State v. Williams

Decision Date10 July 1978
Citation388 A.2d 500
PartiesSTATE of Maine v. Thomas WILLIAMS.
CourtMaine Supreme Court

Joseph M. Jabar (orally), Dist. Atty., Augusta, for plaintiff.

O'Gara & Harrington by Emmet J. O'Gara, Winthrop (orally), for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD and GODFREY, JJ.

WERNICK, Justice.

On May 26, 1976, defendant Thomas Williams was indicted in the Superior Court (Kennebec County) for the offense of terrorizing, in violation of 17-A M.R.S.A. § 210. A jury found defendant guilty as charged, and he has appealed from the judgment of conviction entered on the verdict.

We deny the appeal.

On May 20, 1976, an unidentified person made a telephone call to a dispatcher at the Augusta Police Department and stated that a bomb was going to go off at the Augusta State Airport. While the call was in process, the Augusta police recorded it on magnetic tape. Thereafter, Officer Richard Gary Judkins of the Augusta Police Department listened to the tape recording and recognized the voice of the person telephoning as the voice of defendant. Later that day, at the request of the police, defendant came to the Augusta police station and read aloud a rough transcript of the threatening telephone call previously received and recorded at the police station. With defendant's agreement, a tape recording was made of defendant's reading. The police thereafter submitted both the tape recording of the threatening telephone call and of defendant's reading to Dr. Oscar Tosi of Michigan State University and Lieutenant Lonnie Smrkovski of the Michigan Department of State Police, each to make a voice identification analysis through the use of a speech spectrograph.

At trial, Dr. Tosi gave preliminary testimony as to the nature, reliability and scientific acceptance of the "scientific" voice identification process known as speech spectrography or "voiceprint" analysis. Dr. Louis J. Gertsman, of City College in New York, and Faulsto Poza, a consultant to the Stanford Research Institute, testified, preliminarily, in opposition to allowing in evidence testimony as to voice identification achieved by the use of speech spectrography.

At the conclusion of the extensive preliminary testimony the presiding Justice ruled, over defendant's objection, that adequate foundation had been shown to satisfy him that (1) voiceprint identification has such scientific acceptance and reliability as warrants its admissibility in evidence, (2) the experts whose opinions were here being sought as evidence were qualified to assist the jury in its determinations.

Thereafter, Dr. Tosi and Lt. Smrkovski testified that through use of a speech spectrograph each of them had independently analyzed the voices recorded on the two tapes and had independently made a "positive identification" that the unknown voice from the telephone call and the known voice of the defendant belonged to the same person. Officer Judkins then testified that he had recognized defendant's voice when he had listened to the recording of the bomb threat.

Defendant's position on appeal is that it was error to admit the speech spectrograph evidence because the scientific community has not generally accepted the speech spectrograph as a scientifically reliable method of voice identification. Defendant further contends that in any event speech spectrograph voice identification evidence is unreliable in forensic situations.

1.

The threshold question we confront is to determine what standard, under the law of evidence, governs Admissibility in relation to the type of evidence here involved.

The preliminary evidence of record shows that the process of voice identification used by Dr. Tosi and Lt. Smrkovski consists of an aural comparison of two recorded voices and a visual comparison of graphic representations or "spectrograms" of the recorded voices. The spectrograms used in the visual comparison process are plotted by a machine known as a spectrograph. The spectrograph separates the sounds of a voice into elements of time, frequency and intensity and plots these variables on electronically sensitive paper. 1 Since the spectrograms of the voice of a person often vary over time and under a variety of conditions and circumstances, the accuracy of the spectrogram voice identification process is largely dependent on the ability, experience and judgmental consistency of the examiner. There is no dispute that for most of the 20th century the sound spectograph has been widely resorted to for the analysis and classification of human speech sounds, but it had not been used to identify individual human voices until the early 1960's when Lawrence Kersta, a scientist with the Bell Telephone Laboratories, undertook such projects. Thereafter, Dr. Tosi conducted a number of significant experiments in individual voice identification with the use of the speech spectrograph. The publication in 1971 and 1972 of the results of these experiments and expert testimony given in cases by Dr. Tosi and his associates have induced many courts to allow as evidence individual voice identifications made by use of speech spectrographs.

Defendant argues that speech spectrograph voice identification rests on new developments in the application of scientific principles and therefore its admissibility as evidence should be governed by a special standard, as set forth in Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923):

"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."

Prior to the adoption of the Maine Rules of Evidence in 1976, the law of Maine was unclear about the evidentiary rules governing the admissibility of evidence involving the new ascertainment, or application, of scientific principles. In State v. Knight, 43 Me. 11, 133, 134 (1857), the Court upheld the admissibility of scientific testimony as to the properties and appearance of human blood and animal blood. Knight gave the following rationale:

"The history of the development of scientific principles by actual experiments, within a few of the last years, show(s) us that many things which were once regarded generally as incredible, are now admitted universally to be established facts. And as long as the existence of facts, which are the result of experiments, made by those versed in the department of science to which they pertain, are received as evidence, it would be legally erroneous for the court to determine that the absurdity of such facts was so great as to require their exclusion." (43 Me., at 133, 134)

It is questionable from this language whether Knight was suggesting a special standard, such as is stated in Frye, supra, to govern the admissibility of expert testimony resting on newly ascertained, or applied, scientific principles. More recently, this Court may have given stronger indication of following the Frye rule in regard to evidence of the results of lie detector or polygraph tests. Holding polygraph evidence generally inadmissible, this Court in State v. Casale, 150 Me. 310, 320, 110 A.2d 588 (1954) resorted to language contained in the Nebraska opinion in Boeche v. State, 151 Neb. 368, 37 N.W.2d 593, 597 (1949), as follows:

" 'It is apparent from the foregoing authorities that the scientific principle involved in the use of such polygraph has not yet gone beyond the experimental and reached the demonstrable stage, and that it has not yet received general scientific acceptance.' "

See also State v. Mower, Me., 314 A.2d 840 (1974); State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962).

The reference to a special standard of admissibility in Casale, however, was occasioned by the peculiarly special nature of lie detector tests as evidence. 2 Lie detector evidence directly and pervasively impinges upon that function which is so uniquely the prerogative of the jury as fact-finder: to decide the credibility of witnesses. The admissibility of lie detector evidence therefore poses the serious danger that a mechanical device, rather than the judgment of the jury, will decide credibility. State v. Casale, 150 Me. 310, 320, 110 A.2d 588 (1954). For this reason, it remains questionable whether this Court by its language in Casale was purporting to establish a specially restrictive standard regarding the admissibility of Any type of expert testimony which may rest on new, or new applications of, scientific principles.

The Maine Rules of Evidence adopted in 1976 do not purport to establish a special standard to govern the admissibility of testimony involving newly ascertained, or applied, scientific principles. Under the Rules of Evidence all "relevant" evidence 3 is admissible

"except as limited by constitutional requirements or as otherwise provided by statute or by . . . rules applicable in the courts of this state." Rule 402, M.R.Evid.

In Rule 702, specific reference is made to the admissibility of scientific testimony:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

As also potentially affecting a case of this nature, Rule 403 provides a general limitation on the admissibility of relevant evidence:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by...

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