People v. Collins

• Decision Date: 03 April 1978
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Diana COLLINS and Bobby Stephenson, Defendants.
• Court: New York Supreme Court

Page 365

405 N.Y.S.2d 365

94 Misc.2d 704

The PEOPLE of the State of New York, Plaintiff, v. Diana COLLINS and Bobby Stephenson, Defendants.

Supreme Court, Criminal Term,Kings County, Part 10.

April 3, 1978.

Eugene Gold, Dist. Atty. (Steven Rudell, of counsel), for plaintiff.

Steven Z. Kronovet, Brooklyn, for Diana Collins, defendant.

Robert Bressler, New York City, for Bobby Stephenson, defendant.

WILLIAM RIGLER, Justice.

The defendants herein are charged with attempted grand larceny in the first degree by extortion and attempted grand larceny in the third degree. During the course of the investigations of these charges, telephone conversations partially constituting the basis of the instant indictment were tape recorded with the consent of one of the parties to those conversations. Subsequently, the People have requested and obtained voice exemplars from each defendant. The various recordings were then subjected to spectrogram analysis. The people intend to offer the results of that analysis as evidence for consideration by the trier of fact.

The people therefore have made a motion for a pretrial ruling by the Court that voice identification by spectrographic analysis has reached the standard of scientific acceptance and reliability to warrant its admission into evidence.

The Court has held an extensive hearing on this subject at which time highly qualified experts, in the field of Spectrography, namely, Dr. Henry Truby and Mr. Frederick Lundgren, testified for the people, and Dr. Louis Gerstman for the defense. Both the people and the defense introduced a number of exhibits into evidence, consisting of documents, treatises, studies and articles dealing with this subject.

Briefly, a sound spectrograph is a device which converts sound waives into electrical signals. These signals are transduced into mechanical energy which operates a stylus. The stylus "burns" a visual pattern onto a paper. This pattern is known as a sound spectrogram.

This spectrogram is commonly called a "voiceprint".

The visual pattern displayed on the spectrogram is an analogue of the frequency, intensity, and duration of the sound waves introduced into the spectrograph.

The sound spectrograph was originally developed at Bell Telephone Laboratories more than thirty years ago, and was initially used as an aid in studying human speech and the formation of words and syllables.

The machine was soon adapted for use in voice identification and elimination, during which procedure an examiner compares two spectrograms, and makes a judgment based on visual similarities or differences as to whether the voices which produced those spectrograms belong to the same person.

Since speech and voice are determined largely by the size, shape, and relationship of the tongue, lips, and various vocal cavities and articulators, it is assumed that no two voices are exactly alike, as it is highly unlikely that any two persons have identical relationships between these articulators.

It seems to the Court that the validity of spectrographic analysis for voice identification further depends on at least two inferences: first, that the sound spectrograph does indeed analogize, on the spectrogram, those components of human speech which characterize its unique qualities; and second, that a visual study of spectrograms may reveal such characteristics to an examiner.

It is presumed that if this technique is proven to be reliable and a generally accepted scientific process, that the basic inferences could be made with assurance, and that these test results would be admitted into evidence.

STANDARDS OF ADMISSIBILITY

The first question which the Court must decide is the nature of the standards which must be applied in the admissibility of this technique.

In People v. Leone, 25 N.Y.2d 511, at p. 517, 307 N.Y.S.2d 430, at p. 434, 255 N.E.2d 696, at p. 700 (1969), in deciding the admissibility of lie detector tests, the Court said "Although perfection in test results is not a prerequisite to the admissibility of evidence obtainable by the use of scientific instruments, the rule has been to grant judicial recognition only after the instrument has been sufficiently established to have gained general acceptance in the particular field to which it belongs."

In applying this standard to the polygraph, the Court said,

"We are all aware of the tremendous weight which such tests would necessarily have in the minds of a jury. Thus, we should be most careful in admitting into evidence the results of such tests unless their reasonable accuracy and general scientific acceptance are clearly recognized." (at p. 518, 307 N.Y.S.2d at p. 435, 255 N.E.2d at p. 700, emphasis supplied.)

This Court therefore concludes that the standard which must be applied to the admissibility of spectrographic analysis, or indeed of any scientific test, is the twofold test of reliability and general scientific acceptance.

It has been suggested that the test of general acceptance of the scientific community (commonly called the Frye test) as enunciated in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), should be the only test applied. For example, in United States v. Brown, No. 34383-72 (D.C.Super.Ct., 1973) the Court determined that reliability is the basis upon which a new procedure is generally accepted by the scientific community, and that the Court determines such reliability based on the scientific history of the technique.

We reject that proposition on several grounds. First, we interpret People v. Leone, supra, as mandating the two separate tests. Second, an analysis of cases dealing with the admissibility of spectrographic voice identification reveals that in many instances the courts have dealt separately with the two standards, sometimes basing their decisions on the standard of reliability in derogation of the standard of scientific acceptance.

In United States v. Baller, 519 F.2d 463 (4 Cir., 1975) the Court said (at p. 466): "The Evidence presented in an extensive voir dire demonstrated spectrography's probative value, despite doubts within the scientific community about its absolute accuracy."

That Court also said (at p. 465), "The admissibility of spectrographic identification turns primarily on whether this theory has been sufficiently proved . . ." After citing a study conducted by one Oscar Tosi (infra), and its conclusion that where would be an error in identification of six percent, the Court appears to have adopted Tosi's inference that additional refinements would reduce the error to about two percent.

The adoption of this conclusion must necessarily have involved an independent judgment, by the Court, as to the reliability of the technique, since it is based on an inference and appears not to be based on acceptance by the scientific community.

In Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975), the Court in admitting spectrographic analysis of voice identification, said at p. 678:

"The considerable reliability proved by the Tosi experiment, the greatly added reliability induced by the application of further skills by the experienced examiner working under forensic conditions, and the totality of the evidence received at the voir dire hearing which tended to minimize the importance and weight of adverse or skeptical writings all serve to support a conclusion of general acceptability as required by the rule of the Fatalo (Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479) and Frye cases."

Thus, the Court in Lykus seems to base its decision in large measure on its own appraisal of reliability as evidenced by the Tosi study.

Extensive hearings have been held during which highly qualified experts testified on both sides of this issue, to determine whether the technique in question has been shown to meet the conditions of general scientific acceptance and reliability.

A. General Scientific Acceptance

At the threshold of determining whether the technique meets the test of acceptance in the scientific community, is the question of defining that community.

This Court must decide whether the field of inquiry should be limited only to those scientists who actually employ the spectrograph for voice identification, or whether the field should be widened to include those scientists who use the spectrograph for other purposes in connection with the human voice. Leone, supra, pointed out that " . . . the use of the polygraph touches areas in medicine, psychology, and sociology; yet most examiners have no training in those sciences." (25 N.Y.2d at p. 516, 307 N.Y.S.2d at p. 433, 255 N.E.2d at p. 699). Thus, Leone recognized that expertise in disciplines tangential to the one under consideration could have significant bearing on the issue under discussion.

The defense expert in the instant case, Dr. Louis Gerstman, testified that the relevant field of inquiry is acoustic phonetics, and stated that he would add experts in some other fields such as linguists and speech scientists (for obvious reasons, since human speech is after all, the subject of the test), psychologists (ostensibly to study the effects of stress on human speech), and engineers (to study the effects of distortion inherent in the electronic components associated with this test.)

In addition, the testimony revealed that there were only nineteen persons known to be trained voice examiners. Not all of these persons can be classified as scientists, since many are technicians and law enforcement officers, into which category falls the people's expert Lundgren. There are perhaps a half dozen experts whom the people have put forth as members of the scientific community who support spectrography for voice identification. These include Dr. Henry Truby, who testified as a people's witness, and Dr. Peter Ladefoged, who asserts that he, personally, can identify voices through the use of spectrography, but has not conferred this ability on anyone else.

Both Dr. Henry Truby, the people's...