State v. Williams

• Decision Date: 23 March 1983
• Citation: 4 Ohio St.3d 53,4 OBR 144,446 N.E.2d 444
• Parties: , 4 O.B.R. 144 The STATE of Ohio, Appellee, v. WILLIAMS, Appellant.
• Court: Ohio Supreme Court

Page 53

4 Ohio St.3d 53

446 N.E.2d 444, 4 O.B.R. 144

The STATE of Ohio, Appellee, v. WILLIAMS, Appellant.

Supreme Court of Ohio.

March 23, 1983.

Syllabus by the Court

The Ohio Rules of Evidence establish adequate preconditions for admissibility of expert testimony, such as spectrographic voice analysis. It is within the sound discretion of the state's judiciary, on a case by case basis, to decide whether such testimony is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue.

Mose Williams, Jr., III, appellant, was convicted by jury of aggravated robbery and felonious assault. The prosecution arose from an incident occurring on March 5, 1981, when Mrs. Mary Flockencier answered a knock on her front door and confronted a stranger who claimed that his wife was in labor and asked to use her telephone to "take her to the hospital." Upon being denied admittance, he pushed past Mrs. Flockencier and went directly to the telephone, made a call and requested that an ambulance be sent to a fictitious address. After hanging up on the phone, the intruder produced a knife and forced his victim onto her bed, where he cut, bit and severely beat her. The assailant rifled his victim's purse, removing $15 or $20 in cash and then departed. The victim then dialed the operator who then notified the police.

Officer Richard Duffey arrived at the scene, and in the course of his investigation received information that Mansfield Ambulance Service had received an unusual call at approximately the time of the assault, which was routinely recorded and thereby preserved. After listening to the tape, Officer Duffey confiscated it and took it to the Mansfield Police Crime Laboratory.

Five days later, on March 10, Mrs. Flockencier, while still hospitalized, identified appellant from a photo array as her assailant. He arrived at the Mansfield Police Department on March 12 and was asked to telephone the Mansfield Ambulance Service and make the same statement that had been made by the caller from Mrs. Flockencier's home. This call was recorded in a manner identical to the March 5th call. ¹ The tape made from this "conversation" was then confiscated. This tape and the March 5th tape were then taken to the Michigan State Police Headquarters, where the tapes were copied and analyzed by Lieutenant Lonnie Smrkovski, Commanding Officer of the Michigan State Police Voice Identification Division.

Appellant was indicted on April 7, 1981 on charges of aggravated burglary, felonious assault and attempted rape. At trial, the state presented the voice tapes as evidence, and called Dr. Henry Truby as an expert witness, who testified on the history and use of voice analysis and identification. Lt. Smrkovski then testified as to his analysis of the unknown voice recorded March 5 and the recording of appellant made March 12, concluding that the two voices "are one and the same." ² In addition to the testimony, the jury listened to the tapes, including one prepared by Lt. Smrkovski juxtaposing words and phrases from each tape. Voice spectrograms prepared by Lt. Smrkovski were introduced into evidence as exhibits, counsel for appellant objecting "for the reason that I don't think that Ohio law is in the state where spectrograms and voice identification in itself is proper." However, no testimony to rebut that of Dr. Truby or Lt. Smrkovski was offered by counsel, and the court admitted the evidence.

Following his conviction, appellant appealed to the court of appeals, which affirmed the trial court's judgment, finding (1) the voice analysis and identification testimony and exhibits were merely cumulative and corroborative, and (2) such was admissible as evidence since voice analysis has achieved general acceptance for reliability within the scientific community.

The cause is now before this court upon the allowance of a motion for leave to appeal.

John W. Allen, Pros. Atty., and Gregory F. Locke, Ashland, for appellee.

Harold E. Gibson, Mansfield, for appellant.

CLIFFORD F. BROWN, Justice.

This court has not previously ruled on the admissibility of voice analysis and identification testimony and exhibits in Ohio courts. That issue is directly raised here, both lower courts holding such evidence is proper under controlled conditions. For the reasons that follow, we agree and here conclude that the voice analysis and identification testimony and exhibits were demonstrated to be sufficiently reliable to be considered relevant and admissible evidence in this case.

Underlying all voice analysis is the principle that every speaker is idiosyncratic and individualistic, i.e., that no two voices are alike. The spectrograph is an electromagnetic instrument which produces a visible record of sound of any description, but has been developed primarily to record voices. Sound is received by the spectrograph as input and transcribed onto a special paper wrapped around a rotating drum. Frequency, duration and intensity of the voice are represented on the output of the process, known as a spectrogram.

The spectrograph operator typically is provided two tapes, one with a known and the other with an unknown voice. The operator first listens to the tapes, then chooses similar words or phrases to use as input. Spectrograms of the same words and phrases are then compared visually to determine whether they were made by the same speaker. Taken into consideration when attempting a "match" are the fidelity of the source, the number or length of sample words and the conditions under which the recordings were made. The operator will then make either an absolute identification, absolute elimination, probable identification, probable elimination or no decision. ³

Various federal and state courts have previously considered the admissibility of spectrographic analysis for purposes of identification, with varying results. See, e.g., United States v. Williams (C.A.2, 1978), 583 F.2d 1194, certiorari denied (1979), 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (held admissible); United States v. McDaniel (C.A.D.C.1976), 176 U.S.App.D.C. 60, 538 F.2d 408 (held not admissible); United States v. Baller (C.A.4, 1975), 519 F.2d 463, certiorari denied (1975), 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (held admissible); United States v. Williams (S.D.N.Y.1977), 443 F.Supp. 269 (held admissible); United States v. Sample (E.D.Pa.1974), 378 F.Supp. 44 (held admissible in probation revocation hearing); Reed v. State (1978), 283 Md. 374, 391 A.2d 364, 97 A.L.R.3d 201 (held not admissible); State v. Williams (Me.1978), 388 A.2d 500 (held admissible); People v. Tobey (1977), 401 Mich. 141, 257 N.W.2d 537 (held not admissible); Commonwealth v. Topa (1977), 471 Pa. 223, 369 A.2d 1277 (held not admissible); People v. Kelly (1976), 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (held not admissible).

Just as the results differ from jurisdiction to jurisdiction, the standards for admitting such evidence also vary. The earliest pronouncement on the admissibility of recently ascertained or applied scientific principles can be found in Frye v. United States (1923), 54 U.S.App.D.C. 46, 47, 293 F. 1013, 1014:

" * * * 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." ⁴

The "Frye test" is usually construed to require a survey of scientific opinion as to the general acceptance and reliability of the process. As stated in United States v. Addison (C.A.D.C.1974), 498 F.2d 741, 744:

" * * * [T]he Frye test protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential."

The "Frye test" has been criticized, however, by courts ⁵ and commentators alike. As stated by Professor McCormick:

" * * * 'General scientific acceptance' is a proper condition for taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence. Any relevant conclusions which are supported by a qualified expert witness [footnote omitted] should be received unless there are other reasons for exclusion. Particularly, probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, and undue consumption of time. If the courts used this approach, instead of repeating a supposed requirement of 'general acceptance' not elsewhere imposed, they would arrive at a practical way of utilizing the results of scientific advances." (Footnotes omitted.) McCormick, Evidence (2 Ed., Cleary Ed.1972) 491, Section 203.

The Sixth Circuit Court of Appeals has recognized that, given the " 'considerable area of discretion on the part of the trial judge in admitting or refusing to admit' " such evidence, "[i]f a scientific process is reliable, or sufficiently accurate, courts may also deem it 'generally accepted.' " United States v. Franks (C.A.6, 1975), 511 F.2d 25, 33, certiorari denied (1975), 422 U.S. 1042, 1048, 95 S.Ct. 2656, 2667, 45 L.Ed.2d 693, 701. In holding spectrographic analysis evidence admissible, the Franks court merely required that the process be relevant and reliable.

Although the parties in this case urge this court to adopt one of the special tests described above and...