‘Lend me your ears’
| Date | 01 July 2018 |
| DOI | 10.1177/1365712718782989 |
| Published date | 01 July 2018 |
| Subject Matter | Articles |
Article
‘Lend me your ears’:
An analysis of how voice
identification evidence
is treated in four
neighbouring criminal
justice systems
Jeremy Robson
De Montfort University, Leicester, UK
Abstract
This article reviews the approaches taken by the courts to the admissibility of voice identifi-
cation evidence in four jurisdictions: England and Wales, Scotland, Northern Ireland and the
Republic of Ireland. Each jurisdiction addresses the question in a different way and each
approach is open to criticism. This paper will argue that a contextualised approach to the
problem would allow for improvements which would enhance the quality of the evidence and
the adjudicative process.
Keywords
criminal evidence, identification, interdisciplinary, voice identification, voice parades
Introduction
The history of the law of evidence is the history of a series of largely isolated responses to particular problems
at different times. (Twining, 1985: 1)
In this paper I will argue that an analysis of the approach taken in four similar common law jurisdictions
to a particular facet of identification evidence, namely the identification of speakers by recognition of
their voice, reveals contradictory and inconsistent legal approaches to its collection, presentation,
admissibility and assessment. I suggest that the central cause for this is the development of rules via
the expository tradition of evidence scholarship. The problems of this approach were recognised by
Twining in his 1983 essay ‘Identification and misidentification in legal processes: Redefining the
Corresponding author:
Jeremy Robson, De Montfort University, Hugh Aston Building, Leicester LE12 7DL, UK.
E-mail: jeremy.robson@dmu.ac.uk
The International Journalof
Evidence & Proof
2018, Vol. 22(3) 218–238
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712718782989
journals.sagepub.com/home/epj
problem.’
1
Part of the problem identified by Twining is that the legal system focuses primarily on the
decisions of appeal courts in individual cases, and in doing so fails to address the systemic problems
which may cause injustice elsewher e. I will argue that a contextual review of v oice identification
evidence which draws on the insights of other disciplines is called for. This would enable the develop-
ment and refinement of procedures for the collection and presentation of evidence which maximise the
chances of accuracy in the decision making process.
The knowledge that miscarriages of justice have arisen from mistaken identifications being made by
honest, but unreliable, witnesses has played a major role in shaping the rules of evidence in common law
legal systems (see, for example, Devlin, 1976). Where a witnes s purports to identify an individual
through recognition of their voice rather than their physical appearance, the risk of an error occurring
is recognised as being even greater than in cases of eyewitness identification (a type of evidence that has
always been regarded as particularly prone to error by the common law). Each criminal justice system
develops its own processes to minimise the risk of a wrongful conviction through a combination of
testing a witness’s ability to distinguish voices, supporti ng the identification with expert evidence,
assessing the cogency of the identification before admitting it into evidence and giving appropriate
directions to the jury. As this paper will show, in the case of earwitness evidence, principles are
developed, primarily by the courts, on a case-by-case basis. By examining the approaches of four similar
jurisdictions I will demonstrate that this leads to inconsistency of approach in an area where similarity
would be expected.
This paper examines the approaches taken in England and Wales, Scotland, Northern Ireland, and the
Republic of Ireland, and assesses their strengths and weaknesses when reviewed against the current
research on aural recognition and memory. The four jurisdictions chosen have many features in com-
mon; both in terms of their structures and procedures, and the populations who are served by them. All
four are common law legal systems in which the prosecution must prove their case against an accused
beyond a reasonable doubt. All require the most serious cases to be tried before a jury, encouraging
judges to exclude evidence which may be unduly prejudicial and requiring them to caution juries about
the inherent risk of misidentification. Geographically the four legal systems are adjacent to each other
(the first three comprising the United Kingdom). Although there are a large number of native languages
and dialects, English is spoken, eith er as a first language or fluently, by a la rge proportion of the
population (Central Statistics Office, 2011; Office for National Statistics, 2011) and although Welsh
speakers in Wales
2
and Irish speakers in the Republic of Ireland
3
have the right to have court proceedings
conducted in those languages, English is the primary language of the court system.
Given these similarities it might therefore be expected that there would be a consistency of approach
in the collection and presentation of voice recognition evidence. The problem which the courts are trying
to address in each jurisdiction is the same: How does the legal process ensure that fact-finders are
properly able to assess the complex process by which a witness hears, memorises, compares and then
recalls the voice of another? This paper will demonstrate that although the procedures adopted by each
legal system seek to achieve the same result, in certain respects—particularly in respect of identification
procedures adopted in the investigation phase—there are differences which create a disparity of
approach and may produce a disparity of outcome.
The problems which I identify are by no means unique to this cluster of jurisdictions. Courts in
Australia (McGorrery and McMahon, 2017: 1), Canada (Sherrin, 2015) and the USA (Tiersma, 2003)
have all been criticised for their ad hoc approaches to voice identification, which have evolved out of the
1. Twining (2006). Originally published in Lloyd-Bostock and Clifford, Evaluating Witness Evidence: Recent Psychological
Research and New Perspectives. 1983, John Wiley & Sons.
2. Welsh Language Act 1993, s. 22.
3. Official Languages Act 2003, s. 8.
Robson 219
To continue reading
Request your trial