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Windmere Inc. v. International Insurance Co.

Decided: March 19, 1987.

WINDMERE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
INTERNATIONAL INSURANCE COMPANY, DEFENDANT-RESPONDENT



On certification to Superior Court, Appellate Division, whose opinion is reported at 208 N.J. Super. 697 (1986).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

[105 NJ Page 375] Once again we are presented with the question of the admissibility of voiceprints into evidence as reliable scientific tools for determining the identity of a human voice. In this case we have the benefit of hindsight to confirm that adherence to our rules for determining the reliability of scientific evidence precludes the admissibility of voiceprints on this record. In the unusual circumstances of this case, however, we affirm the judgment of the Appellate Division, 208 N.J. Super. 697 (1986), sustaining a jury verdict that denied plaintiff a fire loss recovery from the insurer. The verdict followed a jury trial in which voiceprints were used to assist the jury in comparing the voice

of plaintiff's maintenance man with the voice recorded by police when the fire was reported anonymously by telephone. But because the record was cumulative of other reliable evidence sufficient to sustain the verdict, and the verdict does not appear to have been a miscarriage of justice, we affirm the judgment of the Appellate Division.

I.

Few subjects have generated more literature than the debate about the scientific reliability of the voiceprint.*fn1 In New Jersey, the debate has remained unsettled since the trilogy of decisions emanating from State v. Cary 49 N.J. 343 (1967): State v. Andretta, 61 N.J. 544 (1972), State v. Perez, 150 N.J. Super. 166 (App.Div.1977), and then, most recently, D'Arc v. D'Arc, 157 N.J. Super. 553 (Ch.Div.1978).

The theory behind identification by the voice spectrography method is that people have different vocal cavities and articulators. Thus, one expert's theory of voice uniqueness was based on the way "the articulators interacted with one another and the vocal cavities. The articulators include the lips, teeth, tongue,

soft palate, and jaw muscles. The vocal cavities are the throat, nose, and the two oral cavities formed in the mouth by the positioning of the tongue." * * * Since every person has these unique anatomical characteristics, some experts feel that the sound produced through the interaction of these features should lead to a means of identifying people by their voices alone. [ Cornett v. State, 450 N.E. 2d 498, 500 (Ind.1983) (citation omitted).]

In brief, the scientific procedure was described by Judge Imbriani in D'Arc v. D'Arc, supra, 157 N.J. Super. at 555-56.

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 * * * 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. * * * [The graph represents a tri-dimensional plane with time shown on the horizontal axis, frequency shown on the vertical axis, and the relative amplitude of the voice's intensity displayed by the darkness of the lines. Cornett v. State, supra, 450 N.E. 2d at 500.] 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. * * * 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. (citations omitted).

The admissibility in evidence of the results of voiceprint analysis depends upon its scientific reliability. In a recent series of cases, this Court has restated the principles that it employs in determining whether scientific evidence is admissible to prove an underlying fact in dispute. See State v. Kelly, 97 N.J. 178 (1984) (general acceptance within the professional community can demonstrate scientific reliability of 'battered woman's syndrome'); Romano v. Kimmelman, 96 N.J. 66 (1984) (general acceptance within scientific community demonstrates scientific reliability of breathalyzer test); State v. Cavallo, 88 N.J. 508 (1982) (diagnosis of tendency to commit rape on basis of rapist profile is not scientifically reliable when procedure is not shown to be accepted generally by a scientific community); State v. Hurd, 86 N.J. 525 (1981) (hypnotically refreshed testimony may be admissible if it can be demonstrated that use of hypnosis in a given case was a reasonably reliable means of restoring memory); see also State v. Matulewicz, 101 N.J. 27 (1985) (laboratory report of controlled dangerous

substances may be admissible without further proof if test is shown to be scientifically reliable).

While each of these cases dealt with the use of expert scientific evidence or a scientific device in the context of a criminal trial, the principles are generally applicable to civil proceedings and will assist us here. (In the criminal context, conditions of admissibility must be "clearly established." State v. Johnson, 42 N.J. 146, 171 (1964)). Moreover, even though these principles bear a close resemblance to the familiar Frye test,*fn2 there are differences. There is no need to review in detail each decision. We may summarize their principles by this passage from Romano v. Kimmelman:

In New Jersey, the results of scientific tests are admissible at a criminal trial only when they are shown to have "sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth." State v. Hurd, 86 N.J. 525, 536 (1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967)). Scientific acceptability need not be predicated upon a unanimous belief or universal agreement in the total or absolute infallibility of the techniques, methodology or procedures that underlie the scientific evidence. * * * Reliability of such evidence must be demonstrated by showing that the scientific technique has gained general acceptance within the scientific community. State v. Johnson, 42 N.J. 146, 170-71 (1964). The fact that a possibility of error exists does not preclude a conclusion that a scientific device is reliable. This Court in Johnson noted: "Practically every new scientific discovery has its detractors and unbelievers, but neither unanimity of opinion nor universal infallibility is required for judicial acceptance of generally recognized matters." Id. at 171. Once the showing of general acceptability has been made, courts will take judicial notice of the given instrument's reliability and will admit in evidence the results of tests from the instrument without requiring further proof. Id. [96 N.J. at 80 (citations omitted).]

Obviously, it is the last feature -- the judicial validation of a scientific device for all future use -- that is the critical end product of the inquiry into reliability. Thus, for example, the results of the breathalyzer test may be admissible, subject to evidence of maintenance of the device and the other adjustments noted in Romano, supra, 96 N.J. at 72-73, in all future cases. Judicial notice shall be taken of the reliability of the instrument.

There are generally three ways in which a proponent of expert testimony or scientific results can prove the required reliability in terms of its general acceptance within the professional community: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions which acknowledge such general acceptance of expert testimony. State v. Cavallo, supra, 88 N.J. at 521. Each of these criteria for ...


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