Federal Evidence Review

The in-court identification of the defendant’s voice on tape-recorded telephone conversations was proper where the detective had gained familiarity with defendant’s voice at initial post-arrest interview, in United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998), amended, 161 F.3d 1195 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999) (No. 96-30363)

In identifying a voice at trial, how much familiarity must the witness have with the person’s voice? FRE 901(b)(5), which governs voice identification, provides: “Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” The voice authentication standard is not a high one, as demonstrated by a Ninth Circuit case.

During the trial involving a cocaine smuggling conspiracy, recorded telephone conversations were played. A detective identified the defendant’s voice. The detective was exposed to the defendant’s voice during a post-arrest interview. The jury convicted the defendant. On appeal for the first time, he challenged the identification of his voice on the recorded call by the detective.

The Ninth Circuit found that the voice had been sufficiently authenticated. While the issue was reviewed for plain error since no trial objection had been made, no error was found.

“Rule 901(b)(5) establishes a low threshold for voice identifications offered to determine the admissibility of recorded conversations. So long as the identifying witness is ‘minimally familiar’ with the voice he identifies, Rule 901(b) is satisfied. The record reveals that [detective] Speziale was present in Anchorage at Plunk’s initial post-arrest interview. The familiarity that he gained through that exposure was sufficient under Rule 901(b)(5) to support his identification of Plunk’s voice on the tape recorded conversations being offered into evidence.”

Plunk, 153 F.3d at 1022-23 (citations omitted).

The Plunk case underscores that lay opinion identification may be based on minimal exposure, which may satisfy the requirement that the identification is “based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” Normally, once authentication is demonstrated, the adequacy of the identification goes to the weight of the evidence and not its admissibility. See, e.g., United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005) (“Once minimal familiarity is satisfied, it is for the jury to assess any issues regarding the extent of the witness’ familiarity with the voice. Detective Bench’s testimony that he recognized Mr. Bush’s voice as J.R.‘s based on three face-to-face conversations and various exchanges via telephone is more than adequate to authenticate Mr. Bush’s voice as that of J.R. for purposes of admissibility in conformance with Rule 901. All the rule requires is that the identifier, Detective Bench, have heard the voice of the alleged speaker, Mr. Bush,at any time. This standard has easily been met.”).