In Davis, the Supreme Court also noted that while it was taking "no position on the standards necessary to demonstrate such forfeiture," federal courts follow the Federal Rules of Evidence and usually adhere to the preponderance-of-the-evidence standard and states tend to follow suit. 126 S. Ct. 2266, 2280. However, several federal and state courts have adopted a clear and convincing standard, at least in some instances. See, e.g., United States v. Houlihan, 887 F. Supp. 352 (1995); People v. Geraci, 649 N.E. 2d 817 (N.Y. 1995).

Once forfeiture has been established, the prosecution must present sufficient evidence to persuade a jury of the defendant's guilt in the absence of a testifying complainant. The jury pool may need to be questioned during voir dire as to how the absence of a complainant may affect their view of the case.