EvidenceProf Blog

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

Tuesday, July 18, 2017

Should a Defendant Be Allowed to Submit a Vocal Exemplar Without Subjecting Himself to Cross-Examination?

Today, the Missouri Court of Appeals, Western District, issued an interesting opinion in State v. Watt, 2017 WL 3026766 (Mo.App.W.D. 2017). In Watt,  Pharis Watt was convicted of driving while intoxicated. At trial, the prosecution introduced videotape evidence of Watt's conduct after being pulled over on the night in question. In response,

Watt's counsel sought to present demonstrative evidence in the form of a voice exemplar by having Watt read aloud to the jury one of his own statements from the videotape evidence, introduced during the State's case-in-chief, for the purpose of allowing the jury to assess whether Watt's speech pattern presented on the videotape should be considered as evidence of intoxication as opposed to simply his normal speaking style. Watt specifically sought a ruling that he be allowed to do so without cross-examination, claiming that the evidence would be demonstrative, rather than testimonial.

The court, however, precluded the admission of this evidence, and Watt was eventually convicted.

Watt subsequently appealed, arguing "that the due process principle of reciprocity requires that criminal defendants likewise be granted the right to seek admission of voice exemplars without being deemed to have waived their right to be free from self-incrimination." As support, Watt cited to Wardius v. Oregon, in which the Supreme Court held that a state cannot place an accelerated discovery obligation on a defendant without placing a reciprocal obligation on the State.

In response, the Missouri Court of Appeals noted that 

Though Missouri has yet to address this issue, it appears—and the State concedes—that other state and federal courts agree with Watt's argument. See, e.g., Taylor v. U.S., 601 A.2d 1060, 1065-67 (D.C. App. 1991) (holding that “the judge could not properly exclude the voice exemplar on the ground that [the defendant] refused to take the witness stand and submit to cross-examination about his involvement in the crime); State v. Valentine, 630 N.W.2d 429, 435 (Minn. App. 2001) (holding “that if the prosecution can compel a defendant to produce a voice exemplar without infringing on his privilege against self-incrimination, then the due process principle of reciprocity demands that a defendant should be allowed the same opportunity without waiving his Fifth-Amendment privilege”); Marsh v. Commonwealth, 32 Va. App. 669, 680-81 (Va. App. 2000) (holding that “the trial court erred in finding that the voice exemplar was testimonial in nature requiring [the defendant] to be subjected to cross-examination under oath”); People v. Scarola, 71 N.Y.2d 769, 777-78 (1988) (holding that “voice exemplar evidence offered by ... defendants was broadly relevant, and the trial courts could have exercised their discretion to admit it without permitting substantive cross-examination”); State v. Tillett, 351 So. 2d 1153, 1157 (La. 1977) (holding “that if the state can compel a criminal defendant to demonstrate his physical characteristics before the jury without infringing on his fifth amendment rights, a defendant's offer of such a demonstration does not constitute a waiver of that same right”).

Therefore, the court agreed "with Watt that the trial court lacked the authority to exclude his proffered voice exemplar, offered as demonstrative evidence, solely on the ground that Watt refused to submit to cross-examination." 

That said, the appellate court then noted that this was not the basis for the trial court excluding the exemplar evidence; instead, "[t]he trial court excluded Watt's proffered voice exemplar because Watt failed to establish that his proffered voice exemplar would represent a 'true sample of his true voice.'" The appellate court then agreed with this conclusion, finding that

First, as the trial court noted, Watt chose not to testify; thus, the trial court had no experience with Watt's normal speaking voice so as to judge whether a proffered voice exemplar made at trial would constitute a genuine and authentic sample of Watt's true speaking voice....Second, the circumstances surrounding the proposed voice exemplar appropriately caused the trial court to question whether it would be either deceptive or misleading and, thus, preclude its admissibility.



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Well this leads us to the obvious question (note it doesn't beg the question, Bc begging the question as a phrase actually means something else, though it's misuse is super common), that shouldn't the defense at least be given the opportunity to present to the judge something similar to a frye hearing, where outside the realm of testimony both sides can make their case for the accuracy of a submitted voice exemplar? The judge could then make an informed decision as to whether to allow it?

Posted by: Paul | Jul 20, 2017 5:19:56 AM

It's still a double standard by the courts: the trial court didn't require the prosecution to demonstrate that the videotape showed unusual- and hence indicative of intoxication- conduct by Watt. The appellate court didn't think it was a problem, either.

Posted by: bacchys | Jul 29, 2017 9:35:10 PM

Not clear if deft offered the testimony of someone familiar with deft's normal speech to authenticate the exemplar as being his normal speech pattern. If so, then both courts are wrong. If not, then the ruling is correct.

Posted by: Fred Moss | Aug 9, 2017 3:42:55 PM

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