U.S. v. Williams
| Decision Date | 20 September 1978 |
| Docket Number | Nos. 1185,1227,D,s. 1185 |
| Citation | 583 F.2d 1194 |
| Parties | 3 Fed. R. Evid. Serv. 1063 UNITED STATES of America, Plaintiff-Appellee, v. Isiah WILLIAMS and Michael Manning, Defendants-Appellants. ockets 78-1114, 78-1115. |
| Court | U.S. Court of Appeals — Second Circuit |
David Patterson, Asst. U.S. Atty., (Robert B. Fiske, Jr., U.S. Atty., Robert J. Jossen, Asst. U.S. Atty., Southern District of New York), New York City, for plaintiff-appellee.
Richard G. Rosenbaum, New York City, for defendant-appellant Isiah Williams.
Phylis Skloot Bamberger, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Michael Manning.
Before Van GRAAFEILAND, Circuit Judge, MARKEY, Chief Judge, U.S. Court of Customs and Patent Appeals, * and DOOLING, District Judge, U.S. District Court for the Eastern District of New York. **
MARKEY, Chief Judge, U. S. Court of Customs and Patent Appeals:
Isiah Williams and Michael Manning were convicted of violating federal narcotics laws, 21 U.S.C. § 846 (1972) and 21 U.S.C. § 841 (1972). The admission of spectrographic voice-identification evidence is challenged for the first time in this circuit. We affirm.
On November 12, 1976, an undercover police officer attempted unsuccessfully to purchase heroin from a man introduced to him as "Biggie," an event witnessed by three surveillance officers, including Detective Copeland, who followed "Biggie" into a bar four days later. Copeland asked "Biggie" for identification, pretending he was investigating a complaint that a man named "Biggie" was taking numbers. "Biggie" admitted that his name was Isiah Williams, and that he was called "Biggie," but denied taking numbers. Explaining his unemployment, Williams showed Copeland a support truss he was wearing. Surveillance officers also observed these events.
On November 30, 1976, Officer Lopez arranged to purchase heroin from "Biggie." The two drove to a building. "Biggie" entered the building. He emerged with another man and both joined Lopez in the car. "Biggie" introduced the other man as "Red." Lopez handed "Biggie" money and "Red" gave the heroin to Lopez. "Red" was later identified as Manning. Except for the transactions in the car, these events were observed by the same surveillance officers.
On December 10, 1976, Lopez purchased additional heroin from "Biggie," in a similar transaction observed by the same surveillance officers.
On December 13, 1976, "Biggie" telephoned Lopez concerning another heroin sale. Lopez taped the call. The proposed sale never materialized. Two days later, Lopez called "Biggie" to arrange another date, and taped that conversation. Two more meetings between Lopez and "Biggie" were observed by the same surveillance team.
At trial, Lopez and the surveillance officers unequivocally identified Manning as "Red." Lopez was unable to make an in-court identification of Williams as "Biggie" upon viewing Williams and his arrest photo, a difficulty apparently caused by Williams' having drastically altered his appearance. Lopez did identify a 1972 photo of Williams as "Biggie." All three surveillance officers After his arrest, Williams gave telephone voice exemplars which were taped. After a pre-trial hearing, voice analysis evidence was ruled admissible. 1 At the trial spectrographic voice identification expert Frank Lundgren made aural and spectrographic comparisons of Williams' voice in the exemplars and of "Biggie's" voice in the taped conversations with Lopez.
identified Williams as "Biggie." At the time of his arrest, Williams recognized Copeland from the "numbers complaint ruse," and was found to be wearing a truss.
Referring to appellant Manning in his rebuttal summation, the prosecutor told the jury:
The only important thing is that you have the testimony of Agent Lopez, who saw this man clearly on two occasions, and who is able to recognize him, there being no substantial change in appearance. We know, if we know nothing else in this case, that Agent Lopez is a careful and completely honest, scrupulous man, and would not make such an identification if he were not absolutely sure.
I suggest you bear that in mind above all else when considering Mr. Manning.
The sole issue in Williams' appeal is whether it was error to admit a spectrographic voice analysis as identification evidence. 2
The sole issue in Manning's appeal is whether the quoted portion of the prosecutor's rebuttal summation constituted vouching for a government witness.
OPINIONSound consists essentially of pressure waves of varying frequencies and amplitudes. The pressure waves associated with speech are initiated when air is exhaled past the vocal cords. The resulting vibration of the vocal cords produces the pressure waves.
Frequency and intensity are important speech characteristics involved in voice analysis. Frequency determines the pitch of the sound. It is delineated by the time interval between successive vocal cord vibrations and the speed at which air molecules are vibrated thereby. Intensity is loudness, and is a function of the number of air molecules vibrating at a given frequency. All speech is composed of several frequencies produced simultaneously; a fundamental frequency and several overtones having frequencies which are even multiples of the fundamental.
An individual's speech is created by a complex physiological and mechanical operation. The waves generated by the vocal cords are modified by vocal cavities (throat, nose, and cavities formed in the mouth by positioning the tongue), and by articulators (lips, teeth, tongue, palate and jaw muscles). The vocal cavities act as resonators which cause sound energy to be reinforced in specific sound spectrum areas, dependent upon the size, shape and interrelationship of the cavities. The articulators cooperate in a controlled dynamic interplay in the production of intelligible speech. The manner in which each of us manipulates his articulators when speaking has been developed by a process of imitation and trial and error.
Voice analysis thus rests on the non-likelihood that two individuals would have identical vocal cavities and identical dynamic patterns of articulator manipulation, and on the inability of an individual to change or disguise the particular voice characteristics created by his unique combination of cavities and articulator manipulative patterns. Spectrographic voice analysis involves the reflection of voice characteristics in a "spectrogram" produced by a "spectrograph." 4
The spectrograph is an electromagnetic instrument which analyzes sound and disperses it into an array of its time, frequency and intensity components. The array is graphically displayed in a spectrogram. 5
The spectrograph operator is supplied with two magnetic tapes one with a known, the other with an unknown, voice. He listens for similar words and phrases on both tapes. The preferred cue words are: THE, TO, AND, ME, ON, IS, YOU, I, A, and IT. Spectrograms are then made of the portions of the tapes on which the selected words and phrases occur.
In producing spectrograms, a tape is placed in the spectrograph. The spectrograph electronically scans the tape and generates electronic signals representative of the components of the sound. The signals are fed to a variable filter, which adjusts the position of a stylus. The stylus burns thin parallel lines on current-sensitive paper wrapped around a rotating drum. The stylus traces a horizontal line, representing a single frequency, the darkness of the line-trace varying as it progresses. At the end of each line, the stylus returns to trace out another line, representing a slightly higher frequency, and so on, producing a bar spectrogram.
The spectrograms of the same words and phrases are then compared visually, to determine whether they were made by the same speaker. The bar spectrogram indicates time along the horizontal axis, frequency along the vertical axis, and intensity by varying shades of darkness in the pattern. The unique speech characteristics of the individual whose voice is being analyzed produce unique spectrogram patterns of vocal energy at the various frequency levels. Though it is not necessary that two spectrograms be identical, there must be exhibited a sufficient number of similar spectrogram patterns, called "matches," to warrant a conclusion that they were produced by the same person.
Though the weight of authority 6 supports the admissibility of spectrographic voice identification evidence, we rest our decision on an independent evaluation.
There is no clearly defined, universal, litmus test for the general admissibility of all "scientific" evidence.
An oft-cited test, first laid down in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), requires "general acceptance in the particular field to which it belongs." The "Frye" test is usually construed as necessitating a survey and categorization of the subjective views of a number of scientists, assuring thereby a reserve of experts available to testify. Difficulty in applying the "Frye" test has led a number of courts to its implicit modification. See United States v. Baller, supra note 6.
We deal here with the admissibility or non-admissibility of a particular type of scientific evidence, not with the truth or falsity of an alleged scientific "fact" or "truth." 7 Hence the established considerations applicable to the admissibility of evidence come into play, and the probativeness, materiality, and reliability of the evidence, on the one side, and any tendency to mislead, prejudice, or confuse the jury on the other, must be the focal points of inquiry.
In the present case, probativeness and materiality present little difficulty. If the "unknown" voice be established as having been employed in the commission of, or in relation to,...
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