People v. Kelly

Decision Date28 May 1976
Docket NumberCr. 19028
CourtCalifornia Supreme Court
Parties, 549 P.2d 1240 The PEOPLE, Plaintiff and Respondent, v. Robert Emmett KELLY, Defendant and Appellant.

Paul Caruso, Robert E. Baron, Beverly Hills, and Peter Brown, Long Beach, for defendant and appellant.

Kenneth R. Thomas, Los Angeles, Stephen J. Heiser, Singer & Osterhoudt, Robert L. Moran and William F. Urich, San Francisco, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Bernard A. Delaney, Conrad D. Petermann, Karl J. Phaler and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.


In this case we examine the new and emerging technique of speaker identification by spectrographic analysis, commonly described as 'voiceprint.' Particularly we inquire whether it has achieved that degree of general scientific acceptance as a reliable identification device which will permit the introduction of voiceprint evidence in California Courts.

We have concluded that, on the record before us, the People's showing on this important issue was insufficient, and that since the voiceprint evidence at issue herein was the primary evidence of defendant's guilt, the judgment of conviction must be reversed. Although voiceprint analysis may indeed constitute a reliable and valuable tool in either identifying or eliminating suspects in criminal cases, that fact was not satisfactorily demonstrated in this case.

Defendant was convicted of extortion (Pen.Code, §§ 518--520) arising out of a series of anonymous, threatening telephone calls to Terry Waskin. The police, acting with Waskin's consent, tape recorded two of these calls (the extortion tapes). An informant familiar with defendant's voice subsequently listened to these tapes and tentatively identified defendant as the caller. Thereafter, the officers obtained a tape recording of defendant's voice during a telephone call (the control tape). Copies of the extortion tapes and the control tape were then sent to Lieutenant Ernest Nash of the Michigan State Police for spectrographic analysis. On the basis of his examination Nash concluded that the voices on these tapes were those of the same person.

Defendant was indicted by the grand jury and brought to trial. The case was submitted to the trial court, sitting without a jury, on the grand jury transcript and the testimony at a pretrial hearing on the issue of the admissibility of the voiceprint evidence. The People had sought to introduce Nash's testimony, and had asked the trial court to order that an evidentiary hearing be held to determine the admissibility of this evidence. (See Evid.Code, § 405.) Initially, the trial court on the authority of Hodo v. Superior Court (1973) 30 Cal.App.3d 778, 106 Cal.Rptr. 547, held that California now recognized that the scientific community generally accepted voiceprint analysis as a reliable identification technique. Subsequently the trial court reconsidered its order, however, and ruled that the People would be required to present evidence on the issue of general acceptance. Accordingly, Nash was called and testified that among those who were familiar with and used voice identification analysis the technique was considered reliable. No other expert testimony was presented by either side.

Considering Nash's testimony and relying on Hodo v. Superior Court, supra, and United States v. Raymond (D.D.C.1972) 337 F.Supp. 641, affd. sub nom. United States v. Addison (1974) 162 U.S.App.D.C. 199, 498 F.2d 741, the trial court ruled that voiceprint analysis had attained sufficient scientific approval, and that Nash's testimony identifying defendant as the extortionist was properly admissible.

Defendant attacks his conviction arguing that (1) the People failed to establish that voiceprint techniques have reached the requisite degree of general acceptance in the scientific community, (2) Nash was not qualified to express an expert opinion regarding the judgment of scholars and experts and (3) the testing procedures employed in identifying defendant's voice were not conducted in a fair and impartial manner. Finding ourselves in general agreement with defendant's first two contentions, we do not reach the third.

1. The Voiceprint Technique

Voiceprint analysis is a method of identification based on the comparison of graphic representations or 'spectrograms' made of human voices. The method utilizes a machine known as a spectrograph which separates the sounds of human voices into the three component elements of time, frequency and intensity. Using a series of lines or bars, the machine plots these variables across electronically sensitive paper. The result is a spectrogram of the acoustical signal of the speaker, with the horizontal axis representing time lapse, the vertical axis indicating frequency, and the thickness of the lines disclosing the intensity of the voice. (See generally, People v. Law (1974) 40 Cal.App.3d 69, 75--76, 114 Cal.Rptr. 708; People v. King (1968) 266 Cal.App.2d 437, 447--449, 72 Cal.Rptr. 478; Comment, Evidence: Admissibility of spectrographic Voice Identification (1971--1972) 56 Minn.L.Rev. 1235, 1239; Comment, The Voiceprint Dilemma: Should Voices be Seen and not Heard? (1975) 35 Md.L.Rev. 267.) Spectrograms are taken of certain cue words, such as 'the,' 'me,' 'on,' 'is,' 'I,' and 'it,' spoken by a known voice and an unknown voice. An examiner then visually compares the spectrograms of the same words, as spoken, and also listens to the two voices. Based upon these visual and aural comparisons, the examiner states his opinion whether or not the voices, known and unknown, are the same. (Comment, supra, 35 Md.L.Rev. at p. 270, fns. 13, 16.) Since the identification process is essentially an exercise in pattern matching, the examiner's opinion is to a large extent a subjective one based upon the relative aural similarity or dissimilarity of the two voices and visual comparison of their spectrograms. (People v. Law, supra, 40 Cal.App.3d at p. 79, fn. 10, 114 Cal.Rptr. 708.) In some instances, the examiner is unable to declare positively either that there is a match or nonmatch of the sample tests, in which event no opinion is rendered. (Comment, Supra, at p. 270.)

2. General Principles of Admissibility

The parties agree generally that admissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two-step process: (1) the Reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be propely Qualified as an expert to give an opinion on the subject. (See Evid.Code, §§ 720, 801; Jones, Danger-Voiceprints Ahead (1973) 11 Am.Crim.L.Rev. 549, 554.) Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. (See People v. Adams (1975) 53 Cal.App.3d 109, 115--116, 125 Cal.Rptr. 518 (polygraph tests); United States v. Ridling (E.D.Mich.1972)350 F.Supp. 90, 94 (same); Comment, Supra, 56 Minn.L.Rev. at p. 1244.)

The test for determining the underlying reliability of a new scientific technique was described in the germinal case of Frye v. United States (1923) 54 App.D.C. 46, 293 F. 1013, 1014, involving the admissibility of polygraph tests: 'Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be Sufficiently established to have gained general acceptance in the particular field in which it belongs.' (Italics added.)

We have expressly adopted the foregoing Frye test and California courts, when faced with a novel method of proof, have required a preliminary showing of general acceptance of the new technique in the relevant scientific community. (Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653--654, 51 Cal.Rptr. 254, 414 P.2d 382 (blood tests); People v. Law, supra, 40 Cal.App.3d 69, 74, 114 Cal.Rptr. 708 (voice-prints); People v. Spigno (1957)156 Cal.App.2d 279, 290, 319 P.2d 458 (polygraph tests).) Some criticism has been directed at the Frye standard, primarily on the ground that the test is too conservative, often resulting in the prevention of the admission of relevant evidence (see United States v. Sample (E.D.Pa.1974) 378 F.Supp. 43, 53 (voiceprints admissible in probation revocation proceeding); McCormick, Evidence (2d ed. 1972) § 203, pp. 490--491.) As indicated below, we are satisfied that there is ample justification for the exercise of considerable judicial caution in the acceptance of evidence developed by new scientific techniques.

Arguably, the admission of such evidence could be left, in the first instance, to the sound discretion of the trial court, in which event objections, if any, to the reliability of the evidence (or of the underlying scientific technique on which it is based) might lessen the weight of the evidence but would not necessarily prevent its admissibility. This has not been the direction taken by the California courts or by those of most states. Frye, and the decisions which have followed it, rather than turning to the trial judge have assigned the task of determining reliability of the evolving technique to members of the scientific community from which the new method emerges. As stated in a recent voiceprint case, United States v. Addison, supra, 498 F.2d 741, 743--744: 'The requirement of general acceptance in the scientific community assures that Those most qualified to assess the general validity of a scientific method will have the determinative voice. ...

To continue reading

Request your trial
861 cases
  • People v. Murtishaw
    • United States
    • United States State Supreme Court (California)
    • July 27, 1981
    ...we do not believe it necessary to determine whether such forecasts must meet the test established in People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, for the admissibility of scientific evidence.33 The Attorney General also argues that the People have a constitutional ......
  • Jernigan v. Edward
    • United States
    • U.S. District Court — Southern District of California
    • November 7, 2017
    ...(Lodgment No. 3, Rep.'s Tr. vol. 30, 7732, July 28, 2011.) California employs the test enunciated in People v. Kelly, 17 Cal. 3d 24, 30, 549 P.2d 1240, 1244, 130 Cal.Rptr. 144, 148 (1976), to determine the admissibility of new or novel scientific testing.4 California courts have concluded t......
  • People v. Bloyd
    • United States
    • United States State Supreme Court (California)
    • January 2, 1987 in a particular case, however, depends upon the facts of the case and the witness' qualifications. (People v. Kelly (1976) 17 Cal.3d 24, 39, 130 Cal.Rptr. 144, 549 P.2d 1240.) The trial court is given considerable latitude in determining the qualifications of an expert and its ruling......
  • People v. Daveggio
    • United States
    • United States State Supreme Court (California)
    • April 26, 2018
    ...the decision of a federal district court that had reportedly concluded that fingerprint identification by certain experts did not pass the Kelly / Frye standard for general acceptance of scientific evidence. (See People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 ( Ke......
  • Request a trial to view additional results
34 books & journal articles
  • Authentication
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016 permitted if there is a basis upon which to make a reasonably accurate identification of the voice on the telephone. People v. Kelly , 17 Cal. 3d 24, 549 P.2d 1240 (1976). Evidence of spectrography is not yet accepted in the scientific community and, therefore, is excluded from evidence.......
  • Demonstrative evidence
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...accepted in the relevant scientific community. People v. Webb (1993) 6 Cal. 4th 494, 524, 24 Cal. Rptr. 2d 779; People v. Kelly (1976) 17 Cal. 3d 24, 30, 130 Cal. Rptr. 144. The Kelly rule is not applicable to procedures that isolate physical evidence whose existence, appearance, nature and......
  • Presenting Your Expert at Trial and Arbitration
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2020 Contents
    • August 4, 2020
    ...should be modified in light of Daubert . (California had followed the general acceptance requirement of Frye . See People v. Kelley, 17 Cal. 3d 24 (1976)). The court declined to follow the reasoning of Daubert and concluded that the Frye formulation should remain a prerequisite to the admis......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2018 Contents
    • August 4, 2018 the defendant’s garage. The defendant contended that the prosecutor failed to satisfy the three prongs set forth in People v. Kelly, 17 Cal. 3d 24, 30, 130 Cal. Rptr. 144 (1976), for the admissibility of scientific evidence: (1) the relevant scientific community’s general acceptance of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT