# Reed v. State

> Court of Appeals of Maryland · September 6, 1978 · 283 Md. 374

URL: https://www.frixlaw.com/law-library/cases/1956286

## Case

- **Full name:** James Reed, Jr. v. State of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** September 6, 1978
- **Citations:** 283 Md. 374; 391 A.2d 364; 97 A.L.R. 3d 201; 1978 Md. LEXIS 426
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Murphy, Smith, Digges, Levine, Eldridge, Orth, Cole
- **Cited by:** 187 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/1956286

## How later opinions describe it (automated extraction)

- holding that “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field”
- finding the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability
- discussing the policy considerations behind the “general acceptance” requirement, and concluding that “[f]or the foregoing reasons, we agree with the ‘general acceptance’ rule which the Frye case sets forth.”
- noting that the Frye test has been applied to “medical testimony regarding the cause of birth defects”

## Opinion text

283 Md. 374 (1978)
391 A.2d 364
JAMES REED, JR.
v.
STATE OF MARYLAND
[No. 62, September Term, 1977.]
Court of Appeals of Maryland.
Decided September 6, 1978.
*375 The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ., and reargued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.
William T. Wood, Specially Assigned Public Defender, for appellant.
Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
ELDRIDGE, J., delivered the opinion of the Court. MURPHY, C.J., and SMITH and ORTH, JJ., dissent and SMITH, J., filed a dissenting opinion in which MURPHY, C.J., and ORTH, J., concur at page 400 infra.
The issue in this criminal case is the admissibility of voice identification testimony based on the analysis of spectrograms, commonly described as "voiceprints."
In September 1974, a woman was raped, late at night, outside her home in Montgomery County, Maryland. She immediately entered a hospital for treatment and reported the incident to the police. The following afternoon, she received a telephone call from a person who identified himself as her assailant. The victim notified the Montgomery County Police Department, and the police attached a recording device to her *376 telephone. During the next three days, the victim received and recorded seven telephone calls, all apparently placed by the original caller.
During the course of one of these telephone conversations, the victim's caller asked to have intercourse with her again. She offered instead to pay him $1,000.00. In a subsequent conversation, she and the caller arranged for her to deliver $1,000.00 to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical "plug" box, place the money inside the locker, and return the key to its original location on the box. The victim then complied with her caller's instructions. Afterwards, the defendant James Reed appeared at the bus station, entered the locker room, picked up the key from the box, and proceeded toward locker 326. As he approached the locker, police officers, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room and arrested Reed. Reed was subsequently indicted on rape and other charges growing out of the same incident.
In May 1975, Reed was compelled to submit voice exemplars to the State's Attorney. Reed was required to repeat, into a telephone connected to a recording device, the words spoken to the victim by her assailant in the September 1974 telephone calls. These tapes, together with a composite recording of the calls made by the assailant, were then sent to the Voice Identification Unit of the Michigan State Police Department for spectrographic analysis and comparison. The results of this comparison were considered inconclusive, and in August 1975 Reed was required to submit another set of voice exemplars, again reading the words spoken by the assailant. These voice samples were also sent to Michigan for spectrographic analysis and comparison. This second test resulted in an alleged positive identification of Reed as the speaker on four of the seven calls made by the rapist. [1]
*377 A pretrial suppression hearing on the admissibility into evidence of voice identification testimony based on spectrographic analysis was conducted in the Circuit Court for Montgomery County. After hearing evidence on the general validity and reliability of the spectrographic method of identification, the trial court ruled that the State could at Reed's criminal trial introduce expert testimony based on spectrographic analysis for the purpose of voice identification.
Reed was first brought to trial in October 1975. Voiceprint testimony was introduced, purportedly identifying Reed as the speaker who had placed the calls to the victim. After two and one-half days of deliberation, the jury was unable to reach agreement, and a mistrial was declared. In March 1976, Reed was again brought to trial, and voiceprint testimony was again introduced. In this second trial, Reed was found guilty of rape, unnatural and perverted sex acts, robbery, verbal threats, and unlawful use of the telephone. Reed was sentenced to life imprisonment for the crime of rape and to lesser concurrent terms of imprisonment for the remaining crimes. The Court of Special Appeals affirmed the convictions, Reed v. State, 35 Md. App. 472 , 372 A.2d 243 (1977). This Court then granted Reed's petition for a writ of certiorari to consider the trial court's admission of voiceprint evidence. We hold that the admission of this evidence was error. [2]
The voiceprint technique, although of relatively recent origin, has been much discussed and described in cases and legal commentaries. [3] The process involves the use of a *378 machine known as a spectrograph. This machine analyzes the acoustic energy of the human voice into three components — time, frequency, and intensity — and graphically displays these components by generating, through an electric stylus, a series of closely spaced light and dark lines, varying in position, on a sheet of electrically sensitive paper. The resulting graphic representation is what is called a spectrogram or "voiceprint." It reveals certain patterns or "formats" which correspond to the sounds which are analyzed. According to the testimony of Dr. Oscar Tosi, the State's principal witness at the suppression hearing and the most widely known proponent of the reliability of the voiceprint technique, [4] spectrography
"consists of comparing both aurally and visually spectrograms of a questioned voice and a known voice, and on the basis of the similarities to decide whether or not the two voices, the questioned and known voice are the same or belong to different persons."
Essentially, therefore, the task of spectrography is one of pattern matching. It is dependent on the individual judgment of the examiner. As stated by Dr. Tosi:
"I consider [spectrography] reliable only if the examiner is reliable and he adjusts to what the *379 conditions are, and he is an honest person; and he is prone to use no opinion, but probability rather than positive identification in cases of some doubt. Then I consider this good. It is reliable and can be used only ... under these circumstances. Otherwise it would be a disaster."
The examiner's task is complicated by what is termed "intra-speaker" variability, that is, the fact that individual speakers apparently do not say the same word in precisely the same way each time they utter it, and that spectrograms reflect this difference. According to Detective Sergeant Lonnie Smrkovski of the Michigan State Police, the examiner in the instant case, if a speaker were to utter the same word on fifty consecutive days, he would expect none of the resulting spectrograms to be identical. [5] It is maintained, however, that the differences between the separate utterances of an individual speaker are less than the differences between the utterances of different speakers, so that intra-speaker variations do not render identification impossible.
According to Sgt. Smrkovski, at least ten points of similarity must be noted between two speech samples before a positive identification can be achieved. Apparently, this is independent of the number of the speech samples being compared. In the instant case, Sgt. Smrkovski, after listening to the tapes submitted to him, selected 138 of the 2,162 words spoken for comparison and made spectrograms of these words. In this sample, Sgt. Smrkovski rated one comparison "excellent," twenty "very good," thirty-seven "good," and thirty-five "fair." These comparisons were the basis of his conclusion that Reed's voice and the voice of the victim's caller were the same.
A principal consideration with regard to the admissibility of expert testimony, according to Wigmore, is: "On this *380 subject can a jury receive from this person appreciable help?" 7 Wigmore, Evidence § 1923 (Chadbourn rev. 1978). Clearly, this is dependent on the particular circumstances of each case. No rule or set of rules could be expressed for all cases which would adequately distinguish helpful expert testimony from that which is superfluous or worse. Accordingly, this Court has held that the determination of similar and related issues are generally matters within the sound discretion of the trial court. Beahm v. Shortall, 279 Md. 321, 340 , 368 A.2d 1005 (1977); Greenstein v. Meister, 279 Md. 275, 283 , 368 A.2d 451 (1977); Radman v. Harold, 279 Md. 167, 168 , 367 A.2d 472 (1977), and cases there cited.
On the other hand, with particular regard to expert testimony based on the application of new scientific techniques, it is recognized that prior to the admission of such testimony, it must be established that the particular scientific method is itself reliable. People v. Kelly, 17 Cal.3d 24 , 130 Cal. Rptr. 144 , 549 P.2d 1240 (1976); Jones, Danger — Voiceprints Ahead, 11 Am. Crim. L. Rev. 549 , 554 (1973). See also Shanks v. State, 185 Md. 437, 440 , 45 A.2d 85 (1945); 3 Wigmore, Evidence § 795 (Chadbourn rev. 1970).
On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. at 440 . Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved. *381 People v. Law, 40 Cal. App.3d 69, 75 , 114 Cal. Rptr. 708, 711 (1974).
The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge's individual discretion. Instead, considerations of uniformity and consistency of decision-making require that a legal standard or test be articulated by which the reliability of a process may be established.
The test which has gained general acceptance throughout the United States for establishing the reliability of such scientific methods was first articulated in the leading case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923):
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (Emphasis supplied.)
That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. Thus, according to the Frye standard, if a new scientific technique's validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.
*382 The identity of the relevant scientific community is, of course, a matter which depends upon the particular technique in question. In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it. In unusual circumstances, a few courts have held that the experts thus qualified might properly be from a somewhat narrower field. See People v. Williams, 164 Cal. App.2d Supp. 858, 331 P.2d 251 (1958).
This criterion of "general acceptance" in the scientific community has come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence. See, e.g., Rivers v. Black, 259 Ala. 528 , 68 So.2d 2 (1953); Pulakis v. State, 476 P.2d 474 (Alas. 1970); State v. Valdez, 91 Ariz. 274 , 371 P.2d 894 (1962); People v. Busch, 56 Cal.2d 868 , 16 Cal. Rptr. 898 , 366 P.2d 314 (1961); People v. Williams, supra ; Brooke v. People, 139 Colo. 388 , 339 P.2d 993 (1959); Kaminski v. State, 63 So.2d 339 (Fla. 1953); Salisbury v. State, 221 Ga. 718 , 146 S.E.2d 776 (1966); State v. Linn, 93 Idaho 430 , 462 P.2d 729 (1969); State v. Lowry, 163 Kan. 622 , 185 P.2d 147 (1947); State v. Casale, 150 Me. 310 , 110 A.2d 588 (1954); Commonwealth v. Fatalo, 346 Mass. 266 , 191 N.E.2d 479 (1963); People v. Morse, 325 Mich. 270 , 38 N.W.2d 322 (1949); State v. Kolander, 236 Minn. 209 , 52 N.W.2d 458 (1952); State v. Stout, 478 S.W.2d 368 (Mo. 1972); Boeche v. State, 151 Neb. 368 , 37 N.W.2d 593 (1949); State v. Arnwine, 67 N.J. Super. 483 , 171 A.2d 124 (1961); State v. Trimble, 68 N.M. 406 , 362 P.2d 788 (1961); People v. Alston, 79 Misc.2d 1077 , 362 N.Y.S.2d 356 (1974); State v. Steele, 27 N.C. App. 496 , 219 S.E.2d 540 (1975); State v. Swanson, 225 N.W.2d 283 (N.D. 1974); State v. Smith, 50 Ohio App.2d 183 , 362 N.E.2d 1239 (1976); Henderson v. State, 94 Okla. Crim. 45 , 230 P.2d 495 (1951); State v. Green, 271 Ore. 153 , 531 P.2d 245 (1975); United States v. Bruno, 333 F. Supp. 570 (E.D. Pa. 1971); Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973); State v. Woo, 84 Wash.2d 472 , 527 P.2d 271 (1974); Puhl v. *383 Milwaukee Automobile Ins. Co., 8 Wis.2d 343 , 99 N.W.2d 163 (1959). [6]
Although Frye v. United States, supra , was a case involving the results of a lie detector examination, the test itself has been broadly applied, and judged the appropriate standard to apply to newly developed methods of scientific discovery. The Frye test has been invoked by courts in their consideration of, inter alia, paraffin test, Brooke v. People, supra ; medical testimony regarding the cause of birth defects, Puhl v. Milwaukee Automobile Ins. Co., supra ; breath analysis devices designed to test for intoxication, People v. Morse, supra ; truth serum injections, State v. Linn, supra ; blood tests, People v. Alston, supra , neutron activation analysis, State v. Stout, supra ; gunshot residue tests, State v. Smith, supra ; Nalline tests for detection of narcotics use, People v. Williams, supra ; ink identification tests, United States v. Bruno, supra ; and hypnotism, People v. Busch, supra .
This Court in Shanks v. State, supra , although not citing the Frye case itself, recognized the standard of general scientific acceptance in connection with the admissibility of *384 blood test evidence. Chief Judge Marbury there pointed out ( 185 Md. at 440 , emphasis supplied):
"In the early cases evidence of the tests was not admitted, because the courts here were not convinced of their general acceptance and reliability. See State v. Damm, 62 S.D. 123 , 252 N.W. 7 ; Beuschel v. Manowitz, 241 App. Div. 888 , 272 N.Y.S. 165 . Blood tests are now accepted everywhere, scientifically, as accurate, and the courts ... have generally followed the same view."
Almost every state court that has considered voiceprint evidence in a reported opinion has applied the Frye or a similar standard in determining the question of its admissibility. See Hodo v. Superior Court, 30 Cal. App.3d 778, 784 , 106 Cal. Rptr. 547, 550 (1973); People v. Kelly, 17 Cal.3d 24 , 130 Cal. Rptr. 144 , 549 P.2d 1240 (1976); People v. Law, supra ; People v. King, 266 Cal. App.2d 437 , 72 Cal. Rptr. 478 (1968); Brown v. United States, 384 A.2d 647 (D.C.C.A. 1978); Worley v. State, 263 So.2d 613, 614 (Fla. App. 1972); Commonwealth v. Lykus, 367 Mass. 191 , 327 N.E.2d 671, 678 (1975); People v. Tobey, 401 Mich. 141 , 257 N.W.2d 537 (1977); State v. Cary, 99 N.J. Super. 323 , 239 A.2d 680, 685 (1968), aff'd, 56 N.J. 16 , 264 A.2d 209 (1970); D'Arc v. D'Arc, 157 N.J. Super. 553 , 385 A.2d 278 (1978); People v. Rogers, 86 Misc.2d 868 , 385 N.Y.S.2d 228 , 237 (1976); State v. Olderman, 44 Ohio App.2d 130 , 336 N.E.2d 442, 448 (1975); Commonwealth v. Topa, 471 Pa. 223 , 369 A.2d 1277, 1281 (1977). Contra, State ex rel. Trimble v. Hedman, 291 Minn. 442 , 192 N.W.2d 432 (1971) (scientific disagreement goes to weight, not admissibility); see also Alea v. State, 265 So.2d 96 (Dist. Ct. App. Fla. 1972) (issue not discussed).
The Frye test has been subjected to some criticism, primarily on the grounds that it is too conservative and unduly prevents or delays the admission of relevant scientific evidence. United States v. Sample, 378 F. Supp. 44, 53 (E.D. Pa. 1974); McCormick, Evidence § 203, pp. 490-491 (2d ed. 1972); cf. United States v. Baller, 519 F.2d 463, 466 (4th Cir.1975), cert. denied, 423 U.S. 1019 , 96 S.Ct. 456 , 46 L.Ed.2d *385 391 (1975). There are, however, compelling reasons which justify the Frye principle.
Fairness to a litigant would seem to require that before the results of a scientific process can be used against him, he is entitled to a scientific judgment on the reliability of that process. [7] As stated by Judge McGowan, speaking for the court in United States v. Addison, 498 F.2d 741, 743-744 (D.C. Cir.1974):
"[T]he Frye standard retards somewhat the admission of proof based on new methods of scientific investigation by requiring that they attain sufficient currency and status to gain the general acceptance of the relevant scientific community. This is not to say, however, that the Frye standard exacts an unwarranted cost. The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice."
This is an especially significant consideration with regard to those scientific techniques in which highly subjective judgments are based upon the data received from sophisticated mechanical devices. In these circumstances, the apparent objectivity of the machine may suggest a degree of certainty inconsistent with the subjective aspects of the enterprise. [8] United States v. Addison, supra, 498 F.2d at 744 ; *386 People v. Kelly, supra . As the Supreme Court of California stated in Kelly ( 549 P.2d at 1245 ):
"... Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles.... Several reasons founded in logic and common sense support a posture of judicial caution in this area. Lay jurors tend to give considerable weight to `scientific' evidence when presented by `experts' with impressive credentials. We have acknowledged the existence of a `... misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.' ( Huntingdon v. Crowley, supra, 64 Cal.2d at p. 656, 51 Cal. Rptr. at p. 262, 414 P.2d at p. 390; ....) As stated in Addison, supra, in the course of rejecting the admissibility of voiceprint testimony, `scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury....' ( United States v. Addison, supra, 498 F.2d at p. 744 .)"
In addition to the advantage of substituting scientific for lay judgment as to scientific reliability, the court in United States v. Addison, supra, 498 F.2d at 744 , pointed out that the Frye test
"... protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case.... [T]he ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential."
The dissenting opinion, however, suggests that instead we adopt the rule enunciated by McCormick, that "[a]ny relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion." McCormick on Evidence § 203 at 491 (2d ed. 1972). McCormick, in opposition to the great weight of judicial *387 authority, believes that disagreement in the scientific community regarding the reliability of a scientific process should go to the weight rather than the admissibility of scientific evidence.
This view seems to us unacceptable. It fails to recognize that laymen should not on a case by case basis resolve a dispute in the scientific community concerning the validity of a new scientific technique. When the positions of the contending factions are fixed in the scientific community, it is evident that controversies will be resolved only by further scientific analysis, studies and experiments. Juries and judges, however, cannot experiment. If a judge or jurors have no foundation, either in their experience or in the accepted principles of scientists, on which they might base an informed judgment, they will be left to follow their fancy. [9] Thus, courts should be properly reluctant to resolve the disputes of science. "It is not for the law to experiment but for science to do so," State v. Cary, supra, 99 N.J. Super. at 332 .
Nonetheless, under the McCormick standard, juries would be compelled to make determinations regarding the validity of experimental or novel scientific techniques. As a result, one jury might decide that a particular scientific process is reliable, while another jury might find that the identical process is not. However, the reliability of the underlying technique or process to perform as it is supposed to does not vary with different cases. Using the polygraph as an example, although particular polygraph tests may give different results under different circumstances, the basic validity of the polygraph technique in general to give the type of results which are claimed for it does not change with the facts of each case. Nevertheless, if the trier of facts is to determine the validity of the polygraph test on a case by case basis, one judge or jury might determine that it is reliable and convict *388 or acquit a defendant on the basis of the test results, whereas the very next judge or jury, sitting in the same courthouse and listening to the same operator giving the same type of test results, might determine that the technique is unreliable and ignore the results. Such inconsistency concerning the validity of a given scientific technique or process would be intolerable. See Commonwealth v. Sullivan, 146 Mass. 142, 145 (1888) (Holmes, J.).
Under the Frye test, however, this difficulty is largely avoided. As long as the scientific community remains significantly divided, results of controversial techniques will not be admitted, and all defendants will face the same burdens. If, on the other hand, a novel scientific process does achieve general acceptance in the scientific community, there will likely be as little dispute over its reliability as there is now concerning other areas of forensic science which have been deemed admissible under the Frye standard, such as blood tests, ballistics tests, etc.
In addition, there is a related danger under the McCormick view. The introduction of evidence based on a scientific process, not yet generally accepted in the scientific community, is likely to distract the fact finder from its central concern, namely the rendition of a judgment on the merits of the litigation. Without the Frye test or something similar, the reliability of an experimental scientific technique is likely to become a central issue in each trial in which it is introduced, as long as there remains serious disagreement in the scientific community over its reliability. Again and again, the examination and cross-examination of expert witnesses will be as protracted and time-consuming as it was at the trial in the instant case, and proceedings may well degenerate into trials of the technique itself. [10] The Frye test is designed to *389 forestall this difficulty as well. As stated in State v. Cary, supra, 99 N.J. Super. at 332 :
"All scientific aids and devices go through an experimental and testing stage, and during these stages there may be considerable scientific controversy. During this period of controversy ... the danger is that a trial may actually result in the trial of the technique rather than the trial of the issues involved in the case, if some less exacting rule is substituted for the time-honored rule of general scientific acceptance, ..."
For the foregoing reasons, we agree with the "general acceptance" rule which the Frye case sets forth.
Our adoption of the Frye standard does not, of course, disturb the traditional discretion of the trial judge with respect to the admissibility of expert testimony. Frye sets forth only a legal standard which governs the trial judge's determination of a threshold issue. Cf. Radman v. Harold, supra, 279 Md. at 169. Testimony based on a technique which is found to have gained "general acceptance in the scientific community" may be admitted into evidence, but only if a trial judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues.
Turning to the admissibility of testimony based on the voiceprint process, prior to 1972 it was generally agreed that the voiceprint process had not been sufficiently tested and accepted to qualify its results for use in the courts. [11] The Technical Committee on Speech Communication of the Acoustical Society of America had requested six scientists in the field of acoustics to evaluate the voiceprint process. These *390 scientists, Richard Bolt, Franklin Cooper, Edward David, Peter Denes, James Pickett and Kenneth Stevens, reported in 1970 that the voiceprint process was still in its experimental stage, and the reliability of the conclusions based on the data obtained from the process was uncertain ( Speaker Identification by Speech Spectrograms: A Scientists' View of Its Reliability for Legal Purposes, 47 J. Acoustical Soc'y Am. 597, 603 (1970)):
"[T]he 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 spectrographic evidence in the courts."
In 1971 and 1972, Dr. Tosi and his associates published a series of papers concerning the results of an experiment conducted on the voiceprint process. [12] Subsequently, some courts, relying exclusively on the testimony of Dr. Tosi and his Michigan associates, admitted in evidence testimony based on the voiceprint process. See State ex rel. Trimble v. Hedman, 291 Minn. 442 , 192 N.W.2d 432 (1971); Worley v. State, 263 So.2d 613 (Dist. Ct. App. Fla. 1972) (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 , 106 Cal. Rptr. 547 (1973). However, as observed by Judge Kaplan, dissenting in Commonwealth v. Lykus, 367 Mass. 191 , 327 N.E.2d 671, 680 (1975):
"It can fairly be said, however, that when the cases were decided the scientific community had not had *391 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 , 114 Cal. Rptr. 708 (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."
In 1973, Bolt, Cooper, David, Denes, Pickett and Stevens again addressed the voiceprint issue, in light of the Tosi experiment. [13] The authors expressed their concern about certain aspects of the Tosi experiment. They mentioned the Tosi experiment's failure to consider the problems of mimicking or disguising of voices, changes in voice levels, and changes due to stress or other emotional states of the speaker. They expressed further concern over the increase in error rates in comparing voice samples taken at different times, as well as the increase of error in other circumstances. The authors concluded, Bolt, et al., Speaker Identification by Speech Spectrograms: Some Further Observations, 54 J. Acoustical Soc'y Am. 531, 533-534 (1973):
"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 spectrographic 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 *392 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 spectrographic method."
The testimony in the instant case indicates that the fundamental division in the scientific community reflected in these articles has continued without substantial abatement. On direct examination of Dr. Tosi, he acknowledged the division in the scientific community concerning the validity of the voiceprint process:
"Q. How many experts within the field of sound spectrography that have used that process for voice identification oppose that process, who have done actual work in that field?
"A. In addition to the six authorities of Bolt, et al., and none of them worked in voice identification, Stevens had some nine years ago a small experiment. There are three others that oppose it that have done some work — not too much. Some of them have no professional basis. Let's say five of them, to the best of my knowledge.
*393 "Q. How many of the experts within the field of sound spectrography for voice identification are in favor of that process?
"A. At least — I can give the names of at least 15, and among them very prominent scientists." [14]
Later, asked about the division of experts, excluding those professionally engaged in the field of voice identification, Tosi testified:
"A. Okay, five were opposed from this reduced group of persons that I said at least have published or done something but were not professionally engaged in the field. I say it is a rough number. Persons that I know of that have done some experimentation or have published, I said less than ten; five opposed — four or five are in favor....
"Q. You are not including Dr. Bolt and his group, are you?
"A. No, I am not."
Additional expert witnesses who testified for the State, in the instant case, were Sgt. Smrkovski, Dr. Peter Jansen and Dr. John A. McClung. Their testimony was consistent with *394 that of Dr. Tosi in acknowledging the division in the scientific community.
Dr. Donald Baker, an expert witness called by the defense, [15] testified that spectrography was neither a reliable process nor generally accepted within the scientific community. Dr. Baker cited two samplings of opinion of the scientific community, both of which had been unfavorable toward the validity of the process. The first was a meeting in which the members of the Speech Communications Section of the Acoustical Society of America voted 42-0 against the efficacy of the procedure. The second was a mail survey, as reported in a scientific journal, which resulted in an unfavorable reaction. Dr. Baker also noted that the majority of articles on the subject were negative in their characterization of the process.
The extent of disagreement in the scientific community was emphasized in the instant case by the testimony of Dr. Henry Hollien, another expert witness for the defense, [16] who stated:
"I have conducted or directed about six major studies using [the voiceprint] technique.
* * *
"One of the things we have done, and we are the only people who have done this ... we have applied our technique to ... [simulated crimes], and it of course doesn't work.
* * *
"There was nothing wrong with trying to use it [the technique]. It failed. Now it is an abuse.
*395 "Q. It is an abuse because you feel there are some people not qualified to use it?
"A. No, no. It is the data. See, I don't think the people that use it know about the research literature.... There are many studies that have been published which show the problems with this. There is a huge literature that would demonstrate why they should back off, put a moratorium on this until we have some knowledge, and not foster this upon the judicial system and law enforcement agencies. It amounts to a fraud. I don't think they realize it. They don't know what is going on, you see." (Emphasis added.)
There has been a sharp division among the cases which have considered the admissibility of voiceprint evidence after the emergence of the controversy over Tosi's claims.
Three state supreme courts, California, Michigan and Pennsylvania, have held the evidence inadmissible. Commonwealth v. Topa, supra ; People v. Kelly, supra ; People v. Tobey, supra . In addition, the District of Columbia Court of Appeals, in Brown v. United States, 384 A.2d 647 (D.C. 1978), has also held voiceprint evidence inadmissible. On the other hand, the Supreme Court of Massachusetts has, in a divided opinion, held the evidence admissible, Commonwealth v. Lykus, supra . And see State v. Williams, 388 A.2d 500 (Me. 1978).
Two lower state courts have recently ruled voiceprint evidence admissible: People v. Rogers, 86 Misc.2d 868 , 385 N.Y. Supp.2d 228 (1976); and State v. Olderman, 44 Ohio App.2d 130 , 336 N.E.2d 442 (1975). However, in D'Arc v. D'Arc, 157 N.J. Super. 553 , 385 A.2d 278 (1978), the New Jersey Superior Court ruled voiceprint evidence inadmissible.
In the United States Courts of Appeal, voiceprint evidence has been held inadmissible in United States v. Addison, supra , and admissible in United States v. Baller, supra , and United States v. Franks, 511 F.2d 25 (6th Cir.1975), cert. denied, 422 U.S. 1042 , 95 S.Ct. 2654 , 45 L.Ed.2d 693 (1975).
*396 All cases holding voiceprint evidence inadmissible have done so on the ground that the process fails to satisfy the standard articulated in United States v. Frye, supra. It is important to note, however, that neither United States v. Baller, supra , nor United States v. Franks, supra , in holding voiceprint evidence admissible, seemed to apply the Frye test. In Franks , the court stated ( 511 F.2d at 33 ):
"Although we, of course, are aware of the differences of ... scientific opinion concerning the use of voiceprints, we also are mindful of `a considerable area of discretion on the part of the trial judge in admitting or refusing to admit' evidence based on scientific processes." (Emphasis supplied.)
Similarly, in United States v. Baller, supra , the court, after considering the Frye standard, stated ( 519 F.2d at 466 ):
"Unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury, it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation."
The Massachusetts Supreme Court held that voiceprint analysis did satisfy the Frye standard. In Commonwealth v. Lykus, supra, 327 N.E.2d at 678 n. 6, that court stated:
"[W]e agree that there certainly is not uniform and total acceptance of the [voiceprint] method [in the scientific community].... Yet the ... Frye standard does not require unanimity of view, only general acceptance; a degree of scientific divergence of view is inevitable. In this case we are disposed to give greater weight to those experts who have had direct and empirical experience in the field of spectrography....
"Thus, we find the evidence presented in support of the reliability of voiceprints, particularly as *397 expressed in Dr. Tosi's study, sufficiently persuasive to outweigh the criticism expressed by certain other scientists in the field of acoustics."
Nevertheless, it is not fully clear whether the Massachusetts court was, consistent with the Frye standard, deciding that the voiceprint method is generally accepted by the scientific community or whether it was attempting itself to determine the merits of the claims of the various scientists. In any event, we find ourselves more in agreement with Judge Kaplan, dissenting in Commonwealth v. Lykus, supra, 327 N.E.2d at 682 , who stated:
"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 relevent scientific `field.'"
Furthermore, we disagree with the Massachusetts court's characterization of the nature of the dispute. A degree of scientific divergence of opinion is indeed inevitable, but the degree of divergence surrounding the voiceprint process is fundamental and goes to the very validity of the process itself. This kind and degree of divergence is notably absent in other areas of scientific evidence generally deemed admissible. As stated in Comment, The Voiceprint Dilemma: Should Voices Be Seen and Not Heard?, 35 Md. L. Rev. 267 , 280 n. 79 (1975):
"[E]xperts may disagree as to the application of a technique, or as to the results of that application, but they do not generally question that the technique is capable of producing the results claimed. For instance, it is common knowledge that psychiatric diagnoses are often at odds with each other, and it is easy to picture experts disputing whether two writing samples came from the same hand. It is *398 much more difficult to imagine experts disputing whether psychiatric diagnoses or handwriting identifications are possible with any significant degree of reliability. Yet that is precisely the nature of the voiceprint dispute; experts question the capability of the process itself, not just the results of its application." (Emphasis supplied.)
In addition, it is the almost unanimous opinion in recent legal commentaries that the voiceprint technique does not satisfy the standards articulated in Frye v. United States . See, e.g., Comment, The Voiceprint Dilemma: Should Voices Be Seen and Not Heard? supra; Comment, Voiceprints: The End of the Yellow Brick Road, 8 U.S.F.L. Rev. 702 (1974); Jones, Danger — Voiceprints Ahead, 11 Am. Crim. L. Rev. 549 (1973); Jones, Evidence Vel Non The Non Sense of Voiceprint Identification, 62 Ky. L.J. 301 (1974); Note, Voiceprint Identification, 61 Geo. L.J. 703 (1973); Thomas, Voiceprint — Myth or Miracle (The Eyes Have It), 3 U. San Fern. V.L. Rev. 15 (1974). Even those authors who advocate the admissibility of voiceprint evidence appear to concede that it does not meet the Frye test and argue instead for alternative revised standards under which it might be admissible. See, e.g., Decker and Handler, Voiceprint Identification Evidence — Out of the Frye Pan and into Admissibility, 26 Am. U.L. Rev. 314, 361-365 (1977); Greene, Voiceprint Identification: The Case in Favor of Admissibility, 13 Am. Crim. L. Rev. 171 , 195-197 (1975).
Despite this array, the trial court in the instant case determined that spectrography had achieved the standard of acceptance needed for admissibility. However, the trial court, in holding voiceprint evidence admissible, construed the Frye test to require
"general acceptance ... within the group actually engaged in the use of this technique and in the experimentation with this technique.... [W]e are restricting the relevant field of experts to those who *399 are knowledgeable, directly knowledgeable through work, utilization of the techniques, experimentation and so forth, that we are not taking the broad general scientific community of speech and hearing science. In that broad community there probably is not acceptance."
We have serious doubts that voiceprint analysis meets even this reduced standard. Tosi's own testimony indicates substantial division of opinion among those who have done work or performed experiments relating to the voiceprint process.
In any event, we find that the trial court's formulation is inconsistent with the proper standard of acceptance necessary for admissibility. The circumstances of the instant case suggest no basis for "restricting the relevant field of experts" to those who have performed voiceprint experiments, and eliminating from consideration the opinions of those scientists in the fields of speech and hearing, as well as related fields, who, by training and education, are competent to make professional judgments concerning experiments undertaken by others. The purpose of the Frye test is defeated by an approach which allows a court to ignore the informed opinions of a substantial segment of the scientific community which stands in opposition to the process in question.
Thus, based on our examination of the record in the instant case, the judicial opinions which have considered this question, and the available legal and scientific commentaries, we do not believe that "voiceprint" analysis has achieved the general acceptance in the scientific community, at this time, which is required under Frye . We therefore hold that testimony based on "voiceprints" or spectrograms is, for the present, inadmissible in Maryland courts as evidence of voice identification. This holding is, of course, subject to reconsideration by this Court if the use of spectrograms or some other technique of voice identification does in the future *400 achieve the general acceptance of the scientific and legal communities.
Judgment of the Court of Special Appeals reversed, and case remanded to that court with directions to reverse the judgment of the Circuit Court for Montgomery County and remand the case for a new trial.
Montgomery County to pay costs.
Smith, J., dissenting :
I respectfully dissent. I believe the Court of Special Appeals was correct in holding that the expert might testify that in his opinion the voice of the person making the telephone calls in question was that of Reed. My dissent is based upon a number of reasons, not necessarily in the sequence in which I list them: (1) The rule enunciated in Frye v. United States (the Frye test), 293 F. 1013 (D.C. Cir.1923), is much criticized, has never been adopted in Maryland, and I am opposed to its adoption. (2) The decision here is out of step with that of a number of respected courts as to the basis for admission of evidence concerning expert opinions related to fingerprints ballistics, X-ray, and the like. (3) The decision here is out of step with our prior Maryland holdings concerning expert testimony. (4) The majority of reported opinions which have considered the matter have permitted the admission of expert testimony relative to spectrographic analysis and voice identification. (5) Even if the Frye test were made applicable, the evidence here satisfied that test. I shall consider these points seriatim.
1. The Frye test
a. Views of authorities on the subject
Prior to the decision in Reed v. State, 35 Md. App. 472 , 372 A.2d 243 (1977), Frye had never been cited in Maryland. *401 Moreover, I fail to find where its concepts have previously been enunicated in Maryland. Obviously, it is in no way binding upon us. [1]
*402 It should be noted at the outset that Frye was concerned with a type of situation materially different from that with which we are here faced. The defendant there was convicted of murder in the second degree. His sole assignment of error on appeal was the refusal [2] of the trial court to permit "an expert witness to testify to the result of a deception test made upon defendant." That test was a precursor of the present day polygraph, and was based solely on systolic blood pressure. The court said:
"[T]he theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds." Id. at 1014 .
Prior to the trial the defendant had been "subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained." Apparently, it was intended to have the expert state that the defendant was telling the truth. It was in this context that the court said it thought "the systolic blood pressure deception test ha[d] not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made."
The evidence proposed in Frye was an obvious invasion of the province of the jury since the trier of fact is vested with *403 the responsibility of determining the credibility of witnesses. It should be instantly perceived that the controversy here concerns a type of evidence vastly different from that rejected in Frye .
The Frye standard for determining admissibility of scientific evidence has been criticized by a number of respected scholars. Some object to the test generally. Others point to its inapplicability in the type of case at bar. Dean McCormick probably succeeded Professor Wigmore as the foremost authority in the field of evidence. McCormick's Handbook of the Law of Evidence § 203 at 489 (2d ed. 1972) states, "So far as it can be dated, the notion of a special rule of admissibility for scientific evidence seems to have arisen in 1923," referring to Frye . After pointing out that "[n]o authority was cited" for the court's conclusion in Frye , the authors state:
"`General scientific acceptance' is a proper condition for taking judicial notice of scientific facts, but not a criterion for the admissibility of scientific evidence. Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion. Particularly, probative value may be overborne by the familiar dangers of prejudicing or misleading the jury, and undue consumption of time. If the courts used this approach, instead of repeating a supposed requirement of `general acceptance' not elsewhere imposed, they would arrive at a practical way of utilizing the results of scientific advances." [3] Id. at 491 (footnotes omitted).
J. Richardson, Modern Scientific Evidence § 2.5 (2d ed. 1974) states:
"It has been urged that certain scientific tests, as the lie detector, should be barred because they are not infallible. Surely this represents a type of judicial *404 prejudice, for infallibility has never been a test for the admissibility of evidence — scientific or otherwise. Universal acceptance can be ruled out for the same reason, and it is urged that general scientific acceptance is a proper condition for the court to take judicial notice of a scientific fact, without laying the usual foundation, but not a sound criterion for the admissibility of scientific evidence. Any relevant conclusions, which are supported by a qualified expert witness, in a field finding substantial scientific acceptance should be admitted in evidence, for its probative value to be weighed by competent fact-finders in the light of all the circumstances. The courts should not confuse novelty with want of acceptance in refusing to admit the results of scientific techniques which offer much in aiding to ascertain the truth." Id. at 24 (footnote omitted).
The same author in § 9.2 quotes Frye in a footnote and then states:
"Here the court lays down the test of general acceptance, which, though ill-defined, is too restrictive. Actually, the degree of scientific acceptance should go to probative value, not admissibility. Wigmore once wrote, `All that should be required as a condition (to admissibility) is the preliminary testimony of a scientist that the proposed test is an accepted one in his profession and that it has a reasonable measure of precision in its indications.' Evidence, § 990 (2d ed. 1923)." Id. at 290, n. 8 (emphasis in original).
A statement by Professor Wigmore identical to that quoted by Professor Richardson is found in J. Wigmore, Evidence § 990 at 626 (3d ed. 1940). The reference in Wigmore is to psychological testing.
A. Moenssens, R. Moses & F. Inbau, Scientific Evidence in Criminal Cases § 12.06 at 517 n. 9 (1973), in discussing voice *405 identification by spectrograms, states, "It is debatable, of course, whether the `general acceptance' test of Frye ... which has for decades been used by courts in determining admissibility of novel scientific test results, is a proper prerequisite to admissibility." The authors then quote from McCormick, Evidence § 170 (1954), to the effect that general scientific acceptance "is a proper condition upon the court's taking judicial notice of scientific fact, but not a criterion for the admissibility of scientific evidence."
Professor Strong of the University of Oregon said in Questions Affecting the Admissibility of Scientific Evidence, 1970 U. Ill. L.F. 1 (1970):
"In addition to the requirement that the expert tendered be qualified to supply or apply the scientific principle or principles, there exists another requirement under which the testimony of persons professing acquaintance with principles unknown to the tribunal may be rejected. This requirement, which was first announced in Frye v. United States , is that the principle upon which the expert proposes to testify must have achieved general acceptance in the scientific community. However, unanimity of approval, manifestly impossible in a world still believed by some to be flat, is not required. The resulting standard, something greater than acceptance by the expert himself but less than acceptance by all experts in the field, is obviously somewhat lacking in definiteness. Some courts have seemingly rejected the Frye standard, and others have tailored it to fit unusual situations. Nevertheless, the rule continues to be widely accepted.
"In addition to the difficulties apparent in ascertaining whether a general proposition of science has or has not been generally accepted, the Frye standard has been criticized as overly rigorous and as introducing an element of inconsistency into the law of evidence." Id. at 10-11 (footnotes omitted).
*406 Additional criticism of the Frye test is found in Decker & Handler, Voiceprint Identification Evidence — Out of the Frye Pan and Into Admissibility, 26 AM. U.L. Rev. 314 (1977). Specifically, it is stated:
"The judicial trend denying admissibility of voiceprint identification evidence was based on a literal interpretation of the Frye standard of general scientific acceptance. Since the standard was drawn from dicta and formulated more than fifty years prior to advancements in science and technology such as spectrographic identification analysis, it is necessary that its validity be re-examined.
"The standard enunciated in Frye is one that is `neither common to criminal litigation nor easily applied in the individual case.' Since its inception, the Frye standard has been the subject of criticism because of the limiting effect it has had on judicial acceptance of new methods of scientific investigation. In light of the rationale behind the Frye rule and its practical application to voiceprint identification evidence cases, it is apparent that the criticism is quite warranted.
"One of the reasons for the rule was to prevent the development of arbitrary decisions on issues of admissibility. Yet, enunciation of the Frye standard, without any definitive criteria as to who and how large the pertinent scientific community must be, has unnecessarily limited the discretion a trial court should have in utilizing relevant input. Indeed, while the Frye standard was utilized in State v. Cary and People v. King , it was not until United States v. Addison that one could find a comprehensive discussion of general scientific acceptance and how it ought to operate in the spectrographic analysis setting." Id. at 361-62 (footnotes omitted).
The authors further comment relative to Frye :
"Proponents of logical relevancy have criticized the Frye test, and suggested that there would be greater *407 unanimity in the treatment of all forms of scientific evidence if the Frye rule were modified in conformance with the doctrine of logical relevance. That is, scientific evidence could be submitted to the jury upon a showing of reasonable reliability. Based on its determination of the accuracy and reliability of the evidence, the jury would decide the weight to be accorded it. Boyce, Judicial Recognition of Scientific Evidence in Criminal Cases, 8 Utah L. Rev. 313 , 325-26 (1963-64); Note, Evolving Methods of Scientific Proof, 13 N.Y.L.F. 67[9], 681-85 (196[8])." Id. at 362 n. 304.
Gorecki, Comment: Evidentiary Use of the Voice Spectrograph in Criminal Proceedings, 77 Mil. L. Rev. 167 , 169 (1977), notes, "Criticism has been leveled at the rigidity of the Frye scientific standard both generally and with respect to its application to the voice spectrograph technique," citing, in addition to Professor Strong's article which we have heretofore quoted, Note, The Voiceprint Technique: A Problem in Scientific Evidence, 18 Wayne L. Rev. 1365 , 1383 (1972), and Note, Evolving Methods of Scientific Proof, 13 N.Y.L.F. 679 (1968). Major Gorecki does not list the pages where the criticism is found in the latter publication, but they are 683, 684-85, 747 and 749.
It is suggested by Boyce, Judicial Recognition of Scientific Evidence in Criminal Cases, 8 Utah L. Rev. 313 (1963-64):
"There seems to be little reason why courts should not allow juries to hear both sides of the question of the reliability of a particular form of scientific evidence and decide what, if any, weight it should be accorded, upon, of course, a foundation which shows there is a reasonable possibility of reliability." Id. at 325-26.
Some are of the view that the new Federal Rules of Evidence 702 and 703, governing expert testimony, have adopted the McCormick standard of "assisting the trier of fact" rather than the Frye requirement of "general scientific acceptance." Romero, The Admissibility of Scientific *408 Evidence Under the New Mexico and Federal Rules of Evidence, 6 N.M.L. Rev. 187, 197 (1976); Comment, Expert Testimony and Voice Spectrogram Analysis, 1975 Wash. U.L.Q. 775, 782 n. 27 (1975); and Comment, Evidence — Admission of Voiceprints Does Not Exceed the Discretion of the Trial Judge — United States v. Franks, 511 F.2d 25 (1975), 44 Cinn. L. Rev. 616, 621 (1975). Without discussing Frye , J. Weinstein and M. Berger, Weinstein's Evidence (1976), states:
"Doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions. The jury is intelligent enough, aided by counsel, to ignore what is unhelpful in its deliberations." Id. at 702-9.
New Federal Rule 901 provides in pertinent part:
"(a) General provision. — The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
"(b) Illustrations. — By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
* * *
"(3) Comparison by trier or expert witness. — Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
* * *
"(5) Voice identification. — Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker."
*409 Weinstein and Berger, supra, comment:
"Rule 901(b)(5) provides for the identification of any voice by any person who can connect the voice with the alleged speaker by `hearing' the voice. This language does not preclude testimony by an expert witness who has not `heard' the voice but who has identified it by the voiceprint technique. Cf. Rule 901(b)(3), (4)." Weinstein's Evidence at 901-61.
It is of interest that these authors, after discussion of Lawrence Kersta and his early experiments in the field here under discussion, state with reference to this technique at 901-69, "At this stage of development, given an adequate expert's testimony, admissibility is warranted."
b. The majority opinion on this subject
The majority opinion cites 28 cases in support of its proposition that the "criterion of `general acceptance' in the scientific community has come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence." They state the proposition too broadly. For instance, in People v. Busch, 56 Cal.2d 868 , 16 Cal. Rptr. 898 , 366 P.2d 314 (1961), no mention is made of Frye or its criteria. In that case a defendant sought to have a physician testify relative to his use of hypnosis as an analytical tool in his determination of the mental condition of the defendant at the time of the killings in question. The Supreme Court of California pointed out that "[t]he objections were made and sustained on the stated grounds that hypnosis is not a sufficiently scientific means of exploring the state of mind, that the witness was not qualified in this field, and that the opinions were formulated on the defendant's statements and constituted hearsay." The court said that "the witness conceded that this was his initial appearance in the role of an expert in a criminal case on the subject matter of an accused's state of mind; that he was not a psychiatrist and had engaged in the practice of medicine as a general practitioner until shortly before his *410 appearance in the case [then] at bar as an expert specializing in hypnosis." The court further stated:
"In laying a foundation for the introduction of opinion evidence of the state of mind of a defendant based upon the use of a technique not theretofore recognized by the courts as sufficiently reliable to form the basis for such an opinion, at the very least, some showing of its successful use in the examination of others than the defendant for the same purpose, either by the witness or by other experts in the field, would appear to be required. We are persuaded that under the circumstances herein narrated the trial judge did not act unreasonably in his determination that a proper foundation was not established as to the reliability of an analytical tool still seeking recognition in the field of psychiatry, or as to the qualifications of this particular witness to give an opinion on the state of mind of the accused on the occasion of the commission of the homicides herein. It must be remembered, `* * * the general rule is that the trial court, in passing upon the qualification of a witness offered as an expert, has wide discretion, and an appellate court will not disturb its ruling in the absence of a manifest abuse of such discretion.' (People v. Chambers, 162 Cal. App.2d 215, 220 , 328 P.2d 236, 239 ; see also People v. Goldsworthy, 130 Cal. 600, 604-605 , 62 P. 1074 .) In the instant case no abuse of discretion is demonstrated and the trial judge justifiably sustained the objections presented by the record in this case to the admission of the offered opinion testimony based on the use of hypnosis." 16 Cal. Rptr. at 903-04 .
In State v. Arnwine, 67 N.J. Super. 483 , 171 A.2d 124 (App. Div. 1961), the issue before the court was whether a defendant who had voluntarily submitted to a polygraph test but who did not consent to the admission of its results was prejudiced by testimony of a detective who gave the test, *411 which testimony indirectly showed the result of the test. The court pointed out, "The record of the trial below is barren of any effort to lay a foundation with respect to the equipment used or to establish the technical qualifications of Detective John Latawiec, the polygraphic examiner, other than the fact that he was a sergeant associated, as such an examiner, with the New Jersey State Police." Id. at 487 . It noted the ironic fact that Frye, the defendant in Frye v. United States, 54 App. D.C. 46 , 293 F. 1013 (D.C. Cir.1923), "was sentenced to life imprisonment. The blood-pressure deception test indicated his innocence, and this was subsequently corroborated when a third person confessed that he was the real murderer. Had the results of the test been admissible evidence, it is altogether probable that an innocent man would not have been convicted of murder," citing authorities. Id. at 493. Judge Foley in his concurring opinion, 67 N.J. Super. 499 , said that "because the issue of the admissibility of such results was not before [the court, he was] unwilling to spell out generally, and for future guidance, the foundation of proof required to make the test results evidential," adding that it seemed to him "that this should await a case in which the issue [was] squarely raised so that the decision therein m[ight] be construed in light of a live, rather than a hypothetical, factual complex." He further said:
"It is my view that dicta are to be avoided as far as possible and should be employed only where they serve to illuminate the holding in a case. I think that this is particularly true when the dicta involve a discussion of the present status of scientific information as it affects the law. The pace of research in science is so swift, and the impulse of those engaged in this field is so dynamic that the artisans of the law would be well advised to avoid fixing standards unnecessarily, which in future application may be found to be based on scientific concepts which are then outmoded. Compare, e.g., State v. Hunter, 4 N.J. Super. 531, 538 ( App. Div. 1949), with State v. Miller, 64 N.J. Super. 262, 269-70 ( App. Div. 1960)." Id. at 499.
*412 In State v. Swanson, 225 N.W.2d 283 (N.D. 1974), another of the cases cited in the majority opinion, a defendant sought to introduce evidence of his willingness to take a polygraph test. The trial court refused to accept such evidence. The court said it was urged to overrule its decision in the case of State v. Pusch, 77 N.D. 860 , 46 N.W.2d 508 (1951), and to accept the results of polygraph testing in criminal proceedings. After stating that "[t]here ha[d] been some evidence of a breach in the wall of judicial opposition to utilizing this device," citing several cases, the court said:
"This court may be required to re-examine its decision in State v. Pusch, supra , if presented with an appropriate record. Such a record is not present in this case. There was no actual test made of this defendant, he merely offered to take such a test. There was little evidence offered concerning the scientific reliability and acceptance of the polygraph or the qualifications of its proposed operator. The testimony of the officer called to explain the proposed test indicated that the polygraph would be inconclusive in a case of this type." Id. at 285.
In Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973), another of the cases cited in the majority opinion, Frye is simply one of the cases mentioned as having considered the polygraph. The court noted that in Frye it "really [was] a monograph rather than a polygraph...." No standard was set forth. The court said that it had previously "followed the almost unanimous view of American courts concerning the admissibility of the results of a polygraph test." Id. at 210. It asserted that it was "convinced at th[at] time that [it] should adhere to the general rule of exclusion." Id. at 211.
The issue before the court in State v. Woo, 84 Wash.2d 472 , 527 P.2d 271 (1974), yet another case cited in the majority opinion, was whether the results of a polygraph examination of a criminal defendant were admissible in evidence upon a stipulation of the defendant alone. The court said, "The general rule, followed almost without exception since Frye v. United States, 293 F. 1013 (D.C. Cir.1923), is that the results *413 of a polygraph examination are inadmissible at trial." Nothing was said about applicable standards. The court noted that in a perjury case, United States v. Ridling, 350 F. Supp. 90 (E.D. Mich. 1972), the court, citing C. McCormick, Law of Evidence 505 (2d ed. E. Cleary 1972), "viewed the expert testimony on polygraph results as opinion rather than scientific evidence," admitting the evidence when it "concluded that `the state of the science is such that the opinions of experts "will assist the trier of fact to understand the evidence."'" The court further said:
"Turning again to the cases before us, the records of the omnibus hearings, unlike that in either Ridling or Zeiger, are devoid of any material to support the decisions of the judge. There is nothing to disclose whether there exists even minimum accepted qualifications for polygraph operators. If standards do exist, one is left to speculate as to what they are. There is nothing in the records, by way of testimony or exhibit, concerning the trustworthiness of the most modern polygraph equipment. The type of equipment proposed to be used in the instant cases and its reliability are not disclosed. Further, the records are silent as to techniques to be used in the examinations and whether they are professionally acceptable.
"If we are to consider a departure from a virtually unanimous rule against the admissibility of polygraph examinations, absent stipulation, we must be furnished with a record sufficiently adequate to permit review of the subject." Id. at 474-75.
It is of interest that 16 of the 28 cases cited by the majority for its proposition are concerned with the admission of polygraph evidence. Two additional cases, State v. Smith, 50 Ohio App.2d 183 , 362 N.E.2d 1239 (1976), and Henderson v. State, 94 Okla. Crim. 45 , 230 P.2d 495 (1951), are concerned with polygraph plus another test — gunshot residue in Smith and truth serum in Henderson .
*414 Certain of the cases cited by the majority point to inherent weaknesses in the polygraph technique, weaknesses not involved in the case at bar. For instance, in Henderson the court said that it could "foresee conditions where to ascertain the truth, it would become necessary to require the operator of the machine to submit to a test to determine the truthfulness of his interpretations." Id. at 53 .
In State v. Steele, 27 N.C. App. 496, 500 , 219 S.E.2d 540 (1975), another of the cases cited by the majority, the court pointed out, quoting 46 Iowa L. Rev. (1961) relative to polygraphs, that "`[r]eliability depends greatly on the skill and experience of the expert'" and "`[a] much greater degree of interpretation is involved than in blood and ballistics tests.'" In the type of test in the case at bar the jury hears the recording of the voice known to be that of the defendant and the recording said by the expert to be the voice of the defendant. It also sees the spectrographic samples.
In Boeche v. State, 151 Neb. 368 , 37 N.W.2d 593 (1949), another of the polygraph cases cited by the majority opinion, the court said concerning the refusal of the trial court to reopen the case so the defendant could submit to an examination by polygraph:
"Cogent reasons in support of this attitude readily suggest themselves. In the first place, the vital function of cross-examination would be impaired. The operator, appearing as a witness to report and interpret the results of the test, might be questioned as to his qualifications, experience, his methods, and on similar matters, and that is about all. But the machine itself — conceding the comparatively high percentage record as to accuracy and reliability claimed for it — escapes all cross-examination. There is no persuasive analogy here with such tests as fingerprinting which have a strictly physical basis, clearly demonstrable. It is not contended that the lie detector measures or weighs the important psychological factors. Many innocent but highly sensitive persons would undoubtedly show unfavorable *415 physical reactions, while many guilty persons, of hardened or less sensitive spirit, would register no physical indication of falsification. This the trained operators of course understand, and proceed upon the basis of a large percentage of error. But it seems quite too subtle a task of evaluation to impose upon an untrained jury." Id. at 377 .
In State v. Valdez, 91 Ariz. 274 , 371 P.2d 894 (1962), another of the polygraph cases cited by the majority, the court pointed out shortcomings of the polygraph technique:
"[I]n addition to the above enumerated scientific shortcomings of the polygraph technique the following objections to the unrestricted use of its results in the court room have been registered:
"(1) The supposed tendency of judges and juries to treat lie-detector evidence as conclusive on the issue of defendants' guilt. See Highleyman, The Deceptive Certainty Of The `Lie Detector', 10 Hastings L.Rev. 47 (1958); Kleinfeld, The Detection of Deception — A Resume, 8 Fed.B.J. 153 (1947).
"(2) Lack of standardization of test procedure, (Burack, A Critical Analysis Of The Theory, Method, And Limitations Of The `Lie Detector', 46 J.Crim.L., C. & P.S., 414 (1955); Koffler, The Lie Detector — A Critical Appraisal Of The Technique As A Potential Undermining Factor In The Judicial Process, 3 N.Y.L.F. 123 (1957)), examiner qualifications and instrumentation.
"(3) Difficulty for jury evaluation of examiners' opinions." Id. at 279-80 (footnote omitted).
2. Rules used in admissibility of fingerprints, ballistics, etc.
The general rule concerning the admissibility of evidence is summarized as follows in Kaplan, The Lie Detector: An *416 Analysis Of Its Place in the Law of Evidence, 10 Wayne L. Rev. 381 (1964): [4]
" The General Standard for Admissibility. Since the purpose of a trial is to discover the facts involved in a transaction or occurrence and to decide the issues presented in accordance with such facts, the general standard used in determining whether evidence should be admitted is that `all facts having rational probative value are admissible unless some specific rule forbids.' The probative value of a piece of evidence concerns its relationship to an issue to be decided in the lawsuit. If the evidence furthers, to some extent, the progress toward establishing the issue in question, it is considered admissible subject to the existence of policy factors weighing against its admission. The policy factors include such possibilities as misleading the jury or unduly prejudicing one party's position in the opinion of the jury. In considering such policy factors, the courts are weighing the prejudicial effect of admitting the evidence against the harm of excluding relevant evidence. Generally, the decision as to the wisdom of admitting or refusing the evidence is made according to the discretion of the trial judge." Id. at 393 (footnotes omitted).
Evidence which purports to be of a "scientific" character has been scrutinized carefully to insure that the evidence is sufficiently reliable to have some logical relevance to a material issue in the case. However, as will be seen from a review of cases considering other scientific developments of this century, scientific evidence has generally been admitted if supported by the testimony of a qualified expert. Although the lie detector cases have emphasized a need for "general acceptance in the particular field in which [the scientific principle] belongs," Frye, 293 F. at 1014 , the focus in other cases considering some new development has been on *417 reasonable reliability, not general acceptance. [5] In an early study of scientific evidence, Inbau, Scientific Evidence in Criminal Cases (I), 24 J. Crim. L. & C. 825 (1934), stated:
"Regardless of the justification for excluding evidence of a scientific nature, a court may assume either of two different attitudes — one open-minded and perhaps hopeful of the possibilities of the particular science in question; the other somewhat bigoted and scornfully expressive of the utter hopelessness of scientific aid concerning the problem before the court. Throughout the numerous decisions upon the admissibility of scientific evidence there are many illustrations of both points of view." Id. at 826 (footnote omitted).
I shall not attempt to characterize the varying views accorded the testimony as to identification of voices by spectrographic analysis.
a. Fingerprints
Some critics of the spectrographic voice identification process have suggested that any new scientific technique should be shown to be as reliable as fingerprinting before a jury is allowed to consider such evidence. Today we accept as commonplace travel at speeds such that one may cross the continent in less than the time that it took even as late as the end of World War II to travel by automobile from Baltimore to New York City. There are even members of this Court, however, who can remember the time when it was equally commonplace for many farmers to come to town on Saturday night by horse and carriage, hitching their horses to conveniently placed hitching posts. A relatively short time *418 ago those who traveled by motor vehicle were able to cross the Chesapeake Bay only by boat. Many persons today have forgotten the travel methods of even a few years back. Fingerprinting has long been recognized as an extremely reliable method of identification. Just as we may be prone to forget changes in the field of transportation, we may forget that even this branch of forensic science had its infancy. "Fingerprinting came into widespread use in this country from about 1910 on, after some isolated experiments on a local level, beginning in 1902." A. Moenssens, et al., supra, 308. The process was admitted into evidence almost immediately. See generally Inbau, Scientific Evidence in Criminal Cases (III), 25 J. Crim. L. & C. 500 (1934).
Moenssens and Inbau indicate that the first appellate decision in this country considering fingerprint evidence was People v. Jennings, 252 Ill. 534 , 96 N.E. 1077 (1911). Jennings was accused of murder at one home in connection with a series of nighttime intrusions into the bedrooms of women. The porch railing at the home where the murder took place had been painted a short time previously. Investigators discovered the imprint on the railing of four fingers of someone's left hand. Four witnesses testified that in their opinion the prints on the railing and the prints taken from the fingers of Jennings by the identification bureau were made by the same person. As the court put it, Jennings "earnestly insisted ... that this class of testimony is not admissible under the common law rules of evidence...." After taking note of the widespread use of fingerprints by police, although noting, "No case in which this question has been raised has been cited in the briefs and we find no statutes or decisions touching the point in this country," the court applied the general rule "that whatever tends to prove any material fact is relevant and competent," stating:
"We are disposed to hold from the evidence of the four witnesses who testified and from the writings we have referred to on this subject, that there is a scientific basis for the system of finger-print identification and that the courts are justified in *419 admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending to make out a case. If inferences as to the identity of persons based on the voice, the appearance or age are admissible, why does not this record justify the admission of this finger-print testimony under common law rules of evidence? The general rule is, that whatever tends to prove any material fact is relevant and competent." Id. at 549 .
The process was next approved in State v. Cerciello, 86 N.J.L. 309 , 90 A. 1112 (1914). The defendant there vigorously objected to introduction into evidence of his fingerprints for the purpose of comparing them with prints found upon the hatchet which was the murder weapon. The court said that this question "present[ed] a subject for judicial consideration, which while not entirely res nova in principle, is in its practical application in criminal procedure in [New Jersey at that time] essentially novel." Id. at 313 . It then held:
"In principle its admission as legal evidence is based upon the theory that the evolution in practical affairs of life, whereby the progressive and scientific tendencies of the age are manifest in every other department of human endeavor, cannot be ignored in legal procedure, but that the law in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes, which are the work of educated and skillful men in their various departments and apply them to the demonstration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury. Steph. Dig. Ev. 267; 2 Best Ev. 514." Id. at 314 .
The Court of Appeals of New York approved the admissibility of fingerprint evidence in People v. Roach, 215 *420 N.Y. 592, 109 N.E. 618 (1915). The court said that it was "earnestly insisted that the admission in evidence of the testimony of an alleged expert as to finger-print impressions was error and of such a material character as to have wrought grave injury to the defendant and to necessitate the reversal of this judgment." Judge Samuel Seabury said for the court:
"Before testifying to his opinion as to the identity of the defendant's finger prints with the marks upon the board the witness explained fully his qualifications, specified the circumstances upon which he predicated his opinion and swore that he was able to express an opinion with reasonable certainty. He was exhaustively and skillfully cross-examined as to every detail of his testimony. Ample basis was afforded for the jury to come to an intelligent conclusion as to the correctness of the opinion which he expressed. In view of the progress that has been made by scientific students and those charged with the detection of crime in the police departments of the larger cities of the world, in effecting identification by means of finger-print impressions, we cannot rule as a matter of law that such evidence is incompetent. Nor does the fact that it presents to the court novel questions preclude its admission upon common-law principles. The same thing was true of typewriting, photography and X-ray photographs, and yet the reception of such evidence is a common occurrence in our courts. The evidence to prove identity often presents doubtful and unsatisfactory features. One man may be mistaken for another because they look alike, or identity of person may be inferred from similarity of features, height, expression or a variety of other circumstances. Under common-law principles whatever tends to prove any material fact is relevant and competent." Id. at 604.
The New York court made it clear that the possibility of error *421 in the process affected only the weight of the evidence, not its admissibility:
"The fact that error may sometimes result in effecting identification, by this means affords no reason for the exclusion of such evidence. Mistakes may also occur in effecting identification by personal appearance, casual meeting, by handwriting or by one's voice heard in the dark or over the telephone, but evidence of this character is admissible and its weight is to be determined by the jury. Courts have often allowed proof of circumstances apparently very trivial as evidence upon which identification might be effected. ( State v. Rainsbarger, 74 Ia. 196 ; Wilbur v. Hubbard, 35 Barb. 303 .) The evidence of the expert as to the identity of the finger prints of the defendant, with the blood marks found upon the clapboards of the house, was a proper subject for the consideration of the jury. The weight to be given to this evidence was for the jury, not the court, to determine. Certainly the reception of this evidence would not justify the reversal of this judgment." Id. at 605.
As Roach illustrates, the early cases concerning fingerprints admitted such evidence under the general rule which Wigmore described as "[t]he second [of the two] axiom[s] on which our law of Evidence rests": "All facts having rational probative value are admissible unless some specific rule forbids." 1 J. Wigmore, Evidence § 10 at 293 (3d ed. 1940) (emphasis in original). In this regard he says:
"In this respect the century of the 1800s witnessed a gradual but marked improvement in the practical enforcement of this principle. `People were formerly frightened out of their wits,' said Chief Justice Cockburn, in 1861, `about admitting evidence, lest juries should go wrong. In modern times we admit the evidence and discuss its weight.'" Id. at 295 (footnote omitted).
*422 By the time the fingerprint issue reached this Court in Murphy v. State, 184 Md. 70, 85-86 , 40 A.2d 239 (1944), Judge Bailey said, "[T]his Court must take judicial notice of the fact that the use of fingerprints is an infallible means of identification." [6] As Cerciello and Roach demonstrate, however, scientific evidence need not be so indisputable as to merit judicial notice before it warrants admissibility. [7]
b. Ballistics
Although the accuracy of firearms identification is common knowledge today, see Moenssens et al., supra, § 4.16 at 149, the Illinois Supreme Court at one point labeled the claims of ballistics experts as "preposterous." People v. Berkman, 307 Ill. 492, 501 , 139 N.E. 91, 94 (1923). [8] See generally Inbau, *423 Scientific Evidence in Criminal Cases (I), 24 J. Crim. L. & C. 825 (1934). Professor Inbau notes: "A Virginia case decided in 1879, Dean v. Commonwealth, [32 Gratt. (Va.) 912 (1879),] is the first in which an appellate court approved of testimony regarding the similarity between fatal and test bullets — although weight, rather than any characteristic markings, constituted the basis for comparison." Id. at 830. "The first semblance of firearms identification evidence as we know it today, was presented in the 1902 Massachusetts case of Commonwealth v. Best [, 180 Mass. 492 , 62 N.E. 748 (1902)]." Moenssens et al., supra, § 4.16 at 147. The writer of the opinion in Best was Oliver Wendell Holmes, then Chief Justice of the Supreme Judicial Court of Massachusetts. He there said for the court:
"The government contended that Bailey was shot with a Winchester rifle that was in the kitchen. Two bullets were found in his body, and the government was allowed to prove that another bullet of the same calibre had been pushed through the rifle on or shortly after October 24. It then was allowed to put this bullet in evidence, and also photographs from this and the two bullets from the body, in order to show that the marks from the rifle in the two cases coincided so closely as to prove that all three bullets had passed through the same rifle barrel. This evidence was excepted to. The main ground seems to be that the conditions of the experiment did not correspond accurately with those of the date of the shooting, that the forces impelling the different bullets were different in kind, that the rifle barrel *424 might be supposed to have rusted more in the little more than a fortnight that had intervened, and that it was fired three times on October 10, which would have increased the leading of the barrel. We see no other way in which the jury could have learned so intelligently how that gun barrel would have marked a lead bullet fired through it, a question of much importance to the case. Not only was it the best evidence attainable but the sources of error suggested were trifling. The photographs avowedly were arranged to bring out the likeness in the marking of the different bullets and were objected to on this further ground. But the jury could correct them by inspection of the originals, if there were other aspects more favorable to the defence." Id. at 495-96.
Prof. Inbau notes that " State v. Clark, [ 99 Or. 629 , 196 P. 360 (1921)], appears to be the first one approving of identification by means of markings upon fatal and test shells." 24 J. Crim. L. & C. at 833 (emphasis in original). In Clark the court said:
"The admission of testimony concerning tests of this character rests very largely within the sound discretion of the court: State v. Holbrook, 98 Or. 43 ( 188 Pac. 947 ). That discretion was properly exercised in the case at bar. The tendency of this testimony was to prove that the cartridge that was found near the boulder was from the defendant's gun." 99 Or. at 665 .
In State v. Vuckovich, 61 Mont. 480 , 203 P. 491 (1921), decided the same year as Clark , the court found no difficulty in approving the admission of expert testimony identifying the defendant's gun as the murder weapon. Having fired a test bullet from the defendant's gun, the experts testified that the shell "showed the same peculiar crimp or mark as that appearing on the shell found at the scene of the homicide," and that "[t]he rifling marks made by the lands *425 and grooves in the barrel of the pistol were the same." The court said:
"It seems to be a well-established rule that it is largely within the discretion of the trial court to permit experiments to be made, and that caution should be exercised in receiving such evidence. It should be admitted only where it is obvious to the court from the nature of the experiments that the jury will be enlightened, rather than confused. Such evidence should not be excluded merely because it is not necessary in establishing the facts sought to be shown by the prosecution, if it tends to corroborate the position taken by the expert witness whose evidence has been received; for whenever the opinion of a person is admitted to be relevant the grounds on which it is based are also relevant." Id. at 494.
As we have already indicated, the Supreme Court of Illinois initially was not favorably disposed toward reception of ballistics testimony. In Berkman, 307 Ill. 492 (1923), a police officer who purported to be an expert on firearms maintained that he could state positively that a given bullet had been fired by a given gun. That court scoffed at this "remarkable evidence," stating:
"[The officer] gave it as his opinion that the bullet introduced in evidence was fired from the Colt automatic revolver in evidence. He even stated positively that he knew that that bullet came out of the barrel of that revolver, because the rifling marks on the bullet fitted into the rifling of the revolver in question, and that the markings on that particular bullet were peculiar, because they came clear up on the steel of the bullet. There is no evidence in the case by which this officer claims to be an expert that shows that he knew anything about how Colt automatic revolvers are made and how they are rifled. There is no testimony in the record showing that the revolver in question was rifled in a manner *426 different from all others of its model, and we feel very sure that no such evidence could be produced. The evidence of this officer is clearly absurd, besides not being based upon any known rule that would make it admissible. If the real facts were brought out, it would undoubtedly show that all Colt revolvers of the same model and of the same caliber are rifled precisely in the same manner, and the statement that one can know that a certain bullet was fired out of a 32-caliber revolver, when there are hundreds and perhaps thousands of others rifled in precisely the same manner and of precisely the same character, is preposterous." Id. at 500-01 . [9]
Prof. Inbau refers to Evans v. Commonwealth, 230 Ky. 411 , 19 S.W.2d 1091 (1929), as "the first exhaustive opinion treating firearms identification as a science while sanctioning its use for the purpose of establishing the guilt of an accused individual." 24 J. Crim. L. & C. at 837. The Kentucky court noted at 415 that the "storm center" of the appeal was the testimony and evidence presented by the ballistics expert, Colonel (then Major) Calvin Goddard. [10] Although Goddard's *427 testimony was highly technical in nature, the court made no reference to any requirement of scientific acceptance. Rather, the standard used appeared to be that applied to expert testimony generally. The court said at 427: "The defendant says the evidence of Goddard was highly technical, unreasonable, extremely doubtful, and therefore inadmissible, but the same could just as plausibly be said of evidence of finger prints, and that is admitted every day."
In People v. Fisher, 340 Ill. 216 , 172 N.E. 743 (1930), the court, which but seven years before had referred to the science of firearms identification as "preposterous," ruled such testimony admissible on the same grounds as any other expert testimony, relying on People v. Jennings, supra , the first fingerprint case. The court said:
"It is argued that this testimony was novel and should not have been admitted; that it was not within the field of expert testimony; that such evidence is not admissible under the common law and no statute of this State authorizes its admission. The same objection was raised in People v. Jennings, 252 Ill. 534 , to the admission of finger prints as means of identification. So the same question was raised when photography was first introduced. (1 Wigmore on Evidence, sec. 795.) Of such evidence it was said in People v. Jennings, supra , that while it may or may not be of independent strength, it is admissible, the same as other proof, as tending to make out a case. The general rule is that whatever tends to prove any material fact is relevant and competent. ( People v. Gray, 251 Ill. 431 .) Expert testimony is admissible when the subject matter of the inquiry is of such a character that only persons of skill and experience in it are capable of forming a correct judgment as to any facts connected therewith. ( People v. Jennings, supra .) Such evidence is not confined to classified and special professions but is admissible wherever peculiar skill and judgment applied to a particular subject are required to explain results by *428 tracing them to their causes. Such evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge and experience an aid to the court or jury determining the issues. ( People v. Jennings, supra ; Yarber v. Chicago and Alton Railway Co., 235 Ill. 589 ; Evans v. People, 12 Mich. 27 ; Taylor v. Monroe, 43 Conn. 36 ; Ellingwood v. Bragg, 52 N.H. 488 ; McFaddon v. Murdock, 1 Ir. Rep. (1867) Cl, 211; 1 Greenleaf on Evidence, — Lewis' ed. — sec. 280.) The question of the qualification of an expert rests largely in the discretion of the trial court. Bonato v. Peabody Coal Co., 248 Ill. 422 ; 3 Wigmore on Evidence, sec. 1923.
"In Lyon v. Oliver, 316 Ill. 292 , it was pointed out that handwriting, photography of questioned documents and identification of typewriting were subjects for expert testimony. It was in that case shown that the same typewriter might, after considerable use, register letters of different form from that which it would make of the same letter when the machine was new, and that whether this has occurred in any given case is a subject for expert testimony. We are of the opinion that in this case, where the witness has been able to testify that by the use of magnifying instruments and by reason of his experience and study he has been able to determine the condition of a certain exhibit, which condition he details to the jury, such evidence, while the jury are not bound to accept his conclusions as true, is competent expert testimony on a subject properly one for expert knowledge." Id. at 239-41.
The same year in which Fisher was decided an Ohio appellate court approved the admissibility of ballistics testimony by a banker who made guns his hobby. Burchett v. State, 35 Ohio App. 463 , 172 N.E. 555 (1930). The court recognized that the science was still in the developmental *429 stages, noting, "The possibility of identifying a bullet that has been fired with the firearm from which it was projected is now receiving intensive study by engineers." 35 Ohio App. at 468 . The court continued, "The new science, if it be a science, for want of a better name, is known as interior ballistics. Elsewhere Prof. Gunther has said: `Ballistics now is in the same stage that finger printing was in the days when data on the probability of duplication was being accumulated. And it is fully as promising.'" Id. at 468 . The court quoted, not the "twilight zone" language of Frye , but rather the more receptive language of the New Jersey fingerprint case, State v. Cerciello, 86 N.J.L. 309 , to which we have previously alluded, that "`the law, in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes which are the work of educated and skillful men in their various departments, and apply them to the demonstration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury.'" The court said in holding the evidence admissible:
"Without, therefore, assuming to say that a particular fired ball will bear so distinctive a mark upon it, due to the structure of the gun from which it has been fired, as to enable one to identify the gun, we do hold that this is a proper field of evidence, and, it being certainly a field with which the ordinary juror is unfamiliar, the opinion of trained, educated, and skillful men along that line may be received for what it is worth. Evans v. Commonwealth, 230 Ky., 411 , 19 S.W. (2d), 1091, 66 A.L.R., 360 ." Id. at 469-70 .
By the time our predecessors first ruled upon ballistics evidence in Edwards v. State, 198 Md. 132 , 81 A.2d 631 (1951), the science was well established. Judge Delaplaine said for the Court there, "For many years ballistics has been a science of great value in ferreting out crimes that otherwise might not be solved.... Testimony to identify the weapon from which a shot was fired is admissible where it is shown that the witness offering such testimony is qualified by training *430 and experience to give expert opinion on firearms and ammunition." Id. at 142 . This Court found no error in admitting the opinion of the firearms expert that the bullets had been fired from the gun of the accused, even though the expert said that "it was ... possible that the bullets could have been fired from a [different gun]." Id. at 144 .
c. Blood
Moenssens et al., supra, at 288 n. 85 indicate that the first appellate decision on the admissibility of blood grouping evidence was State v. Damm, 62 S.D. 123 , 252 N.W. 7 (1933), aff'd, 64 S.D. 309 , 266 N.W. 667 (1936). By that point in time there was no dispute as to the accuracy of these tests. [11] *431 Writing in 1937, Muehlberger and Inbau stated, "Blood grouping tests have become accepted by the medical profession not only as possessing a `reasonable measure of precision in their indications' — all that the law requires [citing 2 Wigmore, Evidence (2d ed. 1923) § 990] — but also as producing exact and irrefutable results." The Scientific and Legal Application of Blood Grouping Tests, 27 J. Crim. L. & C. 578, 586 (1937).
Although the accuracy of these tests was not disputed, there was controversy as to the probative value of such evidence when the tests showed two persons to have the same blood type. Muehlberger and Inbau wrote:
"While logically relevant as concomitant evidence, it seems that the possibility of prejudicial inference against the defendant is too great in return for the remote evidence of capacity. For that reason scientific authorities advocate that the results of blood grouping tests be admitted in evidence only when they conclusively establish a fact, i.e., that the accused could not possibly be the parent. And it was so held in the case of Flippen v. Meinhold, on the ground that it would be improper to draw an inference of paternity where merely the possibility is shown. Obviously, the same reasoning would apply in a criminal case." Id. at 592 (footnotes omitted).
*432 In Shanks v. State, 185 Md. 437 , 45 A.2d 85 (1945), evidence that the blood type of a rape victim was the same as that of stains on the defendant's coat, viz., Type O, was admitted by the trial court, in spite of testimony that 45 percent of the population has Type O blood. In his brief in this Court the defendant referred to scientific opinion that blood tests should not be admissible to show possible identification:
"Dr. Flack in his article `The Forensic Value of Blood Tests in Evidence' discussing the legal significance of these tests says:
`The test, if positive in result, is affirmative proof excluding a possible parent and as such should be admissible. If negative in result the test simply indicates that the party examined could have been the parent and no more. Such an assertion obviously has no probative value whatsoever since any of the million who fall in the same blood classification could have been the parent as well. Consequently, these negative results must be disregarded and rigidly excluded from evidence as being valueless and prejudicial.'
"Referring to these tests as applied to criminal cases generally, Dr. Flack suggests further
`Evidence of this nature should be used solely for the purposes of exclusion since negative value proves nothing and exclusion constitutes prejudice.'
23 A.B.A.J. 472." Appellant's brief at 11.
Our predecessors were not persuaded that testimony should not be admissible unless the results were conclusive. Chief Judge Marbury said for the Court, "The objection of remoteness goes to the weight of the evidence rather than to its admissibility. To exclude evidence merely because it tends to establish a possibility, rather than a probability, would *433 produce curious results not heretofore thought of." 185 Md. at 446 . [12] The Supreme Court of New Jersey reached the same conclusion in State v. Beard, 16 N.J. 50 , 106 A.2d 265, 268-69 (1954).
A student comment on Shanks conceded that the challenged evidence was logically relevant, but argued that such scientific evidence should have been excluded nonetheless:
"Perhaps, as the court points out, blood groups may now be matters of common knowledge. But it should be remembered that our most noted sociologists agree that scientific knowledge is far in advance of the public awareness of its significance. The very multiplicity of facts that crowd in upon the layman serves to confuse him more. His knowledge, therefore, is as superficial and uncoordinated as it is diversified. He does not understand science — all he knows is that science has produced the miraculous sulfas and penicillin and now the world has been terrified by the discovery of atomic power. As a consequence, science has become to him a magic power. He feels that science can do anything. Why, then, with this feeling prevalent among the people who make up our juries should we expect our jurists to become suddenly cognizant of the true worth of scientific facts which may be more or less pertinent to the cases presented to them: It is conceivable that an innocent person might be convicted because blood on his suit coincided in type with that of the victim of a crime. That coincidence is not enough in itself to convict a man. But a jury, overly impressed with a misconception of the value of scientific facts, may be misled and hand down verdicts that are unjust.
*434 "Where scientific evidence is offered by admitted experts, there is a tendency by the jury to be overwhelmed by the conclusiveness of the scientific proof and be misled into attaching greater significance to this evidence than the scientist intended. In order that scientific proof may maintain its rightful position as conclusive evidence where it is conclusive on the issue, it would be best for courts not to admit such evidence to show a mere possibility (except when called for in answer to an explanation of accused) until the time when jurors (laymen) are sufficiently educated in the principles of logic and sufficiently trained in emotional control to comprehend the true value of such evidence and infer no greater significance than it logically deserves." 37 J. Crim. L. & C. 300, 303 (1947) (emphasis in original) (footnote omitted).
This emotional assessment of jurors as being incapable of understanding scientific testimony comports with the standard arguments offered by those who oppose the admissibility of any new scientific process. This Court foresaw such criticism in Shanks . It disposed of the argument by saying, "We see no valid objection in the idea that the jury (or the Court in this case) might attach too much importance to the scientific evidence, and might regard it as positive proof.... Judges and juries must be presumed to have average intelligence at least, and no assumption to the contrary can be made for the purpose of excluding otherwise admissible testimony." 185 Md. at 448-49 .
Although blood typing processes have been relatively noncontroversial, the case of Groulx v. Groulx, 98 N.H. 481 , 103 A.2d 188 (1954), considered the admissibility of a new test for paternity based on the "S factor" in blood. The court said:
"Paternity of the plaintiff was excluded by Dr. Allen's report because of the genetic rule that a child cannot have the S factor in its blood cells unless S is also present in the blood cells of at least one of the parents. The report conceded that the genetic data *435 was much greater in the blood groups A-B-O, M-N and Rh but gave two reasons which were said to counterbalance the paucity of family studies." Id. at 484 .
* * *
"After Dr. Allen's report was received by the court, Dr. A.S. Wiener of New York, a leading authority in blood grouping tests, wrote Dr. Allen that his conclusions as to exclusion of paternity based on the S factor alone were `too strongly worded.' Thereupon Dr. Allen modified his original opinion in some details ... but reaffirmed his essential conclusion...." Id. at 484-85 .
The New Hampshire Supreme Court pointed out:
"[I]t may be noted that scientific and medical evidence from qualified experts is generally accepted in this jurisdiction in both criminal and civil cases. [Citing cases.] Whatever defects there may be in this trend it at least avoids the common criticism made elsewhere that ` ... trial courts have tended to lag far behind' in utilizing probative methods developed by medicine and science. Maguire, Evidence, Common Sense and Common Law (1947) 30." Id. at 483-84 .
The court found no error in admitting the testimony:
"We conclude that the blood grouping tests in this case were entitled to evidentiary weight even though they do not have the benefit of the full genetic data that is available in the more common blood groups such as A-B-O, M-N and Rh-Hr. See Andresen, The Human Blood Groups (1952) 43. In this respect the blood grouping tests were like other expert opinion evidence and entitled to such weight as the Trial Court wished to give them. See Ricard v. Insurance Co., 87 N.H. 31, 36 ." Id. at 485.
*436 d. Intoxication
Chemical intoxication tests are now well established as an aid to law enforcement. "For a number of years, chemical intoxication tests have been routinely used to establish that a defendant had been driving a motor vehicle while under the influence of intoxicating liquor. In most states, statutes provide for the admissibility of the results of chemical tests for intoxication." Moenssens et al., supra, § 6.39 at 291 (footnote omitted). See, e.g., Maryland Code (1974, 1977 Cum. Supp.) §§ 10-302 to -309, Courts and Judicial Proceedings Article.
The tests were not always so readily recognized. Writing in 1964, one commentator stated, "[T]here is no unanimity of scientific opinion as to the accuracy of the tests which have been developed, especially in regard to the accuracy of the breath tests." Kaplan, supra, 10 Wayne L. Rev. at 405-06. In People v. Bobczyk, 343 Ill. App. 504 , 99 N.E.2d 567 (1951), the defendant "contend[ed] that the trial court erred in permitting the introduction of evidence concerning the [Harger] drunkometer test and the result shown thereby, on the ground that the drunkometer ha[d] not received general scientific recognition as an accurate index of the amount of alcohol in the blood." Id. at 507 . The court was urged to follow People v. Morse, 325 Mich. 270 , 38 N.W.2d 322 (1949), which held the admission of evidence based on this instrument to be reversible error, citing only lie-detector cases. In that case the Michigan court applied the Frye standard, and said the evidence of the breath test should have been excluded after five doctors called by the defense testified that most of the medical profession did not consider the drunkometer reliable. The Illinois court ruled that disagreement as to reliability goes to the weight, not the admissibility of the evidence:
"Defendant argues that there is a lack of unanimity in the medical profession as to whether intoxication can be determined by breath. Even so we think this objection goes to the weight of the testimony and does not destroy its admissibility. The evidence in this case shows that the experts called *437 by the State are eminently qualified in the field in question. In our view the opinion in the case of McKay v. State (Tex. Crim. App.), 235 S.W.(2d) 173 [(1951)], is best reasoned and most analogous to the present case." 343 Ill. App. 510 -11.
The Supreme Court of Arizona considered the issue of the admissibility of evidence based on the Harger drunkometer in State v. Olivas, 77 Ariz. 118 , 267 P.2d 893 (1954). The court noted that there was some disagreement among scientists as to the accuracy of the test. Referring to Bobczyk , the Arizona court said:
"In this last mentioned case, Illinois refused to follow People v. Morse, supra, and held that where there is a lack of unanimity in the medical profession whether intoxication can be determined by breath, the scientific disagreement affects only the weight and not the admissibility of evidence. We think this is the correct rule in tests of this character." Id. at 119.
But cf. Rivers v. Black, 259 Ala. 528 , 68 So.2d 2 (1953) (approving Frye test in dictum).
In Kallnbach v. People, 125 Colo. 144 , 242 P.2d 222 (1952), it was determined by analysis of the defendant's blood using the Nicloux method that he was driving while intoxicated. The court concluded that the defendant's objections to the accuracy of the Nicloux method went to the weight of the evidence rather than to its admissibility:
"There was testimony introduced on defendant's behalf regarding the Nicloux method of blood analysis and questioning the accuracy thereof. Aside from any blood analysis, there was competent evidence sufficient to warrant the jury in determining that defendant, at the time of the accident, was driving under the influence of intoxicating liquor. Apart from the testimony of the registered medical technologist, the jury might properly have found defendant guilty as charged. *438 Neither we, nor the jury, are sufficiently learned in the art of blood analysis to determine whether the Nicloux method or other of the methods to which defendant's physicians testified, is the better and more accurate method, but the weight to be given such testimony of this witness, as we have said, was a matter exclusively for the jury's determination, and we perceive no error in its reception." Id. at 149 .
e. Other scientific evidence
Perhaps the most extreme example of a court's not requiring "general acceptance" of a new technique as a prerequisite to admissibility is Coppolino v. State, 223 So.2d 68 (Fla. App. 1968), appeal dismissed, 234 So.2d 120 (Fla. 1969), cert. denied, 399 U.S. 927 (1970). Coppolino was an anesthesiologist who was suspected of murdering his wife. An autopsy and general toxicological investigation disclosed no possible cause of death, although there was a needle injection tract in the left buttock of the deceased. The cause of death was suspected to be an overdose of succinylcholine chloride, a muscle relaxant which may cause a cessation of breathing. It was thought that this drug could not be detected in a person's body after death. A toxicologist named Umberger developed tests specifically for this case:
"The results of this `general unknown' test were negative. Dr. Umberger then attempted to establish a method whereby he could determine if unusual amounts of the component parts of succinylcholine chloride were present in the body tissue. Dr. Umberger testified that some of his tests and procedures were standard ones and that some were new. As a result of his tests Dr. Umberger reached the conclusion, and so testified, that Carmela Coppolino received a toxic dose of succinylcholine chloride." Id. at 69.
*439 There was evidence that this was the first instance in which such procedures had been used:
"Several witnesses, including those called by the State, testified that prior to the performance of the tests in question it was believed impossible by medical scientists to demonstrate the presence of succinylcholine chloride or its component parts in the body." Id. at 70.
The court stated that the general rule for admissibility required only "reasonable demonstrability":
"The general rule regarding admission of scientific evidence is:
`Where the evidence is based solely upon scientific tests and experiments, it is essential that the reliability of the tests and results thereof shall be recognized and accepted by scientists or that the demonstration shall have passed from the stage of experimentation and uncertainty to that of reasonable demonstrability. * * *' 2 Jones on Evidence § 457 (5th ed. 1958). See also 31 Am.Jur.2d Expert and Opinion Evidence § 44; Notes, Admissibility of Evidence Obtained by Scientific Devices and Analyses, 5 U. Fla. L. Rev. 5 (1952)." Id. at 70.
After quoting from Frye , the court said, "However, it is also a rule in Florida that the trial judge enjoys wide discretion in areas concerning the admission of evidence and that his ruling on admissibility of evidence will not be disturbed unless an abuse of discretion is shown." Id. at 70. The court then stated the appropriate standard for determining whether there had been an abuse of discretion: "The problem presented to the trial judge was, were the scientific tests performed by Umberger so unreliable and scientifically unacceptable that their admission into evidence was error." *440 Id. at 70 (emphasis added). It concluded, "On appeal it is incumbent for defendant to show that the trial judge abused his discretion. This the defendant has failed to do." Id. at 71.
Another scientific technique which was welcomed into the courts without discussion of general acceptance is the process of X-ray photography. Soon after X-rays were discovered by William von Roentgen in 1895, an X-ray photograph was introduced into evidence in the case of Bruce v. Beall, 99 Tenn. 303 , 41 S.W. 445 (1897). Surely the art of reading X-rays must have been in its developmental stage at that point in time. However, the reviewing court found no error in admitting the evidence, stating:
"New as this process is, experiments made by scientific men, as shown by this record, have demonstrated its power to reveal to the natural eye the entire structure of the human body, and that its various parts can be photographed, as its exterior surface has been and now is. And no sound reason was assigned at the bar why a civil Court should not avail itself of this invention, when it was apparent that it would serve to throw light on the matter in controversy. Maps and diagrams of the locus in quo, drawn by hand, are often used to aid a Judge or a jury to an intelligent conception of the matters to be determined, and no one would think of questioning the competency of the testimony of a witness who stated that he knew the map or diagram to be entirely accurate, and who then used it to illustrate or make plain his statement. The pictorial representation of the condition of the broken leg of the plaintiff gave to the jury a much more intelligent idea of that particular injury than they would have obtained from any verbal description of it by a surgeon, even if he had used for the purpose the simplest terms of his art." Id. at 307-08.
The theory behind the admissibility of this evidence was *441 discussed in 1 S. Greenleaf, Law of Evidence § 439 h (16th ed. J. Wigmore 1899):
"The use of photographs taken by the vacuum-tube — Roentgen rays — may involve slightly different principles. Since the operator will usually not have perceived the object — usually a concealed bone — with his ordinary organs of vision, he will not be able to put forward the photograph as corresponding to the results of his own observation; nevertheless, if he can testify that the process is known to him (by experience or otherwise) to give correct representations, the photograph is in effect supported by his testimony, and stands on the same footing as a photograph of an object whose otherwise invisible details have been rendered discernible by a magnifying lens." Id. at 548-49 (footnote omitted).
Moenssens et al., supra, note, referring to stereoscopic views, photographs, photomacrographs, photomicrographs, and X-rays, that "[t]here seems to have been no objection, ever since this early period, to the admittance in evidence of photographs of any kind, provided the accuracy and relevancy of them were duly established." Id. at 500.
Courts have also admitted testimony based on microanalysis of human hairs as evidence of positive identification:
"Although there is no known way yet of positively identifying hair as having come from a particular individual, except in a few rare instances, an ascertainment of similarity in color, structure, pigmentation and other characteristics can be of considerable probative value when considered along with other evidence against an accused person." Id. at 357, Moenssens et al., supra.
* * *
"It must be reemphasized, however, that it is impossible to definitely state that a hair belongs to *442 a given individual. The most that can be stated is that a questioned hair matches a hair sample of known origin in all microscopic characteristics." Id. at 358.
Despite the scientific inconclusiveness of identifications based on an examination of hair, an FBI expert was permitted to testify to a positive identification in Padilla v. People, 156 Colo. 186 , 397 P.2d 741 (1964), where the court stated:
"We fail to comprehend how defendant could characterize it as incompetent, irrelevant and immaterial. One of the expert witnesses testified that he was given a strand of hair identified as having been found in the defendant's automobile, and that he took from the alleged victim samples of her hair and matched them in the FBI laboratory under procedures developed there. He testified unequivocally that the hairs were from one and the same person." Id. at 188 .
The court said, "We agree with the trial court's ruling that the testimony and the exhibits were admissible and relevant; the weight to be given to the particular evidence, however, was for the jury." Id. at 189 .
A similar result was reached in State v. Andrews, 86 R.I. 341 , 134 A.2d 425 , cert. denied, 355 U.S. 898 (1957), a case involving the rape and murder of an 86 year old retired school teacher. Hair analysis was employed to identify the defendant as the perpertrator.
"The defendant, at the request of the police, gave them some of his pubic hairs and Dr. Harrison testified that he compared them with other hairs which he obtained from a pair of shorts and a red shirt which were taken from defendant's bedroom, and which defendant admitted had been worn by him, and also from the bed in which Miss Franklin was assaulted, and that they originated from the same source. The doctor also testified that a white hair which was taken from the red shirt of defendant had come from the head of Miss Franklin." Id. at 345.
*443 On appeal, the defendant argued that Dr. Harrison should not have been allowed to give his opinion. The court rejected the argument:
"Doctor Harrison who had studied this subject for many years gave his opinion, as defendant says, `by miscroscopic comparison' of the hairs in question. This was something h

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1956286. Public record. Not legal advice.