Sounds familiar? - Voice identification evidence

Criminal Law Review

Volumn , Issue AUG., 2001, Pages 595-622

  Ormerod, David ^a  

^a UNIVERSITY OF HULL   (United Kingdom)

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EID: 23044528119     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (252)

1. See especially, Hammersley and Read, "Voice Identification by Humans and Computers" in Sporer, Malpass and Koehnken, (eds), Psychological Issues in Eyewitness Identification (1996);
2. Yarmey, "Earwitness Speaker Identification" (1995) 1 Psychology, Public Policy and Law 792;
3. Saslove and Yarmey, "Long-Term Auditory Memory: Speaker Identification" (1980) 65(1) Journal of Applied Psychology 111;
4. Deffenbacher, et al., "Relevance of voice identification research to criteria for evaluating reliability of an identification." (1989) 123(2) J of Psychology 109.
5. Saslove and Yarmey, J of Psychology op. cit. n.1, p.115.
6. Hammersley and Read, J of Psychology op. cit. n.1, p.118.
7. The flexibility of civil rules of evidence will deal adequately with difficulties of voice evidence in e.g. employment disputes: see Re Ontario Hydro and Power Workers Union - CUPE (1998) 31st August CLAS Lexis.
8. Isaac mis-identified Jacob's voice: Genesis c.27 v.1-22, cited in Yarmey, (1995) Re Ontario Hydro and Power Workers Union - CUPE op. cit. n.1, p.792.
9. Hulet (1660) cited in Deffenbacher et al., Re Ontario Hydro and Power Workers Union - CUPE op. cit. n.1.
10. Keating (1909) 2 Cr.App.R. 61.
11. State v. Herbert (1901) 63 Kan. 516; Commonwealth v. Hayes (1884) 138 Mass 185; Davis v. State (1884) 15 Tex App 594; People v. Lorraine (1983) 28 Cal App 2d 50; Shaffer v. State (1918) 202 Ala 243; Ogden v. People (1890) 134 Ill 599; U.S. v. Manabat (1906) 7 Philippine 209.
12. U.S. courts have long accepted "dock voice identifications": Johnson v. Commonwealth (1887) 115 Pa 369.
13. N.J. v. Hauptmann (1935) 180 A. 809.
14. See McGehee, "The reliability of the identification of the human voice" (1937) 27 Journal of General Psychology 249;
15. McGehee, "An experimental study of voice recognition" (1944) 31 Journal of General Psychology 53.
16. See recently Bull, and Clifford, "Earwitness Testimony" in Heaton-Armstrong, Shepherd and Wolchover, (eds), Analysing Witness Testimony (1999);
17. Read and Craik, "Earwitness Identification: Some Influences on Voice Recognition" (1995) 1(1) Journal of Experimental Psychology: Applied 6.
18. Clifford, "Memory for Voices: The Feasibility and Quality of Earwitness Evidence" in Lloyd-Bostock and Clifford (eds), Evaluating Witness Evidence (1983), p.213.
19. See also Bull and Clifford, "Earwitness Voice Recognition Accuracy" in Well and Loftus, Eyewitness Testimony (1984).
20. Textbooks and practitioner manuals contain little material, and voice identification merited only brief mention by the Devlin Committee: Report to the Sec. of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976).
21. Hersey [1998] Crim.L.R. 281 CA; Devlin (1997) March 14, unreported (Lexis); Gummerson [1999] Crim.L.R. 680 CA; Duffy and Spalding (1998) March 30, unreported (Lexis); Mehemi and Chahal (2000) Jan 21 unreported (Lexis) and Roberts [2000] Crim.L.R. 183 CA.
22. See for example, Wells, Eyewitness Identification: A System Handbook (1988) p.91.
23. Hollien, Huntley, Kunzel and Hollen (1995) cited in Bull and Clifford "Earwitness Testimony" (1999) 149 N.L.J. p.216;
24. see also Hammersley and Read, N.L.J. op. cit. n.1, p.121.
25. e.g. Indian law admitted recognition but not identification evidence: Kirpal Singh v. State of Uttar Pradesh, 1963 ALJ 882. Numerous Indian authorities are discussed by Trivedi, (ed.), The Law Relating to Identification and Expert Opinion (3rd ed. 1986) p.20,
26. and Coomarawswarmy, The Law of Evidence (1990) p.237.
27. Voice recognition must still be subjected to testing - see Yarmey, (1995) The Law of Evidence ( op. cit. n.1, p.797.
28. Ladefoged and Ladefoged, "The ability of listeners to identify voices" (1980) UCLA Working Papers in Phonetics 39.
29. Hollien, Majewski & Doherty, "Perceptual identification of voices under normal, stress and disguise speaking conditions (1982) 10 Journal of Phonetics 139;
30. Abberton and Fourcin "Intonation and speaker identification" (1978) 21 Language and Speech, 305.
31. See e.g. in Australia Watson (1999) 21st December NSW Sup. Ct; Harris (No. 3) [1990] V.R. 310.
32. See People v. Smith (1950) 36 Cal. 2d 444; Fabachen v. U.S. (1936) 84 F2d 602.
33. See e.g. People v. Strollo (1908) 191 NY 42; Worthy v. State (1937) 184 Ga 402; Taylor v. State (1947) 74 Ga App 205; U.S. v. Cambindo Valencia (1979) 609 F2d 603.
34. See generally on this Kapardis, Psychology and Law, p.235.
35. Hersey [1998] Crim.L.R. 281. This is especially pertinent because many cases involve shopkeepers robbed by customers whose voices are familiar.
36. Hammersley and Read Psychology and Law op. cit. n.1.
37. In the research conducted by Ladefoged, he was unable to recognise his mother's voice when hearing only a sentence or single word, Yarmey, (1995) Psychology and Law op. cit. n.1, p.797. See e.g. Cowans v. State (1978) 145 Ga App 693 (no danger in spouses recognising each others' voices!).
38. As recognised by McHugh and Gummow JJ., in Bulejcik v. The Queen [1995-6] 185 C.L.R. 375, p.406.
39. Whilst not applying this test, U.S. courts have accepted "familiarity" when there has been prior exposure only once (Commonwealth v. Hayes (1884)) or twice (U.S. v. Saulter (1995) 60 F 3d 270) prior exposure.
40. See Smith (1984) N.S.W.L.R. 463. There may be both recognition and a distinctive voice: Benecke (1999) June 22 NSW Supreme Court. Smith was heavily influenced by U.S. authorities, but may have placed too much weight on these: see Ormiston J. in Harris No. 3 [1990] VR 310. This approach has been rejected throughout the rest of Australia: Victoria (Hentschel [1988] V.R. 362); Australian Capital Territories (Miladinovic (1992) 109 ACTR 11) Tasmania (Greaves v. Aikman (1994) 74 A.Crim.R. 370). The NSWLRC in its Report No. 56 Evidence, noted the conflict but made no recommendation. See the short review by Carracher, "Voice identification Evidence" (1993) Australian Bar Review 75.
41. Hammersley and Read, Australian Bar Review op. cit. n.1, p.139.
42. See e.g. in Brownlowe (1987) 24 A.Crim.R. 377, NSW CCA, rejecting as distinctive a voice described as "calm, soft and . . . Australian".
43. There is no guarantee that a particular individual will be better able to recognise a particular voice based on familiarity nor that a given voice will be identified because of its features.
44. A single previous exposure to the offender's voice was sufficient to admit the evidence in Commonwealth v. Williams (1870) 105 Mass 62; Riner v. State (1937) 128 Fla 848; State v. Hall (1928) 7 SW 2d 1001. Cf. cases where voice identification held insufficient alone - People v. Abelson (1956) 309 NY 643; U.S. v. Borronw-Iglar (1972) 468 F2d 419.
45. State v. Burnison (1990) 247 Kan 19.
46. See e.g. Criminal Procedure and Investigations Act 1996, Police Act 1997, Regulation of Investigatory Powers Act 2000.
47. e.g. the abolition of corroboration requirements, relaxation of rules relating to children's evidence and competence, and the proposed relaxation of the hearsay rule (Law Commission Report No. 245 (1997).
48. See recently Khan v. U.K. [2000] Crim.L.R. 684 ECHR.
49. Which would probably be useless because the intonation and intensity would be markedly different from the sample heard by the witness to the crime.
50. On memory and its evidential implications see generally New Zealand Law Commission Evidence Miscellaneous Paper No. 13: Total Recall - The Reliability of Witness Testimony (1999) chapter 2.
51. On memory, see the Report of the Devlin Committee, op. cit., n. 13, chapter 4.
52. Bull and Clifford, (1984) Report of the Devlin Committee, op. cit. n.12, p.93.
53. For an accessible discussion of memory and visual identification, see Kebbell and Wagstaff, Face Value: Evaluating the Accuracy of Eyewitness Identification (1999), p.2.
54. See NZLC, Report No. 13, op. cit. n.40, p.4.
55. ibid. p.2.
56. See e.g. cases of murder: Duffy (1998) March 30 (unreported).
57. See Roberts [2000] Crim.L.R. 183.
58. See Hersey [1998] Crim.L.R. 281; Gummerson [1999] Crim.L.R. 680 CA; Knight (March 14, 1969), noted in Devlin Committee Report op.cit. n.13, p.67; and Smith (1986) 7 NSWLR 444.
59. e.g. Bentum (1989) 153 JP 538; (1989) 153 J.P.N. 611, CA (heroin importation); Deenik [1992] Crim.L.R. 578, CA (importing cannabis).
60. See Lewis March 14, 1972, noted by the Devlin Committee op. cit. n.12, p.67.
61. As in Robb (1991) 93 Cr.App.R. 161; [1991] Crim.L.R. 539, CA.
62. See e.g. Chedzey (1987) 30 A.Crim.L.R. 451.
63. Telecommunications Act 1984, section 53. See e.g. Scott (1999) 43 WCBJ 7516 (Can.).
64. Oddly, this does not seem to have appeared in one English case - Mehemi (2000) Jan 21, unreported, where the offender's threatening calls to a witness were recorded and relied on at his trial for perverting the course of justice.
65. Voice evidence might also have collateral uses such as confirming identity in cases involving the legitimacy of a telephone interception, see e.g. Gram (1999) 132 CCC 3d 531. This might also be assessed electronically.
66. A classic example being the misuse of DNA evidence.
67. One specific danger is that the experiments often use undergraduates as "witnesses", which may be unrealistic given their higher average IQ. O'Rourke, Penrod, Cutler and Stuve, "The External Validity of Eyewitness Identification Research: Generalising across subject population" 13 Law and Human Behaviour 385.
68. Voice researchers disagree among themselves, and often criticise each other for "poor methodology" Bull and Clifford, (1984), Law and Human Behaviour op. cit. n.12, p.93.
69. See the very explicit acknowledgement by Hammersley and Read, Law and Human Behaviour op. cit. n.1 at p. 132.
70. Coady, Testimony: A Philosophical Study, (1992) at p.276,
71. Wells, "Applied eyewitness-testimony research: System variables and estimator variables" (1978) 36 Journal of Personality and Social Psychology 1546;
72. Yuille, "A Critical Examination of the Psychological and Practical Implications of Eyewitness Research" (1980) Law and Human Behaviour 335.
73. Koehnken and Maass, "Eyewitness Testimony: False Alarms on Biased Instructions?" (1988) 73 Journal of Applied Psychology 363.
74. Maass, "Logic and Methodology of Experimental Research in Eyewitness Psychology" in Sporer, Malpass and Koehnken, (eds), Psychological Issues in Eyewitness Identification (1996).
75. See Flege, Munro, and Fox, "Auditory and Categorical Effects of Cross-Language Vowel Perception" (1994) 95(6) Journal of the Acoustical Society of America 3623;
76. Goggin, Thompson, Strube and Simental, "The Role of Language Familiarity in Voice Identification" (1991) 19(5) Memory and Cognition 448.
77. Bilinguals performed equally well in each language. See also Thompson, "A language effect in voice identification" (1987) 1 Applied Cognitive Psychology 121.
78. Other factors affecting descriptions include the length of exposure to the voice, the witness's age, the clarity of speech, the medium through which it was heard, attempts to disguise the voice, the passivity of the witness, dialects and accents, the number of voices heard and other environmental conditions: see generally, Bull and Clifford (1999), Applied Cognitive Psychology op. cit. n.12,
79. and Hammersley and Read, Applied Cognitive Psychology op. cit. n.1.
80. Van Wallanedael, Surace, Hall, Parsons, and Brown "Earwitness" voice recognition: factors affecting accuracy and impact on jurors" (1994) 8 Applied Cognitive Psychology 661, p.669.
81. Yarmey, "Voice Identification Over the Telephone" (1991) 21 Journal of Applied Social Psychology 1868.
82. See Yarmey, Journal of Applied Social Psychology op. cit. n.1, p.794.
83. Wapouri [1993] 2 NZLR 410 per Holland and Hardi Boyes JJ., p.417 (emphasis added).
84. See Smith (1984) N.S.W.L.R. 463. There may be recognition of a distinctive voice: as in Benecke (1999) June 22, NSW Supreme Court.
85. Scherer, "Voice Quality Analysis of American and German Speakers" (1974) Journal of Psycholinguistic Research 281, p.295,
86. and see Bull, "Voice identification by man and machine". In Lloyd-Bostock (ed.), Psychology in legal contexts: Applications and limitations (1981), p.30.
87. Scherer, Psychology in legal contexts: Applications and limitations ( op. cit. n.66, p.295.
88. Bortz "On the reciprocal relationships between rating of speakers' voices and the voice of the rater" (1970) Archiv fur Psychologie 231. See e.g. Eastman v. The Queen (1997) unreported Fed Ct. June 25, ACT (Aus.).
89. Pear, Voice and Personality (1931), cited in Bull and Clifford;
90. Clifford, "Memory for Voices: The Feasibility and Quality of Earwitness Evidence" in Lloyd-Bostock and Clifford (eds), Evaluating Witness Evidence (1983), p.213.
91. See also Bull and Clifford, (1984) Evaluating Witness Evidence ( op. cit. n.12, p.103.
92. Evaluating Witness Evidence ( ibid., p.100.
93. See also Lass and Colt "A comparative study of the effect of visual and auditory cues on speaker height and weight identification" (1980) 8 Journal of Phonetics 277.
94. Bull and Clifford, (1984) Journal of Phonetics op. cit. n.12, p.100.
95. State v. Kinard (1985) 39 Wash. App. 871, and see Clifford v. Commonwealth (1999) 7 SW 3d 371.
96. See e.g. claims by Lass and Davis, "An investigation of speaker height and weight identification" (1978) 60 Journal of the Acoustical Society of America 700,
97. and Cohen, Crystal, House and Neuburg, "Weighty voices and shaky evidence: A critique" (1980) Journal of the Acoustical Society of America 1884.
98. See e.g. Pilcher v. U.S. (1902) 113 F 248.
99. Read and Craik, "Earwitness Identification: Some Influences on Voice Recognition" (1995) 1(1) Journal of Experimental Psychology. Applied 6, found no tendency for accuracy to increase with confidence for conversational voices.
100. Bull and Clifford, (1999) Journal of Experimental Psychology. Applied op. cit. n.12, reported significant relationships between accuracy and confidence ratings.
101. Yarmey found a small but significant correlation (.26) Salsove and Yarmey, Journal of Experimental Psychology. Applied op. cit. n.1;
102. Deffenbacher, Journal of Experimental Psychology. Applied op. cit. n.1, p. 115.
103. Hollins and Perfect, "Methodological Differences Make a Difference When Evaluating Eyewitness Confidence" (1997) Expert Evidence 43.
104. Van Wallanedael, et al., Expert Evidence op. cit. n.61, p.670.
105. See Colebrook (1999) unreported August 27, NSW CCA (Aus). Yarmey, "Verbal, visual, and voice identification of a rape suspect under different levels of illumination" (1986) 72 Journal of Applied Psychology 363.
106. Cutler and Penrod, "Forensically Relevant Moderators of the Relation between Eyewitness Identification Accuracy and Confidence" (1989) 74 Journal of Applied Psychology 650,
107. Cutler and Penrod, "Improving the Reliability of Eyewitness Identification: Line-up Construction and Presentation" (1988) 73 Journal of Applied Psychology 281.
108. Estrella, "Admissibility of Evidence in Voice Identification of Defendant as Affected by Allegedly Suggestive Voice Lineup Procedures" 55 ALR 5th 423.
109. On sequential testing see Kapardis, ALR 5th op. cit. n.24, p.254.
110. For discussion of the evidence eyewitness cases, Yarmey, Yarmey and Yarmey, "Face and voice identifications in showups and line-ups" (1994) Applied Cognitive Psychology 453, p.455.
111. See comments in U.S. v. Otero-Hernandez (1976) 418 F. Supp. 572.
112. S v. M (1963) (3) SA 183, 184.
113. Hoffman, The South African Law of Evidence (1970), p.440; see also Chitate 1966 2 (SA) 690.
114. Wapouri [1993] 2 NZLR 410, per Holland and Hardie Boyes JJ., p. 417.
115. See further McKenzie, "Psychology and Legal Practice: Fairness in Identification Parades" [1995] Crim.L.R. 200.
116. See Kebbell, "The Law Concerning the Conduct of Line-ups in England and Wales, How Well Does it Satisfy the Recommendations of the American Psychology-Law Society" [2000] 24(3) Law and Human Behaviour p.309.
117. [1992] Crim.L.R. 578.
118. cf. Knowles (1993) unreported.
119. [1998] Crim.L.R. 281.
120. [1999] Crim.L.R. 680.
121. Read and Craik, Crim.L.R. op. cit. n.12.
122. Deffenbacher et al., Crim.L.R. op. cit. n.1 argue that delay of the identification test is one of the few variables that has much validity in assessing the accuracy of earwitness reports.
123. Recognition accuracy declined from 83% to 13% over a 5 month retention interval.
124. Yarmey (1995), Crim.L.R. op. cit. n.1, p.806.
125. Bull and Clifford (1983), Crim.L.R. op. cit. n.12, p.201.
126. Saslove and Yarmey, Crim.L.R. op. cit. n.1.
127. Van Wallanedael et al., Crim.L.R. op. cit. n.61, p.662;
128. Legge, Grosmann and Pieper, "Learning unfamiliar voices" (1984) 10 Journal of Experimental Psychology: Learning, Memory and Cognition, 298.
129. "Voice information may persist in memory for much longer than most researchers believe at present" Read and Craik, Journal of Experimental Psychology: Learning, Memory and Cognition, op. cit. n.15, p.8.
130. New Zealand Law Commission (1999), Journal of Experimental Psychology: Learning, Memory and Cognition, op. cit. n.40, at para. 80.
131. In some cases, there has been a very short delay indeed between offence and testing - four hours in State v. Blevins (1988) 13 Conn. App. 413.
132. Avoiding spurious claims that the defendant's rights to a speedy trial have been infringed by the delay in holding a parade, State v. Cary (1967) 49 NJ 343.
133. Goggin et al., Journal of Experimental Psychology: Learning, Memory and Cognition op. cit. n.59, p.457.
134. Orchard and Yarmey, "the effects of whispers on voice-sample duration and voice distinctiveness on criminal speaker identification." (1995) Applied Cognitive Psychology 249, p.258.
135. Van Wallanedael et al., Applied Cognitive Psychology op. cit. n.61, p.663;
136. "Certainty of response is unlikely to be a good predictor of speaker identification in any practical sense." Saslove and Yarmey, Applied Cognitive Psychology op. cit. n.1, p.115.
137. Olson, Juslin and Winman, "Realism of Confidence in Earwitness Versus Eyewitness Identification" (1998) 4(2) Journal of Experimental Psychology: Applied, 101, 113.
138. See Orchard and Yarmey, Journal of Experimental Psychology: Applied, op. at. n.2.
139. Wells, Eyewitness Identification: A System Handbook (1988).
140. Bull and Clifford, (1999) Eyewitness Identification: A System Handbook op. cit. n.12.
141. Defence expert's claim that recordings of the suspect's voice quality were poor was rejected in Gratton v. State (1984) 456 So 2d 865.
142. See Yarmey et al., Eyewitness Identification: A System Handbook op. cit. n.80, p.455.
143. (1967) 388 U.S. 293 where D was convicted and sentenced to death.
144. Although the retention period was only a matter of minutes, 30% of the witnesses falsely identified the innocent suspect in the one person line-up. In contrast, 19% made a false identification of this person in the voice line-ups, Yarmey et al., Eyewitness Identification: A System Handbook op. cit n.80, p.462.
145. e.g. Jefferson v. State (1992) 206 Ga. App. 544; US ex rel Marino v. Rundle (1971) 328 F. Supp. 154; State v. Packhard (1981) 184 Conn. 258. See also Wapouri [1993] NZLR 410.
146. See e.g. U.S. v. Pheaster (1976) 544 F2d 353.
147. See also the comments doubting the validity of parades in Smith (1984) 1 NSWLR 462, 478-480.
148. Wise v. US (1967) 127 App. D.C. 279 - W hearing D speak at scene of burglary held admissible.
149. See State v. Emery (1975) 230 NW 2d 521; cf. State v. Atkins (1994) WL 81524. On cases where the witness discovered that the voice was the suspect one before the test see Wilson v. State (1984) 282 Ark. 551 (admissible); McCone v. State (1993) 866 P2d 740; Jackson v. State (1991) 594 So2d 1289 (inadmissible).
150. The court upheld convictions despite the defendant's challenge that his voice was distinctive and others were not in U.S. v. Watson (1995) 66 F 3d 337; While v. State (1989) 773 F 2d 211; People v. Holden (1985) 703 p 2d 603; cf. People v. Vallez (1978) 80 Cal. App. 3d 46 where foils were all Hispanic speakers and able to mimic the suspect.
151. For minimal matches see Commonwealth v. Turner (1975) 237 Pa Super 201; U.S. v. Dupree (1977) 553 F 2d 1189; U.S. v. Chandler 17 MJ 678 1983.
152. See Woltager, Marwitz and Leonard, "Suggestiveness in photospread line-ups: similarity induces distinctiveness" (1992) Applied Cognitive Psychology 443.
153. See also Levi and Jungman, "The Police Lineup: Basic Weaknesses, Radical Solutions" (1995) 22 Criminal Justice and Behavior 347.
154. The position would be even more difficult if the match had to be with the description rather than the suspect. E.g. in one recent case the description was of a male, gentle, whispering-type voice; or, someone with a "London-type accent": Hersey [1998] Crim.L.R. 281.
155. If the parade is witness-description based it would remain preferable for expert selection to reduce the potential for unfair parades, and to diminish the need for expert testimony at trial.
156. Prof. Bull's evidence was held inadmissible in Hersey, Bull and Clifford, (1999) Criminal Justice and Behavior op. cit. n.12, p.195.
157. See Yarmey (1995), Criminal Justice and Behavior op. cit. n.1, p.808,
158. and Kapardis, Criminal Justice and Behavior op. cit. n.24 Ch. 10.
159. This echoes conclusions in eyewitness identification research. Seelau and Wells, "Applied Eyewitness Research: The other mission" (1995) 19 Law and Human Behavior 319, p.320.
160. Yarmey, Law and Human Behavior op. cit. n.62, p.1874.
161. Van Wallanedael et al., Law and Human Behavior op. cit. n.61, p.661.
162. For a review of eyewitness material on dangers of confrontations rather than parades, see Yarmey, et al., Law and Human Behavior op. cit., n.1, p.454.
163. U.S. ex rel Bennett v. Myers (1967) 38 1 F2d 814; US v. Davis (1996) 103 F 3d 600; Wagner v. State (1985) 474 NE 2d 476; State v. Worthern (1989) 550 So 2d 399. However, one court rejected the same words as they were spoken "emotively" - Commonwealth v. Marini (1978) 375 Mass 510.
164. Read and Craik, Law and Human Behavior op. cit. n. 12, p.11.
165. Law and Human Behavior op. cit. n.1, p.145.
166. In one bizarre U.S. case only the suspect repeated the offender's words - People v. Avina (1968) 264 Cal. App. 2d 143.
167. One research study used the expression "the tide was out and the sun shone on the white sand of the beach": Yarmey, Law and Human Behavior op. cit. n.62, p. 1868. It is not explained why this was used, and it should not therefore be taken as such as a "paradigm".
168. State v. Gallagher (1995) 286 NJ Super 1.
169. Commonwealth v. Miles (1995) 420 Mass 67: all read from a school textbook.
170. (1999) Law and Human Behavior op. cit. n.12, p.202.
171. State v. Parker (1990) 53 Ohio St 3d 82.
172. Saslove and Yarmey, Law and Human Behavior op. cit. n.1, p.115.
173. See also Clifford, (1983) Law and Human Behavior op. cit. n.12.
174. Read and Craik, Law and Human Behavior op. cit. n.12, p. 15.
175. Wigmore, Evidence (2nd ed. 1923), para. 2265. On self incrimination by voice identification in the USA see Guthrie, "Requiring Suspect or Defendant in Criminal Case to Demonstrate Voice for Purposes of Identification" 24 ALR 3d 1261 (1969).
176. See also Inbau, "Self Incrimination - What Can an Accused Person be compelled to do?" (1999) 89 J. Crim. L. and Criminology 1329.
177. Cassar and Sleimann (1999) unreported April 30, NSW Crim. Div., Sperling J.
178. U.S. v. Dionisio (1973) 410 U.S. 1, p.7. In addition, see U.S. v. Franks (1975) 511 F 2d 25; State v. Vice 190 SE 2d 510 1972; U.S. v. Askins (1972) 351 F. Supp. 408; U.S. v. Wade (1967) 388 U.S. 218.
179. U.S. v. Dionisio 1973 410 U.S. 1.
180. The New Zealand Court of Appeal confirmed that there was "no reason to require [the suspect's] consent to a situation created so as to enable his voice to be identified". Per Holland and Hardie Boyes JJ., in Wapouri [1993] 2 NZLR 410, 420.
181. Sorby v. Commonwealth (1983) 152 C.L.R. 281, per Gibbs C.J. at 292.
182. Marcoux and Solomon v. R (1975) 24 CCC (2d) 1, and AG Quebec v. Begin [1955] SCR 593, 602; Pelland (1997) unreported April 14, Ontario CA.
183. (1999) 136 CCC 3d 217 Quebec CA.
184. 17.5. v. Williams (1983) 704 F 2d 315. In Dionisio (1973) 410 U.S. 1, it was held that a grand jury is entitled to compel a sample from a suspect.
185. (1997) 15 CRNZ 451.
186. See by comparison Mason [1987] Crim.L.R. 641.
187. (1999) 133 CCC 3d 349, Ont. Ct, O'Connor J. See similar reasons against using bail hearing testimony in Sicurella (1997) unreported November 4, Ontario Ct.
188. Bull and Clifford, (1999), J. Crim. L. and Criminology op. cit. n.12 assert without explanation that it is less likely for a suspect to disguise his voice at a line up p. 197.
189. People v. Bozzi (1971) 36 Mich. App. 15.
190. It might be too restrictive to specify that parts of a recorded interview should never be used. It could be made clear in accompanying Codes of Practice that this is not desirable unless it is the best/only option. See the U.S. case in which the tape of the suspect's voice played to the witness included elements of his confession. Commonwealth v. Vanderlin (1990) 398 Pa Super 21. Special provision for the illiterate would have to be made, e.g. repeating text read to them.
191. Recordings of all three would be kept so that the defence would be able to challenge the decision.
192. As in ss.34-38 of the Criminal Justice and Public Order Act 1994 and s.11 of the Criminal Procedure and Investigations Act, 1996.
193. On potential civil challenges to parades see Daly v. Sharples (1996) unreported November 20, Lexis.
194. cf. People v. Sims (1976) 64 Cal. App. 3d 544; U.S. v. Gilbert (1999) 181 F 3d 152. See on the psychological research Kapardis, J. Crim. L. and Criminology op. cit. n.24, p.262,
195. and Hammersley and Read, J. Crim. L. and Criminology op. cit. n.1, p. 144.
196. See in relation to visual identification Kebbell and Wagstaff, Face Value Evaluating the Accuracy of Eyewitness Identification (1999).
197. This has given rise to considerable difficulty in the USA - People v. Reese (1981) 121 Cal. App. 3d 606; State v. Ferguson (1986) 391 NW2d 172; Meggs v. Fair (1980) 621 F2d 460.
198. See on U.S. procedures Estrella, Face Value Evaluating the Accuracy of Eyewitness Identification op.cit. n.79.
199. State v. Davis (1979) 287 NC 566-7; Bane v. State (1981) 424 NE 2d 1000-6; State v. Emery (1975) 230 NW 2d 521 and State v. Ripperger (1994) 514 NW 2d 740-3; State v. Blevins (1988) 13 Conn. App. 413-2. See also R v. Chitate 1966 (2) SA 690, and R v. Gericke 1941 CPD 211-5.
200. Wells, Face Value Evaluating the Accuracy of Eyewitness Identification op. cit. n.15, p.93.
201. Wells (1999) Face Value Evaluating the Accuracy of Eyewitness Identification op. cit. n.12, p.201.
202. Wells (1999) Face Value Evaluating the Accuracy of Eyewitness Identification p.201. ibid.
203. See Clarke and Becker, "Comparison of techniques for discriminating among talkers" (1969) Journal of Speech and Hearing Research 747.
204. Yarmey et al., Journal of Speech and Hearing Research op. cit. n.80, p.462.
205. [1998] Crim.L.R. 281.
206. [1999] Crim.L.R. 680.
207. The New Zealand courts follow this approach for voice identification: Wickramasinghe (1992) 8 CRNZ 478; McFarlane (1995) 13 CRNZ 354; Wapouri [1993] 2 NZLR 410, as do the Australian courts: see Macay [1985] VR 623. See also the Commonwealth Evidence Act s. 116 and New South Wales Evidence Act s.116.
208. Van Wallanedael, et al. Crim.L.R. op. cit. n.61.
209. See Fergus (1994) 98 Cr.App.R. 313; (1994) 158 J.D. 49, CA.
210. See O'Brien C.J. in Smith (1984) 1 NSWLR 462, 473. It has been accepted in the USA: see Hornsby v. State (1993) 210 Ga. App. 571; People v. Wintje (1985) 115 App. Div. 2d 510. There is no justification for dock identifications where the witness has already provided a positive pre-trial identification e.g. Commonwealth v. Marini (1978) 375 Mass 510.
211. Unless representing himself.
212. U.S. v. Brown (1981) 644 F 2d 101.
213. See e.g. Blackstone v. Commonwealth of Virginia (1997) October 7, unreported.
214. U.S. v. Delaplane (1985) 778 570; D read from Time magazine in US. v. Williams (1983) 704 F. 2d. 315.
215. The Court of Appeal will quash convictions where this does not happen: Pope (1987) 85 Cr.App.R. 201 CA.
216. [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060; (1981) 73 Cr.App.R. 124; [1981] Crim.L.R. 648, CA.
217. As in Baxter (1997) 263 Br. Col. CA (Can.).
218. Crim.L.R. op. cit. n.1, p.118 accepting that it could be of use in a police investigation.
219. Similarly, the leading English researchers, Bull and Clifford (1999), concluded that "prosecutions based solely on a witness's identification of a suspect's voice ought not to proceed, or if they do proceed, they should fail" Crim.L.R. Op. cit. n.12, p.202.
220. Legge, Crim.L.R. op. cit. n.96;
221. but cf. Deffenbacher, Crim.L.R. op. cit. n.1, p.111.
222. [1992] 3 NZLR 450.
223. See also McFarlane (1995) 13 CRNZ 354, where voice recognition was by a co-worker who heard the voice over an intercom in a very busy and noisy factory environment.
224. Commonwealth v. Williams (1870) 105 Mass 62; Riner v. State (1937) 128 Fla 848; State v. Hall (1928) 7 SW 2d 1001.
225. Yarmey (1995), Crim.L.R. op. cit., n.1, p.807;
226. Yarmey, et al., Crim.L.R. op. cit. n.80, p.458.
227. On jury warnings in USA see People v. Zocchi (1987) 133 App. Div. 2d 478; State v. Ferguson (1986) 391 NW2d 172; U.S. v. Telfaire (1972) 152 U.S. App. DC 146; People v. Storch (1989) 176 Mich. App. 414. In Australia see Brownlowe (1987) 7 NSWLR 461. In Hong Kong Wong Ngan-Wa (1995) December 19, HKCU unreported.
228. Wapouri [1993] 2 NZLR 410 per Eichelbaum C.J. at p.413. The factors affecting the reliability in that case were listed as including: the witness having no previous familiarity with the voice, the witness having heard it when just wakened from sleep, the offender speaking angrily with a non-distinctive voice, the exposure to the voice being brief, a contemptuous test voice, the witness being unaware that the accused was a suspect, a parade of two voices only, with interview-type conversation, the speed of identification by the witness.
229. It has been found to be material by many including Legge, et al., Crim.L.R. op. cit. n.96.
230. Longer exposure was also investigated by Pollack, Pickett and Sumby, "On the identification of speakers by voice" (1954) 26 Journal of the Acoustical Society of America 403;
231. Bricker and Pruzansky, "Effects of stimulus content and duration on talker identification" (1966) 40 Journal of the Acoustical Society of America 1441;
232. Murray and Cort, "Aural identification of children's voices" (1971) 11 Journal of Auditory Research 260;
233. Cook and Wilding, "Earwitness Testimony: Never mind the Variety, Hear the Length" (1997) 11 Applied Cognitive Psychology 95.
234. Orchard and Yarmey, Applied Cognitive Psychology op. cit. n.101, p.259.
235. Yarmey (1995), Applied Cognitive Psychology op. cit. n.1 (1991) 1873.
236. Clifford, Rathborn and Bull, "The effects of delay on voice recognition accuracy" (1981) 5 Law and Human Behaviour 201, found that listeners aged 40+ were less accurate than younger adults.
237. Stranger-voice identification accuracy increases from ages 12-16 years" Bull and Clifford (1984), Law and Human Behaviour op. cit. n.12, p.96.
238. Deffenbacher suggests that children require longer exposure to produce the same reliability, Law and Human Behaviour op. cit. n.1, p.111.
239. Goggin, et al. Law and Human Behaviour op. cit. n.59.
240. Goldstein, Knight, Bailis and Conover, "Recognition memory for accented and unaccented voices" (1981) 17 Bulletin of the Psychonomic Society 217. See the witness claiming that D had a Geordie accent when he was in fact Welsh - the witness was Australian and claimed experience of the Geordie accent from watching the film "Geordie"! Chedzey (1987) 30 A.Crim.R. 451.
241. See e.g. the Court of Appeal of NSW in Smith (1987) 7 NSWLR 444; although agreeing with O'Brien C.J. on points of voice identification raised in the trial, the court ordered a retrial owing to his failure to provide an adequate warning. See also Gibson (1999) November 26, 1999 NSW, Lexis Transcript.
242. See e.g. Albon (1996) June 26, unreported, Lexis transcript.
243. (1996) 135 ALR 517.
244. See dicta in Taylor (1995) March 31, unreported CA.
245. The identification suite should have adequate recording facilities such that any dispute as to the procedure used and the quality of the material, etc., can be settled (preferably before the trial proper).
246. cf. Portillo (1999) 43 WCB 2d 100 (Can.); State v. Hicks (1951) 233 NC 511.
247. [1975] Q.B. 834.
248. The usual rules regarding the juries' access to evidence and exhibits in the jury room should apply. See Rampling [1987] Crim.L.R. 823.
249. Under the existing substantive law this might make no difference since A will be treated identically.
250. If the witness has failed to pick out B, A's assertion that it was B is unlikely to make much impact on the jury. A will probably be forbidden from calling expert evidence regarding the general reliability of voice identification.
251. Eleventh Report (Evidence General), para. 196.
252. See also on this Kapardis, Eleventh Report (Evidence General), op. cit. n.24, p.232.