UNRELIABLE EVIDENCE
VOICE IDENTIFICATION EVIDENCE
• Only recently featuring in appellate case law
• The procedural safeguards are less developed than for visual identification
• Sense that the courts are still feeling their way
• Generally called voice recognition evidence or voice identification – recognition being that
they contend that they recognise the voice e.g. it is already known to them
• Sometimes called auditory identification and aural identification.
DPP v Crowe [2015]
Appellant convicted of sending a menacing message – the offence was intimately connected with
the actual voice thus if it wasn’t his voice, he was not guilty. The victim here was a garda – a
detective sergeant – at home in bed when his work phone rang.
‘is that Mr. Smith,’ witness replied yes. Caller then said, ‘Robert Smith’ and at the same he was
saying that the Garda said ‘Denis Smith’ and the caller said, ‘Damien smith,’ or anyway it’s you that I
want. ‘You are up on a cross pointing down at me. I want 10,000 euro for your murder.’ There was a
pause and caller said, ‘you’re a dead man I want you to understand you’re up on a cross.’
The Garda interpreted that statement – you’re up on a cross – as a reference to being on a cross that
you’d see through a telescopic sight e.g. under surveillance. Viewed through something that had a
cross at the mid-point
The next day, Garda went to station. He was shown a video recording of an interview that had taken
place between the Gardai at the station and the appellant, Crowe for that phone call. DS Smith said
he immediately recognised the voice of the appellant as the voice on the phone. He said at trial that
he listened for approx. 15 seconds before indicating that he recognised the voice. The appellant was
being interviewed at that time on suspicion and for that exact phone call to DS Smith.
Under cross-examination, he said that when he heard the tape, he knew about the circumstances of
the appellant’s arrest and knew about the details of the mobile phone that was recovered at the
time of arrest. He knew this person was being interviewed in direct connection and on suspicion of
this specific offence.
TJ:
Gave jury Casey No.2 warning in respect of the voice ID evidence – applied it to the phone call –
danger, rationale, multiple people, no matter if honest etc
Differences was the specific conditions – these were given.
On appeal, argued that the voice ID evidence should not have been left to the jury and therefore the
conviction was unfair
Edwards J
- It is accepted that there are significant infirmities in the voice identification evidence in this
case that expose it to legitimate criticisms:
, Infirmities:
(i) DS Smith knew that the appellant being interviewed was the only suspect in the
case, and may thus have been ‘subliminally biased’ towards a positive identification
- Only exposed to one voice, no mode of comparison
(ii) His identification was not based on any specific identifying characteristics such as
accent; timbre of voice; an attribute or trait such as a lisp; a stutter or a stammer;
usage of colloquialisms or idiosyncrasy in manner of expression; or an individual
mannerism such as a reflex clearing of the throat before commencing speaking
- ‘thereby rendering it difficult to test its reliability in cross-examination’
- If the Garda witness was being questioned, it would merely be a case of - how did you
recognise this etc – I just did – can’t really say, ‘because ___’
- Implies that had the appellant a distinctive characteristic in his way of speaking, that
identification based on a singular piece of evidence would be more convincing.
(iii) The pre-trial ID procedure lacked safeguards such as the use of foils for comparison
purposes
- Witness should’ve been exposed to a number of voices and asked to pick out which one he
recognised
(iv) No record was kept concerning which of the appellants recorded interviews, and
what exact portion of the recording in question, comprised the 15 second segment of
that material which, when it was played to DS Smith, allowed him to identify the
appellant’s voice as being the same as the voice on the tape
- Similar to how the details of an ID parade is required to be documented and kept, specific
details must be kept for voice ID evidence.
- Essential for cross-examination purposes
- Look at O’Reilly for reference to what this voice parade type thing would be
Positives pointing in favour of reliability
- The DS made his identification the day after he received phone call when memory still fresh
- His evidence was that the content was menacing, and notwithstanding that the voice was
non-descript it had resonated immediately
- Recognition instantaneous and expressed with certitude.
Do these remedy the infirmities?
VOICE IDENTIFICATION EVIDENCE
• Only recently featuring in appellate case law
• The procedural safeguards are less developed than for visual identification
• Sense that the courts are still feeling their way
• Generally called voice recognition evidence or voice identification – recognition being that
they contend that they recognise the voice e.g. it is already known to them
• Sometimes called auditory identification and aural identification.
DPP v Crowe [2015]
Appellant convicted of sending a menacing message – the offence was intimately connected with
the actual voice thus if it wasn’t his voice, he was not guilty. The victim here was a garda – a
detective sergeant – at home in bed when his work phone rang.
‘is that Mr. Smith,’ witness replied yes. Caller then said, ‘Robert Smith’ and at the same he was
saying that the Garda said ‘Denis Smith’ and the caller said, ‘Damien smith,’ or anyway it’s you that I
want. ‘You are up on a cross pointing down at me. I want 10,000 euro for your murder.’ There was a
pause and caller said, ‘you’re a dead man I want you to understand you’re up on a cross.’
The Garda interpreted that statement – you’re up on a cross – as a reference to being on a cross that
you’d see through a telescopic sight e.g. under surveillance. Viewed through something that had a
cross at the mid-point
The next day, Garda went to station. He was shown a video recording of an interview that had taken
place between the Gardai at the station and the appellant, Crowe for that phone call. DS Smith said
he immediately recognised the voice of the appellant as the voice on the phone. He said at trial that
he listened for approx. 15 seconds before indicating that he recognised the voice. The appellant was
being interviewed at that time on suspicion and for that exact phone call to DS Smith.
Under cross-examination, he said that when he heard the tape, he knew about the circumstances of
the appellant’s arrest and knew about the details of the mobile phone that was recovered at the
time of arrest. He knew this person was being interviewed in direct connection and on suspicion of
this specific offence.
TJ:
Gave jury Casey No.2 warning in respect of the voice ID evidence – applied it to the phone call –
danger, rationale, multiple people, no matter if honest etc
Differences was the specific conditions – these were given.
On appeal, argued that the voice ID evidence should not have been left to the jury and therefore the
conviction was unfair
Edwards J
- It is accepted that there are significant infirmities in the voice identification evidence in this
case that expose it to legitimate criticisms:
, Infirmities:
(i) DS Smith knew that the appellant being interviewed was the only suspect in the
case, and may thus have been ‘subliminally biased’ towards a positive identification
- Only exposed to one voice, no mode of comparison
(ii) His identification was not based on any specific identifying characteristics such as
accent; timbre of voice; an attribute or trait such as a lisp; a stutter or a stammer;
usage of colloquialisms or idiosyncrasy in manner of expression; or an individual
mannerism such as a reflex clearing of the throat before commencing speaking
- ‘thereby rendering it difficult to test its reliability in cross-examination’
- If the Garda witness was being questioned, it would merely be a case of - how did you
recognise this etc – I just did – can’t really say, ‘because ___’
- Implies that had the appellant a distinctive characteristic in his way of speaking, that
identification based on a singular piece of evidence would be more convincing.
(iii) The pre-trial ID procedure lacked safeguards such as the use of foils for comparison
purposes
- Witness should’ve been exposed to a number of voices and asked to pick out which one he
recognised
(iv) No record was kept concerning which of the appellants recorded interviews, and
what exact portion of the recording in question, comprised the 15 second segment of
that material which, when it was played to DS Smith, allowed him to identify the
appellant’s voice as being the same as the voice on the tape
- Similar to how the details of an ID parade is required to be documented and kept, specific
details must be kept for voice ID evidence.
- Essential for cross-examination purposes
- Look at O’Reilly for reference to what this voice parade type thing would be
Positives pointing in favour of reliability
- The DS made his identification the day after he received phone call when memory still fresh
- His evidence was that the content was menacing, and notwithstanding that the voice was
non-descript it had resonated immediately
- Recognition instantaneous and expressed with certitude.
Do these remedy the infirmities?
