In most domestic violence cases, including those involving intimate parter sexual assault, a victim who has appealed to the justice system for help will refuse to assist the prosecution at some point in the proceedings primarily because of fear.
Even when the victim refuses to testify, there may be other sources of evidence originating with the victim that might support a criminal conviction, such as a call to 911 or statements to a health care professional. The effort to move forward with a criminal proceeding in the absence of the victim’s testimony is known as an "evidence-based prosecution."
Two recent Supreme Court decisions addressed the impact of such prosecutions on a defendant’s right to confront and cross-examine the witnesses against him: Crawford v Washington, 541 U.S. 36 (2004) and Davis v. Washington and Hammon v. Indiana, 547 U.S. 1213 (2006).
These cases established that where a proffered statement is "testimonial" in nature – recorded as part of an effort to assemble a case for arrest and prosecution – the confrontation clause requires that the declarant must be available for cross-examination. If, however, the statement is "non-testimonial" – for example, made in the course of the emergency itself – the statement is admissible as hearsay.
Even when a prior statement is unequivocally testimonial, it might still be used to support an evidence-based prosecution if the witness’ unavailability is the result of a defendant’s intimidation If the People establish that the defendant intentionally engaged in wrongdoing in order to procure the witness’ unavailability, the defendant has forfeited the right to confrontation. Davis, supra, and Giles v. California, 554 U.S.C. (No. 07- 6053, June 25, 2008)