The Supreme Court considered Monday whether statements made by victims to 911 operators and police officers at crime scenes should be barred as evidence because they were not made under oath or subjected to cross-examination by a defendant.
In cases from Washington and Indiana, the justices focused on whether the rights of Adrian Davis and Hershel Hammon were violated because their accusers did not testify at their trials.
The issue is significant because the high court's ruling could affect the ability of prosecutors to bring criminal charges - particularly in domestic violence cases - when victims or key witnesses are not willing or not available to testify.
Justice Ruth Bader Ginsburg pointed out that "many women in these situations are scared to death" and don't want to testify.
Ginsburg also recalled that "it wasn't so long ago" that police wouldn't bother trying to gather evidence to prosecute cases of domestic abuse.
She worried aloud that if the justices issue a ruling that police consider more trouble than their efforts are worth, officers might wonder why they should bother pursuing domestic violence cases.
Lawyers on all sides of the cases - as well as the Bush administration - want the justices to clarify a 2004 decision that barred prosecutors' use of statements from victims or witnesses if a defendant did not have a chance to question them in court.
Justice Antonin Scalia, the author of the 2004 majority ruling, grilled lawyers for Washington and Indiana about a defendant's right to confront his or her accuser.
Scalia worried about what would happen to defendants who were charged with crimes based on "false" statements from witnesses who never testified. And he wondered whether 911 operators, by asking so many questions of victims, aren't being used by police as "a prosecutorial device."
James M. Whisman, senior prosecuting attorney in Seattle, conceded the 911 tape was "powerful" evidence of the abuse victim Michelle McCottry said she endured at Davis' hands.
"Powerful is part of the problem," Scalia said. "To hear her voice on the phone ... it makes it an even more damaging violation" of the defendant's right to confront his accuser.
At Davis' trial, a judge allowed the tape of McCottry's February 2001 emergency call to be admitted into evidence but barred police testimony about what McCottry had said to officers. She disappeared before trial and did not testify despite a subpoena.
In the other case out of Peru, Ind., Amy Hammon also did not testify. But a judge allowed a police officer to testify that she had told him that her husband, Hershel, had thrown her into the glass panel of a gas heater.
Chief Justice John Roberts appeared to give prosecutors and police the benefit of the doubt in both cases.
Roberts was skeptical when Davis' lawyer suggested that prosecutors, armed with powerful 911 tapes, might keep "bad" witnesses off the stand to win their cases.
And the chief justice said police officers have mixed motives in trying to protect victims and build criminal cases.
Jeffrey L. Fisher, who represents Davis, told the justices it's not always easy to determine when police officers stop protecting victims and when they begin gathering evidence to support criminal charges.
The cases are Davis v. Washington, 05-5224, and Hammon v. Indiana, 05-5705.