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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, November 26, 2013

Caller ID: 11th Circuit Finds Short Interaction Sufficient For Voice Identification

Federal Rule of Evidence 901(b)(5) allows for authentication via

An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

And, as the recent opinion of the Eleventh Circuit in United States v. Cox, 2013 WL 6097902 (11th Cir. 2013), makes clear, not much familiarity is needed to satisfy Rule 901(b)(5).

In Cox, Demuntray Cox was convicted of possession of ammunition by a convicted felon and  possession of marijuana. Cox was charged with these crimes after Depurt Travis Fitzgerald conducted a traffic stop during which he spoke with Cox for 15-30 minutes. Fitzgerald had also known Cox from their days together in high school ten years ago.

At trial, the government admitted recorded jailhouse phone calls made under the personal identification number the jail assigned to Cox. ATF Special Agent DeWayne Krueger testified that he obtained the recordings and played them for Fitzgerald. Fitzgerald testified that he had listened to the recordings the week before the trial and recognized Cox's voice. Fitzgerald stated that he had known Cox in high school ten years earlier and could identify his voice. Fitzgerald admitted that he had not spoken with Cox since high school until the day of the stop, he had only spoken with Cox for fifteen or thirty minutes that day, and he had not spoken with Cox since. Cox objected to Fitzgerald's identification as lacking foundation, but the court overruled the objection.

After he was convicted, Cox again argued that Fitzgerald's identification lacked foundation. The Eleventh Circuit disagreed, concluding that

Voice identification testimony can be admitted only after it is determined sufficient evidence supports a finding “the item is what the proponent claims it is.” Fed.R.Evid. 901(a). A speaker's voice may be identified by opinion testimony “based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” Id. 901(b)(5). “Once a witness establishes familiarity with an identified voice, it is up to the jury to determine the weight to place on the witness's voice identification.”...

Here, the testimony showed that Fitzgerald was familiar with Cox's voice from high school and from the day of the arrest. The jury determined that this familiarity was sufficient, and we find no reason to disagree.

Now, I think most would agree that people sound quite different at age 28 than they do at 18 (unless Cox had something especially distinctive about his voice). So, what this really means is that the court conlcuded that 15-30 minutes was sufficient for Fitzgerald to authenticate Cox's adult voice. 

-CM

 

http://lawprofessors.typepad.com/evidenceprof/2013/11/federal-rule-of-evidence-901b5allows-for-authentication-via-an-opinion-identifying-a-persons-voice-whether-hear.html

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