Whether this type of reasoning will prevail in the post-Crawford period is an evolving question.

In Santiago the court had extensive documentation of the intimidation because of the victim's repeated encounters with the healthcare and criminal justice systems. A record like this will not often be available. Many victims do not seek medical care for their injuries, lie about their cause when they do, and suffer violence silently for many years before seeking assistance from the courts. An expert witness such as the forensic nurse who testified in Santiago may be essential to a determination of whether the victim has been so intimidated by the batterer that she cannot go forward.

While courts generally agree that a defendant cannot be found to have forfeited his right to confrontation unless he intended to prevent the victim from testifying against him, courts have struggled with what conduct may be considered in making that determination. The recent Supreme Court decision in Giles v. California, 554 U.S. ____ (No. 07-6053, June 25, 2008) addressed this issue. In a case of intimate partner homicide, the defendant claimed he shot his former girlfriend in self-defense. The trial court admitted a prior statement the victim made to police about a domestic violence incident. The defendant was convicted and he appealed, urging that this was obviously a testimonial statement, and that since he killed his former girlfriend in self-defense rather than to keep her from testifying, the statement should not have been admitted. On appeal the question was whether the defendant had forfeited his right to cross-examine the witness by killing her, no matter what his proffered reason. The California Court of Appeal and Supreme Court held that he had. People v. Giles, 123 Cal. App. 4th 475, 19 Cal. Rptr. 3d 843, 2004 Cal. App. LEXIS 1786 (Cal. App. 2d Dist., 2004); 152 P.3d 433,55 Cal. Rptr. 3d 133, 2007 Cal. LEXIS 1913.

The U.S. Supreme Court, in a plurality opinion, reversed. It concluded that the fact of homicide alone does not establish forfeiture as to presumed testimonial statements made by the victim prior to the homicide; rather, it must be established that the defendant's specific intent was to prevent testimony at trial. This standard is consistent with the long-standing common-law doctrine of "wrongful procurement," by which a defendant may not deliberately contrive to derail a prosecution by impeding testimony of a witness. Because the court below had not considered the specific intent of the defendant, forfeiture had not been established and the case was remanded.