Gregory Chandler - Voice Identification

In litigation, one need not be an expert to testify to matters that are of personal knowledge. One example is shown in United States v. Bush, 405 F.3d 909 (10th Cir. 2005).  The defendant, convicted of cocaine distribution, argued that it was error to allow the undercover officer to testify as a lay witness that it was the defendant's voice in an incriminating conversation that was surreptitiously recorded and played at trial. 

The appellate court affirmed, finding no error in admitting the voice identification testimony under Federal Rule of Evidence 701.  The undercover officer had sufficient familiarity with the defendant's voice from speaking to him in person and numerous times over the telephone.  Moreover, the testimony was helpful to the jury, since the defendant exercised his right not to testify and the jury never heard his voice. 

The 10th Circuit's reasoning is sound on the issue of a lay witness being able to testify about an individual's voice based on personal knowledge.  I must question, however, the court's comment about the defendant exercising his right not to testify because such a position injures a defendant's right not to testify at trial.  The 10th Circuit is clearly wrong in even raising the fact that the defendant invoked his right not to testify against himself.  As to this case, the 10th Circuit needs to take a continuing legal education course on the invocation of privileges. 

GREGORY CHANDLER, Attorney at Law