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Hastings Law Journal

Abstract

Many of the problems that people have identifying speakers solely by their voices are similar to those that people have as eyewitnesses. The amount of exposure, the nature of the identification process, and the number of exposures all matter in determining how likely a witness is to make a correct identification. Yet while the reliability of eyewitness identification has been a focal point in the news, scholarly literature, and the courts, the reliability of earwitness identification has gone virtually unnoticed in the case law and legal literature. The reluctance of the legal system to deal with this problem stems from a confluence of ignorance, rigid adherence to historical positions that are no longer tenable, and some interesting judicial missteps concerning the accuracy of "voiceprints" that have made courts unreceptive to voice identification research.

This Article examines the law governing both lay and expert identification of speakers, and evaluates existing doctrine in light of a great deal of basic research into how accurate people are at identifying an individual by his voice. While the doctrine concerns itself with reliability, many of the factors that make voice identifications either more or less reliable are not considered in the case law. Additional research shows that experts in phonetics are more accurate in identifying speakers than are lay people, suggesting that experts may play some role in the process. However, this Article does not support the admission of voiceprint analysis to identify speakers, despite some recent appellate decisions that have accepted this approach. The Article concludes with a series of recommendations, including less suggestive identification techniques, the limited use of experts, a more sophisticated approach to assessing reliability, and the use of informative jury instructions.

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