Thursday, March 5, 2009
Follow My Voice: Seventh Circuit Finds That Voice Authentication Doesn't Need To Be Done By An Expert
The recent opinion of the Seventh Circuit in United States v. Recendiz, 2009 WL 510996 (7th Cir. 2009), makes clear that voice authentication does not need to be done by an expert witness.
In Recendiz, a jury convicted Armando Navar and Marco Thomas of a number of federal crimes related to their participation in a Chicago cocaine distribution network, in which Jesus Herrera also allegedly participated. Navar subsequently appealed, claiming, inter alia, that:
the trial court erred when it permitted DEA Special Agent Tulshi to identify Navar's voice on a recorded conversation between Navar and Herrera. Tulshi testified that on the day of Navar's arrest, he listened to Call No. 331, which was a six-minute conversation in Spanish between Herrera and a man whose voice Tulshi did not yet recognize. Later that day, Tulshi, who speaks Spanish, participated in Navar's arrest and post-arrest interviews and conversed with Navar. Tulshi testified that after hearing Navar speak, he recognized Navar's voice as the second speaker on Call No. 331."
According to Navar, Special Agent Tulshi's lack of training in voice identification should have rendered his testimony inadmissible. The Seventh Circuit disagreed, noting that its conclusion was governed by Federal Rule of Evidence 901(b)(5), which states that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence of:
Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
The Seventh Circuit correctly noted that this Rule does not mention any requirement that such voice identification be done by an expert witness. Indeed, the Seventh Circuit correctly found that the Advisory Committee's Note to Rule 901 states that:
Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting.
Accordingly, the Seventh Circuit correctly concluded that "Navar's contention that the court erred in admitting Special Agent Tulshi's identification because he was not qualified as an expert is wholly meritless." Instead,
Special Agent Tulshi properly established the requisite “minimal familiarity” with Navar's voice to permit him to identify it on Call No. 331....Tulshi testified that he listened to a recorded phone conversation between Herrera and another speaker on the same day that he arrested Navar. Later that day, he spoke with Navar during his arrest and post-arrest interview, each of which connected Navar's voice to his identity. Tulshi then testified at trial that based on hearing Navar's voice in person, he recognized it as the same voice he heard on Call No. 331."