Opinion Analysis: A voice lineup with no probative value causes reversal of a child sexual assault conviction in United States v. Hendrix, No. 16-0731/AR
CAAF decided the Army case of United States v. Hendrix, 76 M.J. 283 No. 16-0731/AR (CAAFlog case page) (link to slip op.), on Thursday, June 1, 2017. Concluding that a voice lineup was so flawed as to render the result meaningless, CAAF finds that admission of evidence of the lineup caused prejudice because it was important for the prosecution. The court reverses the appellant’s conviction of sexual abuse of a child, authorizing a rehearing.
Judge Ohlson writes for a unanimous court.
Specialist (E-4) Hendrix was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual abuse of a child in violation of Article 120b. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.
The charge involved an allegation by a ten year-old girl that she was sexually assaulted by a touching over her pants. Her story, however, was unclear, and DNA analysis was inconclusive. Hendrix was a friend of the family who was in the home on the night in question, and the girl eventually identified him as the perpetrator (by eliminating the other people in the house as suspects), and Hendrix was charged. But an Article 32 pretrial investigation concluded that there were no reasonable grounds to believe that Hendrix committed the offense.
“After the Article 32, UCMJ, investigation was completed, government counsel requested that CID conduct a voice lineup.” Slip op. at 4. A voice lineup is an out-of-court identification of a voice. A series of recorded samples of speech – including one from the person who is suspected of being the original speaker – are played for the witness, who tries to identify the voice they heard before. “The legal principle[s] employed for eyewitness lineups are equally applicable to cases of voice identification.” United States v. Chandler, 17 M.J. 678, 681 (ACMR 1983), pet. denied, 18 M.J. 132 (C.M.A.1984).
The voice lineup used in Hendrix was flawed in various ways detailed in Judge Ohlson’s opinion. The defense objected to its admission and also sought funding for an expert consultant, but the objection was overruled and the request was denied. The prosecution then introduced the voice lineup through three witnesses: The girl (Miss JK) testified that she identified Hendrix’s voice in the lineup; her father testified that nobody influenced her identification; and a criminal investigator “indicated that Miss JK was confident in her identification.” Slip op. at 7.
The Army CCA affirmed the military judge’s ruling admitting evidence of the voice lineup, concluding (in a published decision) that “the voice identification process was neither unnecessarily suggestive nor conducive to a substantial likelihood of irreparable misidentification.” 75 M.J. 704, 706 (marks and citation omitted). CAAF then granted review of two issues relating to the lineup (three other granted issues raised Ortiz challenges):
I. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.
II. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.
Judge Ohlson resolves the first issue quickly and simply. An accused is entitled to expert assistance “upon a demonstration of necessity.” Slip op. at 8 (quoting United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)). Here, however, “the record reflects that Appellant failed to meet this burden of demonstrating necessity.” Slip op. at 8. The defense “received some assistance from the requested expert,” slip op. at 8, and it “had other scholarly resources available to assist it in defending against the voice-identification evidence,” slip op. at 9. Considering this,
Appellant has not shown why these scholarly works, or works like them, were inadequate to prepare his defense. Because Appellant failed to make a showing of necessity, we conclude that the military judge did not abuse his discretion in denying the motion for an expert consultant in the field of audio forensic science and voice identification.
Slip op. at 9.
The second issue gets closer scrutiny, beginning with an examination of the flaws in the voice lineup itself. These flaws begin with the reason it was conducted:
[I]t is difficult to discern a legitimate investigative purpose for conducting a voice lineup in this case after the victim had already identified Appellant—whom she knew from social interactions at her home on two separate occasions, to include the close personal interaction of having Appellant braid her hair—as the person who had sexually abused her. . . . even assuming that the voice lineup in this case was not intended to merely bolster the testimony of Miss JK by dressing up her identification in scientific garb, the lineup was not conducted in a manner that would assist the trier of fact in deciding whether or not Appellant perpetrated the reported sexual assault.
Slip op. at 10. Considering that the voice lineup wasn’t conducted until after the Article 32 finding of no reasonable grounds to believe that Hendrix committed the offense, Judge Ohlson’s consideration that the lineup was merely “dressing up [the earlier] identification in scientific garb” suggests that CAAF sees the lineup as underhanded.
Judge Ohlson then details three flaws in the lineup:
First, there were flaws in the selection of participants in the voice lineup. Mr. EP, the voice-identification expert, presented unrebutted testimony that voice identifications should “[a]bsolutely” use individuals with similar voices. And yet, that did not happen here. . . .
Second, CID had the individuals who provided the voice exemplars speak two sentences at a whisper and then, in the same sound bite, repeat those same sentences at two increasingly louder volumes. The record does not reflect any legitimate investigatory purpose for this methodology. . . .
Third and finally, during the motions hearing, the voice expert raised a number of legitimate concerns about the voice lineup employed in Appellant’s case. . . . In fact, the voice expert’s concerns led to his unrebutted opinion that the voice lineup in Appellant’s case was “not reliable.”
Slip op. at 10-11. Of these conclusions the first is perhaps the most remarkable because the Army CCA’s opinion included the observation that:
Upon listening to the recordings, we find as a matter of fact that the tone, cadence, and volume of each voice to be remarkably similar to one another.
75 M.J. at 706. Article 66(c) specifically authorizes a CCA to “determine controverted questions of fact,” and the CCA’s finding that the voices used for the lineup were “remarkably similar” would seem to bind CAAF. But Judge Ohlson sidesteps the finding with the explanation that it:
is unhelpful because it does not establish that the voices themselves were similar. This is best exemplified by the fact that the tone, volume, and cadence of a female speaker can also be remarkably similar to the tone, volume, and cadence of a male speaker.
Slip op. at 10-11 n.5.
The circumstances of and flaws in the voice lineup cause CAAF to conclude that “the voice-lineup evidence had no probative value in this case,” and so its admission was error. Slip op. at 11 (emphasis added). A footnote adds:
Even if the voice-identification evidence had some minimal probative value, it was inadmissible under M.R.E. 403 because this minimal probative value was substantially outweighed by the misimpression it left on the members about the usefulness and importance of the voice identification.
Slip op. at 11 n.6.
Judge Ohlson then turns to prejudice, where the general weakness of the prosecution’s case against Hendrix is the decisive factor:
In regard to the strength of the Government’s case, we conclude that it was weak both in regard to whether the incident actually occurred, and if it did occur, whether Appellant was the perpetrator.
Slip op. at 12. Judge Ohlson also draws an interesting conclusion from the Article 32 result that found no reasonable grounds to believe that Hendrix committed the offense:
The materiality of the voice-lineup evidence is further exemplified by the disparate conclusions reached by the investigating officer and the court-martial panel. At the Article 32, UCMJ, hearing, the investigating officer declined to recommend forwarding the charges under a reasonable grounds standard. See Rule for Courts-Martial 405(j)(2)(H). However, at trial, the panel voted to convict despite the higher standard of proof—beyond a reasonable doubt. See Article 51(c)(4), UCMJ, 10 U.S.C. § 851(c)(4) (2012). The record indicates that the only significant difference between the evidence presented at the Article 32, UCMJ, hearing and the trial was Miss JK’s voice identification.
Slip op. at 14. This is an unusual emphasis on an Article 32 recommendation against prosecution.
The reversal of this conviction is highly fact-specific, and so it’s hard to draw broad conclusions from CAAF’s unanimous decision. But two things stand out. First, the military judge resolved both issues against the defense without making findings of fact or conclusions of law. See slip op. at 8; 75 M.J. at 706. For an issue as central as identification of the perpetrator, in a case with an uncertain story from the alleged victim, inconclusive DNA, and a defense motion to suppress, one would expect a military judge to not just make findings and conclusions, but to make them comprehensive. Second, CAAF’s opinion is a wholesale rejection of the published opinion of the Army CCA, including of the CCA’s fact-finding.
• ACCA opinion (75 M.J. 704)
• Appellant’s brief
• Appellee’s (Army App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis