United States v. Williams, 77 Crim. 424.

• Decision Date: 20 December 1977
• Docket Number: No. 77 Crim. 424.,77 Crim. 424.
• Citation: 443 F. Supp. 269
• Parties: UNITED STATES of America v. Isiah WILLIAMS, a/k/a "Biggie", Michael Manning, a/k/a "Red", and John Doe, a/k/a Omar, Defendants.
• Court: U.S. District Court — Southern District of New York

443 F. Supp. 269

UNITED STATES of America v. Isiah WILLIAMS, a/k/a "Biggie", Michael Manning, a/k/a "Red", and John Doe, a/k/a Omar, Defendants.

No. 77 Crim. 424.

United States District Court, S. D. New York.

December 20, 1977.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for plaintiff.

Richard Rosenbaum, New York City, for defendant Williams.

Murray Mogel, Federal Defender Services, New York City, for defendant Manning.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

On June 3, 1977, the government filed an indictment charging defendants Williams and Manning with violations of the federal narcotics laws. Specifically, defendants were charged with a conspiracy to violate the federal narcotics laws in violation of 21 U.S.C. § 846 (1972), and with possession and distribution of heroin, in violation of 21 U.S.C. § 841 (1972). A superseding indictment, charging defendants with the same offenses, was filed November 30, 1977.

In support of its case against defendant Williams, the government announced its intention to offer in evidence a tape recording of a telephone conversation allegedly between defendant Williams and a police officer; a voice exemplar furnished by defendant Williams; testimony of an expert witness who has compared the voices on the original tape and the exemplar; and spectrograms used by the expert in making his comparison.

Defendant Williams opposed the admissibility of this evidence on the ground that sound spectrography is not a reliable scientific method.

A pre-trial hearing was held to determine the admissibility of the proffered evidence, at the conclusion of which I ruled that the expert testimony and the spectrograms would be admitted. This memorandum sets forth the factual and legal bases for that determination.

The standard for admission of a scientific method is whether the technique "enjoys general acceptance in the particular field in which it belongs." Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).

It is the judge's responsibility to initially assess whether there is a sufficient degree of general scientific acceptability to warrant admission of the evidence. United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971). Once a judge concludes that expert testimony is to be permitted, the jury is entitled to review the evidence and accord it such weight as the jury feels is warranted. Feguer v. United States, 302 F.2d 214, 242 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962).

United States v. Alexander, 526 F.2d 161, 163-64 (8th Cir. 1975).

The standard for admission of expert testimony enunciated in Frye v. United States, supra, has been applied in cases involving the admissibility of spectrographic voice identification.

The Court of Appeals for the District of Columbia was presented with the issue of the admissibility of spectrographic voice identification as evidence in a criminal case in 1974. United States v. Addison, 162 U.S. App.D.C. 199, 498 F.2d 741 (1974). After reviewing the testimony presented to the District Court, the Court of Appeals reversed the finding of the lower court and held the evidence inadmissible on the ground that general acceptance of the scientific community with respect to spectrographic identification had not yet reached the level called for by Frye:

While portions of the record suggest that spectrogram analysis may become a useful tool for the resolution of questions of criminal liability, it is equally clear that techniques of speaker identification by spectrogram comparison have not attained the general acceptance of the scientific community to the degree required in this jurisdiction by Frye. Whatever its promise may be for the future, voiceprint identification is not now sufficiently accepted by the scientific community as a whole to form a basis for a jury's determination of guilt or innocence.

Id. at 745.

In 1975 the admissibility of spectrographic voice identification was sustained by the Courts of Appeals for the Fourth and Sixth Circuits.

In United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975), the Court acknowledged the decision in Addison, supra but found that "the trend favors the admissibility . . .." Id. at 33. The Court suggested that "those opposing the admissibility . . . can direct their criticisms toward the weight of such evidence." Id. In Franks, the defense did not produce a witness in opposition to the admissibility of the evidence. Defendant Williams has produced a witness in opposition. However, as discussed below, I find the arguments of the proponents of the use of this testimony persuasive, and certainly within the Frye standard.

The Court of Appeals for the Fourth Circuit, in sustaining the admissibility of spectrographic voice identification in United States v. Baller, 519 F.2d 463 (4th Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975), outlined safeguards against the danger that the jury might accord undue weight to the scientific testimony. The suggested safeguards include evidence of probative value despite doubts within the scientific community about its absolute accuracy, competent witnesses available to expose the limitations of the identification technique, availability of tapes for aural comparison by the jury, and an instruction to the jury that they are to weigh the evidence presented. Id. at 466-67. See also United States v. Jenkins, 525 F.2d 819, 827 (6th Cir. 1975). As discussed below, all of these safeguards have been or will be utilized in this case.

In United States v. McDaniel, 176 U.S. App.D.C. 60, 538 F.2d 408 (1976), the Court of Appeals for the District of Columbia again refused to admit evidence of spectrographic voice identification, but with considerably less certainty than in Addison, supra. The Court recognized the trend favoring admissibility, and contemplated that it may be time to reexamine the holding of Addison "in light of the apparently increased reliability and general acceptance in the scientific community." Id. at 413. However, the Court was constrained to follow its prior holding in the absence of a clear showing of dramatic change in the opinion of the scientific community or en banc reconsideration of Addison. Id.

This court is not constrained by a prior decision holding spectrographic voice identification evidence inadmissible. The Court of Appeals for the Second Circuit has not ruled on this issue, although evidence of spectrographic voice identification has been admitted by courts in this district on at least two prior occasions. United States v. Carlos Valle, No. 75 Cr. 857 (S.D.N.Y.1975), United States v. Sisca, 361 F.Supp. 735 (S.D.N.Y.1973).

While some courts have been reluctant to admit testimony of spectrographic voice identification, commentators favor its admission. See Weinstein's Evidence, ¶ 901(b)(5)(01) at p. 901-69 (1976): "At this stage of development, given an adequate expert's testimony, admissibility is warranted."

McCormick goes further. He would not use the standard of general acceptance in the scientific community, but would admit any relevant conclusions which are supported by a qualified expert unless there are other reasons for exclusion, such as prejudice, misleading the jury, or undue consumption of time. McCormick on Evidence, ¶ 203 at 491 (2d Ed. 1972).

Based on the testimony discussed below, I find that there is a sufficient showing of acceptance by the scientific community of the use of spectrographic analysis for voice identification to warrant its admissibility. Further, I find that there will not be prejudice, or undue consumption of time. The jury will be given instructions appropriate to guard against any danger that it may be misled in its interpretation and utilization of the testimony.

At the hearing, both the government and defendant Williams presented expert testimony on the issues of sound spectrography in general and the specific spectrographic analysis performed in this case.

The government's primary expert witness offered in support of the reliability of spectrographic analysis of the human voice was Dr. Oscar Tosi. Dr. Tosi, who has previously testified in this district and elsewhere on the subject, was accepted, for the purpose of the hearing, as an expert in the field of sound spectrography. Dr. Tosi explained the use of the spectrograph and the various studies he has conducted on sound spectrography in general and voice identification in particular.

A sound spectrograph consists essentially of a) a rotating drum onto which...