Monday, April 12, 2010
Follow My Voice: Seventh Circuit Notes "Minimal Familiarity" Standard Under Rule 901(b)(5) But Still Reverses
Federal Rule of Evidence 901(b)(5) provides the following as an example of proper authentication:
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.
And as the recent opinion in United States v. Jones, 2010 WL 1337741 (7th Cir. 2010), makes clear, the Seventh Circuit (like several other circuits) merely requires that the witness identifying the speaker's voice to have "minimal familiarity" with the speaker's voice. But the prosecution could not even satisfy this standard in Jones.
Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy Simmons, Sam Cook, Damand Matthews and several other defendants were charged with conspiring to distribute large quantities of narcotics in Evansville, Indiana. Some of the defendants pled guilty, but the named defendants exercised their right to a jury trial, during which they were faced with evidence that included the description of a controlled buy, the testimony of some alleged members of the conspiracy, and voice identifications from incriminating wiretapped conversations between the defendants. The jury convicted the defendants, and all were sentenced to life except Cook, who received over 20 years' imprisonment.
The prosecution's primary evidence that Sam Cook participated in the conspiracy consisted
of incriminating statements he allegedly made on a number of the wiretapped phone conversations. In order to identify the voice on the wiretaps as being Cook's, the government called Detective Simpson, who testified regarding Cook's voice on two occasions-first as the government put forth its case-in-chief, and then again at the close of the trial as a rebuttal witness in an effort to strengthen the identification.
In laying the foundation for his identification of Cook on the wiretaps in the case-in-chief, Detective Simpson testified that he recognized Cook's voice from having attended some pretrial proceedings and hearing him speak in open court. Detective Simpson testified he compared the voice he heard in the proceedings to that on the wiretapped phone conversations, and that in his opinion Cook was one of the speakers. On cross-examination, Detective Simpson stated that he had heard Cook speak in court on "four or five" occasions, and acknowledged that on these occasions Cook may have only spoken as little as "two or three" sentences. He also admitted on cross that he had never personally interviewed Cook, making Cook the only defendant at trial whose voice identification was not supported by an in-person interview with the identifying agent. Cook objected to Detective Simpson's identification on the basis that it lacked sufficient foundation, and the district court overruled the objection, finding that Detective Simpson had a sufficient level of familiarity to render his opinion.
After he was convicted, Cook appealed, claiming, inter alia, that the few words he spoke in open court could not have provided a sufficient basis for a voice identification. The Seventh Circuit disagreed, finding that it merely requires the witness identifying the speaker's voice under Federal Rule of Evidence 901(b)(5) to have "minimal familiarity" with the speaker's voice and found that Detective Simpson's initial testimony met "the 'low bar of minimal familiarity' required in our case law, if not by much." The problem for the prosecution, though, was that this was not the only testimony that Simpson provided. Instead,
Near the end of trial, Cook introduced rebuttal evidence in the form of court transcripts showing he had only spoken in open court twice, not the “four or five” times Detective Simpson had initially claimed. In response, the government recalled Detective Simpson in an effort to strengthen the voice identification. Detective Simpson then testified, for the first time, that in addition to having heard Cook speak in open court, he had also on one occasion overheard Cook speaking privately with his attorney for ten to fifteen minutes before the judge began the proceedings.
The Seventh Circuit found it troubling that Simpson seemingly eavesdropped on Cook's private conversation, that the prosecution saw fit to have Simpson testify about the conversation, and that Simpson did not mention the conversation during his initial testimony. That said, the court rejected Cook's argument that Simpson's testimony violated the attorney-client privilege because Cook did not testify concerning the subject matter of the alleged conversation.
But the court went on to find that
More fundamentally, Cook challenges whether a conversation between him and his attorney even occurred, and maintains he should receive a new trial because he was unable to test Detective Simpson's claim or impeach his testimony. This is because the only people in a position to rebut Detective Simpson's testimony were Cook or his lawyer, giving rise to a conflict of interest for counsel. On cross-examination of Detective Simpson, defense counsel challenged the idea that there had been any audible conversation between him and Cook and claimed that Detective Simpson was not telling the truth. At oral argument before this court, counsel reiterated that no such conversation occurred, and stated that as a matter of longstanding practice, he never has conversations with clients in open court where they could be overheard. He also told the district court that the detective's testimony "made me a witness in the trial." Cook's attorney moved for a mistrial on the same basis minutes later, as well as on attorney-client privilege grounds, arguing that "it would be difficult for me to represent my client and testify at the same time regarding what was said at counsel table and how it was said and who could have heard it."
The Seventh Circuit then noted that the district court denied Cook's motion for a mistrial and
conclude[d] that the trial court abused its discretion in denying Cook's motion for a mistrial after having admitted Detective Simpson's testimony without affording Cook an opportunity to rebut it. Detective Simpson testified as to a key disputed fact, but because of the unresolved conflict of interest the testimony created, Cook had no opportunity to challenge the testimony by presenting his own version of events. The jury heard only one side of a critical issue as if it were uncontroverted.