Reed v. Maryland9/6/1978
second was a mail survey, as reported in a scientific journal, which resulted in an unfavorable reaction. Dr. Baker also noted that the majority of articles on the subject were negative in their characterization of the process.
The extent of disagreement in the scientific community was emphasized in the instant case by the testimony of Dr. Henry Hollien, another expert witness for the defense, who stated:
" I have conducted or directed about six major studies using [the voiceprint] technique.
"One of the things we have done, and we are the only people who have done this . . . we have applied our technique to . . . [simulated crimes], and it of course doesn't work.
"There was nothing wrong with trying to use it [the technique]. It failed. Now it is an abuse.
"Q. It is an abuse because you feel there are some people not qualified to use it?
"A. No, no. It is the data. See, I don't think the people that use it know about the research literature. . . . There are many studies that have been published which show the problems with this. There is a huge literature that would demonstrate why they should back off, put a moratorium on this until we have some knowledge, and not foster this upon the judicial system and law enforcement agencies. It amounts to a fraud. I don't think they realize it. They don't know what is going on, you see." (Emphasis added.)
There has been a sharp division among the cases which have considered the admissibility of voiceprint evidence after the emergence of the controversy over Tosi's claims.
Three state supreme courts, California, Michigan and Pennsylvania, have held the evidence inadmissible. Commonwealth v. Topa, supra; People v. Kelly, supra; People v. Tobey, supra. In addition, the District of Columbia Court of Appeals, in Brown v. United States, 384 A.2d 647 (D.C. 1978), has also held voiceprint evidence inadmissible. On the other hand, the Supreme Court of Massachusetts has, in a divided opinion, held the evidence admissible, Commonwealth v. Lykus, supra. And see State v. Williams, 388 A.2d 500 (Me. 1978).
Two lower state courts have recently ruled voiceprint evidence admissible: People v. Rogers, 86 Misc. 2d 868, 385 N.Y. Supp. 2d 228 (1976); and State v. Olderman, 44 Ohio App.2d 130, 336 N.E.2d 442 (1975). However, in D'Arc v. D'Arc, 157 N.J. Super. 553, 385 A.2d 278 (1978), the New Jersey Superior Court ruled voiceprint evidence inadmissible.
In the United States Courts of Appeal, voiceprint evidence has been held inadmissible in United States v. Addison, supra, and admissible in United States v. Baller, supra, and United States v. Franks, 511 F. 2d 25 (6th Cir. 1975), cert. denied, 422 U.S. 1042, 95 S. Ct. 2654, 45 L.Ed.2d 693 (1975).
All cases holding voiceprint evidence inadmissible have done so on the ground that the process fails to satisfy the standard articulated in United States v. Frye, supra. It is important to note, however, that neither United States v. Baller, supra, nor United States v. Franks, supra, in holding voiceprint evidence admissible, seemed to apply the Frye test. In Franks, the court stated (511 F. 2d at 33):
"Although we, of course, are aware of the differences of . . . scientific opinion concerning the use of voiceprints, we also are mindful of 'a considerable area of discretion on the part of the trial judge in admitting or refusing to admit' evidence based on scientific processes." (Emphasis supplied.)
Similarly, in United States v. Baller, supra, the court, after considering the Frye standard, stated (519 F. 2d at 466):
"Unless an exaggerated popular opinion
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