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D''Arc v. D''Arc

Decided: March 14, 1978.

VICTOR D'ARC, PLAINTIFF,
v.
MARY LEA J. D'ARC, DEFENDANT



Imbriani, J.c.c. (temporarily assigned).

Imbriani

In a matrimonial action a wife obtained a recording of several telephone conversations allegedly involving her husband. The recording was lawfully made by one of the parties to the telephone conversation, U.S.C.A. , Title 18, sec. 2511(2)(d); N.J.S.A. 2A:156A-4(c); State v. Vizzini , 115 N.J. Super. 97 (App. Div. 1971); U.S. v. Bragan , 499 F.2d 1376 (4 Cir. 1974), who later gave the recording to the wife. Pursuant to court order a voice exemplar was made by the husband. A sound spectrogram, commonly known as a voiceprint, was made, and she now seeks to introduce into evidence the recording and the results of the voiceprint test.

A sound spectrograph is an instrument which produces a spectrogram that can be utilized by a trained examiner to purportedly identify the speaker of an unknown voice. The system was devised in the early 1940s by researchers at Bell Telephone Laboratories, Inc. and operates by an electrical process which produces on a sheet of paper a pictorial representation or graphic display of sounds, which is called a sound spectrogram or voiceprint. Annotation, "Admissibility of Spectrograph Evidence," 49 A.L.R. 3d 915, 917 (1973). Identification of an unknown speaker is made by an examiner

who compares the unknown voice with the known voice exemplars of one or more persons. Gorecki, "Comment: Evidentiary Use of the Voice Spectrograph in Criminal Proceedings," 11 Military L. Rev. 167 (Summer 1977). The device does not operate automatically; an individual must operate the machine, adjust numerous controls to obtain readings and subjectively interpret the spectrograms to arrive at an opinion.

The question presented is whether sound spectrograms, or voiceprints, and the opinions of examiners based upon examining and interpreting them, are admissible as valid and accurate scientific evidence in a court of law?

First to review the New Jersey cases. There are three. The precursor is State v. Cary whose proceedings spanned a period of three years. A defendant charged with murder was ordered to provide a voice exemplar so that it could be compared on a spectrograph with an unknown voice on a taped recording. He appealed the order as a violation of his right to privacy protected by the Fourth Amendment. In the first Cary review, 49 N.J. 343, 351 (1967), the court said that "before an intrusion into a person's privacy can be proper within the protections afforded by the Fourth Amendment, the product of the search must have the capacity to be admissible in evidence." The court noted that the only expert offered below was Lawrence G. Kersta, one of the pioneers in the research of sound spectrograms, and in remanding said, "Although we do not wish to dictate in advance the details of the hearing, we do feel that something more than the bare opinion of one man, however qualified, is required." Id. at 352.

The trial court then received testimony from four experts (two of whom appeared in the within proceedings), two for each side, and concluded that "at this time there is a lack of general scientific acceptance as to accuracy of the voiceprint technique." 99 N.J. Super. 323, 331 (Law Div. 1968). A second appeal followed, 53 N.J. 256 (1969), and apparently sensing an adverse decision, the State sought

an additional opportunity to offer "further expert testimony." Id. at 258. Because of the far reaching implications of such evidence, the request was granted. But when later advised that the State was "not, at this time, able to furnish any new and significant evidence," the finding of the trial court was affirmed, 56 N.J. 16, 18 (1970).

There soon followed State v. Andretta , 61 N.J. 544 (1972). The trial court had concluded "that the State had failed to meet its burden of establishing general acceptance of the voiceprint method." Id. at 546. The Supreme Court observed the increased support for the admissibility of voiceprint evidence since Cary , but noted that the narrow question presented was whether defendant should be compelled to speak for a voiceprint test, not whether such evidence was admissible during the trial. It concluded that defendant should be compelled to submit his voice exemplar. There is no history of what followed on the remand. It is interesting that the court relied upon United States v. Raymond , 337 F. Supp. 641 (D.D.C. 1972), which was appealed and, although the conviction was affirmed, the trial court's admission of voiceprint evidence was held to be erroneous because "[w]hatever its promise may be for the future, voiceprint identification is not now sufficiently accepted by the scientific community as a whole." United States v. Addison , 162 U.S. App. D.C. 199, 498 F.2d 741, 745 (D.C. Cir. 1974).

The most recent case is State v. Perez , 150 N.J. Super. 166 (App. Div. 1977), involving tapes made by electronic surveillance of telephones. A monitoring detective, "although not qualified as an expert in voice identification," id. at 170, was allowed to give his opinion that defendant's voice and that of the taped telephone speaker were the same, in spite of the fact that "[n]o scientific basis for the introduction of the spectrographic test results had been placed in the record." Id. at 170. Thus, Perez appears to be of limited application.

At this time, no appellate court in New Jersey has ever concluded that the sound spectrogram, or voiceprint, has attained sufficient scientific acceptance of its accuracy and validity so as to be admissible as evidence during the trial of a case. Cf. State v. Andretta, supra.

Prior to 1971 courts generally refused to admit voiceprint testimony. Thereafter, several courts accepted such testimony for the limited purposes of issuing an arrest and search warrant, State ex rel. Trimble v. Hedman , 291 Minn. 442, 192 N.W. 2d 432 (Sup. Ct. 1971), to corroborate aural identification, Worley v. State , 263 So. 2d 613 (Fla. D. Ct. App. 1972), and to compel a defendant in a criminal case to submit a voice exemplar. State v. Andretta, supra; State v. Olderman , 44 Ohio App. 2d 130, 336 N.E. 2d 442 (App. Ct. 1975). Other courts admitted voiceprint identification evidence as direct and independent proof of the identity of a speaker. Hodo v. Superior Court , 30 Cal. App. 3d 778, 106 Cal. Rptr. 547 (1973); Commonwealth v. Lykus , 327 N.E. 2d 671 (Mass. Sup. Jud. Ct. 1975); United States v. Franks , 511 F.2d 25 (6 Cir. 1975); United States v. Baller , 519 F.2d 463 (4 Cir. 1975). And still other courts rejected such evidence. People v. Kelly , 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P. 2d 1240 (Sup. Ct. 1976); United States v. ...


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