entered Nix’s brain on the right side and exited on the left, causing life-terminating injury. Nix was pronounced dead at 8:00 p.m. An autopsy showed that the bullet lacerated the brain and fractured the skull. Stippling near the bullet’s entry point indicated that the gun had been fired at close range, between a few inches to two or three feet.

The police spoke with Neal at the hospital and at the Fourth Precinct. Neal identified Clifton from a photo display, stating “[tjhat’s him, that’s your shooter.” Neal also told the police that another man had walked by the vehicle shortly before the shooting and identified Walker from another photo display. The police eventually located Walker and Combs, both of whom identified Clifton as the shooter.

Clifton was indicted by grand jury for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2004), and second-degree intentional murder, Minn.Stat. § 609.19, subd. 1(1) (2004). Clifton’s case initially came on for trial in March 2003 but ended in a mistrial when the jury was unable to reach a verdict. Clifton’s case came on for retrial in September 2003. The jury found Clifton guilty of first-degree premeditated murder, and he was sentenced to life in prison with eligibility for parole after 30 years. This appeal followed.

I.

Clifton asserts prejudicial error in the admission of evidence that one of the state’s witnesses had been assaulted in retaliation for his testimony at Clifton’s first trial. Prior to the first trial, Walker told the police and the grand jury that he saw Clifton shoot Nix. At trial, however, on the morning of March 17, 2003, Walker testified that he was not close enough to see the shooter. In the afternoon, Walker recanted the recantation, explaining that he was nervous and stating that he saw Clifton shoot Nix. Four days later, Walker was assaulted by Clifton’s brother Victor, Antonio Jones and David Robinson. At the second trial, over objection, the state was allowed to elicit testimony about the assault to explain the inconsistencies in Walker’s prior testimony.

We review the district court’s ev-identiary rulings under an abuse of discretion standard. Bernhardt v. State, 684 N.W.2d 465, 474 (Minn.2004). “Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Evidence of bias “is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” Id. Threat evidence “can be relevant to explain a witness’ inconsistent statements[.]” United States v. Thomas, 86 F.3d 647, 654 (7th Cir.1996).

Relevant evidence is, of course, generally admissible. Minn. R. Evid. 402. But even relevant evidence, including evidence of threats, will be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Minn. R. Evid. 403; see State v. Harris, 521 N.W.2d 348, 351-52 (Minn.1994). While threats made by third parties may have some probative value in repairing a credibility problem with a witness, such evidence may be “extremely prejudicial” in that the “jury may wrongly assume that the defendant made the threats or that associates of the defendant did so at the defendant’s behest.” Stephen A. Saltzburg, Threats: Bolstering or Impeaching, 19 Crim. Justice 45, 46 (Summer 2004). Direct testimony of threats offered by the prosecution to “boost” the overall credibility in the absence of need can amount to a prejudicial attack on the defendant. See Dudley v. Duckworth, 854 F.2d 967, 971 (7th Cir.1988) (suggesting that the prosecutor introduced threat evidence to prejudice the defendant rather than explain away credibility problems with the witness). Even when evidence of threats is admissible, we believe “the trial court must still provide safeguards including cautionary instructions to prevent the evidence from being misused.” Harris, 521 N.W.2d at 353.

Here, in ruling on the admission of the evidence of the assault on Walker, the district court restricted the use of the evidence to redirect examination for purposes of repairing the credibility problem brought about by defense counsel’s cross-examination regarding the inconsistent testimony at the first trial. Walker testified that his assailants accused him of being a “snitch” and asked, “why did you tell” on Clifton? The evidence was also accompanied by the following cautionary instruction:

Ladies and gentlemen, testimony regarding [an] incident involving Mr. Walker and three other individuals will be received at this time for a limited purpose relating to the assessment of Mr. Walker’s credibility.
The evidence is admitted for the purpose of assessing testimony regarding Mr. Walker’s state of mind when he testified at a hearing on March 17, 2003.

A similar instruction was provided again during final jury instructions. Under these circumstances, we conclude the admission of the evidence was not an abuse of discretion.

II.

Clifton also asserts prejudicial error in the submission, without his permission, of CRIMJIG 3.17, which instructs the jury not to draw any adverse inference from the defendant’s decision not to testify. We have made clear that CRIMJIG 3.17 should not be given without the personal and clear consent of the defendant. State v. Darris, 648 N.W.2d 232, 240 (Minn.2002) (holding that it was error to give the instruction without getting the defendant’s permission on the record and citing State v. Thompson, 430 N.W.2d 151, 153 (Minn.1988)). Here, no record was made of Clifton’s consent to the submission of the jury instruction. But Clifton’s decision not to testify was placed on the record, as was his acknowledgment that no adverse inference could be drawn from his failure to testify and that he could request or decline a no-adverse-inference instruction. The record further reflects that Clifton and defense counsel had discussed the instruction and were going to confer again before the jury instruction conference. That conference, which was not recorded, resulted in the inclusion of a proposed no-adverse-inference instruction for the final instructions and the oral assent of both counsel to the final instructions was placed on the record before the instructions were given. At the conclusion of the final charge to the jury, when asked if there were any errors, omissions or corrections that should be called to the court’s attention, both counsel said “No, Your Honor.” Our independent review of the record satisfies us that Clifton and his attorney agreed to the instruction. Clifton is not entitled to a new trial on this ground.

III.

Clifton’s third claim is that the prosecuting attorney engaged in misconduct in closing argument. A reviewing court first examines the challenged conduct to determine whether the prosecutor committed misconduct. State v. DeRosier, 695 N.W.2d 97, 106 (Minn.2005) (citing State v. Ford, 539 N.W.2d 214, 228 (Minn.1995)). This court will grant a new trial only when “the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn.2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000)). We also retain, under our supervisory power, the right to grant a new trial “prophylactically or in the interests of justice,” without a further determination of prejudice. DeRosier, 695 N.W.2d at 106 (quoting State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993)). The injection of racial and socio-economic considerations is improper. State v. Ray, 659 N.W.2d 736, 747 (Minn.2003) (holding that the prosecutor engaged in misconduct in closing argument by inviting the jury to consider that the “hood” of North Minneapolis was the defendant’s environment, a world wholly outside the jury’s own).

In her closing argument in which she urged the jury to find Clifton guilty of premeditated murder, the prosecutor told the jury:

In preparing these remarks I thought about you as jurors and how different your lives may be from the lives and the lifestyles of many of the people who testified before you and from the victim, Steven Nix.
And how could you transport yourself to the world of the streets in Tangle-town, a world where people gather on the neighborhood block and hang out. They look for action. They recognize people by sight, know them only by nickname, [do] a little drinking, find some marijuana, smoke a little marijuana, see who is partying, see who’s hanging. I’m not saying that that’s the life of everybody in that area, of course. But there are some folks who do go there and hang out.
It’s a world, at least to some extent, where some people don’t trust the system and don’t call the police when they see somebody with a gun. They don’t run from trouble but almost seem to flirt with it or at least co-exist with it.
It may be a different lifestyle and different world, but it’s a world where many of the witnesses in this case reside. It’s their reality.
The witnesses who saw Steven Nix get murdered * * * deserve the same consideration as any other person, the same standards, the same rules, the same consideration. They [may] look different, they may perhaps sound different. Their lifestyles may be perhaps different, it doesn’t matter.
For a moment they stepped out of their world where justice is dispensed on the street and came into this courtroom and they put their trust and they put their faith in this system because it was the right thing to do.
You know, it would be nice when you’re preparing a case for trial, if you were able to call up a movie studio and call up central casting and say, “Say, I need a couple of witnesses for my trial and could there be a nun and could there be a firefighter and maybe a minister? Could you throw in some people that would be just so believable by who they are?” But that’s not reality.
The reality is you have to go to the people who are there at the time, who saw what they saw. Those are the people who are your witnesses, the people who were at this incident.
They may have different lifestyles and perhaps sometimes different ways of phrasing things and perhaps different reactions to events that some of you may have.
So they came to the police in three different ways and there are three people who stepped out of their world, the world of perhaps street justice, if you will, and came in here and decided to participate in the system. Three people who showed by their actions in this case that they want the violence to stop.

These remarks were improper in at least three aspects. First, the remarks bordered on injecting issues broader than the guilt or innocence of the accused. See, e.g., State v. Clark, 296 N.W.2d 372, 377 (Minn.1980) (holding that it was improper for prosecutor to suggest that the defendant should be convicted because of the crime problem in general). Second, the remarks came close to appealing to passion and prejudice. See, e.g., State v. Johnson, 324 N.W.2d 199, 202 (Minn.1982) (stating that it was improper for the prosecutor to suggest that jurors put themselves into the victim’s shoes). Third and more importantly, these remarks were demeaning. And it didn’t help when, in response, defense counsel referenced the witnesses as part of a “broad society” that’s “like a bell curve.” “Above all, demeaning references to racial groups compromise the right to a fair trial by inviting the jurors to view a defendant as coming from a different community than themselves.” Ray, 659 N.W.2d at 747 (quoting State v. Varner, 643 N.W.2d 298, 304 (Minn.2002)).

Our decision in Ray was filed on April 17, 2003. Trial in the instant case commenced on September 8, 2003. The record reflects that the parties were aware of the Ray decision and, in fact, the court made evidentiary rulings in line with Ray. So it is with some dismay that we are looking at the same kind of closing argument out of the same county attorney’s office, but one in which defense counsel acquiesced.

The state argues that the prosecutor’s closing argument was not calculated to cause the jury to decide the case on the basis of passion or prejudice rather than reason, and the closing argument when read as a whole bears that out. Nevertheless, where race is irrelevant, “racial considerations, in particular, can affect a juror’s impartiality and must be removed from courtroom proceedings to the fullest extent possible.” Varner, 643 N.W.2d at 304. Furthermore, “[j]ustiee is a process, not simply a result. Where the prosecution persists in skirting our rules and disregarding our admonitions, we are left with no option but to reverse.” State v. Lefthand, 488 N.W.2d 799, 802 (Minn.1992). We have made clear on a number of occasions that in appropriate cases, we will exercise our power to reverse prophy-lactically or in the interests of justice. See, e.g., Salitros, 499 N.W.2d at 820. In this case, however, where unlike Ray, there was no explicit reference to race or use of race to disparage the defendant, the argument had a basis in the record and Clifton otherwise received a fair trial, we conclude that the interests of justice does not demand a new trial.

IV.

By pro se supplemental brief, Clifton claims that the state’s examination of Walker was improper, that double jeopardy principles barred retrial, that the standard instruction on jury unanimity was unconstitutional and that the evidence was insufficient to support the verdict.

Clifton contends that the state violated his due process right to a fair trial by eliciting testimony from Walker in a manner that characterized Walker as a liar. Clifton relies on a line of cases from federal courts that prohibit a prosecutor from eliciting testimony from one witness that another witness has lied. See, e.g., United States v. Fernandez, 145 F.3d 59, 64 (1st Cir.1998); United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987). We have not adopted a “blanket” prohibition of “were they lying” questions, although such questions have no probative value and are generally improper. State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999). But the prosecutor did not ask such questions and Clifton’s reliance on these cases is misplaced.

Clifton also argues that the Double Jeopardy Clauses of the state and federal constitutions barred his second trial. Retrial following the discharge of a hung jury, however, does not violate double jeopardy. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

Clifton further claims that the submission of the standard jury charge regarding unanimous verdicts in criminal cases violated his due process rights under the state and federal constitutions. This claim has no merit.

Finally, Clifton asserts that the evidence was insufficient to support his conviction. Specifically, he contends that the evidence failed to establish beyond a reasonable doubt that he committed the crime. Our review of a sufficiency of the evidence claim is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Fields, 679 N.W.2d 341, 348 (Minn.2004) (quoting State v. Webb, 440 N.W.2d 426, 430 (Minn.1989)).

Here, there was ample evidence as to Clifton’s identity as the shooter, including eyewitness accounts. Neal testified that at the moment he heard the gunshot, he turned and saw Clifton holding a gun at the open window on the front passenger side of the vehicle. Walker and Combs testified that they saw Clifton shoot Nix. Neal and Combs testified that Clifton tried to fire another shot but the gun jammed. Other witnesses described the threats Clifton made outside the courtroom after Nix was acquitted of the attempted murder of Clifton’s brother: that Clifton swore he was “going to kill” or “get” Nix. There was also evidence that in the summer of 2002, Clifton was seen “slightly brandishing” a gun in Nix’s presence, indicating “just wait, you’ll see.” In addition, there was expert medical evidence that Nix died from a single gunshot wound to the head, inflicted from close range. When viewed in the light most favorable to the verdict, the evidence clearly supported the verdict.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. Because the state was aware of our decision in Ray at the time of trial, and because we are looking at “the same kind of closing argument out of the same county attorney’s office,” I would, in the interests of justice, reverse and remand for a new trial.

      . The pattern jury instruction on a defendant’s right not to testify provides:
      The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.

        10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides-Criminal, CRIMJIG 3.17 (4th ed.1999).

      . In accord with Ray, the district court granted defense counsel’s motion to strike a question of an investigating officer that tended to implicate racial and socio-economic concerns and thereafter allowed only limited inquiry into the officer’s difficulty in locating witnesses.

      . The instruction on jury unanimity provides:
      In order for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be unanimous.
      You should discuss the case with one another, and deliberate with a view toward reaching agreement, if you can do so without violating your individual judgment. You should decide the case for yourself, but only after you have discussed the case with your fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely to reach a verdict.


author: ANDERSON, PAUL H., Justice.

text:
    STATE of Minnesota, Respondent, v. David Eugene WRIGHT, Appellant.
    No. A03-1197.
    Supreme Court of Minnesota.
    Aug. 11, 2005.

      Office of the State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, St. Paul, MN, Amy J. Klobuchar, Hennepin County Attorney, Jean E. Bur-dorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
    Beverly Balos, University of MN Law School, Minneapolis, MN, for Amicus Curiae MN Coalition for Battered Women.
    Carolyn Ham, Minneapolis, MN, for Battered Women’s Justice Project.
   OPINION

ANDERSON, PAUL H., Justice.

Appellant David Eugene Wright was convicted in Hennepin County District Court on two counts of felony assault in the second degree. The convictions were based on Wright pointing a firearm at his then-girlfriend R.R. and her teenage sister during an argument that took place in the early morning hours at the apartment Wright shared with R.R. Wright was also convicted of one count of being a prohibited person in possession of a firearm. The Minnesota Court of Appeals affirmed Wright’s convictions, and he then appealed to our court.

While Wright listed several grounds for appeal, we granted his petition for review only with respect to the issue he raised implicating the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This issue requires us to determine whether Wright’s Confrontation Clause rights under the U.S. Constitution were violated when the district court admitted recorded statements made by R.R. and her sister to a 911 operator and statements they made to police officers at R.R.’s apartment during the course of the officers’ initial, on-scene field investigation. We conclude that Wright’s Confrontation Clause rights were not violated by admission of the statements and, therefore, we affirm.

On November 24, 2002, appellant David Eugene Wright was living with his girlfriend, R.R., in an apartment on Oak Grove Street in Minneapolis. At about 3:00 a.m., a Minneapolis 911 operator received a hang-up call originating from an apartment at the same street address. The operator dispatched police officer Mark Lanasa to that address. While La-nasa was en route, the 911 operator received a second call from the same location (“the 911 call”), during which R.R. described Wright and told the operator that Wright earlier had “pulled a gun on me and my little sister.” R.R. also told the operator that Wright had keys to her apartment, and that she was worried he might return. R.R. told the operator: “I’m so scared right now, ma’am. I’m sorry I don’t want to talk too loud.” R.R. then put her sister on the phone. The sister, who was staying with R.R. that weekend, said that she was frightened and concerned that Wright had keys to the apartment and might return. The operator then relayed to Lanasa the information that was obtained during the 911 call, including a physical description of Wright.

As Lanasa was receiving the information from the 911 operator, he noticed a man matching Wright’s description on the sidewalk west of LaSalle Street on Oak Grove. Lanasa turned his car around to face the direction that the man was walking. He then yelled at the man to stop walking and to raise his hands, but the man took off running. Wright, who was the man Lana-sa spotted, testified that he ran because it was late at night and he was scared and uncertain about what would happen.

Lanasa testified that as he followed Wright in the squad car, he noticed Wright holding a black, semi-automatic handgun in his right hand. Wright turned into an alley and was traveling through the alley when Lanasa came around the corner and noticed that Wright’s hands were empty. Wright then climbed over an eight-foot high chain link fence. Lanasa again yelled at Wright to stop and threatened to release a police dog if Wright did not stop. Lanasa testified that Wright continued running, but Wright testified that at this point he stopped and put his hands in the air.

Lanasa testified that he traveled around the block, positioned his squad car beside Wright, and pushed a button to open the door that released the police dog, which pursued Wright. The dog caught up to Wright at the entrance of the Market BarB-Que restaurant and grabbed him by the right leg. Lanasa, who continued to pursue Wright, jumped out of his car with his gun drawn, forced Wright to the ground, and told Wright to show his hands. Wright kicked at the dog while the dog bit him, and Lanasa then kicked Wright several times. Lanasa testified that Wright subsequently put out his hands and said, “I don’t have the gun anymore.” Lanasa then handcuffed Wright. At trial, Wright denied having had a gun in his hands while Lanasa chased him. Wright also testified that he did not say that he no longer had a gun because there was no reason for him to make such a statement to Lanasa.

A police officer who arrived to assist Lanasa searched the scene and found a gun under a parked car in the Marker’s Liquor Store lot, near the alley that Wright traveled through as Lanasa was chasing him. The gun was a Smith & Wesson, 915 semi-automatic. Lanasa testified that this gun appeared to be the same weapon he saw Wright holding in his right hand. A police investigator testified that a test for fingerprints yielded no “positive results” — that is, there were no fingerprints on the gun that matched Wright’s.

Meanwhile, at 3:18 a.m., Officer Heidi Weeks and her partner were dispatched to the Oak Grove address to begin an initial, on-scene field investigation. While en route, they heard Lanasa broadcast over the police radio that he had been chasing Wright. Weeks and her partner went to assist Lanasa, and when they arrived at the scene of the arrest, they placed Wright in the back seat of their squad car. Weeks and another officer, Adam Lewis, then walked to R.R.’s apartment.

When Weeks and Lewis arrived at the apartment around 3:45 a.m., they observed that R.R. was crying and shaking uncontrollably, and trying to take deep breaths to calm herself down. R.R. was having a hard time talking to the officers, and told the officers that she was really scared. Lewis asked R.R. if they could go up to her apartment to take her statement because the doorway was small and there was no place to sit. When the officers arrived at the apartment, R.R.’s sister was sitting on the sofa, crying.

Weeks spoke to R.R. for about a half hour. Weeks testified that throughout their conversation, R.R.’s demeanor did not change — “[s]he continued to cry and sob and have a hard time breathing in talking to us throughout the time that I was speaking with her.” R.R. said she was concerned about whether Wright was in custody and whether he might be released. While Weeks talked with R.R., Lewis talked with R.R.’s sister, who described the events in a manner consistent with how R.R. described them. R.R.’s sister also told Lewis that she was “scared to death,” and that she believed Wright would return and shoot her.

R.R. and her sister then continued to recount the evening’s events to the officers. Because R.R. and her sister did not testify at Wright’s trial, their descriptions of the events were introduced through the officers’ testimony. Wright’s testimony concerning the events was largely consistent with the descriptions from R.R. and her sister, with some minor and one significant exception: he denied pointing a gun at R.R. and her sister — the act that gave rise to the felony assault charges. Unless otherwise noted, the facts recited below are consistent with both versions of the events.

During the field investigation interview at her apartment, R.R. told Weeks that she had lived in the apartment since the beginning of the month, and Wright had moved in with her about two weeks later. Wright testified that at the time of the incident, his relationship with R.R. had not been going well. He said that earlier that evening, R.R. came home late from work and rang the apartment to be let in because she did not have her keys. R.R.’s sister came to the door, told R.R. that Wright did not want to let R.R. into the apartment, but then let her in anyway. Wright testified that he and R.R. argued about her plans to go to a dance club. He said they then agreed that their relationship was not working, and decided to “leave each other alone.”

At about 10:30 p.m., R.R. and her sister left the apartment. Wright said R.R. left for a dance club and her sister went to a party. R.R.’s sister was expected to return by 11:30 p.m. Wright had the apartment keys because he thought he was going to be leaving shortly, but instead he fell asleep on the sofa while waiting for R.R.’s sister to return. He awoke around 11:30 or 11:40 p.m. when R.R.’s sister telephoned to explain that she was on her way, and then he fell asleep again. At about 1:10 a.m., Wright awoke when R.R. telephoned, asking to be let into the building. When Wright left the apartment to let R.R. in, he saw R.R.’s sister sleeping in the hallway. The sister apparently had returned while Wright was asleep. Wright woke her up and told her to go inside the apartment. When Wright met R.R., he told her that her sister had been sleeping in the hallway, and R.R. then became upset.

When R.R. and Wright arrived at the apartment, R.R.’s sister was inside. Wright testified that he played video games while R.R. tried to sleep. Both R.R. and her sister made some comments to Wright about how he was irresponsible, and R.R. told Wright that their relationship was over. Wright told R.R. he would leave “on the first of the month.”

Shortly thereafter, Wright put on his coat and said he was going to leave. Wright testified that he did not want to argue all night and thought that if he left and came back after R.R. had fallen asleep, he would not have to deal with her. Wright testified that when he went to retrieve the keys from the counter on which he had left them, he noticed that they were no longer there. Wright said that he asked R.R. for the keys, but she refused to give them to him. A heated argument ensued. At one point, R.R.’s sister tried to call 911, but Wright grabbed the telephone, pulled the receiver from the wall, and smashed it. Lewis testified that he found a broken phone with a cracked receiver when he interviewed R.R.’s sister.

During the police interview, R.R. told Weeks that Wright said “I’ll show you” and he walked to the front closet, retrieved a dull silver and black gun from a black backpack, and returned to the living room. Wright then pointed the gun, which R.R. thought was loaded, at R.R.’s sister. Next, he pointed the gun at R.R. and said “little girl, shut your mouth,” and then pointed the gun back at R.R.’s sister. Wright then left the apartment, at which time R.R. dialed 911 from a telephone in the bedroom. While interviewing R.R., Weeks found a black backpack in the front closet, which held a gun clip containing a few hollow-point rounds that could be used in a 9-millimeter-caliber gun.

Wright was charged with two counts of felony assault in the second degree, based on allegedly having pointed a gun at R.R. and her sister, in violation of Minn.Stat. § 609.222, subd. 1 (2004). Wright also was charged with one count of being a prohibited person in possession of a firearm, in violation of Minn.Stat. § 624.713, subds. 1(b) and 2 (2004). While preparing the case against Wright, the Hennepin County Attorney’s office repeatedly telephoned R.R.’s sister, but was unable to reach her. A police investigator attempted several times to reach R.R., and when R.R. finally answered a telephone call, she told the investigator that she did not want to participate in the case. The investigator went to R.R.’s residence to deliver a subpoena, and when no one answered, he slid the subpoena under the apartment door. A domestic violence victims’ advocate told the court that she had spoken with R.R., who said that she was concerned for her safety and her sister’s safety if they were to testify. R.R. also was concerned that Wright still might have keys to her apartment, and told the victims’ advocate that Wright had been telephoning her from jail. According to the advocate, Wright told R.R. that “if she doesn’t do what he wants someone will come over to her house and do something to her.”

Based on this information, the district court deemed both R.R. and her sister unavailable to testify. The court then admitted into evidence a tape and a transcript of the 911 call, as well as the statements R.R. and her sister made to the police. The court ruled that the statements were admissible under the excited utterance exception to the hearsay rule. The court explained that the statements made to Officers Weeks and Lewis at the apartment were distinguishable from formal police interviews. The court found that these statements were made “quite soon after the incident,” were related to the assault, and were made while R.R. and her sister were “still under the influence [of the incident], still tearful, crying, very upset, had difficulty calming [ ] down, were still quite frightened.”

A jury returned a verdict of guilty on all counts charged. The district court convicted Wright of two counts of assault in the second degree and one count of being a prohibited person in possession of a firearm. Wright received a sentence of 60 months for each count, to be served concurrently.

Wright appealed his convictions to the court of appeals, arguing that the district court abused its discretion by (1) admitting as excited utterances the statements R.R. and her sister made during the 911 call and the statements they made to the police at R.R.’s apartment; (2) admitting the statement Wright made when the police subdued him because he did not voluntarily make the statement; and (3) ruling that he could be impeached with his prior convictions of drug crimes, damage to property, and aggravated robbery. State v. Wright, 686 N.W.2d 295, 298 (Minn.App.2004). Wright also argued that the state committed prejudicial misconduct during its closing argument. Id. In March 2004, while Wright’s case was pending before the court of appeals, the United States Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The parties then addressed the Crawford issue in supplemental briefing.

The court of appeals affirmed Wright’s convictions, and we granted his petition for review only with respect to the Crawford issue. Specifically, Wright argues that his rights under the Confrontation Clause of the United States Constitution were violated when the district court admitted the statements R.R. and her sister made to the 911 operator and to the police during their field investigation.

I.

For more than two decades, the admissibility of a declarant’s out-of-court statement under the Constitution’s Confrontation Clause has been guided by the United States Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, a de-clarant’s out-of-court statement could be admitted under a hearsay exception if both (1) the declarant was unavailable at trial, and (2) the prosecution could demonstrate that the declarant’s statement bore “sufficient ‘indicia of reliability’ to avoid a conflict with the confrontation clause.” State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981).

On March 8, 2004, the Supreme Court rendered its decision in Crawford, and significantly altered the rules governing the admissibility of testimonial out-of-court statements against criminal defendants at trial. In Crawford, the Court stated that the Roberts test departed from historical principles governing the admission of evidence because the test is both too broad and too narrow. 541 U.S. at 60, 124 S.Ct. 1354. The Court explained that the Roberts test is too broad because it applies the same mode of analysis regardless of “whether or not the hearsay consists of ex parte testimony.” Id. The Court said that this broad application often results in close scrutiny of statements that are far removed from the Confrontation Clause. Id. The Court also said the test is too narrow because it allows for statements that do consist of ex parte testimony to be admitted upon a “mere finding of reliability,” consequently “failing] to protect against paradigmatic confrontation violations.” Id.

In Crawford, the Supreme Court said that “Members of this Court and academics have suggested that we revise our doctrine to reflect more accurately the original understanding of the [Confrontation] Clause.” Id. The Court noted two proposals for revising the doctrine:

First, that we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law — thus eliminating the over-breadth referred to above. Second, that we impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine — thus eliminating the excessive narrowness referred to above.

Id. at 61, 124 S.Ct. 1354. The Court considered the first proposal in White v. Illinois, 502 U.S. 346, 352-53, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), but rejected it. In Crawford, the Court did not explicitly say whether its holding in White survives Crawford, but the Court did state that the analysis in Crawford “casts doubt on that holding” and that the analysis “squarely implicated the second proposal.” Id.

The Supreme Court then went on to state that

the 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 reliable, 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 reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

Id. at 61, 124 S.Ct. 1354. The Court then explained that by allowing a jury to hear evidence based on a “mere judicial determination of reliability” without being tested by the adversarial process, the Roberts test “replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.” Id. at 62, 124 S.Ct. 1354.

The Supreme Court said that it could resolve the matter in Crawford by reweighing the Roberts reliability factors. Id. at 67, 124 S.Ct. 1354. But, by implication, the Court appeared to acknowledge that if it did so, the Roberts standard would still remain vague. Id. The Court then expressed concern that such a vague standard would allow judges too much discretion. Id. at 67-68, 124 S.Ct. 1354. Based upon this concern, the Court proceeded to abrogate part of its holding in Roberts by establishing new standards for the admission of a declarant’s out-of-court statements when those statements are offered against a criminal defendant. When doing so, the Court first explained the concept of “testimonial statements” for purposes of the Confrontation Clause. The Court explicitly rejected the notion that the Clause applies only to in-court testimony and established that it may apply to some out-of-court statements as well. Id. at 50-51, 124 S.Ct. 1354. The Court stated that the Clause “applies to ‘witnesses’ against the accused — in other words, those who ‘bear testimony’ ” and that “ ‘testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, 124 S.Ct. 1354 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).

The Supreme Court then gave some context to testimonial statements when it stated that “an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354. The Court held that when the out-of-court statements are testimonial in nature, two conditions must be satisfied: (1) the de-clarant must be unavailable, and (2) the defendant must have had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354. But, when nontestimo-nial hearsay is at issue, states are permitted to exempt such statements from Confrontation Clause scrutiny as they see fit. Id. at 68, 124 S.Ct. 1354.

While the Supreme Court in Crawford established a bright-line test governing the admissibility of testimonial statements, it declined to comprehensively define the types of statements that are to be considered testimonial. Id. at 68, 124 S.Ct. 1354. The Court did, however, identify the following three “formulations of [the] core class of ‘testimonial’ statements”:

[ (1)] [E]% parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declar-ants would reasonably expect to be used prosecutorially; [ (2)] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [ (3)] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. at 51-52, 124 S.Ct. 1354 (citations omitted).

The Supreme Court then cautioned that “involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at 56 n. 7, 124 S.Ct. 1354. After noting that there are various definitions of the term “interrogation,” the Court explained that the term is to be used in a colloquial, rather than technical legal, sense for purposes of a Confrontation Clause analysis. Id. at 53 n. 4, 124 S.Ct. 1354. The Court then established a category of statements that are always testimonial, which includes “interrogations by law enforcement officers” and prior testimony at a preliminary hearing, before a grand jury, or at a previous trial. Id. at 68, 124 S.Ct. 1354. As for all other types of statements, the Court elected to “leave for another day” the determination of whether such statements should be deemed testimonial, explaining that, despite the uncertainty that the holding may bring, “it can hardly be any worse than the status quo.” Id. at 68 n. 10, 124 S.Ct. 1354.

Post-Crawford, we have not defined the parameters of what constitutes “testimonial” statements. See State v. Martin, 695 N.W.2d 578 (Minn.2005) (stating that “this court must also ‘leave for another day’ any effort to discern the Supreme Court’s meaning of ‘testimonial’ ” because a determination as to whether the declarant’s statement was testimonial was unnecessary to resolving the case); State v. Burrell, 697 N.W.2d 579, 584 (Minn.2005) (directing district court on remand to “weigh all relevant factors” when determining whether police station interview of nonsus-pect was testimonial). Only a few courts have implied that all three of the Supreme Court’s formulations should be used. See, e.g., United States v. Saget, 377 F.3d 223, 228-29 (2nd Cir.2004); United States v. Arnold, 410 F.3d 895, 902 (6th Cir.2005).

Applying the holding in Crawford, we now examine whether the statements R.R. and her sister made during the 911 call and to the police are admissible as evidence. We begin our analysis with the 911 call. While there are a variety of reasons a person may call 911, we focus in this case specifically on those callers seeking protection from immediate danger. Some courts have concluded that statements made by a person seeking protection from immediate danger which also report a crime are categorically nontestimonial. A few courts have reached the opposite conclusion, determining that statements made during 911 calls reporting crimes — even if the caller is in peril — are categorically testimonial and as such must be excluded from evidence. See People v. Cortes, 4 Misc.3d 575, 595, 781 N.Y.S.2d 401 (N.Y.Sup.Ct.2004); Arnold, 410 F.3d at 900-01.

Wright urges us to follow the approach articulated in Cortes, and he asserts that a person who calls 911 to seek protection from immediate danger is expressly aware that she has “formally initiat[ed] the criminal process” and that the statements she makes during the call may later be used at trial. But we find this broad assertion unpersuasive. It is doubtful that in the face of immediate danger a caller is contemplating how her statements might later be used at a trial. In asking the caller questions, the 911 operator seeks to ascertain the nature of the caller’s peril and provide an appropriate response. The operator’s primary goal is not to conduct an investigation in anticipation of future prosecution of a wrongdoer. Generally speaking, even under the third formulation suggested by the Supreme Court, it would be an exceptional occasion when a statement made by a caller during the course of a 911 call would be classified as testimonial. Nevertheless, we are not persuaded by the state’s assertion that the admissibility of all statements made during 911 calls remains unaffected by Crawford.

Most courts that have directly addressed this issue have elected to analyze the circumstances of a given 911 call on a case-by-case basis in order to reach a conclusion about whether the statements made during that call are testimonial or nontestimonial. After engaging in this type of analysis, the great majority of these courts have reached the conclusion that such statements are nontestimonial. A few courts have reached the opposite conclusion. We agree with the former approach. We conclude that it is appropriate to evaluate whether statements made during 911 calls are testimonial in light of the circumstances under which the calls are made. Accordingly, we decline to adopt a categorical rule that all statements made during 911 calls are nontestimonial.

Here, R.R. called 911 shortly after Wright left the apartment, and the call ended immediately after the 911 operator confirmed that Wright had been apprehended. The district court observed that R.R. and her sister were both “trembling, stuttering, crying, [and] hyperventilating” during the call and begging for help. During the call, the operator focused only on obtaining information for an immediate intervention rather than a future prosecution, and attempted to calm R.R. and her sister by assuring them that they would be safe. Given the demeanor of the victims, the temporal proximity to the incident, and the nature of the dialogue between the victims and the 911 operator, we conclude that statements made during the 911 call were nontestimonial. Therefore, we hold that the admission of the statements made by R.R. and her sister during the 911 call did not violate Wright’s Confrontation Clause rights under Crawford.

II.

We now turn to the more difficult Craiv-ford question — the admissibility of the statements R.R. and her sister made to the police officers who conducted the initial, on-seene field investigation. Wright argues that these statements are testimonial, and thus their admission violated his rights under Crawford.

After Crawford, several courts have addressed the admissibility of statements made during field investigations, but there has been little consensus as to whether the statements are testimonial. One California Court of Appeals panel has determined that statements made during preliminary field investigations at a crime scene are categorically nontestimonial. See People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004). Both the Sixth Circuit and Georgia’s Supreme Court, on the other hand, have deemed statements made during field investigations to be testimonial. See Moody v. State, 277 Ga. 676, 594 S.E.2d 350, 354 n. 6 (2004); Arnold, 410 F.3d at 904. The overwhelming majority of courts do not use a categorical approach to determining the admissibility of these statements; rather, they determine whether the statements are admissible by examining, on a case-by-case basis, the circumstances under which each statement is made. Using this approach, most of those courts have concluded that, depending on the circumstances, certain statements produced during a field investigation may be nontestimonial.

Consistent with these courts and our approach to analyzing statements made during 911 calls, we conclude that statements made to the police during a field investigation should be analyzed on a case-by-case basis according to the circumstances under which the statements are made. As previously noted, the Supreme Court declined to comprehensively define the types of statements that are considered testimonial, but the court did establish certain parameters when it articulated three possible formulations of the core class of testimonial statements. Because the Supreme Court did not provide a comprehensive definition of “testimonial,” a review of post-Crawford decisions of other courts exploring the nuances of testimonial statements in the context of field examinations is helpful. Our review of these decisions reveals that these courts commonly take into account several considerations. See n. 7, supra. These considerations include: (1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the de-clarant’s home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and de-clarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded. Id. We agree that these considerations are useful in determining whether a statement is testimonial or nontestimonial. Nevertheless, while this list is extensive, we note that other considerations also may prove useful.

On balance, the first five considerations listed above weigh in favor of a conclusion that the statements R.R. and her sister made to the police during the field investigation are nontestimonial. Both R.R. and her sister were victims, not mere observers. They initiated contact with the police by dialing 911 and, by contacting the police, they sought protection from Wright. They allowed the police into the apartment immediately following the incident in order to talk about the incident. When Officers Weeks and Lewis arrived at the apartment, they observed that R.R. and her sister were emotionally distraught and they remained that way throughout the entire conversation. The district court agreed with the officers’ assessment of the condition in which they found R.R. and her sister.

The sixth and seventh considerations'— the level of formality and the structure of the questioning, and the officers’ purpose in speaking with the declarants — are not easily resolved. Wright urges us to conclude that these factors weigh in his favor. Wright argues that the officers’ interviews constituted formal police interrogations because the police sought to obtain formal statements from R.R. and her sister, who ultimately “bore witness” against him. Wright emphasizes that the interviews took place about half an hour after the incident, the officers took notes and testified at Rasmussen hearings from those notes, and the officers said that the information provided was sufficient to support a lawful arrest. Wright asserts that the officers questioned R.R. and her sister “in a structured manner designed to elicit the information the officers knew would be necessary for a conviction.”

Wright implies that the officers’ interviews of R.R. and her sister are similar to the questioning of the defendant’s wife in Crawford. We disagree. The circumstances under which the interviews were conducted in each case are distinguishable. In Crawford, the police already had arrested the man they suspected of committing the crime. 541 U.S. at 38, 124 S.Ct. 1354. Both the suspect and his wife were in custody at the police station when they were interrogated. Id. The nature of the questioning was adversarial because the wife was a potential suspect rather than a victim. Most significantly, the police had given both the man and his wife Miranda warnings before the wife made the statements. Id.

Here, the police interviews were nearly contemporaneous with the incident and Wright’s arrest. The questioning was not adversarial; R.R. and her sister were the victims, and the officers traveled to R.R.’s apartment in response to her call for assistance. The state observes, and we agree, that it is relevant that the officers lacked specific details of the offense and that the officers were engaging in preliminary fact-gathering to determine whether there was cause to detain Wright. It is inconsequential that during the interviews the officers took notes that they later used to refresh their memories at trial. We acknowledge that the officers took possession of some evidence at the apartment while interviewing R.R. and her sister, and Wright was in custody at that time. However, we conclude that the officers’ actions represent a response to a call for assistance and preliminary determination of “what happened” and whether there was immediate danger, rather than an effort to gather evidence for a future trial.

Ultimately, when determining the parameters of testimonial statements, we look for guidance to the three possible formulations that the Supreme Court identified in Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. Under the Court’s first two formulations, it is clear that the statements R.R. and her sister gave to the officers are nontestimonial. The statements were not contained in formalized testimonial materials, nor could they be considered ex parte in-court testimony or its functional equivalent. A reasonable person under such circumstances probably would not make statements in contemplation of a trial. Indeed, the facts indicate that both R.R. and her sister were primarily concerned about Wright’s ability to harm them in the future, and not with the criminal penalties that he might face for his actions that night.

In our analysis, consideration of the Supreme Court’s third formulation of testimonial statements gives us some pause because a reasonable citizen interacting with a police officer likely would recognize that there is a chance that any statement she makes during that interaction may later be used at a trial. A consequence of using the Court’s broadest formulation may be the categorization of virtually every out-of-court statement made by a de-clarant to a police officer as testimonial. But such a consequence would make an analysis of the interrogative qualities of interactions between declarants and the police wholly unnecessary. This does not appear to be the Court’s intended result based on the facts of Crawford and the Court’s analysis.

The Supreme Court stated in Crawford that it would “leave for another day” any effort to put forth a comprehensive definition of testimonial statements. 541 U.S. at 68, 124 S.Ct. 1354. We believe that the task of defining the exact parameters of what constitutes testimonial statements for purposes of the Confrontation Clause of the U.S. Constitution is best suited for the Supreme Court. With regard to certain types of statements, the Court has already spoken; but statements made in other contexts are best analyzed in terms of the particular facts and circumstances under which they are made in order to determine their testimonial or nontestimonial nature. Having analyzed the facts and circumstances of the field investigation in this case, we conclude that the statements that R.R. and her sister made to the officers during their field investigation are nontes-timonial. Accordingly, we hold that the admission of these statements at trial did not violate Wright’s Confrontation Clause rights under Crawford.

At this point, it is appropriate to note that cases involving domestic violence, such as the case before us today, present special concerns. We agree with amici curiae that perpetrators of domestic violence frequently intimidate their victims with the goal of preventing those victims from testifying against them. Thus, a forfeiture by wrongdoing analysis is particularly suitable for cases involving domestic violence. In Crawford, the Supreme Court explicitly preserved the rule of forfeiture by wrongdoing — the ability of a court to admit evidence after the state has shown that a defendant forfeited his right to confront a witness by procuring the witness’s unavailability. 541 U.S. at 62, 124 S.Ct. 1354. This rule has been consistently applied by Minnesota courts. See, e.g., State v. Fields, 679 N.W.2d 341, 347 (Minn.2004); State v. Byers, 570 N.W.2d 487, 495 (Minn.1997); State v. Peirce, 364 N.W.2d 801, 807-08 (Minn.1985); State v. Olson, 291 N.W.2d 203, 207-08 (Minn.1980). In Minnesota, a defendant will be found to have forfeited by his own wrongdoing his right to confront a witness against him if the state proves that the defendant engaged in wrongful conduct, that he intended to procure the witness’s unavailability, and that the wrongful conduct actually did procure the witness’s unavailability. See Fields, 679 N.W.2d at 347.

Although we preserve the availability of a forfeiture by wrongdoing analysis after Crawford, we decline to consider it in this case for two reasons. First, the district court did not engage in factfinding or issue conclusions regarding whether Wright procured the unavailability of R.R. or her sister. A forfeiture by wrongdoing analysis was unnecessary at the time of Wright’s trial because the Supreme Court had not yet issued its decision in Crawford. We recognize, however, that this analysis may be appropriate in future cases when a defendant seeks to exclude an out-of-court statement from use at his trial on the basis that the statement is testimonial. Second, and more importantly, our holding that all of the statements that R.R. and her sister made during the 911 call and to the officers at the apartment during the officers’ field investigation are nontestimonial obviates a forfeiture by wrongdoing analysis.

Affirmed.

      . Crawford involved an appeal of a Washington Supreme Court’s decision upholding a defendant’s conviction for assault. On the night of the incident, the defendant and his wife had gone looking for the victim because the victim had allegedly tried to rape her. The two found the victim at his apartment, and a fight ensued in which the victim was stabbed in the torso and the defendant's hand was cut. The police apprehended the defendant and his wife, read them Miranda warnings, and interrogated them at the police station. During her interrogation, the wife gave a tape-recorded statement that incriminated the defendant. At trial, the defendant claimed self-defense, and the wife did not testify due to marital privilege. Over the defendant’s objection, the court allowed the state to introduce the wife’s tape-recorded statements.

      .Other courts and legal commentators have agreed that the Supreme Court’s third formulation is also the “broadest” formulation, because more out-of-court statements would be characterized as testimonial under that formulation than under the other two formulations. See, e.g., Andrew King-Ries, Crawford v. Washington: The End of Victimless Prosecution? 28 Seattle U.L.Rev. 301, 318 (2005); Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 527-29 (2005); United States v. Cromer, 389 F.3d 662, 673 (2004); U.S. v. Savoca, 335 F.Supp.2d 385, 392 (2004). In his concurrence in Crawford, Chief Justice Rehnquist also appears to characterize the third formulation as the broadest. See Crawford, 541 U.S. at 71, 124 S.Ct. 1354 (Rehnquist, C.J., concurring).

      . See American Heritage Dictionary of the English Language 944 (3rd ed.1992) (defining “interrogate” as "to examine by questioning formally or officially").

      . See People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 880 (N.Y.Crim.Ct.2004); State v. Anderson, 2005 WL 171441 at *4 (Tenn.Crim.App. Jan. 27, 2005) (unpubl.); Byrd, 160 Ohio App.3d 538, 828 N.E.2d 133, 2005 WL 937737 at *3; Commonwealth v. Gray, 867 A.2d 560, 567 (Pa.Super.Ct.2005).

      . See, e.g., People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir.2004); People v. Conyers, 4 Misc.3d 346, 777 N.Y.S.2d 274, 276-77 (N.Y.Sup.Ct.2004); Coleman, 791 N.Y.S.2d at 114.

      . See State v. Powers, 124 Wash.App. 92, 99 P.3d 1262, 1266 (2004); Isaac, 2004 WL 1389219 at *5.

      . See, e.g., Hammon v. State, 829 N.E.2d 444, 455 (Ind.2005); People v. King, - P.3d -, 2005 WL 170727 at *5 (Colo.Ct.App. Jan.27, 2005); Forrest, 596 S.E.2d at 27-28; People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 873-74 (N.Y.Crim.Ct.2004); West, 291 Ill.Dec. 72, 823 N.E.2d at 88-89; Wilson v. State, 151 S.W.3d 694, 698 (Tex.Ct.App.2004); Key v. State, — S.W.3d -, 2005 WL 467167 at *4 (Tex.Ct.App. Feb. 28, 2005); Davis, 2005 WL 183141 at *4; United States v. Webb, 2004 WL 2726100 at *3-4 (D.C. Nov. 9, 2004) (unpub.); Gonzalez v. State, 155 S.W.3d 603, 609 n. 4 (Tex.Ct.App.2004); State v. Maclin, 2005 WL 313977 at *17 (Term. Crim.App. Feb.9, 2005) (unpub.); State v. Mason, 110 P.3d 245, 250, 251 (Wash.Ct.App., 2005); Spencer v. State, 162 S.W.3d 877, 882-83 (Tex.Ct.App.2005); People v. Watson, 5 Misc.3d 1013, 798 N.Y.S.2d 712, 2004 WL 2567124 at *14-15 (N.Y.Sup.Ct.2004) (unpub.). But see Byrd, 160 Ohio App.3d 538, 828 N.E.2d 133, 137 (2005); Lopez v. State, 888 So.2d 693, 699-700 (Fla.Ct.App.2004); Drayton v. United States, 877 A.2d 145, 2005 WL 1413862 at *5 (D.C., June 16, 2005); People v. Victors, 353 Ill.App.3d 801, 289 Ill.Dec. 154, 819 N.E.2d 311 (2004).

      . The Supreme Court issued its decision in Crawford on March 8, 2004. A jury found Wright guilty on May 6, 2003.