Identifying Voices Speaking An Unfamiliar Language

In cocaine trafficking prosecution, admitting lay testimony of a DEA linguist, identifying the defendant's voice on recorded phone conversations in Spanish, despite the witness not having met or dealt with the defendant; her testimony was admissible lay opinion testimony which was helpful to the jury under FRE 701 to identify the speaker since "recorded conversations in foreign languages present unique issues for juries," in United States v. Mendiola, 707 F.3d 735 (7th Cir. Feb. 11, 2013) (No. 10–1595)

Unlike other areas of identification evidence, identification through use of voice is one of the more common tasks a witness may be called to perform. Normally, the question is self-evident -- the identifying witness's familiarity with the voice of the declarant, along with a subject matter than is consistent with the prevailing context, provides an important, even if not conclusive assessment of the speaker. The Seventh Circuit recently considered a challenge to a witness's voice identification that had occurred at trial. The defendant contended that the identifying witness should have some personal acquaintance with the defendant. The circuit disagreed, but much of its focus was less on ways to satisfy the personal knowledge requirement, than on the matter of what would make the witness's identification "helpful" to the jury.

In the case, federal agents received authorization to monitor the telephone calls of a suspect whom they learned was "expecting a large shipment of cocaine from Mexico to be delivered." From observations of the suspect, the agents were able to track other members of the alleged cocaine conspiracy. Eventually, the members were arrested and all but defendant Mendiola pleaded guilty. At his trial, some of the former co-conspirators testified against the defendant. In addition, the prosecution used the intercepted phone calls in which they alleged the defendant participated because the statements made on the phone "attributed particular acts and responsibilities" to the defendant in the operation of the conspiracy.

A significant part of the evidence against the defendant was disclosed from the telephone intercepts. The defendant's voice on the intercepts had been identified by one of the cooperating co-conspirators. In addition, a positive identification was also made by a "DEA linguist [who] compare[d] a known voice exemplar of the defendant" obtained from calls the defendant made while in jail with the voices on the intercepted telephone calls. The jury convicted the defendant and as part of his appeal, he challenged the admission of the DEA linguist's voice identification of the defendant on the phone intercepts.

The circuit noted that the defendant's theory concerning the phone intercepts was that the government had failed to sufficiently identify his voice as a participant in any of the calls. The defendant contended that testimony by the DEA linguist, identifying the defendant's voice, necessarily had to be expert testimony and that the linguist had not been qualified as an expert and that her identification of the defendant from the recording was impermissible lay testimony.

The circuit rejected the contention that voice identification here required expert testimony. The circuit noted that lay testimony of law enforcement was "routinely used" because these type of witnesses "are the ones who have often heard the wiretap, or had an interview with a suspect," and so had an opportunity to become familiar with the voice.

One point pressed in the defendant's argument on appeal was that the DEA agent's testimony should have been excluded as not helpful to the jury. The defendant claimed that the jury could have listened to the recordings and have judged for themselves if the voice on the recording matched his voice. The circuit rejected this, noting a number of reasons why the agent's voice identification testimony was helpful.

  • Risk Of Duplication: The circuit noted that while it was possible that the jury could have listened to the recording and compared the voice on it to the defendant's voice, "the fact that a jury might have the same opinion as the testifying witness does not negate the helpfulness of the testimony." "We have never held that testimony is unhelpful merely because a jury might have the same opinion as the testifying witness; nor would it be unhelpful merely because another witness has offered the same identification.(citing United States v. Cruz–Rea, 626 F.3d 929, 935 (7th Cir. 2010); United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990)).
  • Difficulties Of "Foreign" Language Voice Identification: "[R]ecorded conversations in foreign languages present unique issues for juries. To address these challenges, a district court judge has wide discretion in determining whether to allow juries to use written transcripts as aids in listening to audiotape recordings. We have emphasized, however, that in cases in which the recording is in a language foreign to the jury, transcripts (along with the proper admonishments about their use) are a “virtual necessity.” United States v. Cruz–Rea, 626 F.3d 929, 936 (7th Cir. 2010) (an English-speaking jury cannot adequately identify voices in languages in which they are not familiar or even fluent.); United States v. Breland, 356 F.3d 787, 794 (7th Cir. 2004)).
  • Voice Identification And Language Fluency: "It is highly unlikely that a nonnative Spanish speaker would be able to hear or identify ... regional idioms and dialectal differences. In fact, recorded conversations in foreign languages present unique issues for juries. To address these challenges, a district court judge has wide discretion in determining whether to allow juries to use written transcripts as aids in listening to audiotape recordings." (citing United States v. Breland, 356 F.3d 787, 794 (7th Cir. 2004)).
  • Common Sense About The Nature Of Voice Identification: "It is simply common sense that an English-speaking jury cannot adequately identify voices in languages in which they are not familiar or even fluent. This is why defendant Mendiola's myriad references to opinions in which courts held that juries could compare photographs or surveillance video themselves are inapt. In many instances, juries are indeed capable of making comparisons between pictures, videos, and human likenesses without any experience or particular knowledge, in a way that an English-speaking jury listening to a Spanish language conversation cannot. This is not to say that juries never need assistance from a lay witness for visual identification. “Generally, a lay witness may testify regarding the identity of a person depicted in a surveillance photograph ‘if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.’ “ (citing United States v. White, 639 F.3d 331, 336 (7th Cir. 2011) (citing United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990)).

In Mendiola, the Seventh Circuit assessed a number of other aspects of voice identification - most that involved a long list of various rules of evidence that the circuit did not consider applicable to the defendant's case, such as FRE 702 (Testimony by Expert Witnesses), FRE 901(b)(5) (Authenticating or Identifying Evidence), FRE 602 (Need for Personal Knowledge), and FRE 1002 (Requirement of the Original). However, the court's discussion of these rules provides insight into the process of voice identification, and rules or procedures applicable to that process.

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