Nick Mirra Woods Rogers, PLC firstname.lastname@example.org (540)-983-7681
Why Voice Recordings Matter • Our voices uniquely identify us– it is a “vocal fingerprint.” • As a result, our words have become intertwined with our identity. • Voice recordings and identification have become essential to the legal process.
The Evolution Of Technology • Evidence can be manipulated with more sophistication and in more ways than just a few years ago. • With advances in technology come new problems—problems that were not issues prior to the new invention. • New technology can both benefit and wreak havoc on the practice law.
Law Must Weigh Technology • Courts must weigh whether new technologies will provide novel forms for evidence, threaten existing and well-established forms of evidence, or both. • This does not always happen quickly. • Reactive instead of proactive. • Example– when the Federal Rules of Evidence were enacted, the medium to capture voice recordings was analog tape recordings. Now voice recordings are digitized.
Current Status Of The Law • Current laws that govern the admissibility of voice recordings are based on the assumption that juries are capable of assigning the weight of the evidence. • With new technologies, such as Adobe’s Project VoCo, juries would be unable to distinguish computer generated speech from a true recording of that actual specific person.
The Essential Questions • How reliable is voice evidence? • How do the Federal Rules of Evidence prevent modified voice recordings from being authenticated as evidence? • How do the Federal Rules of Evidence need to be amended to account for emerging technologies that alter vocal recordings?
Previous Relevant Technologies • Alexander Graham Bell invented the telephone in 1874 • The Federal Rules of Evidence were enacted in 1975, when the telephone was commonplace. • To use the content of a telephone conversation in legal proceedings, the earwitness testifying must be able to prove the specific person on the call by identifying their voice.
Previous Relevant Technologies • The voice changer, or voice modulator, manipulates the human voice in real time to make it sound different, often by shifting pitches. • In United Stated v. Gilbert the defendant was convicted of making a telephone bomb threat. Even though the defendant used a voice changer, an expert was able to prove the defendant made the calls by reverse engineering the shift in pitch of the recorded bomb message.
Previous Relevant Technologies • Photoshop, first introduced in the early 1990’s, allows a user to alter images, including photographic images. • Courts have grappled for many years about the manipulation of photographic images. • The law is still developing in this area.
Project VoCo • Project VoCo is a software that enables the user to make a computer read back anything the user types into it. • This is not mere text-to-speech conversion. • VoCo can read back the text using the voice of any person it has on file.
How does VoCo work? • VoCo samples an audio file of the target speaking (10 minutes of speaking is sufficient). • VoCo then takes input typed into a computer and reads it back in the voice of the target. • Moreover, a VoCo user can manipulate each individual phoneme with a word to make the resulting speech even more authentic.
Legal Concerns – Project VoCo • Imagine when VoCo is used to make your client say something he or she has never said before. • How can you tell the difference between a VoCo recording and actual, authentic voice recordings?
FRE Are Ill-Prepared For VoCo • The Federal Rules of Evidence were enacted at a time when it was extremely difficult to manipulate a voice recording after it was recorded.
Rule 901(b)(5) • Rule 901(b)(5) – an earwitness may testify to their 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.”
Rule 104(b) • “When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.” • The standard in this rule is the provision of evidence that could support a finding.
Issues Related To Rule 901 And Voice Recordings • Scenario- • An earwitness testifies that a particular voice recording is indeed the voice of a specific individual. (FRE 901) • The jury has the responsibility of giving weight to this earwitness’s claim. (FRE 104) • How does the VoCo technology effect the weight of this earwitness’ testimony? • Can a sampled VoCo recording slip in as evidence? • Can a sampled VoCo recording be rebutted?
An Immediate Concern • Currently the VoCo technology is not mainstream. • A VoCo recording could be used to blindside an opponent. • That opponent may struggle to sufficiently explain the “smoking-gun” voice recording. • Without awareness, the opponent may be unable to justify even to himself or herself the evidence. • Currently a jury will likely not hear evidence related to a manipulated voice recording. • Even if they do, can the evidence be properly weighed?
United States v. Dionisio • The Supreme Court held that “[n]o person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” • As a result of this case, courts can compel a defendant to provide a voice sample in a criminal context.
Example • In a grand jury, the voice of a defendant is replicated using VoCo and made to admit a relevant subject. • The court compels a defendant voice sample. • The grand jury compares the voices, deems them to be similar, and indicts the defendant based on the falsified voice recording.
United States v. Basey • Identification of the defendant by one individual was sufficient to establish that the defendant was the voice on a recording. • 9th Circuit holding – voice identification, witness testimony to use of an alias, and recorded telephone conversations were sufficient evidence to identify a defendant. • How does VoCo make this holding and this case problematic?
Comparing Photoshop and VoCo • Photoshop enables the manipulation of photographs and other images in order to produce a wholly altered and convincing image. • VoCo can manipulate previous voice recordings of an individual, and then combine those voice recordings with a user generated typed text to create a new recording in the target individual’s voice. • Photoshop = visual; VoCo = audio. • In order to predict how VoCo will be addressed by courts, an analysis of how courts address Photoshop is insightful.
Courts and Photoshop • Photographs must be (1) relevant and (2) authentic in order to be introduced as evidence. • Photoshop has made it nearly impossible to detect alterations to photographs. • Under the current rules, it is sufficient to prove authenticity and relevance of a photograph if a witness on the stand testifies that the photograph accurately depicts the scene as they saw it.
Courts and Photoshop • In an effort to combat tampering, there is an emerging practice where digital photographs are authenticated and verified via metadata. • Photographic Metadata can include the author, date created, data of modification, and file statistics. • The metadata is “attached” to the digital photograph’s file. • Unfortunately, metadata can be readily altered by moderately technologically inclined actors.
Courts and Photoshop • Illegal modifications to photographs are likely to fall under the veil of false declarations as enumerated in 18 U.S.C. § 1623. • The modifications to the photograph are being falsely represented as true. • Penalty – fine and up to five years of imprisonment. • Because photographic alteration techniques are so covert, the risk of detection could be substantially outweighed by the reward of victory at trial – just like VoCo.
Courts and VoCo • The Federal Rules of Evidence must adapt. • Three possible solutions: • The law could remain exactly the same. • The law could require a metadata expert testify as to the validity and veracity of all native digital, or retroactively digitized, voice recordings in accord to the Daubert standard. • The law could adopt a threshold standard where expert testimony regarding metadata would be required after a triggering event.
Option 1: If The Law Remains The Same • The Federal Rules of Evidence are not equipped to handle VoCo or similar emerging technologies.
If Metadata Is Required For Every Piece Of Voice Evidence • The courts would become clogged. • The timeframe of litigation would increase significantly. • The cost of litigation would increase significantly. • Add another expert witness to the list.
If A Threshold Standard Is Adopted • Rule 901 would still be the general rule that applies to voice evidence. • If the opponent of the evidence is able to demonstrate a plausibility of tampering with the evidence, an expert should be required. • At this point, a metadata expert would need to demonstrate that the voice recording has not tampered with or manipulated. • After the expert testimony, a jury should be able to more properly assess the weight of evidence.
Current Status • Under the current Federal Rules of Evidence, almost nothing prevents a voice recording created by VoCo as being introduced as authentic evidence.
Next Steps • Practitioners must become aware the VoCo and similar technologies exists, are emerging, and are evolving to become even more realistic. • The Federal Rules of Evidence should be amended to account for the proliferation of such technology. • The FRE should adopt a threshold showing.
The Essential Questions - Revisited • How reliable is voice evidence? • How do the Federal Rules of Evidence prevent modified voice recordings from being authenticated as evidence? • How do the Federal Rules of Evidence need to be amended to account for emerging technologies that alter vocal recordings?
Citations • http://jolt.richmond.edu/files/2018/10/Mirra-FE.pdf
Thank you! Questions?