Hodo v. Superior Court
| Decision Date | 22 February 1973 |
| Citation | 106 Cal.Rptr. 547,30 Cal.App.3d 778 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Dewey C. HODO, Petitioner, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 12397. |
In 1968, People v. King, 266 Cal.App.2d 437, 72 Cal.Rptr. 478, held, based on the record before the court at that time, that evidence of spectrogram or voiceprint identification was inadmissible. However, the court did not close the door on the eventual admissibility of this technique assuming that future events would establish its scientific reliability and acceptance. 1
During the ensuing four years scientific research in this field has continued and the technique has received recognition in other jurisdictions. Now, the record before this court indicates that voiceprint identification is scientifically reliable and has gained sufficient acceptance in the scientific community to admit into evidence the opinion of an expert voiceprint reader.
The matter comes before this court on a petition for writ of prohibition following the denial of a motion under Penal Code, § 995.
Petitioner is charged with violation of Penal Code, § 96(1) (), and Penal Code, § 93 (). At the preliminary hearing evidence was adduced that the defendant was a juror in a condemnation action. The property owner received a telephone call indicating that the caller would like to see him make a lot of money from his property. The authorities were advised of this call and two days later the property owner received another call from the same party which call forms the basis for the pending criminal charges. This call was recorded. An investigation ensued during which the defendant gave police officers a tape recording of his voice. A witness, whose testimony is discussed below, testified over objection that the unknown voice recorded in the telephone conversation and the defendant's recorded voice came from the same person. This evidence established probable cause. No issue is made of the sufficiency of the evidence if this evidence is admissible.
The sole issue is the admissibility of voice identification by the use of spectrographic recordings known as voiceprints.
The two witnesses on this issue were Dr. Oscar Tosi and Detective Lieutenant Ernest Nash.
Dr. Tosi is Professor of the Department of Audiology and Speech Sciences and Physics at Michigan State University. He holds two doctorates, one in Audiology and Speech Sciences and Electronics from Ohio State University, and the other in Engineering and Physics from Buenos Aires University. He is a member of a number of societies in the fields of Speech, Logopedics and Phoniatrics. He has published two books and more than 35 papers in the fields of Audiology and Phonetics. 2 He has qualified as an expert in these fields in the courts of ten states.
Dr. Tosi is also an expert in the method of voice identification known as voiceprints. This is a method of voice identification which consists of identifying or eliminating an unknown voice among several known by both listening to the voices and visually inspecting a spectrogram. Acoustical spectrography is a branch of science which consists of composing the voice or the sound into harmonic components and obtaining a visual pattern of the sound which pattern is called a spectrogram.
When Dr. Tosi first entered the field of voiceprint identification in 1966, he could express no opinion as to its reliability. After making preliminary studies in the field, Dr. Tosi, in 1967, expressed the opinion that the method of voiceprint identification showed promise but that he could not either recommend, endorse, or reject the method without more comprehensive investigation. He felt that additional scientific evidence was called for. Thus, Dr. Tosi testified in 'State v. Cary,' that he advised the Court in New Jersey not to use the voiceprint identification method since it was his opinion that he did not have enough evidence to prove the validity of the technique. 3
However, Dr. Tosi continued with his studies and now is of the opinion that the technique is scientifically reliable and is generally accepted by others who would be expected to be familiar with its use.
Dr. Tosi has conducted special studies in the field of voiceprint identification starting in 1966 when he was teaching spectrography at Michigan State University. At that time, he was contacted by the Michigan State Police re the possibility of using the voiceprint to identify or eliminate suspected persons. Then in 1968, he applied for and received a $300,000.00 grant from the United States Department of Justice to conduct comprehensive experimentation in the field. This he did from 1968 to 1970. 35,000 trials of identification or elimination were conducted as part of this laboratory experiment. In addition, some 700 voices were obtained from actual cases. He selected 250 persons representing a population of 25,000 to conduct his experiments on. He selected a homogeneous population of voices with no speech impairments. All of the persons selected were from a close range of ages, young people, all with the same kind of education and background, all of them speaking the so-called General-American English midwest dialect.
He first recorded sentences in very different contexts and different types of translation. He tested speakers recording directly into a tape recorder or into a telephone. This was done first in a quiet environment and then in a noisy environment. He then had speakers uttering clue words and then other isolated words. These same clue words were put in a fixed context in ongoing normal speech and then a random context, to observe the effect of the use of the clue word system. It was found that the clue word system produces a difference in spectrography.
Dr. Tosi conducted both open and closed trials. In the closed trials the examiner knows that the unknown is among the known. In the open trial the examiner does not know whether the unknown is among the known.
The voiceprint method of identification consists of both listening and visually matching the voices. During the 35,000 trials held the errors of wrong identification came out to be six per cent. The easiest type of trials had only 0.5 per cent error while the most difficult had six per cent misidentification. In analyzing the six per cent error it was determined that this was caused by the fact that Dr. Tosi forced his experimental examiners to reach a positive decision even if they were in doubt.
The examiners had four choices:
1. Almost uncertain.
2. Fairly uncertain.
3. Fairly certain that my decision is right.
4. Almost certain that this is the right decision.
In processing out the results, it was determined when the examiners put down numbers 3 and 4, they produced 2.4 per cent misidentification.
Dr. Tosi accounts for the 2.4 per cent misidentification because the student examiners were allowed only fifteen minutes to complete a trial and the fact that the examiners were never allowed to hear the voice tapes.
However, a professional examiner could have as much time as he deems necessary to complete an identification. In addition, the professional examiner would actually listen to the voice tape. Since the professional examiner is not a naive listener but is trained to listen to a voice this would aid him in making an identification.
Based upon Dr. Tosi's background, experience, studies and his research, he is now of the opinion that when a professional examiner has all the time he needs, is responsible for his decisions, and where he may listen to the voice samples as well as visually examine the voice spectrogram, then the voiceprint method of identification is extremely reliable. 4
Based upon Dr. Tosi's knowledge of the vocal track and the mechanics of speech production as well as an analysis of almost 50,000 spectrograms, he has concluded that no two people would create the identical pattern on the voice spectrogram.
As Dr. Tosi completed his testimony, he gave his opinion that Lt. Nash is the best professional examiner using the voiceprint method of identification.
officer in charge of the Voice Identification Unit of the Scientific Crime Laboratory of the Michigan State Police. He has been in charge of that unit since 1967.
He studied originally for some 15 months under Mr. Kersta (see below) and since 1968 has been a student at Michigan State University (presumably under Dr. Tosi) where he has majored in Audiology and Speech Sciences. He has had extensive experience in making sound spectrograms of individual voices as they relate to voice identification. He is a member of several societies in this field and has presented numerous papers on the subject of voiceprint identification. He has qualified as an expert in voiceprint identification in the courts of 12 states. He has examined approximately 80,000 sound spectrograms of the voice of a human being.
Lt. Nash received the two recordings in the instant case, i.e., the recording of the telephone call to the property owner and the tape recording of the interview with the defendant. With each tape recording he prepared sound spectrograms of the voice. Approximately a dozen sound spectrograms were made of the known voice of petitioner as well as the unknown voice of the individual who made the telephone call. He then subjected both recordings to the voiceprint method of identification which is basically the critical...
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