United States v. Addison

• Decision Date: 06 June 1974
• Docket Number: 72-1678.,No. 72-1579,72-1579
• Citation: 498 F.2d 741
• Parties: UNITED STATES of America v. Roland ADDISON, Appellant. UNITED STATES of America v. Albert Henry RAYMOND, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 741 (1974)

UNITED STATES of America v. Roland ADDISON, Appellant.

UNITED STATES of America v. Albert Henry RAYMOND, Appellant.

Nos. 72-1579, 72-1678.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 1973.

Decided June 6, 1974.

Carroll L. Gilliam, Washington, D. C. (appointed by this court), for appellants.

Henry F. Greene, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee. David M. Bullock, Asst. U. S. Atty., also entered an appearance for appellee.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

Appellants in these consolidated appeals were jointly tried on charges arising from an alleged shooting of an officer of the Metropolitan Police Department. Each was convicted of assault with intent to kill while armed (22 D.C. Code § 501), and assault on a member of the police force with a dangerous weapon (22 D.C.Code § 505). Additionally, appellant Raymond was convicted of carrying a dangerous weapon in violation of 22 D.C.Code § 3204.

Appellants challenge the District Court's determination to admit testimony based on spectrogram, or so-called "voiceprint," analysis. United States v. Raymond, 337 F.Supp. 641 (D.D.C. 1972). This is a matter of first impression in this court, and, so far as we are aware, it has not been passed upon by any other federal court of appeals.¹ We hold that the District Court erred in admitting this evidence. However, our examination of this record clearly indicates that the jury's judgment was not substantially swayed by the error. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Accordingly, we affirm the convictions.

I

On the evening of April 9, 1971, Sergeant Ronald Wilkins responded to a radio call that a policeman was in trouble at a Safeway store in Northeast Washington. After finding neither any policeman at the scene nor any indication of trouble, he began to drive away. Upon stopping at a nearby intersection, Sergeant Wilkins saw two persons, whom he recognized immediately and later identified as appellants, shouting obscenities at him from the adjacent corner.² The individuals began to flee on foot, occasionally looking back to renew their verbal barrage, and Sergeant Wilkins backed his patrol car in the direction of their flight. However, when the individuals ran into a dark wooded area, he decided to forego the chase rather than follow them into the darkness by himself.

As Sergeant Wilkins began slowly to pull away, the individuals emerged from the darkness and approached the patrol car at a "trotting" pace. Before Wilkins could remove his seatbelt and get out of the car to question the pair, one produced a pistol and began firing through the window of the automobile. In the moments that followed, five shots were fired at Sergeant Wilkins, one of which struck him in the left wrist and emerged through the left elbow. The Sergeant managed to get his car into gear, drive forward some fifty or sixty feet to an intersection, and roll out of the automobile to take cover. Upon observing his attackers departing the area, Wilkins reentered the patrol car and radioed for assistance.

In his initial call for help, Sergeant Wilkins identified appellant Raymond by name as the person who had shot him, and gave a description of appellant Addison. Within moments, the Sergeant recalled appellant Addison's name and identified him as the other individual.

The "policeman in trouble" signal was prompted by an anonymous telephone call placed to the Communications Division of the Metropolitan Police Department. The essence of the call was relayed to the police dispatcher, who sent the general radio call to which Sergeant Wilkins responded. As is the practice for all incoming calls to the Communications Division, the telephone conversation was recorded.

Following appellants' arrest, each was required to read the statements made in the recorded call into a tape recorder. Each had counsel present, and each complied.³ Those tapes, along with a re-recording of the actual conversation, were then sent to Lieutenant Nash, a voice technician at the Michigan State Police Department. The Lieutenant made spectrograms⁴ of each and, based on his analysis of those spectrograms, concluded that appellant Raymond had placed the call that led Sergeant Wilkins to the scene of the attack. After hearing evidence on the general validity of the spectrogram method of identification and on the reliability of analyses conducted by Lieutenant Nash particularly, the District Court permitted the Lieutenant to testify as a voiceprint expert.

II

In Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), this court set forth the standard by which questions of admissibility of expert testimony based on new methods of scientific measurement are to be resolved. The Frye standard has been adopted by numerous courts since that time, see, e.g., United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970); Marks v. United States, 260 F.2d 377, 382 (10th Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L. Ed.2d 302 (1959); and the Frye holding was recently reaffirmed by this court in United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974), a case in which we adhered to the earlier determination to exclude polygraph evidence from criminal trials.

The Frye standard for determining whether a generic class of scientific evidence is to be admitted at trial requires that the "theory from which the deduction is made be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, supra, at 1014. This obviously sets forth a standard that is neither common to criminal litigation nor easily applied in the individual case. Equally obvious, the Frye standard retards somewhat the admission of proof based on new methods of scientific investigation by requiring that they attain sufficient currency and status to gain the general acceptance of the relevant scientific community. This is not to say, however, that the Frye standard exacts an unwarranted cost.⁵ 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. Additionally, the 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.⁶

As the record and the court's opinion reveal, the District Court focused more on the reliability of Lieutenant Nash's conclusion than on the general acceptance of his technique within the scientific community. After hearing testimony of experts and examining some of the literature of the field, the District Court concluded that "the spectrographic identification of Albert Raymond was clearly reliable enough to be admitted into evidence," to be given as much or as little weight as the jury might choose. Raymond, supra, at 645. On the broader point of admissibility of this generic class of evidence, we find that the District Court erred.

While the District Court did make reference to what was said to be the scientific community's growing acceptance of the technique of spectrogram analysis as a means of speaker identification, neither the court's opinion nor the record satisfy the Frye standard of admissibility. In reaching its conclusion, the court placed primary reliance on studies directed by Dr. Oscar Tosi, Professor of Audiology and Speech Sciences at Michigan State University, which were first published in 1971.⁷ The court felt that the Tosi studies had both demonstrated the probable accuracy of Lieutenant Nash's conclusions and dissipated the scientific community's previous skepticism concerning the validity of voiceprint identification. In assessing the scientific community's present attitude toward spectrogram analysis, the District Court relied heavily on the testimony of Dr. Peter Ladefoged, Professor of Phonetics at U.C.L.A. Dr. Ladefoged had initially been one of the scientific community's most vocal opponents of the use of voiceprints for criminal identification,⁸ and he had testified to this opposition in previous trials. After examining the results of the Tosi study and of some of Lieutenant Nash's spectrogram analyses, Dr. Ladefoged modified his earlier position and adopted a more favorable stance regarding the technique.

As Dr. Ladefoged's cited letter to the President's Science Advisor itself indicates, however, his conversion to the voiceprint identification technique has been a limited one. While Dr. Ladefoged stated that new evidence had moved him to "cautiously reconsider the possibility" of the use of spectrogram analysis in criminal trials, he went on to express a number of continuing reservations. He pointed out, for instance, that the Tosi studies did not necessarily indicate that spectrogram analysis would enjoy a comparable success rate when applied to the general populace, and indicated that voiceprint identification of females would probably be more difficult than identification of males. Dr. Ladefoged further identified problems arising from voice mimicry and from the possibility of "confusable voices," and concluded that "we do not at the moment know the probable error rate" of a spectrogram analysis technique applied to the broad populace. Thus, viewed in its entirety, Dr. Ladefoged's letter, as he himself characterized it in his testimony, simply reflects a position "of abatement of skepticism towards...