Windmere, Inc. v. International Ins. Co.

• Citation: 105 N.J. 373,522 A.2d 405
• Parties: WINDMERE, INC., a corporation of the State of New Jersey, Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Respondent.
• Decision Date: 19 March 1987
• Court: United States State Supreme Court (New Jersey)

Page 373

105 N.J. 373

522 A.2d 405

WINDMERE, INC., a corporation of the State of New Jersey Plaintiff-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 3, 1986.

Decided March 19, 1987.

Terence P. Corcoran, Ringwood, for plaintiff-appellant (Corcoran and Higgins, attorneys).

Edmund E. Lynch, Denville, for defendant-respondent (Lynch and Lynch, attorneys).

The opinion of the Court was delivered by

O'HERN, J.

Once again we are presented with the question of the admissibility of voiceprints into evidence as reliable scientific tools for determining the identity of a human voice. In this case we have the benefit of hindsight to confirm that adherence to our rules for determining the reliability of scientific evidence precludes the admissibility of voiceprints on this record. In the unusual circumstances of this case, however, we affirm the judgment of the Appellate Division, 208 N.J.Super. 697, 506 A.2d 834 (1986), sustaining a jury verdict that denied plaintiff a fire loss recovery from the insurer. The verdict followed a jury trial in which voiceprints were used to assist the jury in comparing the voice of plaintiff's maintenance man with the voice recorded by police when the fire was reported anonymously by telephone. But because the record was cumulative of other reliable evidence sufficient to sustain the verdict, and the verdict does not appear to have been a miscarriage of justice, we affirm the judgment of the Appellate Division.

I.

Few subjects have generated more literature than the debate about the scientific reliability of the voiceprint. ¹ In New Jersey, the debate has remained unsettled since the trilogy of decisions emanating from State v. Cary 49 N.J. 343, 230 A.2d 384 (1967): State v. Andretta, 61 N.J. 544, 296 A.2d 644 (1972), State v. Perez, 150 N.J.Super. 166, 375 A.2d 277 (App.Div.1977), and then, most recently, D'Arc v. D'Arc, 157 N.J.Super. 553, 385 A.2d 278 (Ch.Div.1978).

The theory behind identification by the voice spectrography method is that people have different vocal cavities and articulators. Thus, one expert's theory of voice uniqueness was based on the way "the articulators interacted with one another and the vocal cavities. The articulators include the lips, teeth, tongue soft palate, and jaw muscles. The vocal cavities are the throat, nose, and the two oral cavities formed in the mouth by the positioning of the tongue." * * * Since every person has these unique anatomical characteristics, some experts feel that the sound produced through the interaction of these features should lead to a means of identifying people by their voices alone. [Cornett v. State, 450 N.E.2d 498, 500 (Ind.1983) (citation omitted).]

In brief, the scientific procedure was described by Judge Imbriani in D'Arc v. D'Arc, supra, 157 N.J.Super. at 555-56, 385 A.2d 278.

A sound spectrograph is an instrument which produces a spectrogram that can be utilized by a trained examiner to purportedly identify the speaker of an unknown voice. The system * * * operates by an electrical process which produces on a sheet of paper a pictorial representation or graphic display of sounds, which is called a sound spectrogram or voiceprint. * * * [The graph represents a tri-dimensional plane with time shown on the horizontal axis, frequency shown on the vertical axis, and the relative amplitude of the voice's intensity displayed by the darkness of the lines. Cornett v. State, supra, 450 N.E.2d at 500.] Identification of an unknown speaker is made by an examiner who compares the unknown voice with the known voice exemplars of one or more persons. * * * The device does not operate automatically; an individual must operate the machine, adjust numerous controls to obtain readings and subjectively interpret the spectrograms to arrive at an opinion. (citations omitted).

The admissibility in evidence of the results of voiceprint analysis depends upon its scientific reliability. In a recent series of cases, this Court has restated the principles that it employs in determining whether scientific evidence is admissible to prove an underlying fact in dispute. See State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984) (general acceptance within the professional community can demonstrate scientific reliability of 'battered woman's syndrome'); Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984) (general acceptance within scientific community demonstrates scientific reliability of breathalyzer test); State v. Cavallo, 88 N.J. 508, 443 A.2d 1020 (1982) (diagnosis of tendency to commit rape on basis of rapist profile is not scientifically reliable when procedure is not shown to be accepted generally by a scientific community); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (hypnotically refreshed testimony may be admissible if it can be demonstrated that use of hypnosis in a given case was a reasonably reliable means of restoring memory); see also State v. Matulewicz, 101 N.J. 27, 499 A.2d 1363 (1985) (laboratory report of controlled dangerous substances may be admissible without further proof if test is shown to be scientifically reliable).

While each of these cases dealt with the use of expert scientific evidence or a scientific device in the context of a criminal trial, the principles are generally applicable to civil proceedings and will assist us here. (In the criminal context, conditions of admissibility must be "clearly established." State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964)). Moreover, even though these principles bear a close resemblance to the familiar Frye test, ² there are differences. There is no need to review in detail each decision. We may summarize their principles by this passage from Romano v. Kimmelman:

In New Jersey, the results of scientific tests are admissible at a criminal trial only when they are shown to have "sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth." State v. Hurd, 86 N.J. 525, 536 (1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967)). Scientific acceptability need not be predicated upon a unanimous belief or universal agreement in the total or absolute infallibility of the techniques, methodology or procedures that underlie the scientific evidence. * * * Reliability of such evidence must be demonstrated by showing that the scientific technique has gained general acceptance within the scientific community. State v. Johnson, 42 N.J. 146, 170-71 (1964). The fact that a possibility of error exists does not preclude a conclusion that a scientific device is reliable. This Court in Johnson noted: "Practically every new scientific discovery has its detractors and unbelievers, but neither unanimity of opinion nor universal infallibility is required for judicial acceptance of generally recognized matters." Id. at 171 . Once the showing of general acceptability has been made, courts will take judicial notice of the given instrument's reliability and will admit in evidence the results of tests from the instrument without requiring further proof. Id. [96 N.J. at 80, 474 A.2d 1 (citations omitted).]

Obviously, it is the last feature--the judicial validation of a scientific device for all future use--that is the critical end product of the inquiry into reliability. Thus, for example, the results of the breathalyzer test may be admissible, subject to evidence of maintenance of the device and the other adjustments noted in Romano, supra, 96 N.J. at 72-73, 474 A.2d 1, in all future cases. Judicial notice shall be taken of the reliability of the instrument.

There are generally three ways in which a proponent of expert testimony or scientific results can prove the required reliability in terms of its general acceptance within the professional community: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions which acknowledge such general acceptance of expert testimony. State v. Cavallo, supra, 88 N.J. at 521, 443 A.2d 1020. Each of these criteria for establishing the reliability of a scientific device has been seriously challenged or impugned with respect to voiceprints.

(1) Testimony of Knowledgeable Experts Did Not Establish Its General Acceptance Within The Professional Community.

General acceptance within a scientific community can be an elusive premise to prove. There will always be some detractors to any scientific theory. State v. Kelly, supra, 97 N.J. 178, 478 A.2d 364, illustrates the kind of inquiry that must be made concerning the definition of the community and the degree of acceptance within that scientific community. There, the majority and concurrence disagreed as to the evaluation of the relative degree of consensus within the defined psychological community concerning the reliability of evidence presented about the syndrome of characteristic responses to repeated physical and mental abuse. See id. at 210-11, 224, 478 A.2d 364. The majority, despite the expert's testimony and the Court's reference to "at least five books and almost seventy scientific articles and papers about battered-woman's syndrome," refrained from ruling that New Jersey's standard of acceptability for scientific evidence had been satisfied. Id. at 211, 478 A.2d 364 (emphasis added).

An initial concern about the science of voiceprint analysis is that it appears to be a sole source industry, with the principal place of research located at the Michigan State University Speech and Hearing Research Laboratory. In this case, as in repeated other cases, Hodo v. Superior Court, Riverside County, 30 Cal.App.3d 778, 106 Cal.Rptr. 547 (1973), Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975), D'Arc v. D'Arc, supra, 157 N.J.Super. 553, 385 A.2d 278, and State v. Cary, 99 N.J.Super. 323, 239 A.2d 680 (Law Div.1968), the only witnesses...