People v. Law, Cr. 1516

• Decision Date: 25 June 1974
• Docket Number: Cr. 1516
• Citation: 40 Cal.App.3d 69,114 Cal.Rptr. 708
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. E. D. LAW, Defendant and Appellant.

Page 708

114 Cal.Rptr. 708

40 Cal.App.3d 69

The PEOPLE, Plaintiff and Respondent, v. E. D. LAW, Defendant and Appellant.

Cr. 1516.

Court of Appeal, Fifth District, California.

June 25, 1974.

Allen Ruby, San Jose (Under appointment by the Court of Appeal), for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Jack R. Winkler, Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., and Joel Carey and Anthony L. Dicce, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant, E. D. Law, was convicted by a jury of one count of making a false bomb report to a police officer in violation of Penal Code section 148.1, subdivision (a), a felony (count one), and of two counts of making telephone calls with intent to annoy in violation of Penal Code section 653m, subdivision (a), misdemeanors (counts three and four).

The conviction of the false bomb report charge was based primarily upon the admission into evidence, over objection, of spectrograms (voiceprints) and expert testimony pertaining to the spectrograms. This evidence, viewed in a light most favorable to the prosecution, positively identified appellant as the unknown caller who made the bomb threat. ¹

The misdemeanor convictions were grounded on nonvoiceprint evidence and will be treated separately in this opinion.

THE BOMB THREAT CONVICTION

In 1968, in People v. King, 266 Cal.App.2d 437, 72 Cal.Rptr. 478, the court (Second Dist., Div. Two) held voiceprint evidence inadmissible. Between 1968 and December 1970, under the directorship of Dr. Oscar Tosi ² and financed by a $300,000 federal grant, further studies were conducted at Michigan State University on the voiceprint identification method. Based upon these studies and the foundation testimony of Dr. Tosi, Hodo v. Superior Court (1973) 30 Cal.App.3d 778, 106 Cal.Rptr. 547 (Fourth Dist., Div. Two) held voiceprint evidence admissible.

However, neither the King nor Hodo cases involved an effort to disguise or mimic voices. In the instant case, the bomb threat was received by Officer Holland of the Fresno Police Department from a man who stated that he had 'placed a bomb in the Federal Building and Ed Law was next.' Exemplars of appellant's voice were subsequently obtained both with and without his knowledge. On one occasion appellant volunteered to make a recording of the words uttered by the bomb threat caller. On that occasion, appellant was directed to and did mimic the voice and accent of the unknown caller. Appellant's estranged wife, who identified the bomb threat caller as appellant, testified that appellant was 'very good at imitating many people, many voices,' and that the police recording of the telephoned bomb threat was not appellant's 'normal voice,' 'He is imitating someone. I would say, I would say he was trying to imitate a colored person. But, he's got a little Oakie in there too.'

These recordings, together with a recording of the actual bomb threat, were sent to Lieutenant Ernest Nash ³ of the Michigan State Police for spectrographic analysis. After laying the foundation for Lieutenant Nash's testimony by calling Dr. Oscar Tosi and Dr. Peter Ladefoged, ⁴ the prosecution called Lieutenant Nash who testified that based upon a spectrographic and aural analysis of the tapes, the voice of the unknown caller who phoned in the recorded bomb threat to the police department was the voice of appellant 'and it could be the voice of no other person.'

The test for determining the admissibility of testimony based on a newly developed scientific experiment or principle was stated in Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653--654, 51 Cal.Rptr. 254, 260, 414 P.2d 382, 388:

"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.)' ⁵

In reviewing the trial court's application of this test, we recognize that a certain amount of deference should be paid to the trial judge's decision. The actual extent of appellate review of such matters, however, has received minimal analysis in the cases touching on the point. Unquestionably, the trial court enjoys great latitude in determining the qualification of an expert, and its determination will not normally be disturbed on appeal. (People v. Busch (1961) 56 Cal.2d 868, 878, 16 Cal.Rptr. 898, 366 P.2d 314; Huffman v. Lindquist (1951) 37 Cal.2d 465, 476, 234 P.2d 34; Witkin, Cal.Evidence (2d ed. 1966) § 1175, p. 1088.) While there have been some statements that the same amount of discretion rests in the trial court to determine whether a new scientific test or process has passed from the experimental into the demonstrable stage and has received general acceptance by recognized experts in the scientific field in which it belongs (Hodo v. Superior Court, Supra, 30 Cal.app.3d 778, 784--785, 106 Cal.Rptr. 547), there is a view that the latter issue is one of law and that the courts should not subsume the question of qualifying the process of spectrographic voice identification under the question of qualifying the expert. (Comment, Evidence: Admissibility of Spectrographic Voice Identification, 56 Minn.L.Rev. 1235, 1245.) In any event, it appears settled that the court can and should take judicial notice of the case law and comments on the particular field of scientific endeavor and of articles from reliable sources that appear in scientific journals and other publications which suggest the possibility of error in tests and experiments. Such judicial notice is taken for the purpose of determining if the procedure has passed from the experimental to the demonstrable stage and has received general acceptance by recognized experts in the field. (State v. Dantonio (1955) 18 N.J. 570, 115 A.2d 35, 39; see 29 Am.Jur.2d, Evidence, §§ 103--107, pp. 134--137; McBaine, Cal. Evidence Manual (2d ed. 1960) § 504, p. 159.) ⁶

Our appellate courts have in the past and should in the future quite properly show deep concern that the trier of fact might give an undue amount of credence to a new scientific development and be overwhelmed by the qualifications and assertions of the new technique's developers who understandably advocate its reliability. As was said in People v. King, Supra, 266 Cal.App.2d 437, at page 461, 72 Cal.Rptr. 478, at page 493: '. . . jurors must not be misled by an 'aura of certainty which often envelopes a new scientific process, obscuring its currently experimental nature. '' The point was emphasized by our Supreme Court in People v. Collins (1968) 68 Cal.2d 319, at page 332, 66 Cal.Rptr. 497, at page 505, 438 P.2d 33, at page 41: '. . . we have strong feelings that such applications, particularly in a criminal case, must be critically examined in view of the substantial unfairness to a defendant which may result from ill conceived techniques with which the trier of fact is not technically equipped to cope.'

We turn briefly to an analysis of the technique itself. A sound spectrogram (voiceprint) is produced by a machine known as a spectrograph. It is a basic tool for analyzing speech sounds. When the tape of a voice is properly fed through a spectrograph, a graph is produced which analyzes three main perimeters of speech: time, frequency and intensity of the frequency. ⁷ The examiner analyzes a spectrogram of the 'known' and 'unknown' voices to determine identity, i.e., whether the known voice is the same as the unknown voice, or elimination, i.e., whether the known voice is not the same as the unknown voice. Since some characteristics of speech are better recognized by the ear than by the spectograph, the examiner also listens to tapes when making this determination.

The voiceprint method is based on the fundamental premise that everyone's voice is different. Accordingly, the validity of the technique as a means of personal identification rests on the proposition that the sound patterns produced in speech are unique to the individual and the spectrogram accurately and efficiently displays this uniquencess. ⁸ Dr. Tosi explained his theory by saying, 'Since speech is produced by modulation and resonance of an air stream within the vocal track of a person and this vocal track is as individual as the face or other structural (sic) of the human body (it) is only logic that these patterns are bias by the personality, (and) the individuality of the person. . . .'

In the case of State v. Cary (1968) 99 N.J.Super. 323, 239 A.2d 680, Dr. Tosi testified that the voiceprint method of identification was unreliable and that further experimentation was necessary. Between 1968 and December of 1970 he conducted the study at Michigan State University heretofore referred to. Based upon the results of those experiments, Dr. Tosi changed his position and since that time has, together with Lieutenant Nash, been appearing and testifying in a number of cases in favor of the admission of voiceprint evidence. Since the Tosi experiments are the ones relied upon to justify the admission of the voiceprint method and the testimony in connection therewith, it is necessary to discuss them in some detail.

Dr. Tosi's experiments were conducted over a two and one-half year period at Michigan State University. He used the voices of 250 speakers who represented a sample of the statistical population of 25,000 at the university. All of the speakers selected were about the same age, had the same education, the same midwestern dialect, and had no speech defects or foreign accents. Specifically, there was no...