Assessing Lay Witness “Helpfulness” In Foreign Language Voice identification

In conspiracy to distribute cocaine trial, admitting law enforcement lay testimony identifying the defendant’s voice as helpful to “this particular jury, sitting in Massachusetts” because there was “no evidence” jurors “possessed the same mastery of the Spanish language” as did the agent "a native speaker familiar with the particular accents, intonations and speaking habits of persons from” the defendant’s native country, in United States v. Díaz-Arias, _ F.3d _ (1st Cir. April 29, 2013) (No. 11-2271)

One of the more common-sense stumbling blocks to admission of lay witness testimony under FRE 701 is to assess whether a witness’s testimony would be “helpful” to the jury in understanding the case. In a recent opinion, the First Circuit suggested that a defendant’s challenge to a witness’s helpfulness should be based on a defendant’s production of evidence that the particular jury that heard the defendant’s case” could not have been helped.

In the case, the defendant was arrested along with several co-conspirators as part of a cocaine distribution conspiracy in Massachusetts. The defendant was linked to the conspiracy based on wiretapped phone conversations recorded between co-conspirators in which he “spoke in code, referring to kilograms of cocaine as ‘cars’ and money as ‘tickets.’” The task the prosecution faced was proving that the voice of a person referred to “Hipolito” was that of the defendant. Díaz-Arias, __ F.3d at __.

In addition to other evidence connecting the voice to the defendant, the trial court admitted the government’s proffer of transcripts of the wiretapped conversations along with their recordings. The government had a case agent testify as a lay witness regarding the identity of the speaker Hipolito in the tapes. The foundation for the agent’s lay testimony consisted of evidence that he had worked for nearly 30 years in narcotics enforcement, including “doing surveillance and serving as affiant on wiretaps.” Díaz-Arias, __ F.3d at __. He also described the manner of wiretapping in the case.

As the defendant failed “to dispute that the transcripts accurately reflected the words spoken among the speakers, which were translated from Spanish into English,” the circuit noted the key question on admitting the witness's voice identification was whether it would be helpful to the jury. The defendant contended that the witness’s testimony was not “helpful” as required by FRE 701 because admittedly the witness had never “spoken with” with the defendant “in person.” Díaz-Arias, __ F.3d at __. The defendant argued that the witness’s lay opinion testimony could not possibly be helpful to the jury. The jury was completely capable of deciding for itself whether the the voice on the tapes was the defendant’s.

The First Circuit rejected that the witness’s testimony did not comply with the helpfulness requirement of FRE 701. First, the circuit noted that it was the defendant’s burden to show that a witness it objected to was not helpful. The defendant made the charge here, but provided no evidence. Nor did any evidence of this arise at trial. Instead, the witness described his role in the wiretapping of the conversations he would testify about, as well as his work in other drug investigations. The witness also described his facility for identifying the defendant’s voice, particularly since, as a native Spanish speaker who used the language frequently in his investigations, he was particularly familiar with the speaking intonations and accents of persons from the Dominican Republic, such as the defendant. Díaz-Arias, __ F.3d at __.

In addition the witness testified that he spent around three hours to review 16 recorded phone calls in order to make the voice comparisons necessary to identify the defendant . He compared the wiretapped conversations it recordings the parties had agreed presented a recent sample of the defendant’s voice. The witness made the comparisons using several factors including:

(1) things that were unique to the voice, such as greetings, laughter, tone manner and speech pattern; (2) certain expressions that could not have been rehearsed; (3) certain expressions that were indicative of something the speaker did all the time; and (4) if the speaker used, or responded to, his name, and whether the speaker referenced to having spoken with someone else beforehand.
Díaz-Arias, __ F.3d at __.

The First Circuit noted that the circumstances of the defendant’s case included elements that showed the witness and the jurors “were not in the same position when it came to comparing the voices in the recordings, and therefore, the jury could have found the [witness’s] testimony to be helpful.” The circuit explained that its conclusion was not based simply on a hypothetical jury, but rather the jury that actually heard the defendant’s case. It appeared that it would not

have been able to readily draw the inferences and conclusions necessary to identify Dias-Arias’ voice, in the absence of [lay witness] Trooper Cepero’s testimony. Arias-Diaz can point to no evidence that this particular jury, sitting in Massachusetts, possessed the same mastery of the Spanish language as did Trooper Cepero, who is a native speaker familiar with the particular accents, intonations and speaking habits of persons from the Dominican Republic. Lacking this background, the jurors were in a less advantageous position than Trooper Cepero was in making the voice comparison, as they would have had trouble understanding the words being spoken amongst the speakers and telling their voices apart. This, in turn, would have hampered their efforts to detect how specific words were being repeated and vocalized by the speakers, to the detriment of their efforts to make a voice comparison.

The jurors also benefited from Trooper Cepero’s guidance in making their voice identification because Trooper Cepero testified as to the particularities they should look for, including the speaker’s unique intonation of certain words, greetings and laughter. Trooper Cepero was able to derive these indicators thanks to the significant amount of hours he was able to devote, before trail, to listening to and comparing the voices of Hipolito [purportedly the defendant] and Díaz-Arias. In this regard, Trooper Cepero’s testimony may have actually saved time for the jury.
Díaz-Arias, __ F.3d at __ (emphasis added).

The circuit concluded the admission of the trooper’s lay testimony identifying the defendant was not problematic, even if the witness had never personally talked with the person whose voice he was trying to identify. As the circuit in Díaz-Arias noted, and as indicated by the emphasized portions of the excerpt from the opinion in the above two paragraphs, a number of factors may affect the helpfulness of a lay witness’s testimony to the jury, where helpfulness is understood to be that the witness’s “opinion was just as good as the jury” on making any or no identification:
  • Background Of The Trial Jury: This jury sitting in Massachusetts was unlikely to have sufficient knowledge of Spanish to aid their identification, as compared to what the lay witness could offer.
  • Comparative Skills: The jury was in a “less advantageous position” than the witness was in making the voice comparison because they were not “familiar with the particular accents, intonations and speaking habits of persons” speaking Spanish so that they “would have [been] hampered [in] their efforts to detect how specific words were being repeated and vocalized by the speakers”
  • Approach To Identification: While the witness was not testifying an expert he was able to describe how he made the identification, leaving it to the jury to apply its own tests
  • Facilitating Jury’s Work: The circuit noted that the witness’s lay testimony was particularly appropriate because given the issue the jury addressed, his testimony may have actually saved time for the jury
Díaz-Arias, __ F.3d at __

In addition to its guidance on the elements of what might be helpful to a jury in terms of lay testimony on voice identification, the opinion in Díaz-Arias also suggests that the assessment of witness helpfulness is a fact-specific inquiry. The question is not whether the witness would be helpful to any rational jury, but rather whether the witness was helpful to the particular jury involved in the case. This issue may pose other troubling questions when one considers that this is the same jury that by definition should be a jury of the defendant’s peers.

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