Looking for some brainstorming from our best and brightest...

A group of defendants were involved in trying to bribe a prison guard to smuggle dope into the prison. The prison guard was given a note with instructions on who to call and how the operation would go down. He turned the note over to investigators and we had a UC take over for the actual guard and handle numerous phone calls (recorded) and text messages, pretending to be the original guard, to work out a drop for the dope. We popped everyone who showed up at the drop.

The Guy on the Telephone wasn't at the drop and was never supposed to be. He had his associates handle the drop. The co-defendants all told us who the Guy on the Telephone was (in unsworn testimony). Their evidence corroborated what we already knew - the Phone Guy's AKA, the way he does business, his relationships with the group that made the drop, etc.

But those co-defendants are the only people who can testify that Defendant was in fact The Guy On The Phone. Our UC never saw him in person, never talked to the defendant before or after in any other setting. Apart from the co-defendant's testimony, we've got nothing to prove that the Guy on the Phone is the defendant who will be sitting in court.

Since these are all gang members, I'm not holding my breath that his co-defendants will testify truthfully. They have all already been convicted without a deal to testify and are in prison themselves.

Anyone got a solution for me? How do I prove in court the defendant is the Guy on the Phone.

Why not compel the defendant to provide a (non-testimonial) voice exemplar? Like, say, reciting portions of the phone call from transcripts.

Williams v. State, 116 S.W.3d 788 (Tex. Crim. App. 2003).

Then whether or not HIS voice is a match for a voice on the tape should then become a question of fact for the jury like a handwriting comparison under 38.27.(?)

BRODY! Missed you at the Annual, man!

Love this idea. Next question: how do I compel a voice sample?

I would think the same way that you would compel a handwriting exemplar or performance of HGN (to rule out natural, resting nystagmus)-

You have a judge order him to do it pretrial, the defendant makes it as difficult as possible and tries to botch the comparison, and then you have your deputy testify as to the defendant's behavior in order to establish it by circumstantial evidence :P

Depending on your judge, they might let you have to defendant read a sample out loud, in open court, live in front of the jury. The difficulty with that is that you don't end up with an exhibit for future comparison.

You asked for a solution so I posited one. I didn't say it was very GOOD!

The other thing you might be able to do is have someone that knows the defendant's voice from OTHER sources listen to the tape in court and then ID him. Maybe a parole officer from a prior offense? A police officer that's worked him as a CI before? The originating jurisdiction might be a good place to start for people that would be able to recognize his voice on tape.

Yeah, I would suggest finding someone else who knows the defendant's voice and can ID it on the tape. It doesn't have to be anyone who actually was there in the conversation, as long as they can definitively say "yes, that's Joe talking."

It does need to be someone who knows the defendant independently, not just because of this case. Police officers or prison guards who've dealt with him before would be a good place to start, but you could even pull in someone like a former employer or coworker.

You may also look for any known recorded jail phone calls the def made to friends/family. These would be unaltered normal voice conversations, making them easier to compare.