This Prosecuting those accused of domestic violence presents an array of challenges for prosecutors. These crimes are frequently a he-said, she-said situation with minimal physical evidence. This puts a heavy weight on victim testimony in order to obtain a conviction. Unfortunately, many victims refuse to testify at the outset, agree to testify then change their minds, or do not show up for the court date. Without that testimony, prosecutors will often drop the charges against an accused, possibly putting the victim at risk of another episode of violence.
Justice Scalia opened the door to the possibility of a prosecutor being able to use out-of-court statements made by the victim, without the victim’ s testimony at trial. Such statements would typically be inadmissible hearsay, but in Giles v. California Justice Scalia stated that past episodes of domestic abuse could create a situation where a defendant has forfeited his right to confront the witness at trial. If a prosecutor can establish that the abuser has, by the very nature of the abuse, intended to keep the victim from cooperating with the investigation or prosecution, a forfeiture argument is possible. If granted, any and all relevant statements the abuser made to the victim could be used against him without requiring the victim to testify. The results would be more convictions and, more importantly, removing the victim from a dangerous situation.
Giles, The Confrontation Clause, and Inferred Intent: Do Abusers Forfeit Their Confrontation Rights by Engaging in Domestic Violence?,
Rich. Pub. Int. L. Rev.
Available at: https://scholarship.richmond.edu/pilr/vol21/iss3/8