Lay witness with "special familiarity" may identify the voice of a defendant in trial (90.701)

Posted by Joe Bodiford on

Florida Evidence Code

The Florida Supreme Court decided Johnson v. State (SC17-845) on September 6, 2018.  It receded from a prior position, and now holds that where a voice identification witness may acquire a special familiarity with the defendant's identity at any time prior to trial, that witness may then make that identification before a jury. 

90.701 Opinion Testimony of Law Witnesses

Following is the text from the case, with the agent's name removed:

In this case, the case agent's familiarity with Johnson's voice arose as the lead investigative agent who investigated the conspiracy over 100 days, listened to thousands of recorded phone calls, and confirmed Johnson's identity and voice during his in-person interview. Further, the record reflects that agent listened to the phone calls both in real time and after the fact. The jury in this case did not share the agent's familiarity with Johnson and was not in the same position to assess the identity of the voices on the recorded calls. Additionally, the jury was unable to simply compare the voice on the recorded calls to the DVD of the hearing where Johnson testified because the DVD was not admitted into evidence due to Johnson's objection. Because the agent had the opportunity to become familiar with Johnson's voice over the course of the conspiracy investigation, the agent was in a better position to make the identification and his testimony did not invade the province of the jury. Accordingly, the record demonstrates that the agent possessed a special familiarity with Johnson's voice. However, based on our precedent in Evans, Agent Scovel's familiarity established after the investigation was ongoing would prevent him from obtaining the requisite prior special familiarity with a suspect's voice.

However, as Justice Lewis outlined in his dissent in Evans, “Florida courts have consistently allowed law enforcement officers to identify the voice of a defendant where the officer has gained familiarity with the voice.” 177 So. 3d at 1243 (Lewis, J., dissenting). We agree with the Fifth District's conclusion that in the context of section 90.701, Florida Statutes, a prior special familiarity means that “prior to trial, the identification witness must have gained familiarity with the defendant that assists the witness in identifying him.” Johnson, 215 So. 3d at 652. A “prior special familiarity,” as explained by the Fifth District in Johnson, “involves a witness with some advantage over the jury, gained by personal contact with the defendant, apart from that which the jury could experience in the courtroom.” Id. at 651. Because allowing voice identification testimony that was acquired during an ongoing investigation is consistent with aiding the jury instead of invading the province of the jury, we now recede from Evans. We conclude that a familiarity with a defendant's voice acquired during an ongoing investigation may constitute the requisite prior special familiarity for voice identification testimony. Therefore, the trial court properly allowed Agent Scovel to identify Johnson's voice on the recorded calls and we approve the decision of the Fifth District.

The lesson learned is that prior to trial, the witness must make great efforts to become familiar with the defendant's voice, such to constitute a "special familiarity".