SERIES 300 EVIDENCE
F 315.2 IDENTIFICATION: VOICE
TABLE OF CONTENTS
F 315.2 Inst 1 Factors to Consider In Proving Identity By Voice Identification
F 315.2 Note 1 Eyewitness Factors To Consider: Voice Identification
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F 315.2 Inst 1 Factors to Consider In Proving Identity By Voice Identification
Voice identification testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. You must view voice identification testimony with caution and evaluate it carefully. In evaluating the weight, if any, to be given voice identification testimony, consider the believability of the witness, as well as other factors which bear upon the accuracy of the witness’s alleged identification of the defendant’s voice, including, but not limited to, any of the following:
1. [the stress, if any, to which the witness was subject at the time [he] [she] heard the alleged perpetrator;]
2. [the witness’s capacity to make a voice identification;]
3. [the period of time between the alleged criminal act and the voice identification;]
4. [the length of time the witness heard the alleged perpetrator’s voice;]
5. [the positions and distances between the witness and the perpetrator at various times;]
6. [the presence of background noise or other limiting conditions;]
7. [the presence or absence of any circumstances that might focus or distract the witness’s attention;]
8. [whether the alleged perpetrator’s voice was familiar or unfamiliar to the witness;]
9. [whether the witness was able to identify the alleged perpetrator in a voice lineup;]
10. [the fairness of the voice identification line-up;]
11. [the extent to which the witness is either certain or uncertain of the voice Identification;]
12. [whether the witness’s voice identification is in fact the product of [his] [her] own recollection;]
13. [testimony of an expert regarding acquisition, retention, or retrieval of information presented to the senses of a witness;]
14. [whether the witness’s memory was or was not affected by intervening time and events;]
15. [any other evidence relating to the witness’s ability to make a voice identification.]
Points and Authorities
Generally, the defendant has the right to instructions which relate a defense theory to an element of the charge. When the defense theory is mistaken eyewitness identification, the defendant has a right to instructions which relate the defense theory to the prosecution’s burden of proving identity beyond a reasonable doubt. (See People v. Wright (1988) 45 C3d 1126, 1141-43.)
These principles should also be applicable when the defense theory is mistaken voice identification. The concerns of mistaken identity by voice are no less crucial than as to eyewitness identification. (See Garcia v. Superior Court (1991) 1 CA4th 979, 988 [right to voice ID lineup subject to same considerations as eyewitness lineup]; see also, People v. Molina (1981) 116 CA3d 223, 228 [fairness of pretrial voice ID subject to same analysis as eyewitness ID].) Hence, modified versions of CJ 2.91 and CJ 2.92 should be given to pinpoint the defense theory of mistaken voice identification. (See also People v. Clark (1992) 3 C4th 41, 137 [“As with eyewitness identification, some factors pertaining to voice identification might not be widely known or may be counter intuitive” ].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.11 [Eyewitness Identification]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTES:
See Annotation, Voice identification testimony, 17 ALR5th 851 and Later Case Service.
See Annotation, Admissibility Of Evidence Of Voice.
Identification Of Defendant As Affected By Allegedly Suggestive Voice Lineup Procedures, 55 ALR5th 423 and Later Case Service.
CALJIC NOTE: See FORECITE F 2.92d.
F 315.2 Note 1 Eyewitness Factors To Consider: Voice Identification
(See FORECITE F 315.2 Inst 1.)
See Annotation, Voice identification: Instructions as to identification of accused by his voice, 70 ALR2d 1019 and Later Case Service.
[Research Note: See FORECITE BIBLIO 2.92]
CALJIC NOTE: See FORECITE F 2.92 n8.
