*1 Maine STATE WILLIAMS.
Thomas Maine.
Supreme Judicial Court of
July
Joseph (orally), M. Jabar Dist. Atty., Au- gusta, plaintiff.
Q’Gara Harrington by & Emmet J. O’Gara, Winthrop (orally), for defendant. McKUSICK, J., Before C. and POMER- OY, WERNICK, ARCHIBALD and GOD- FREY, JJ.
WERNICK, Justice. May
On defendant Thomas Wil- Superior liams was indicted Court (Kennebec County) for the offense of ter- rorizing, 17-A in violation of M.R.S.A. guilty A found § charged, appealed has and he judgment of conviction entered on the ver- dict. appeal.
We deny the
*2
Thereafter, Dr. Tosi and Lt. Smrkovski
person
May
an unidentified
On
speech
through
spec-
testified that
use of a
at the
dispatcher
call to a
telephone
amade
independently
each of them had
trograph
stated that
Department and
Augusta Police
the voices recorded on the two
analyzed
Augusta
go
off at the
going
a bomb
a
tapes
independently
“posi-
and had
proc-
was'in
While the call
Airport.
State
tive
that the unknown voice
identification”
mag-
it on
ess,
Augusta police recorded
the known
telephone
call and
Thereafter,
Richard
Officer
tape.
netic
belonged
the defendant
to the same
voice of
Depart-
Augusta
of the
Police
Gary Judkins
then
that
person. Officer Judkins
testified
recording and
tape
to the
ment
listened
recognized defendant’s voice when
he had
telephon-
person
of the
recognized the voice
recording
he
listened to the
of the
had
Later that
voice
defendant.
ing as the
threat.
bomb
request
police,
day, at the
position
appeal
Dеfendant’s
is that
and read
Augusta police
to the
station
came
speech spectrograph
was error to admit
threatening
rough transcript
a
aloud
community
received and re-
previously
call
telephone
speech spec-
generally accepted
has not
With defend-
police
at the
station.
corded
trograph
scientifically
as a
reliable method
recording was made
agreement,
tape
ant’s
a
of voice identification. Defendant
further
reading.
police
there-
of defendant’s
speech spectro-
event
contends that
recording of
tape
both the
after submitted
voice identification evidence is unreli-
graph
and of de-
threatening telephone
call
able in forensic situations.
of Mich-
reading
fendant’s
to Dr. Oscar Tosi
igan
University and Lieutenant Lon-
Michigan Department
nie Smrkovski of
question
The threshold
we confront
is to
Police,
each to make a voice identi-
determine
under the law. of
what
a
analysis through
fication
the use of
evidence,
governs admissibility
relation
speech spectrograph.
here
type
to the
of evidence
involved.
trial,
gave preliminary
At
Dr. Tosi
The preliminary evidence of record shows
nature,
reliability and scien-
as to the
process
that the
of voice identification used
voice
acceptance
of the “scientific”
by Dr. Tosi
аnd Lt. Smrkovski consists
process
speech spec-
identification
known as
comparison
an aural
of two recorded voices
“voieeprint” analysis.
Dr.
trography
comparison
and a visual
graphic repre-
Gertsman,
College in New
City
Louis J.
“spectrograms”
sentations or
of the record-
York,
Poza,
and Faulsto
a consultant
spectrograms
ed voices. The
used in the
Institute,
testified, prel-
Research
Stanford
comparison procеss
plotted by
visual
allowing
in evi-
iminarily,
spectrograph.
machine known as a
identification
dence
as to voice
spectrograph separates
the sounds of a
speech spectrogra-
achieved
the use of
time, frequency
elements of
voice into
phy-
intensity
plots
these variables on elec-
prelim-
extensive
At the conclusion of the
paper.1
spec-
tronically sensitive
Since
ruled,
inary testimony
person
of thе voice of a
often
trograms
objection,
adequate
that
variety
defendant’s
of con-
vary
over
over time and under
satisfy
circumstances,
him
accuracy
had been shown
foundation
ditions and
has such
(1) voieeprint
process
identification
voice identification
spectrogram
reliability as war-
acceptance
largely dependent
ability, experi-
on the
evidence, (2)
consistency of the ex-
judgmental
ence and
its
rants
dispute
no
that for most
being
here
aminer. There is
opinions
whose
were
century
spectograph
20th
the sound
to assist
qualified
evidence were
sought as
analysis
resorted to for the
widely
has been
jury in its determinations.
frequency
repre-
and the thickness of
spectrogram
axis indicates
The horizontal axis
intensity
sound,
of the voice.
lines discloses the
lapse
verticle
of each
the time
sents
sounds,
speech
and classification of human
within a few оf the
years,
last
us
show[s]
it had not
to identify
but
been used
individ-
many things
which were once re
early
ual human
until
voices
1960’s
garded generally
incredible,
are now
Kersta, a
when Lawrence
scientist with the
admitted universally to be established
Laboratories,
Telephone
Bell
undertook
*3
facts. And
long
as
as the existence of
Thereafter,
projects.
Dr. Tosi
such
con-
facts, which are the
experi
result of
significant experiments
ducted a
number
ments,
by
those versed in the de
in
with
individual voice identification
partment of science to
they per
which
speech spectrograph.
publi-
use of the
tain,
evidence,
are received as
would
in 1971
1972 of the
cation
and
results of
legally erroneous for the court to deter
experiments
expert
these
and
testimony
mine that the absurdity of such facts was
given
by
in cases Dr. Tosi and his associates
great
so
require
as to
their exclusion.”
have induced
courts to allow as еvi-
(43 Me.,
133, 134)
at
dence individual voice identifications made
questionable
It
language
from this
by
speech spectrographs.
use of
Knight
suggesting
special
whether
a
argues
speech spectro
Defendant
standard, such as is stated in Frye, supra, to
graph voice identification rests on new de
govern the admissibility
testimo
velopments
in the
of scientific
ny resting
newly ascertained,
applied,
or
principles and therefore its admissibility as
scientific principles.
recently,
More
governed by
evidence should be
a special
Court
have given stronger
indication
v.
set forth in
as
following
regard
rule in
States,
46, 47,
1013, 1014
App.D.C.
54
293 F.
evidence of the results of lie detector or
(1923):
polygraph tests. Holding polygraph evi
“Just
principle
when a scientific
or dis-
inadmissible,
dence
this Court in
covery crosses the line between the ex-
Casale,
310, 320,
150 Me.
110 A.2d
n
perimental and demonstrable stages is
588
language
resorted to
contained in
difficult
tо define. Somewhere in this
in Boeche v.
Nebraska
twilight
the evidential force
zone
151
(1949),
Neb.
37 N.W.2d
as
principle
recognized,
must be
and while
follows:
go
long
will
way
admitting
courts
in
“
apparent
foregoing
‘It is
au-
testimony deduced from a well-
thorities that
principle
scientific
in-
recognized
principle
scientific
or dis-
volved in the use of
polygraph
has
thing
from which
covery,
the deduc-
yet gone
not
beyond the experimental
tion is made must be
estab-
and reachеd the
stage,
demonstrable
gained general acceptance
lished to have
that it
yet
has not
scien-
received
field in which it be-
”
acceptance.’
tific
longs.”
Mower, Me.,
v.
State
See
“The of scien- detector evidence therefore experiments, poses danger actual the serious principles that a mechanical case also involved the exclusion of evidence. 2. The device, judgment of the argument rather than the Defendant’s relies on the fact jury, credibility. will decide Ca the Rules of Evidence do deal sale, 150 Me. with the specifically admissibility problem reason, questionable For this it remains it may arise virtue of newness in language whether this Court its Cá- or development, application, of scientific purporting specially sale was to establish a principles. Defendant asks us to fill this regarding restrictive standard the admissi gap by establishing an precondi- additional bility any type expert testimony which tion of applicable specially new, of, applications rest on or new proffered expert situation ascertainment, testimony will rest on a new adopted The Maine Rules Evidence new application, principles— purport special establish do not this further condition to be that there must *4 govern admissibility to the of standard tes- “general acceptance” be such dis- newly of newly ascertained, timony involving or ap- principle, covered scientific or new applica- plied, scientific Under the Rules tion of scientific in principle, the relevant of all “relevant” Evidence evidence3 is ad- scientific field. missible We refuse to take course the for “except by limited constitutional re- argues. We believe it would be quirements provided or as by otherwise at odds with the of philosophy fundamental by or applicable statute . . . rules Evidence, our Rules of as revealed more in the courts of this state.” Rule Rules particularly in 402 and M.R.Evid. favoring of admissibility expert the 702, specific In Rule refеrence made to is mony whenever it is relevant be of and can admissibility the testimony: assistance to the trier of As fact.4 stated scientific, technical, specializ- “If or other McCormick (2d on Evidence at 491 ed. § knowledge ed will the of assist trier fact 1972): to understand the evidence or to deter- “ acceptance’ ‘General scientific prop- is a issue, qualified mine a fact in a witness judicial er for taking condition notice of skill, expert by knowledge, as an experi- facts, but not a criterion the ence, training, education, may testify or admissibility Any of scientific evidence. thereto in the form of an or oth- relevant conclusions which are supported erwise.” by qualified expert witness should be As potentially affecting a case of this received unless there are other reasons nature, provides Rule 403 limita- for exclusion. Particularly, probative admissibility tion on the of relevant evi- value bе by the overborne familiar dence: dangers of or the prejudicing misleading “Although relevant, evidence be ex- jury, consumption and undue of time.” substan- probative cluded if its value is (emphasis supplied) outweighed of unfair tially by danger issues, provisions, In accordance with the
prejudice, confusion of the or mis- spirit, and basic of our Rules of jury, Evidence leading or considerations of time, regard to delay, expert undue waste of needless of testi or mony, of presentation justifia- cumulative evidence.” we conclude that there is no (2d 1972): Evidence 203 at § evidence is defined in Rule 401 to ed. “The “Relevant” any having tendency difficulty determining distinguish mean “evidence make how sci- consequence expert testimony, that is of the existence fact entific from evidence other proba- deciding particular of the action the determination more what is the field of science probable without belоngs, ble or less than would be settling to which the evidence and of general acceptance, evidence.” appli- what is has led to an [Frye] cation of . . . test which is conclusion, too, because selective, 4. We reach highly although enlightening as to applying experienced difficulties courts in its details.” explained rule. As McCormick M.R.Evid.). ble principle arising approach distinction in On the we adopt expert may happen to presiding latitude, in- Justice will be allowed a newly denies, volve ascertained or newly applied which the Frye rule to hold admissi- scientific principles. The controlling particular crite- ble in a case proffered evidence ria regarding ascertained, the admissibility involving newly applied, sci- testimony, proffered so long is entific principles which yet have not qualified probative value general acceptance is not sub- achieved in whаtever stantially might to be the outweighed thought applicable the factors men- be scien- tioned in if a community, showing Rule whether in the sound has been judgment which satisfies presiding Justice the testi- proffered reliable to given is relevant and will assist be held Cf. relevant. trier of States fact to understand the evidence (cid:127) Franks, or to determine a fact issue. In cases where the expert testimony proffered newly rests on as With the of admissibility criteria thus certained, or applied, principles, a decided, presiding we address whether stronger become showing may necessary be error, here, admitting Justice committed fore Justice is satisfied that the spectrograph testimony in evidence. preconditions in terms *5 Dr. Tosi’s related to the nature helpfulness of relevance and to the fact- of the finder, spectrograph human voice and the Thus, have been partic met. in the process, experiments thе of his and results ular a given circumstances of case the pre spectrograph the voice reliability of siding Justice fit to may place greater see Simultaneously, identification process. emphasis on the consideration whether or however, Dr. Tosi was careful to explain not the scientific matters involved in the the spectrograph voice identification proffered testimony been generally have ac procеss According is not infallible. Dr. cepted or a generally conform to accepted Tosi, reliability of spectrograph explanatory theory. Cf. United States v. voice identification method is de- highly 519 F.2d 1975) Cir. and pendent ability judg- on the experience, 557 F.2d person ment of the who makes the spectro- Justice may believe graph comparisons. appropriate (1) preju either to avoid might dice which arise because the asser Testimоny given by was acoustical tion that principle, technique, has a oppose spectro- scientists who the use of import “scientific” an objectivity basis graph view, In (1) as evidence. their jury which could unduly influence as a examiners of spectrographic data cannot (2) to assist the lay presiding fact-finder or maintain firm and stable criteria of deci- sion; Justice in responsibility (2) his determine they tend to relax their relevance, within the definition of Rule 401 for making threshold standards a “positive e., M.R.Evid., proffered identification”, i. whether testi where only mony single the existence of likely sample exemplar to make voice is presented voice; consequence probable comparison fact or more for or less with known probable spectrograph experiments than it would be without the evi have many for accounted variables such (dence. telephone recordings, voices, as disguised This, however, saying, is not same as noncontemporaneous recordings, back- rule, that presiding as does the ground persons noise voices of under additional, indepen- Justice is bound an psychological stress. dently controlling standard exists (Rule Yet, over and above relevance M.R. none of the acoustical scientists who Evid.) questioned of the testified capability recordings and the facts that (Rule of of different voices vary to аssist the trier fact human more in NICHOLS, time, intensity (concurring than record- Justice frequency and judgment). spectro- ings the same voice and that can these
graph
accurately plot
variables.
I concur in the judgment.
only on the
focused
cannot,
I
however,
join
opinion
and the exercise
comparison
difficulties
day
the Court this
I
believe it re-
spectro-
judgment and the failure
position
treats too far from the
often tak-
experiments to accоunt
real
graph
en—and
well
this Court that be-
taken —
variables.
recognize
world
we
fore
the evidential force of
applications
new
principles,
of reliability
view the
In
these
should have
accept-
attained
Tosi,
by Dr.
we conclude that
it
presented
community.
ance
the scientific
Justice
error for the
was not
“general
This standard
acceptance”
expert voice
testi
admit the
identification
was recognized by the Court of Appeals of
justi
case. The
was
mony in this
v. the District of Columbia in
finding
princi
that the spectrograph
fied in
States,
1013, 1014
54 App.D.C.
293 F.
qualify
was
reliable to
ple
(1923),
systolic
in which a
pressure
blood
deception
“relevant” within the definition of Rule 401
test was held to have
prop
been
erly excluded from evidence.
M.R.Evid., and that
qualified expert
testimony based
could
of assistance
reject
When our Court had occasion to
as fact-finder.
in evidence of a
test
Cаsale,
150 Me.
The issue raised
regarding
(1954), it
quoted
from
spectrograph process
Nebraska court in Boeche v.
151 Neb.
the weight,
forensic situations concerns
results
such tests was
the determi-
DELAHANTY, J.,
sit.
native factor.
did not
jurisdictions
courts,
relying
336 N.E.2d
A number
courts
in other
442
Some
rule,
primarily
spectrograph
Frye
spec
either on
have admitted
on the
have excluded
general acceptability
trograph
the basis of the
test of
evidence because of the substantial
many
Frye
type
reliability
on the basis of
to it of
acoustical
some
scientists.
See,
Jenkins,
See,
Addison,
g.,
g.,
e.
Stаtes v.
e.
v.
standard.
United
United States
162 U.S.
(6th
App.D.C. 199,
1975);
(1974) (but
Even more when in other or by cross-examination Mower, Me., 314 A.2d our grounded upon thorough acquaintance Court ruled that evidence of the defend- with the novel application of prin- ant’s willingness to take a test ciples. This burden of rebuttal is generally excluded, properly it reiterated the lan- borne in these criminal eases defendants guage of Mottram.1 without the economic means to marshal sci- entific witnesses was the state of for a battle of experts.
Such
the law in this
jurisdiction when in 1976 the Maine Rules
As was observed in United States v.
Evidence,
modeled after
the Federal Brown, supra,
557 F.2d at
the fate of a
Evidence,
promulgated.
Rules
were
defendant should
hang
not
ability
his
702, M.R.Evid.,
Rule
relates generally to
rebut scientific evidence when the expert
testimony by experts without addressing
may be testifying upon the basis of an
specifically
question
of new
unproved hypothesis arrived at in an isolat-
This rule was re-
ed experiment.
It is far better
Advisers,
garded by the
relaxing
first expose his new ideas to the
standards of
but as declarato-
peers.
critical review of
courtroom,
his
Note,
ry of Maine law. Advisers’
M.R.Evid.
all,
after
is not a laboratory.
Id.
A
rule intended as a codification of
Furthermore,
law, however,
existing
adherence to the
today being
em-
stan-
ployed
change
that law.
dard would result in more uniformity with-
in our trial courts than if scientific evidence
We should continue to
adhere to the
may come in whenever the
judge
trial
de-
It is not merely
standard.
because such has
cides it is relevant and concludes it will help
jurisdiction.
been the law in this
It is not
to determine a factual issue.
merely
because the
standard continues
applied
be
federal courts not-
Moreover, the litigants
protect-
would be
withstanding
promulgation
of Federal
ed
a clearer standard of review.
Rules of Evidence. United States
Finally, it
that,
would avoid the risk
McDaniel,
U.S.App.D.C.
538 F.2d
announcing
a lesser
the door may
inadvertently
opened
pseudo-scientific
(6th Cir., 1977);
557 F.2d
expertise.
(9th Cir.,
Kilgus,
To adhere to the
standard
is sufficient basis in
uphold
those cases to
ing general
acceptance
—but
universal —
the admission of spectrographic evidence
community
within the scientific
will en-
trial,
the trial of the instant case without aban
especially
hance the fairness of the
doning
important
It will
difficulty
protections
criminal cases.
avoid
rebutting
expert’s opinion except
Frye affords.
aсcept
Frye
suggestion
g.,
1. I do not
new scientific
that the
E.
United States
peculiarly spe-
Cir.,
1977)
standard is
(ion
“occasioned
Voice
ings, 77 Mil.L.Rev. well, I
For our Court as submit standard would be
adherence
the better course. Maine
STATE of
Pamela BRIGGS.
Supreme of Maine. Judicial Court
July