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32.1 Voice Identification

    32.1.1 Voice Identification: Subject To Same Consideration As Eyewitness Identification
    32.1.2 Cross-Racial Voice Identification
    32.1.3 Voice Identification: Length Of Time Voice Is Heard
    32.1.4 Voice Identification Of Opposite Sex Is More Reliable
    32.1.5 Challenging Prosecution Forensic Evidence: Voice Identification

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RATIONALE: Because the concerns of mistaken identity by voice are no less crucial than the concerns of mistaken eyewitness identification, special instructions on voice identification may be appropriate to assure that the jury properly evaluates the reliability of the voice identification.

POINTS AND AUTHORITIES: Generally, the defendant has the right to instructions which relate a defense theory to an element of the charge. When the defense theory is mistaken eyewitness identification, the defendant has a right to instructions which relate the defense theory to the prosecution's burden of proving identity beyond a reasonable doubt. (See FORECITE National™ 31.2.10 [Right To Instruction On Eyewitness Identification As Defense Theory]; see also  FORECITE National™ 31.2.11 [Right To Instruction On Eyewitness Factors].)

    These principles should also be applicable when the defense theory is mistaken voice identification or "ear witness" testimony as it is sometimes called. The concerns of mistaken identity by voice are no less crucial than as to eyewitness identification. (See Garcia v. Superior Court (CA 1991) 1 CA4th 979, 988 [2 CR2d 707] [right to voice ID lineup subject to same considerations as eyewitness lineup]; see also People v. Molina (CA 1981) 116 CA3d 223, 228 [172 CR 12] [fairness of pretrial voice ID subject to same analysis as eyewitness ID]; see also Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 3.49); Loftus & Doyle, Eyewitness Testimony - Civil & Criminal (Lexis, 3rd ed. 1997) § 4-12, p. 91.)

    Hence, modified versions of the eyewitness identification instructions should be given to pinpoint the defense theory of mistaken voice identification. (See People v. Clark (CA 1992) 3 C4th 41, 137 [10 CR2d 554] ["As with eyewitness identification, some factors pertaining to voice identification might not be widely known or may be counterintuitive"]; see also People v. Rogers (NY 1976) 385 NYS2d 228, 237 [consideration of voice spectrogram analysis by a jury must be carefully presented to the jury so that no undue weight is given to the methodology and jury must be given the opportunity to accept or reject the expert’s opinion, or give it whatever weight it finds it deserves].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.6].

RESEARCH NOTES:

Annotation, Voice Identification Testimony, 17 ALR5th 851.

Annotation, Admissibility Of Evidence Of Voice Identification Of Defendant As Affected By Allegedly Suggestive Voice Lineup Procedures, 55 ALR5th 423.

    Voice identification testimony has been received into evidence. You must view voice identification testimony with caution and evaluate it carefully. In determining the weight to be given voice identification testimony, you should consider the believability of the witness as well as other factors which bear upon the accuracy of the witness' alleged identification of the defendant's voice, including, but not limited to, any of the following:

    1. [the stress, if any, to which the witness was subject at the time [he] [she] heard the alleged perpetrator;]

    2. [the witness' capacity to make a voice identification;]

    3. [the period of time between the alleged criminal act and the voice identification;]

    4. [The length of time the witness heard the alleged perpetrator's voice;]

    5. [The positions and distances between the witness and the perpetrator at various times;]

    6. [The presence of background noise or other limiting conditions;]

    7. [The presence or absence of any circumstances that might focus or distract the witness' attention;]

    8. [Whether the alleged perpetrator's voice was familiar or unfamiliar to the witness;]

    9. [Whether the witness was able to identify the alleged perpetrator in a voice lineup;]

    10. [The fairness of the voice identification line-up;]

    11. [The extent to which the witness is either certain or uncertain of the voice identification;]

    12. [Whether the witness' voice identification is in fact the product of [his] [her] own recollection;]

    13. [Testimony of an expert regarding acquisition, retention, or retrieval of information presented to the senses of a witness;]

    14. [Whether the witness' memory was or was not affected by intervening time and events;]

    15. [Any other evidence relating to the witness' ability to make a voice identification;]

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PRACTICE NOTE: See Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 2.49, "Voice Identification," p. 87 [suggesting racial differences have no impact on accuracy].)

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    32.1.3    Voice Identification: Length Of Time Voice Is Heard

PRACTICE NOTE:  See Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 2.49, "Voice Identification," p. 86 [suggesting length of time a voice is originally heard has no impact on accuracy].)

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PRACTICE NOTE: See Arnolds, Carroll, Lewis & Seng, Eyewitness Testimony: Strategies And Tactics (West, 1984) § 2.49, "Voice Identification," p. 87.)

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    See FORECITE National™ 29.3.1 [Challenging Prosecution Forensic Evidence].