"General" Voice Identification Evidence Fails FRE 403 Juror Confusion Test

In racketeering enterprise conspiracy trial, excluding expert testimony "that voice identifications are often mistaken" as evidence to impeach statement by the victim's daughter's statement that it was the defendant who had called her father on the day he disappeared; although expert voice identification testimony is not always "worthless" for identification purposes, it was excludable under FRE 403 when it's probative value was substantially out weighed by its likely unreliability and prejudice possible from jury confusion, in United States v. Schiro, __ F.3d __ (7th Cir. May 1, 2012 (Nos. 09–1265, 09–1287, 09–1376, 09–1602, 09–2093, 09–2109)

Earlier this year, the Federal Evidence Blog reported on a recent Supreme Court case that defined a jury's role of assessing the reliability of eyewitness identification evidence. When this identification did not involve "improper law enforcement activity," the Court in Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012), recognized at least five "protections" in the criminal justice process that would ensure that a defendant's Due Process rights are not violated by a eyewitness identification which was not unduly suggestive as a result of actions by the police. The Court specifically suggested five "protections" or "safeguards" in the process in which the reliability of eyewitness identification evidence can be tested. These protections include "[1] the presence of counsel at post indictment lineups, [2] vigorous cross-examination, [3] protective rules of evidence, and [4] jury instructions on both the fallibility of eyewitness identification and [5] [jury instructions on] the requirement that guilt be proved beyond a reasonable doubt." Perry, _ U.S. at _.

Last week the Seventh Circuit took another look at a challenge to the use of witness identification testimony. While Perry was not specifically discussed several concerns in considering an "ear-witness" challenge. The majority opinion in Schiro points to several specific factors in determining the admissibility of such evidence and which were applied to exclude the expert testimony. The circuit did not explicitly use the five factors that arise in Perry. Ultimately, its decision would rely on the third factor in a Perryanalysis.

In the case, co-defendant Marcello was tried with four others in a racketeering conspiracy involving the multiplicity of criminal activities by local gangs. After his conviction, the defendant alleged that the trial court erred in excluding the expert testimony he offered regarding the reliability of a voice identification admitted in the case. Specifically, the defendant noted that the trial court admitted evidence that the "victim's daughter identified Marcello's voice as that of the man who called her father on the day of the father's disappearance."

To counter this evidence, the defendant sought to "present an expert witness who would testify that voice identifications are often mistaken." Apparently the expert did not address in particular the voice identification of defendant Marcello by the victim. Rather, he sought to present general evidence about the voice identification technique. The trial court declined to admit this expert evidence on methodology.

The trial judge was of the view that such evidence was inherently fallible. The circuit noted that in the defendant's case, the court questioned the "empirical basis" for the expert's testimony. In addition, the court felt such testimony would not ultimately be helpful to the jury because the jury already "had a good understanding of the fallibility of 'earwitness' identification."

The Seventh Circuit agreed that it was not an error to exclude the expert evidence. According to the circuit:

We do not suggest that such expert evidence is worthless or that jurors always grasp the risk of misidentification inherent in eyewitness and earwitness testimony. But a trial judge has a responsibility to screen expert evidence for reliability and to determine the total effects of proposed evidence, weighing its probative value against its potential to (among other things) confuse the jury. Both reliability and potential for confusion were factors in this case and we cannot say the judge abused his discretion in refusing to admit the expert evidence, which the jury might have taken as a signal that it should disregard the witness's identification testimony. If jurors are told merely that voice identifications frequently are mistaken, what are they to do with this information? The defendant's lawyer will argue mistaken identification and jurors told that such mistakes are common may be afraid to make their own judgment.
Schiro, __ F.3d at __ (citing FRE 403); United States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009)).

Ultimately the Seventh Circuit seemed in Schiro to neglect the Perry factors. Perhaps one reason was that unlike Perry it does not appear that the proffered expert was of the same order in Schiro. The issue was not evidence dealing with the specific evidence on the defendant; instead it focused on the general problem of "ear" identification and not on the defendant's procedure in particular. Curiously, the one reference to Schiro to the Perry case appears in the dissent by Judge Wood.

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