Just as two heads can be better than one, two witnesses authenticating a recording can be better than one. But should Rule 701 or Rule 702 apply to a government witness when authenticating a suspect’s voice on a recording?
The Seventh Circuit Court of Appeals reiterated this week that a sometime government expert can offer lay witness testimony to authenticate recordings.
Georgina Nido, a Spanish-speaking linguist working for the Drug Enforcement Administration (DEA), listened to recordings of Carlos Mendiola's prison telephone conversations prior to testifying before a jury that Mendiola's voice was likely the one on several wiretapped calls in which Mendiola and others planned a large-scale cocaine deal. Mendiola appealed his conviction, arguing that the linguist's testimony constituted impermissible opinion testimony under the Federal Rules of Evidence.
The Seventh Circuit Court of Appeals rejected his arguments.
Prosecutors introduced Title III wire intercepts involving Mendiola and his co-conspirators at trial. Those intercepted calls played an important role in the prosecution because they attributed particular acts and responsibilities to Mendiola.
Mendiola's co-conspirator Alfredo Galindo Villalobos identified Mendiola's voice on several incriminating recorded calls describing multiple aspects of the conspiracy. Those recordings, with Galindo's identification of Mendiola's voice and nickname, provided evidence of Mendiola's participation in the conspiracy, including his role in packaging the cocaine and money, arranging cover loads to hide money sent back to Mexico, housing the drug couriers, obtaining false identification cards, and possessing firearms.
Fortunately for the prosecution, Mendiola's trial didn't depend solely on Galindo's voice identification alone, since the court notes that "testimony of the co-conspirators, like that of many drug traffickers, [is] less than pristine." Nido also identified Mendiola as the speaker on those intercepted conversations
At the end of the trial, the jury found Mendiola guilty of 3 counts of narcotics trafficking, for which the district court judge sentenced him to 151 months in prison.
Mendiola appealed, arguing that Nido was an expert in a lay witness's clothing, and that the trial court should have applied more stringent expert qualification requirements of Federal Rule of Evidence 702 to her testimony. The appellate court disagreed, noting that "Federal Rule of Evidence 901(b) ... enunciates the amount and quality of evidence sufficient to satisfy the requirement of voice identification."
FRE 901(b) explains that, "an opinion identifying a person's voice -- whether heard firsthand or through mechanical or electronic transmission or recording -- based on hearing the voice at any time under circumstances that connect it with the alleged speaker" is sufficient evidence to authenticate or identify a recording. The accompanying notes state that "aural voice identification is not a subject of expert testimony."
The Seventh Circuit has long endorsed that view, so Nido did not need to be vetted as an expert prior to identifying Mendiola's voice.
- USA v. Carlos Mendiola (Seventh Circuit Court of Appeals)
- New Trial: Undisclosed Expert Testimony Sufficiently Prejudicial (FindLaw's Seventh Circuit Blog)
- Sixth Circuit Won't Consider Prior 'Bad' Ruling on Prior Bad Acts (FindLaw's Sixth Circuit Blog)