What Will It Take? Examining the Use of Preliminary Hearing Testimony Where Victims are Unavailable Due to Mental Illness Stemming from Domestic Violence and Sexual Assault
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A particular problem exists that domestic violence and sexual assault victims face when bringing their abusers to court. This is whether the use of preliminary hearing testimony can be utilized where a victim is unavailable to testify at trial due to mental illness, namely Post-traumatic Stress Disorder. This article examines the manner in which various states have combatted the issue of unavailability due to mental health and what role that unavailability has in a domestic violence or sexual assault case. By closely looking at the case State v. Anderson, 402 P.3d 1063 (Idaho 2017), this article seeks to justify the use of preliminary hearing testimony where there can be a trustworthy means for mental health determinations to establish a victim’s unavailability, and where the previous testimony has an indicia of reliability.