"[T]he most difficult forfeiture situation for courts to assess will be those circumstances where the victim responds to a batterer's actions that precede the domestic violence charge – that is, where the accused's earlier conduct and threats (statements like 'don't you ever call the police or else!') cause the victim to decline to testify, claim a lack of memory, or be absent from the trial.

In order for forfeiture to be proven in domestic violence actions, prosecutors, law enforcement officers and courts must secure evidence – possibly from third parties – prior to trial, indicating that these victims are too frightened to testify about the intimidating and coercive character of the accused's actions. If a victim is too scared to testify against the accused, for fear of retribution, the victim will probably also be too scared to testify in any pre-trial forfeiture proceeding.

The U.S. Supreme Court has suggested that the government must meet a preponderance-of-the-evidence standard to establish forfeiture, and suggested that if a hearing on forfeiture is required, hearsay evidence may be considered by the trial court. Davis, 547 U.S. ____, 2006 U.S. LEXIS 4886 at 32."