391 A.2d 364 (Md. 1978), 62, Reed v. State

Docket Nº:62.
Citation:391 A.2d 364, 283 Md. 374
Opinion Judge:[10] Eldridge
Party Name:James REED, Jr. v. STATE of Maryland.
Attorney:[7] William T. Wood, Specially Assigned Public Defender, for appellant.
Case Date:September 06, 1978
Court:Court of Appeals of Maryland
 
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Page 364

391 A.2d 364 (Md. 1978)

283 Md. 374

James REED, Jr.

v.

STATE of Maryland.

No. 62.

Court of Appeals of Maryland.

September 6, 1978

[283 Md. 375] William T. Wood, Specially Assigned Public Defender, Rockville, for appellant.

Deborah K. Handel, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

Reargued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

The issue in this criminal case is the admissibility of voice identification testimony

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based on the analysis of spectrograms, commonly described as "voiceprints."

In September 1974, a woman was raped, late at night, outside her home in Montgomery County, Maryland. She immediately entered a hospital for treatment and reported the incident to the police. The following afternoon, she received a telephone call from a person who identified himself as her assailant. The victim notified the Montgomery County Police Department, and the police attached a recording device to her [283 Md. 376] telephone. During the next three days, the victim received and recorded seven telephone calls, all apparently placed by the original caller.

During the course of one of these telephone conversations, the victim's caller asked to have intercourse with her again. She offered instead to pay him $1,000.00. In a subsequent conversation, she and the caller arranged for her to deliver $1,000.00 to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical "plug" box, place the money inside the locker, and return the key to its original location on the box. The victim then complied with her caller's instructions. Afterwards, the defendant James Reed appeared at the bus station, entered the locker room, picked up the key from the box, and proceeded toward locker 326. As he approached the locker, police officers, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room and arrested Reed. Reed was subsequently indicted on rape and other charges growing out of the same incident.

In May 1975, Reed was compelled to submit voice exemplars to the State's Attorney. Reed was required to repeat, into a telephone connected to a recording device, the words spoken to the victim by her assailant in the September 1974 telephone calls. These tapes, together with a composite recording of the calls made by the assailant, were then sent to the Voice Identification Unit of the Michigan State Police Department for spectrographic analysis and comparison. The results of this comparison were considered inconclusive, and in August 1975 Reed was required to submit another set of voice exemplars, again reading the words spoken by the assailant. These voice samples were also sent to Michigan for spectrographic analysis and comparison. This second test resulted in an alleged positive identification of Reed as the speaker on four of the seven calls made by the rapist. 1 [283 Md. 377]

A pretrial suppression hearing on the admissibility into evidence of voice identification testimony based on spectrographic analysis was conducted in the Circuit Court for Montgomery County. After hearing evidence on the general validity and reliability of the spectrographic method of identification, the trial court ruled that the State could at Reed's criminal trial introduce expert testimony based on spectrographic analysis for the purpose of voice identification.

Reed was first brought to trial in October 1975. Voiceprint testimony was introduced, purportedly identifying Reed as the speaker who had placed the calls to the victim. After two and one-half days of deliberation, the jury was unable to reach agreement, and a mistrial was declared. In March 1976, Reed was again brought to trial, and voiceprint testimony was again introduced. In this second trial, Reed was found guilty of rape, unnatural and perverted sex acts, robbery, verbal threats, and unlawful use of the telephone. Reed was sentenced to life imprisonment for the crime of rape and to lesser concurrent terms of imprisonment for the remaining crimes. The Court of Special Appeals affirmed the convictions, Reed v. State, 35 Md.App. 472, 372 A.2d 243 (1977). This Court then granted Reed's petition for a writ of certiorari to consider the trial

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court's admission of voiceprint evidence. We hold that the admission of this evidence was error. 2

The voiceprint technique, although of relatively recent origin, has been much discussed and described in cases and legal commentaries. 3 The process involves the use of a [283 Md. 378] machine known as a spectrograph. This machine analyzes the acoustic energy of the human voice into three components time, frequency, and intensity and graphically displays these components by generating, through an electric stylus, a series of closely spaced light and dark lines, varying in position, on a sheet of electrically sensitive paper. The resulting graphic representation is what is called a spectrogram or "voiceprint." It reveals certain patterns or "formats" which correspond to the sounds which are analyzed. According to the testimony of Dr. Oscar Tosi, the State's principal witness at the suppression hearing and the most widely known proponent of the reliability of the voiceprint technique, 4 spectrography

"consists of comparing both aurally and visually spectrograms of a questioned voice and a known voice, and on the basis of the similarities to decide whether or not the two voices, the questioned and known voice are the same or belong to different persons."

Essentially, therefore, the task of spectrography is one of pattern matching. It is dependent on the individual judgment of the examiner. As stated by Dr. Tosi:

"I consider (spectrography) reliable only if the examiner is reliable and he adjusts to what the [283 Md. 379] conditions are, and he is an honest person; and he is prone to use no opinion, but probability rather than positive identification in cases of some doubt. Then I consider this good. It is reliable and can be used only . . . under these circumstances. Otherwise it would be a disaster."

The examiner's task is complicated by what is termed "intra-speaker" variability, that is, the fact that individual speakers apparently do not say the same word in precisely the same way each time they utter it, and that spectrograms reflect this difference. According to Detective Sergeant Lonnie Smrkovski of the Michigan State Police, the examiner in the instant case, if a speaker were to utter the same word on fifty consecutive days, he would expect none of the resulting spectrograms to be

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identical. 5 It is maintained, however, that the differences between the separate utterances of an individual speaker are less than the differences between the utterances of different speakers, so that intra-speaker variations do not render identification impossible.

According to Sgt. Smrkovski, at least ten points of similarity must be noted between two speech samples before a positive identification can be achieved. Apparently, this is independent of the number of the speech samples being compared. In the instant case, Sgt. Smrkovski, after listening to the tapes submitted to him, selected 138 of the 2,162 words spoken for comparison and made spectrograms of these words. In this sample, Sgt. Smrkovski rated one comparison "excellent," twenty "very good," thirty-seven "good," and thirty-five "fair." These comparisons were the basis of his conclusion that Reed's voice and the voice of the victim's caller were the same.

A principal consideration with regard to the admissibility of expert testimony, according to Wigmore, is: "On This [283 Md. 380] subject can a jury receive from This person appreciable help?" 7 Wigmore, Evidence § 1923 (Chadbourn rev. 1978). Clearly, this is dependent on the particular circumstances of each case. No rule or set of rules could be expressed for all cases which would adequately distinguish helpful expert testimony from that which is superfluous or worse. Accordingly, this Court has held that the determination of similar and related issues are generally matters within the sound discretion of the trial court. Beahm v. Shortall, 279 Md. 321, 340, 368 A.2d 1005 (1977); Greenstein v. Meister, 279 Md. 275, 283, 368 A.2d 451 (1977); Radman v. Harold, 279 Md. 167, 168, 367 A.2d 472 (1977), and cases there cited.

On the other hand, with particular regard to expert testimony based on the application of new scientific techniques, it is recognized that prior to the admission of such testimony, it must be established that the particular scientific method is itself reliable. People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976); Jones, Danger Voiceprints Ahead, 11 Am.Crim.L.Rev. 549, 554 (1973). See also Shanks v. State, 185 Md. 437, 440, 45 A.2d 85 (1945); 3 Wigmore, Evidence § 795 (Chadbourn rev. 1970).

On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. at 440, 45 A.2d 85. Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be...

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