“You know you still have to tell the truth.” Radovich is looking over his glasses at the little girl.
“Uh huh.”
“Go ahead,” he tells Hovander.
“Kimberly. Earlier you told us that you heard a man’s voice the night your mommy was hurt. Do you remember that?”
She nods.
“Do you think you might recognize that voice if you heard it again?”
“I might,” she says, a lilting voice.
This has been thrashed out behind closed doors, after much argument in chambers. Hovander wants to have Acosta speak, presumably angry words that the child heard that night, to see if she can recognize his voice.
We have argued that this is impossible, given the suggestive nature of such a test with a child so young, though there is no Fifth Amendment issue here. The courts have held that voice identification is not testimonial, but more in the nature of taking blood, or lifting fingerprints.
Radovich, always one to search for the middle ground, has ordered that the prosecution is entitled to a voice sample on tape, but with no words spoken in anger. He reasons that this will neutralize the suggestive nature of the exercise. There will be three separate voices, one selected by the state, one by us, and the defendant sandwiched in between. We have picked a Latino, a paralegal with another firm who is a baritone like Acosta, with similar Hispanic intonations.
They set up the equipment and Hovander tells Kimberly to listen carefully. They play the first voice.
It is high pitched, almost nasal, such that you might not recognize it as a man’s voice. “Hello, Kimberly. Do you know my voice?” It’s all it says.
Hovander tells her not to answer yet, but to listen to the other two.
Acosta is next, reading the same text. Then our ringer.
Kimberly sits dazed in the box, the first time that I have seen real pressure exhibited in her expression.
“Do you recognize any of them?” says Hovander.
She shakes her head.
“Do you want to hear them again?”
Harry is looking at me wondering whether he should object.
Radovich orders it played one more time.
They do it.
“Do you recognize any of them now?” says Hovander.
The balance of life hanging on the whim of a little child. Acosta sitting next to me. I grip his arm under the table.
Radovich, realizing the stakes, tells her not to guess. “Answer only if you recognize a voice,” he says.
She makes a face, something you might see when your kid is trying to figure which hand the candy is in. “The last two,” she finally says.
Hovander has a look of victory. “Maybe we could play the last two,” she says.
Harry objects. Radovich overrules him.
The clerk plays with a headset, screening out the first voice so that this time Acosta leads off. I watch as a rivulet of sweat makes its way down his cheek and finally drips from his chin onto the table.
“Do you recognize either of the voices?” says Hovander.
The prominent position of Acosta’s words up front on the tape has me worried. First impressions with a child are strong.
“I think it’s him,” she says.
Acosta’s head does a double take, first toward me, then Harry.
“Which one?” says Hovander.
A desperate look from the child, as though she doesn’t understand the question. She thought she was done. Then it settles on us. She thinks both voices are the same man.
Hovander tries to argue that the witness has selected one of them, and wants to clarify with a follow-up question. Radovich tells her no and leans over the bench.
“Kimberly. How many voices do you think are on the tape?”
She looks out at her grandmother, anxious for help.
“There’s no need to be afraid,” says Radovich. “If you don’t know you can just say you don’t know.”
“I don’t know.” Kimberly leaps on this like a lifeboat.
Acosta turns to Jell-O in his seat.
Radovich calls a sidebar. We all attend, leaving Acosta backed up by guards at the table. The court reporter muscles in with us.
“She’s confused,” says the judge. “I’m not inclined to let this go on.”
“Just a couple more questions?” says Hovander.
“This ain’t right,” says Harry. “Given the pressure, she’ll say whatever she thinks we want to hear. She couldn’t even tell how many voices were on the tape.”
“That’s because you guys played games,” says Hovander.
“Yeah, and your guy needed Preparation H for his adenoids,” says Harry.
“People.” Radovich in command. “This isn’t getting us anywhere.”
“If I could ask just a couple more questions?” says Hovander.
“What do you want to ask?” he says.
“If she recognizes either of the two voices played last on the tape.”
“She already said she only heard one voice,” says Harry.
“We should be allowed to clarify the point,” says Hovander.
“Right,” says Harry. “Then, when you get her to understand that there are two voices on that tape, you can do eanie, meanie, minie, mo. This is no way to determine the truth.”
“That’s what I’m afraid of,” says Radovich.
Harry tells Radovich he wants to voir dire the witness on her voice-identification skills. Hovander objects, but the judge finds it a fair request. We break up and Harry is left standing in front of the witness box.
Kimberly looks at him, uncertain what to make of this new development.
“Kimberly, I’m Mr. Hinds. How do you do?”
She looks at him but does not respond.
“Do you recognize my voice, Kimberly? Do I sound like the voice you heard that night?”
A new adult now confronting her, a new threat. Kimberly nods.
“My voice sounds like the voice you heard that night?”
More nodding.
“Do you remember hearing the judge’s voice?” Harry points at Judge Radovich.
She nods.
“Does he sound like the voice you heard that night?”
This time she shakes her head.
“If I could, Your Honor, one more sample?”
Radovich motions Harry to proceed.
He looks over at me and tells me to stand up. At this moment I could kill him.
“Stand up,” he says.
I do it.
“Say something.”
I am covered with expressions of contempt for Harry at this moment.
“Say something.”
“Do you recognize my voice, Kimberly?”
Before I have completed the sentence she is nodding vigorously, shrinking into her chair.
“There you have it,” says Harry.
We’re back to the sidebar. This time Radovich has called the psychologist to join us.
“If she knows the voice and is not threatened by it, it doesn’t sound like the voice she heard that night. If she doesn’t know it, it does.” Harry’s school of psychology. “It has more to do with her comfort factor than what she heard or remembers,” he says.
“What do you think?” Radovich asks the psychologist.
“I agree. Seems to be what’s going on.”
“This is not going any further,” says Radovich. “Do you have another line of questions for the witness?” he asks Hovander.
“Nothing else,” she says.
“Do you have anything?” he asks Harry.
We confer off to the side, Harry and I.
“We’re not likely to score points beating up some little kid,” says Harry. “So far she hasn’t hurt us, but that could change anytime.”
I agree.
“Besides,” he says. “You seem to have a problem with her.” Harry gives me one of his enigmatic smiles, reading my mind.
Before I can open my mouth in protest, some bullshit that Harry can smell coming, he says, “Why tempt fate?”
“We have nothing for the witness,” he tells Radovich.
“Good,” says the judge. He climbs back on the bench.
“We’re going to take the noon break,” he announces. “The witness is excused. There’s no need for her to come back,” he tells the grandmother.