If you have been charged with domestic assault, a court date is inevitable. In most cases, even if the alleged victim has decided he or she does not want to press charges, the state will still prosecute the case because the charges have already been filed -- and domestic abuse is against the law. Now, it is up to your attorney to provide a defense. If the alleged victim does not appear to testify, can his or her statements made to others be used?

This is where the Sixth Amendment's confrontation clause may help. A 2004 case was upheld based on the Sixth Amendment. The case was based on the rule that "testimonial statements" were not admissible in court against the defendant "unless (1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness. (Id. at 68.)" This leaves the prosecution with a dilemma. To allow a testimonial statement at the trial hearing, such as a statement made by an alleged victim to an officer, a determination must be made first as to whether the statement is considered testimonial or not. If the statement was made to provide facts for prosecution, it is considered testimonial; that is, when the issues in the Sixth Amendment can be considered and debated between the defense and the prosecuting attorney. The witness must be considered "unavailable" to testify, and the defense must have had "prior opportunity" to develop their case based on the witness's testimony.

Victims of domestic abuse cases often later regret statements made in the heat of battle, when their emotions are out of control. For this reason, it is not uncommon for them to not appear in court. The absence of the alleged victim with no proof of "unavailability" is often beneficial to the defense in a case. The defense must be prepared to debate any testimonial statements they may have made. It can be quite complex, and one thing the accused must be careful to not do is "cause the witness to be absent." This could make use of the Sixth Amendment null and void.

If you find yourself in a situation where you are facing domestic assault charges, carefully follow the advice of your attorney so you will not make mistakes that could destroy your defense in court. Your attorney will be familiar with the laws and how to best counteract testimonial evidence.

Source: American Bar Association, How “Necessary” Is the Victim in Domestic Violence Litigation?," Michael D. Dean, accessed Nov. 04, 2015