§ 27.05 VOICE IDENTIFICATION: FRE 901(B)(5)

• Jurisdiction: United States

§ 27.05. VOICE IDENTIFICATION: FRE 901(b)(5)

Sometimes a party needs to identify a person's voice in order to make evidence relevant.⁴⁶ For example, an accused may make threats or obscene remarks over the telephone, or leave them on voicemail. In a racketeering prosecution, FBI eavesdropping tapes may be offered as evidence. So too, an accused's confession may be taped.⁴⁷ Rule 901(b)(5) provides for the identification of a person's voice by someone familiar with it.⁴⁸ The standard is not high.⁴⁹ Enhancement of the sound quality may be permissible.⁵⁰

Voice recognition is only one method of identifying a speaker's voice. For example, Rule 901(b)(6), which is discussed in the next section, contains a special rule for telephone conversations. In addition, Rule 901(b)(4) recognizes speaker identification by content — for example, a "telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him."⁵¹

Criminal cases. The characteristics of a person's voice fall outside the purview of the privilege against self-incrimination, which covers testimonial, not physical, evidence.⁵² Consequently, voice exemplars may be obtained prior to trial for comparative purposes without violating the Fifth Amendment, although there may be Fourth Amendment⁵³ and other constitutional issues implicated.⁵⁴ In addition, a person may be required to speak for identification at trial.⁵⁵ Moreover, a defendant's refusal to provide in-court voice exemplars of specific words may be a proper subject of a jury instruction or prosecutorial comment.⁵⁶

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Notes:

^[46] See Clifford, Memory for Voices: The Feasibility and Quality of Earwitness Evidence, in Evaluating Witness Evidence 189, 214 (Lloyd-Bostock & Clifford eds. 1983) ("While voice memory is a demonstrable fact, good voice memory under all but super-optimal conditions of encoding, storage, and retrieval, is the exception rather than the rule. The implication for the criminal justice system is thus fairly straightforward: voice identification by a witness concerning a stranger should be treated with the utmost caution, both in its informational and its evidential aspects.").

^[47] E.g., United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988) ("Pettitt identified the Lances' voices, testifying that he knew them well.").

^[48] See United States v. Zepeda-Lopez, 478 F.3d 1213, 1219 (10th Cir. 2007) ("This Court has held that a single telephone call...