I think so. Court proceedings are not my forte so I'm not sure? I'll see if we can get one of our verified attorneys in to take a look for us.
Ooohh, thanks for the message, Kimster (I think). This is a complicated and evolving area of criminal law.
I am not an expert on the hearsay issues presented, but here are some basics.
In 2004, the US Supreme Court issued a ruling known as the Crawford case (some info here:
http://en.wikipedia.org/wiki/Crawford_v._Washington). Basically, this case was a major change in criminal procedure. Previously, there had been lots of ways to admit hearsay testimony in court. Under Crawford, the SC basically said that in criminal prosecutions, when out-of-court statements are "testimonial" in nature, the only way they can be admitted is if (a) the person making the statements is "unavailable" to testify;
and (b) if there was a previous opportunity for the defendant to cross-examine the person (think preliminary exam, or
maybe a DV injunction hearing).
There are a couple of areas of evolving law. One: the Supreme Court didn't really define what they meant by "testimonial". Two: the SC may have left in place the concept of forfeiting the right of confrontation under the doctrine of "forfeiture by wrongdoing" (google Giles v. California).
This is all kind of theoretical. If, as a practical matter, a potential client came to me, as a defense attorney, with a domestic violence case with a living victim, I would say this: "Look, if the victim isn't willing to come to court, you maybe have a decent trial case." If, as a practical matter, a potential client came to me with a dead victim, after I referred the client to another attorney
, I would say, "The admissibility of the victim's statements depend on a lot of factors, including whether or not there is a probable cause finding that you caused the death of the victim."
I hope this helps. Like I said, evolving area of law--there are no absolutes, and the state court in this case will likely be setting new state precedents.