Law And The Expert Witness - The Admissibility Of Recorded Evidence

Abstract

Audio tapes, Video Tapes, Voice Identification, Enhancement and Authenticity Issues related to the admissibility of recorded media must pass certain legal criteria before it can be presented as evidence in a court of law. The dictionary meaning of the word "forensic" is any material that is to be presented to a court of law, such as forensic audio, forensic video, forensic voice identification. This paper will address the issues and procedures involved in the introduction of scientific evidence into a court of law. The recorded evidence issues covered herein will provide the audio expert with the basics of what to expect and how to prepare for a courtroom presentation of audio evidence.

Key Words:

Frye v. United States

Daubert v. Merrell Dow

Federal Rules of Evidence, rule 702

Federal Rules of Civil Procedure, rule 26

general acceptance

gatekeeper

evidentiary reliability

"It will happen like this"

There is a great scene from the movie "Three Days of the Condor" in which Max VonSydow describes to Robert Redford exactly how the C.I.A. plans to kill Redford for knowing too much about one of their operations. He tells him "It will happen like this." Your initial introduction to the legal process of admissibility could possibly "happen like this."

Usually a prosecutor or a defense lawyer will contact an expert and ask for assistance in determining whether an audio or video recording has been edited, whether the voice on the tape is that of his/her client, or whether it is possible to tell if that is really the defense attorney's client in the video robbing the 7 - 11 store. He or she will send a tape that has been provided by the government, or by the opposing attorney or agency. The attorney will expect the expert to conduct an examination and present conclusions and opinions. It is up to the expert as to how to conduct the examinations but the report must be in a format acceptable to the court. The steps one takes in conducting the analysis can be found in the appendix. It is the legal processes, rules and regulations we will deal with in this paper.

When did it all start?

Frye v. United States.

Scientific evidence admissibility started with the holding in the case of Frye v. United States December 8, 1923 (Frye v. United States, 54 App. D.C. 46, 293F.1013, DC Ct App 1923) wherein the Court held, quoting from the brief filed by the defendant;

"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the manner of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject matter so far partakes of a science, art or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, and then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."

The Court in the Frye case went on to state that "numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance (emphasis added) in the particular field in which it belongs."

This opinion initiated the "general acceptance" rule for the admissibility of scientific evidence in the Federal Court system. Many State Court systems also adopted the Frye standard. With time, the Frye standard began to evolve and change. Today, the Frye test for admissibility of scientific evidence has for most Courts been replaced by other standards based on new case law or the adaptation of Federal and State rules of evidence. The two most widely used measures for the admission of scientific evidence are the Daubert standard and the Federal Rules of Evidence.

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