# Commonwealth v. Lykus

> Massachusetts Supreme Judicial Court · March 27, 1975 · 367 Mass. 191

URL: https://www.frixlaw.com/law-library/cases/9712857

## Case

- **Full name:** Commonwealth vs. Edward Stanley Lykus
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** March 27, 1975
- **Citations:** 367 Mass. 191; 327 N.E.2d 671; 1975 Mass. LEXIS 837
- **Precedential status:** Published
- **Opinion:** Concurrence by Quirico
- **Judges:** Tauro, Reardon, Quirico, Braucher, Hennessey, Kaplan, Wilkins
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712857

## How later opinions describe it (automated extraction)

- noting the inevitable divergence of scientific opinion, and according greater weight to experts who had empirical experience with voiceprint analysis than to theoretical scientists

## Opinion text

Quirico, J.
(concurring). In Commonwealth v. A Juvenile, 365 Mass. 421, 441 (1974), I expressed the view, in a dissenting opinion, that the art of polygraph testing had not yet advanced to the point that the admission of polygraphic evidence should, under the limitations imposed by a majority of the court, be left *206 to the discretion of the trial judge. This view was predicated in large part on the reason that, because of “an almost impenetrable aura of scientific infallibility” surrounding the polygraph machine, there was “a grave risk that the jurors will regard . . . [polygraphic] opinion testimony as resolving the ultimate question of the defendants guilt or innocence, not considering polygraphic evidence as they do other expert testimony and, contrary to the court’s instructions, not in fact weighing it with all the other evidence presented,” 365 Mass. at 447 (Quirico, J., dissenting). I also joined in the dissenting opinion of Justice Kaplan in that case.
From what is said in the present case, in the opinion of the court as well as in the separate opinion of Justice Kaplan, it is clear that spectrographie analysis shares with polygraphic analysis an incomplete, though significant, acceptance in the scientific community. As the majority opinion points out, however, “the claims made in support of the polygraph are fundamentally different from those made for the spectrograph,” in some important respects. These differences exist both in regard to the breadth of the inference and extrapolation connecting the machine readings to the expert’s final testimony and in regard to the depth of the evidence’s intrusion into the jury’s historic functions of determining the credibility of witnesses and finding facts. In short, I do not believe spectrographie evidence is fraught with the dangers inherent in polygraphic evidence. Accordingly, while not entirely free from doubt, I am persuaded that the testimony of properly qualified expert witnesses as to the results of spectrographie analysis is, in the careful discretion of the trial judge, properly admissible in evidence.
Kaplan, J.
(separate opinion). Although the court’s opinion makes a notably fair and well reasoned argument to the contrary, I believe it was error to admit in evidence the voice identification based in part on visual *207 analysis of speech spectrograms. My conclusion can rest simply on the proposition that the standard of Frye v. United States, 293 F. 1013, 1014 (D. C. Cir. 1923), has not been met: the spectrogram method used by the Tosi group and employed in the present case cannot, in my view, be said to be derived from a scientific principle “sufficiently established to have gained general acceptance in the particular field in which it belongs.”
' Some chronology is useful here. Before Dr. Tosi’s work, speech spectrography had not been sufficiently validated to qualify its results for forensic use. 1 The Technical Committee on Speech Communication of the Acoustical Society of America had requested six authorities in this country in the field of acoustics to study the question. In 1970 the experts — R. Bolt, F. Cooper, E. David, P. Denes, J. Pickett, and K. Stevens — gave their answer in an article published in the Journal of the Society. It was negative. They concluded that “the available results are inadequate to establish the reliability of voice identification by spectrograms. We believe this conclusion is shared by most scientists who are knowledgeable about speech; hence, many of them are deeply concerned about the use of spectrographie evidence in the courts.” 2
Dr. Tosi carried out his experiments after this unfavorable judgment about the state of the art. He and his coworkers (H. Oyer, W. Lashbrook, C. Pedrey, J. Nicol, and E. Nash) published their results in 1972. 3 Thereafter *208 a number of courts admitted in evidence identifications based on spectrograms appraised by the Tosi method. Dr. Tosi himself was a principal witness in these cases. See State ex rel. Trimble v. Hedman, 291 Minn. 442 (1971); Worley v. State, 263 So. 2d 613 (Dist. Ct. App. Fla. 1972) 4 (use for corroboration); Alea v. State, 265 So. 2d 96 (Dist. Ct. App. Fla. 1972) (following Worley)’, Hodo v. Superior Court, 30 Cal. App. 3d 778 (1973). Contra, People v. Chapter, No. 4516, Super. Ct. Marin Cty., Cal., July 23, 1973. It can fairly be said, however, that when the cases were decided the scientific community had not had sufficient time to study Dr. Tosi’s work and reach conclusions as to its possible advance over the previous work in the field. See People v. Law, 40 Cal. App. 3d 69, 81-82 (1974). The decisions thus reflected less a consensus in the relevant scientific community that the Tosi method was acceptable, than an absence of study on which an informed opinion could be based one way or the other.
By the time of the trial in the present case, the scientific community had begun to react, and it appears to me that the reaction has been prevailingly negative. Thus the authors of the 1970 paper, reviewing Dr. Tosi’s work, declared they were troubled by several difficulties 5 and summed up their judgment as follows:
*209 “The Tosi study has improved our understanding of some of the problems of voice identification from spectrograms by indicating the influence of several important variables on the accuracy of identification. In uncovering factors that tend to increase identification errors, however, the study has not given us a definitive answer to the question: ‘How reliably can a person be identified by examining the spectrographie patterns of his speech sounds?’ Under certain laboratory conditions and for some selected sample of the population, the probability of making an error in identification can be stated. But for the less-than-ideal conditions encountered in forensic situations, the indications are that the probability of error will increase substantially. Further studies are needed, with particular attention to the examiner’s decision criteria, the selection of speaker population, the time lapse between voice samples, background-noise conditions, and the psychological condition of the speaker.
“As scientists rather than lawyers, we offer no judgment as to whether or to what extent speech spectrograms should be used for identification in the courts. We wish only to point out that present methods for such use lack an adequate scientific basis for estimating reliability in many practical situations and that laboratory evaluations of these methods show increasing errors as the conditions for evaluation move toward real-life situations. We hope that our explanations of some of the factors that affect speaker identification will provide the legal profession with helpful information on which to base its own judgments concerning the admissibility of the spectrographie method.” 6
Dr. Tosi and his group, seeking to reply to the criticism that forensic comparisons would tend to be less accurate than those made under the more aseptic experimental conditions, pointed to some factors which in their opinion *210 worked in quite the opposite direction. 7 The dispute is not resolved.
More recent scientific writing from outside the Tosi group — writing not available to the judge below at voir dire — is unfavorable to the Tosi method, 8 although at least one authority, Dr. P. Ladefoged, has become better disposed to it after being at first negative. 9 *211 To sum up, opinion is divided on the Tosi method; the journal material shows turbulence. and discord rather than that “general acceptance” which the Frye case lays down as a precondition of admissibility. Nor can it be plausibly said that those with adverse views are either unqualified to have opinions worthy of respect or are strangers to the relevant scientific “field.” 10
A decision of the United States Court of Appeals for the District of Columbia Circuit rendered on June 6, 1974, reviews the current situation and rejects the results of speech spectrogram analysis as evidence. United States v. Addison, 498 F. 2d 741 . Judge McGowan, speaking for the court, held that the Frye standard had not been met; he wrote interestingly in explanation and defense of that standard. 11 The case of People v. Law, 40 Cal. App. 3d 69 , decided on June 25, 1974, held that spectrogram analysis was unacceptable at least as applied to a voice mimicked or disguised. The reliability of such analysis seems also diminished when a voice is whispered, as in the present case. 12 The only recent decision admit *212 ting speech spectrogram evidence is United States v. Sample, 378 F. Supp. 44 (E. D. Pa. June 10, 1974), which allowed it at a probation revocation hearing on the reasoning that the prosecution could succeed there on a “preponderance of the evidence” without proof beyond a reasonable doubt; but it appears that no evidence was presented by the defense to counter that of Lt. Nash, Dr. Tosi’s coworker.
I have taken account of the specific expert testimony offered below, but, especially when considered together with the journal writings, it does not, as I see it, make a case that satisfies the Frye requirement. I take less comfort than my brethren from the fact that the results of speech spectrogram analysis are not so close to the ultimate probanda of a criminal trial as the results of polygraph analysis typically are, whence it is suggested that in the former case the function of the jury is not so seriously invaded. I should add that since the opinion of the court, while referring to Professor McCormick’s proposition, does not embrace it, I do not enter upon the reservations that I would have about admissibility in the present case if the McCormick thesis were to be accepted and applied here.
I have indicated elsewhere my belief that the law might preferably proceed by a “commission” procedure to handle questions of validating new methods of scientific measurement or demonstration intended for use in a court room. See Commonwealth v. A Juvenile, 365 *213 Mass. 421, 452, 452-453 (1974) (Kaplan, J., dissenting). The present case seems to me a nice illustration of the point. Lastly it may be noted that, failing a “commission” procedure, it was open to the trial judge, and might have been of help to him in the quandary in which he found himself, to call independent experts, of whom a few with very high qualifications could have been located within a short radius of the court house.
As I am outvoted on the question of admissibility, I need not attempt to answer the difficult question whether the erroneous (as I judge it) reception of the evidence would require reversal of the conviction in light of the rest of the proof.
See State v. Carey, 56 N. J. 16 (1970); People v. King, 266 Cal. App. 2d 437 (1968). But see United States v. Wright, 17 U. S. C. M. A. 183 (1967).
Speaker Identification by Speech Spectrograms: A Scientists’ View of Its Reliability for Legal Purposes, 47 J. Acoustical Soc. Am. 597, 603 (1970). This criticism, like all subsequent ones, challenged not the technique of recording speech spectrograms but rather the validity of the conclusions drawn by the examiner of spectrograms upon viewing and comparing them.
Experiment on Voice Identification, 51 J. Acoustical Soc. Am. 2030 (1972).
Although the Trimble and Worley cases were decided before the publication of Dr. Tosi’s results, Dr. Tosi testified about his completed experiment in both cases, and both courts relied on that testimony in- accepting the spectrographie comparisons.
They mentioned substantial increase in error rate in comparisons of voice samples taken at different times, as against comparisons of contemporaneous samples; substantial increase in error rate when words taken from sentences were used for comparison, as against words spoken in isolation; failure to consider the problems of mimicking or disguising of voices, changes of voice levels, and changes of emotional state of the speaker; increase of error rate as number of samples were increased from which match to unknown voice was to be made.
Speaker Identification by Speech Spectrograms: Some Further Observations, 54 J. Acoustical Soc. Am. 531, 533-534 (1973).
See Reply to “Speaker Identification by Speech Spectrograms: Some Further Observations,” 54 J. Acoustical Soc. Am. 535 (1973).
In the forensic situation Lt. Nash was allowed to make aural as well as visual comparisons of the voices, to allow himself a longer period of time to make a decision than was allowed the examiners in the Tosi experiments, and to conclude, if he so felt, that he could not reach a decision. These facts, together with the fact that Lt. Nash had had much more training and experience in spectrographie identification than the examiners used in the Tosi study, have led Dr. Tosi to assert, in reply to his critics, that forensic comparisons by Nash or a person of Nash’s training are more, not less, accurate than the experimental comparisons. But except for evidence that the error rate declines as an examiner is allowed to express no opinion when in doubt, Tosi’s assertion does not appear to be experimentally supported. Moreover, to the extent that Nash depends on aural comparisons for his conclusions, the weight that should be accorded his accompanying, more “scientific” spectrographie analysis, which could have large influence with a jury, becomes questionable.
Dr. Tosi stated at voir dire in the present case that if confronted with a need to compare a whispered telephone conversation in a noisy environment with a later recording in a quiet laboratory — the actual situation in our case — he would “rely very much on my ears.”
C. LaRiviere, Speaker Identification from Turbulent Portions of Fricatives, 29 Phonetica 246 (1974); H. Hollier, Peculiar Case of “Voiceprints,” 56 J. Acoustical Soc. Am. 210 (1974).
Recent law review commentary is also generally opposed to the use of speech spectrograms. Compare note, Voiceprint Identification, 61 Georgetown L. J. 703 (1972-1973); Jones, Danger — Voiceprints Ahead, 11 Am. Crim. L. Rev. 549 (1973); and Thomas, Voiceprint — Myth or Miracle (The Eyes Have It), 3 U. of San Fernando Valley L. Rev. 15 (1974) (opposed to use), with Boren, Voiceprint — Staging a Comeback, 3 U. of San Fernando Valley L. Rev. 1 (1974) (in favor of use).
Judge McGowan in United States v. Addison, 498 F. 2d 741 (D. C. Cir. 1974) (discussed below), took Dr. Ladefoged’s position as *211 expressed at the trial of that case to be one of “abatement of skepticism,” not complete acceptance. This estimate of Dr. Ladefoged’s testimony has been doubted (see n. 3 of the court’s opinion in the present case), but Dr. Ladefoged’s indorsement of Tosi still seems to me incomplete if I am to judge from the court’s remarks in People v. Law, 40 Cal. App. 3d 69, 84 (1974), where Dr. Ladefoged again testified. See n. 11 below.
True, the expert panel that criticised the Tosi experiments had not dealt, or dealt so much, with the specific material in the laboratory as the Tosi group. But it is common in scientific fields for experts in a general discipline to be called on to review a particular experiment or technique in the light of their broad experience.
See at pp. 743-744, also discussing Rule 703 of the new Federal Rules of Evidence. For clarity’s sake I should say that Judge McGowan’s remarks about Dr. Ladefoged’s position, see n. 9 above, are not crucial to his opinion in the Addison case.
Lt. Nash’s testimony in the present case indicates he relied heavily on the whispered exemplar in making the identification. *212 Dr. Tosi conceded at voir dire that further studies were needed on disguised voices, including whispered voices. The papers critical of Tosi have made the same point.
It should be observed also that Nash in the present case did not compare the unknown voice with numerous samples but only with the Lykus samples furnished by the police. Although Nash undoubtedly strove for impartiality, his conclusion is subject to discount for possible bias (even if unintended) due to any assumption or realization on his part that the police thought they had the guilty man.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712857. Public record. Not legal advice.