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Reed v. Maryland9/6/1978
Rule 901(b)(5) provides for the identification of any voice by any person who can connect the voice with the alleged speaker by 'hearing' the voice. This language does not preclude testimony by an expert witness who has not 'heard' the voice but who has identified it by the voiceprint technique. Cf. Rule 901(b)(3), (4)." Weinstein's Evidence at 901-61.
It is of interest that these authors, after discussion of Lawrence Kersta and his early experiments in the field here under discussion, state with reference to this technique at 901-69, "At this stage of development, given an adequate expert's testimony, admissibility is warranted."
b. The majority opinion on this subject
The majority opinion cites 28 cases in support of its proposition that the "criterion of 'general acceptance' in the scientific community has come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence." They state the proposition too broadly. For instance, in People v. Busch, 56 Cal. 2d 868, 16 Cal. Rptr. 898, 366 P. 2d 314 (1961), no mention is made of Frye or its criteria. In that case a defendant sought to have a physician testify relative to his use of hypnosis as an analytical tool in his determination of the mental condition of the defendant at the time of the killings in question. The Supreme Court of California pointed out that " he objections were made and sustained on the stated grounds that hypnosis is not a sufficiently scientific means of exploring the state of mind, that the witness was not qualified in this field, and that the opinions were formulated on the defendant's statements and constituted hearsay." The court said that "the witness conceded that this was his initial appearance in the role of an expert in a criminal case on the subject matter of an accused's state of mind; that he was not a psychiatrist and had engaged in the practice of medicine as a general practitioner until shortly before his
appearance in the case [then] at bar as an expert specializing in hypnosis." The court further stated:
"In laying a foundation for the introduction of opinion evidence of the state of mind of a defendant based upon the use of a technique not theretofore recognized by the courts as sufficiently reliable to form the basis for such an opinion, at the very least, some showing of its successful use in the examination of others than the defendant for the same purpose, either by the witness or by other experts in the field, would appear to be required. We are persuaded that under the circumstances herein narrated the trial judge did not act unreasonably in his determination that a proper foundation was not established as to the reliability of an analytical tool still seeking recognition in the field of psychiatry, or as to the qualifications of this particular witness to give an opinion on the state of mind of the accused on the occasion of the commission of the homicides herein. It must be remembered, '* * * the general rule is that the trial court, in passing upon the qualification of a witness offered as an expert, has wide discretion, and an appellate court will not disturb its ruling in the absence of a manifest abuse of such discretion.' (People v. Chambers, 162 Cal.App.2d 215, 220, 328 P.2d 236, 239; see also People v. Goldsworthy, 130 Cal. 600, 604-605, 62 P. 1074.) In the instant case no abuse of discretion is demonstrated and the trial judge justifiably sustained the objections presented by the record in this case to the admission of the offered opinion testimony based on the use of hypnosis." 16 Cal. Rptr. at 903-04.
In State v. A
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