Federal Evidence Review

In appeal of carjacking conviction, although defendant failed to preserve an objection to the voice identification testimony at trial as violating FRE 901(b)(5) and on appeal forfeited review of the identification for plain error under FRE 103(d), defendant's challenge to the voice identification could be assessed under the constitutional standard of due process; witness's identification of the defendant's voice as that of the perpetrator of the charged carjacking was not “so impermissibly suggestive” as to violate the defendant's constitutional due process rights, in United States v. Rice, 607 F.3d 133 (5th Cir. May 12, 2010) (No. 09-40116)

A common feature of many criminal trials is the identification of a defendant as the perpetrator based on identification of the defendant's voice by a witness who heard the perpetrator's at the time of the crime and later at the time of trial. What if a defendant identified in such a way fails to make appropriate objections to the voice identification evidence? Can the issue be pursued on appeal?

A recent Fifth Circuit case demonstrates that a constitutional standard applies to voice identifications, even if a defendant fails to adequately make and preserve a challenge to voice identification evidence at trial, or fails to sufficiently argue plain error in his appeal. What remains for the defendant's objection is a constitutional standard – that the voice identification violated the Fifth Amendment Due Process Clause, as being “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). This recent Fifth Circuit case of United States v. Rice amply demonstrates how routine application of this constitutional basis has become. Yet the case is only marginally of interest as a matter of evidence law. Perhaps it iis an intriguing demonstration that often crime does not pay.

In the case, defendant Rice was charged with carjacking. His attempt to commit this crime presented a curious chronology of failure. During the same day the defendant succeeded in car jacking, this happened only after a long list of failed attempts to carjack or rob victims. The list of earlier attempts that day included:

• At a local bingo hall, defendant Rice … “discussed robbing a woman who had just won the big prize,” but in following her home found that his selected victim had exited her car and he had no convenient way to approach his intended victim.
• That evening, “Rice came up with a plan to order pizza to an abandoned house and then steal the delivery man's pizza, money, and car.” This plan was frustrated when the defendant “learned that they did not deliver after 9 p.m. ”
• Beginning to get hungry, the defendant looked for some action at a grocery store where he saw “an older couple, whom [defendant] followed home.... At the couple's house, Rice … approached [and] the elderly man pulled out his phone and threatened to call the police.” In the face of this threat, the defendant “retreated ”
• After retreating from this confrontation with the elderly couple, the defendant proceeded to a convenience store at a gas station where one of co-conspirator's friends (Reynolds) worked. When the defendant arrived there, they “entered the store” and “asked Reynolds whether they could rob him and later split the profits. Reynolds seemed to think” that this was a joke and he “disregarded the proposal.”

Rice, 607 F.3d at 136.

On a final fifth try of the night, the defendant found his victim. This was Amanda Weeks who entered the gas station in her car. Rice took over her car, was able to rob her of her car and of $200 in cash. After some quick police work in investigation of the incident, the defendant was indicted and proceeded to trial. At trial, the defendant ended up representing himself. During the pretrial hearing, as the defendant represented himself, victim “Weeks heard Rice speak and informed the prosecutor that she could identity his voice as belonging to the person who carjacked her.” The government notified the defendant that it intended to “introduce Weeks's voice identification. Rice unsuccessfully moved to suppress that evidence. The court then allowed Rice to cross-examine Weeks regarding her recollection of the carjacking. After cross-examination, the district court reconsidered Rice's motion to suppress and denied it once again. ” Rice, 607 F.3d at 138.

The defendant was convicted at trial and as one of his grounds on appeal he raised the Weeks voice identification as erroneous. The circuit rejected the challenge, noting that the only ground for evaluating the voice identification was on the basis of the constitution:

“Rice avers that Weeks's voice identification testimony violated due process. For a particular identification to violate due process, it must be “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

“Several factors support the district court's finding that Weeks's identification was reliable. First, she demonstrated a high level of certainty regarding her identification. Both before and during trial, she expressed no doubt that Rice's voice was identical to the carjacker's. Second, the evidence showed Weeks was paying close attention to the perpetrator's voice during the crime. She testified that she responded immediately to his verbal commands and was able to describe in detail his distinctive way of speaking. Finally, although eight months elapsed between the incident and the identification, the district court correctly found that, given Weeks's specific and vivid recollections, the passage of time did not give rise to a substantial likelihood of misidentification. Therefore, Weeks's testimony did not violate due process."

Rice, 607 F.3d at 143 (citing Roper v. Beto, 454 F.2d 499, 502 (5th Cir. 1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)) .

The circuit also noted the weakness of the defendant's basis for appeal on this ground and the narrow nature of the review that the circuit could undertake. This was because defendant Rice did not raise an objection “based on Federal Rule of Evidence 901(b)(5) in the district court” to the witness's evidence. Then in filing his appellate brief he failed to “sufficiently raise the issue so as to warrant our review for plain error. See Fed. R.App. P. 28(a)(9)(A) (requiring that appellant's brief contain his “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). Accordingly, we address only Rice's due process claim. Rice, 607 F.3d at 142 n.2 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (analyzing totality of the circumstances to evaluate due process concerns raised by identification testimony)).

The defendant in Rice apparently was no more skillful as his own defense lawyer than he was as a carjacker or robber. The Fifth Circuit 's disposition of his challenge to the voice identification was almost perfunctory in places. Yet the case is of interest because it briefly identifies some of the differing standards applicable to voice identification - one or all of which may be applicable in an evidence case.

For more on the issue of voice identification, see FRE 901(b)(5) Blog Coverage..