Wednesday, January 12, 2022
Federal Rule of Evidence 901(b)(5) provides that
The following are examples only — not a complete list — of evidence that satisfies the requirement:
(5) Opinion About a Voice. 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.
So, how much familiarity with a person's voice is required before a witness can make a vocal identification? That was a question addressed by the United States District Court for the Eastern District of California in its recent opinion in United States v. Hood, 2021 WL 6136215 (E.D. Cal. 2021).
In Hood, Leslie Hood filed "a motion objecting to the admission into evidence at trial of statements purportedly made by defendant Hood and his co-defendant" because, inter alia, "the government can present no reliable witness identifying his voice on the recordings." The court disagreed, concluding that
In opposing defendant Hood's motion in limine the government asserts that it will meet its burden of authentication at trial by calling a law enforcement witness to identify defendant's voice on recordings based upon the agent's familiarity with defendant's voice from listening to his calls and participating in an interview of defendant and by also corroborating information regarding defendant's actions being consistent with statements made on the recorded calls....If the witness so testifies, the government will have met its burden with respect to authentication. See United States v. Ortiz, 776 F.3d 1042, 1044-45 (9th Cir. 2015) (In making a prima facie showing that the voice on a recording is the defendant's “[l]ay opinion...is permissible so long as the witness testifying has [the] requisite familiarity with the speaker” and the opinion must be “based on hearing the voice at any time under circumstances that connect it with the alleged speaker,” noting that “Rule 901(b)(5) establishes a low threshold for voice identifications” and that an identifying witness need only be “minimally familiar with the voice he identifies.”); United States v. Diaz, 649 Fed. Appx. 373, 382 (9th Cir. 2016)2; United States v. Gadson, 763 F.3d 1189, 1204 (9th Cir. 2015) (“Where the government offers a tape recording of the defendant's voice, it must also make a prima facie case that the voice on the tape is in fact the defendant's, whether by means of a witness who recognizes the voice or by other extrinsic evidence. [citation omitted]. Once the offering party meets this burden, ‘the probative value of the evidence is a matter for the jury.’ [citation omitted]”; see also Brown v. City of Hialeah, 30 F.3d 1433, 1437 (11th Cir. 1994) (“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.”).
Accordingly, defendant's motion in limine in this regard will be denied at this time without prejudice to his objection at trial should the government fail to establish an adequate foundation for the anticipated witness testimony.