Federal Evidence Review

Sufficient familiarity was shown for agent to identify the defendant’s voice on a recorded conversation based on prior interview; prosecution eyewitness identification manual was hearsay and could not be admitted as a learned treatise, in United States v. Norman, 415 F.3d 466 (5th Cir. 2005) (per curiam) (No. 04-20177)

Identification issues can present unique challenges and can arise in different manners at trial. One case highlighted two separate identification issues. The first involved the identification of the voice of one of the defendants in a recording made during a drug transaction. The second issue involved a hearsay question concerning a manual on eyewitness identification.

In the case, two defendants were charged with drug offenses based on their participation in a drug transaction. An informant wore a wire during one meeting which was recorded. During the trial, an agent identified defendant Norman’s voice on the audio recording and on the transcript of the recording. The voice identification was based on the agent’s contact with the defendant for about an hour during an interview prior to his arrest. The second defendant sought to cross-examine DEA agents with a Department of Justice manual on eyewitness identification to suggest that the appropriate procedure for eyewitness identification had not been followed. Specifically, the defense claimed a photo lineup should have been used instead of a single photo of the suspect. The trial court noted the agents were not testifying as experts and the manual was inadmissible hearsay. The jury convicted both defendants and they challenged these rulings on appeal.

Voice Identification And Admissibility Of Recordings

The Fifth Circuit affirmed the voice identification under FRE 901(b)(5), which permits voice identification “by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” The agents’ prior “hour-long discussion with Norman … was clearly a circumstance connecting Norman’s voice with Norman, and therefore is permissible under Rule 901(b)(5).” Norman, 415 F.3d at 472.

Independent of the voice identification, the circuit also concluded that the government had made a sufficient foundation of reliability and accuracy in admitting the audio recording. Norman, 415 F.3d at 472-73 (citing United States v. Cuesta, 597 F.2d 903, 914 (5th Cir. 1979) (noting “that the party seeking introduction of a sound recording into evidence must ‘go forward with respect to the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers’”) (quoting United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977)).

The defendant argued that his voice on the tape was “too short in duration and too accompanied by background noise for a reliable identification to be made, and that the agents’ identification was actually based on statements of the confidential informant and [co-defendant] Scott, neither of whom testified.” Additionally, another agent testified “that it would have been very hard to identify [defendant] Norman based on his discussions with Norman and the tape-recorded voice alone, and indicated that corroboration by the facts in Norman’s confession played a role in his voice identification.” Norman, 415 F.3d at 473.

The circuit agreed with the trial court that the defense contentions went to the weight of the evidence and not admissibility. The identification was further supported by visual surveillance of the drug transaction, and the names used on the recording referring to the participants, which added support to the reliability of the voice identification.

Eyewitness Identification Manual

The Fifth Circuit also affirmed the exclusion of the eyewitness identification manual and agreed that it did not qualify under the hearsay exception for a learned treatise. Rule 803(18) permits learned treatises to be admitted as an exception to the hearsay rule:

“(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.”

The circuit explained:

“The treatise was not established as a reliable authority because [defendant] Norman did not offer an expert in this area, the testifying agents did not recognize the manual, and the court did not take judicial notice of its reliability. Moreover, as stated by the district court, the manual was not being used in cross-examination of expert testimony. The agents’ identification testimony was merely the testimony of lay witnesses. They simply described how they had made the identification from a photograph of Scott. When asked on cross-examination whether they believed that adequate, they merely said they did. None of the testifying agents claimed any special expertise in preferred methods of photo identification by witnesses or the like.

The circuit noted several paths which the defense may have pursued to use the eyewitness manual. None were followed to permit admission of the manual as a learned treatise.