# People v. Young

> Michigan Supreme Court · August 5, 1986 · 425 Mich. 470

URL: https://www.frixlaw.com/law-library/cases/9686140

## Case

- **Full name:** People v. Young (After Remand)
- **Court:** Michigan Supreme Court
- **Decided:** August 5, 1986
- **Citations:** 425 Mich. 470; 391 N.W.2d 270
- **Precedential status:** Published
- **Opinion:** Dissent by Boyle
- **Judges:** Williams, Brickley, Levin, Riley, Boyle
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by People v. Bradney, 170 Ill. App. 3d 839 (1988).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9686140

## How later opinions describe it (automated extraction)

- holding that error in admission of evidence was not harmless, quoting from Kotteakos for a statement of proper appellate *218 inquiry

## Opinion text

Boyle, J.
(dissenting). The issue in this case is whether serological electrophoresis of evidentiary dried bloodstains 1 has achieved general scientific *506 acceptance. 2 As is frequently true, the point at which a court takes up analysis of an issue may mask the real concerns of the law and of individual justices. The question in this case is actually *507 whether the Court is sufficiently convinced of the reliability of this process that it is willing to trust trial courts and juries to treat application of theory and technique in a particular instance in a manner consistent with procedural fairness and just results. This concern, whether articulated as the Frye 3 standard or a different approach to admission of expert opinion, is the motivation for the assertion of an appellate court function when what is proposed to be offered is evidence of a new scientific procedure. 4
I conclude that the record below establishes that both the theory of electrophoresis and its application to dried evidentiary bloodstains have gained general acceptance in the particular field in which each belongs. Frye v United States, 54 US App DC 46; 293 F 1013 (1923).
THE FRYE TEST
The Frye standard was first formulated by the United States Court of Appeals for the District of Columbia Circuit in 1923. In a case of first impression, the court found that the polygraph evidence offered by the defendant 5 was inadmissible because the technique had not been sufficiently accepted as *508 reliable by the relevant scientific community. In oft-quoted language, the court concluded:
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 the 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. [Frye, supra, p 47.]
Although critics have asserted that in the two-page opinion, the Frye court neither cited authority nor offered an explanation for adopting the general acceptance standard 6 and that the standard may have been nothing more than dicta, 7 the Frye test was soon accepted in most jurisdictions.
Since its adoption, the criticism of the Frye test has often been vehement. As one commentator noted:
Commentators have not been restrained in their criticism of the Frye test. See Moenssens [Polygraph Test Results Meet Standards for Admissibility as Evidence, in Legal Admissibility of the Polygraph (Ansby ed, 1975)] at 19 ("archaic”); 22 C Wright & K Graham [Federal Practice & Procedure § 5168] at 87 ("a 'sport’ ”); Conrad, Landmarks and Hallmarks in Scientiñc Evidence, in Sourcebook in Criminalistics 37, 38 (C Hormachea ed, 1974) ("antiquated on the day of its pronouncement”); Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility *509 in a Perjury-Plagued System, 26 Hastings L J 917, 923 & n 38 (1975) ("infamous”). [Giannelli, The admissibility of novel scientiñc evidence: Frye v United States, a half century later, 80 Colum L R 1197,1206-1207, n 59 (1980).]
Critics have focused on several problems with the Frye test. Most frequently, comments have been directed at its excessive restriction on the admission of relevant evidence, its tendency to fix standards when the evolution of scientific methodology may well make the standard outmoded in the future, and the implausibility of assigning many new scientific methods into well-defined areas. See Costley, Scientiñc evidence — Admissibility Fryed to a crisp, 21 S Tex LJ 62, 64-65 (1980); Giannelli, supra, 1208-1209.
An additional criticism of the Frye test is that there are no definite criteria to use to decide if there has been general acceptance. Because it is impossible to find unanimous agreement in any field, the courts have been hard-pressed to find the appropriate number of experts who must have accepted the technique as reliable. As one commentator noted:
It would be a mistake for the courts to wait for certainty and complete agreement. Neither science nor the law functions on such a premise. The inconsistencies found in the social world are varied and ever changing. In view of this, the courts should apply scientific principles while bearing in mind the fact that current reality means making decisions under uncertain and unstable conditions. [Costley, supra, p 67.]
See also Strong, Questions affecting the admissibility of scientiñc evidence, 1970 U Ill L F 1 (1970), and Giannelli, supra.
In response to the criticisms of the Frye test, *510 several courts and at least one federal circuit 8 have either abandoned the test entirely or severely limited its application. In a lead case, the Supreme Judicial Court of Maine ruled that novel scientific evidence would be admissible into evidence when "the testimony to be given is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue.” State v Williams, 388 A2d 500, 504 (Me, 1978). See also United States v Williams, 583 F2d 1194 (CA 2, 1978), cert den 439 US 1117 (1979); Whalen v State, 434 A2d 1346 (Del, 1980), cert den 455 US 910 (1982); State v Hall, 297 NW2d 80 (Iowa, 1980), cert den 450 US 927 (1981); Phillips ex rel Utah Dep't of Social Services v Jackson, 615 P2d 1228 (Utah, 1980); State v Catanese, 368 So 2d 975 (La, 1979); Watson v State, 64 Wis 2d 264 ; 219 NW2d 398 (1974).
Some states and federal circuits, while not specifically rejecting the Frye test, have modified it in cases where it would have posed an obstacle to the admissibility of otherwise relevant evidence. In Coppolino v State, 223 So 2d 68 (Fla App, 1969), app dis 234 So 2d 120 (Fla, 1969), cert den 399 US 927 (1970), for example, the Florida District Court of Appeals approved the admission of the results of tests formulated specifically for the case (test to detect the presence of succinylcholine chloride in body tissue), while specifically noting that Florida continued to adhere to the Frye rule. The record in that case only indicated that the reliability of the test was accepted by the state’s witness and not by those presented by the defense._
*511 The Massachusetts Supreme Judicial Court modified the Frye Standard in Commonwealth v Lykus, 367 Mass 191; 327 NE2d 671 (1975), stating that general acceptance could be shown if it were only among those who would be expected to be familiar with its use. See also State v Souel, 53 Ohio St 2d 123; 372 NE2d 1318 (1978); People v Allweiss, 48 NY2d 40 ; 421 NYS2d 341 ; 396 NE2d 735 (1979); Ibn-Tamas v United States, 407 A2d 626 (DC, 1979); People v LaSumba, 92 Ill App 3d 621; 414 NE2d 1318 (1980), cert den 454 US 849 (1981); Ex parte Dolvin, 391 So 2d 677 (Ala, 1980); United States v Bailer, 519 F2d 463 (CA 4, 1975), cert den 423 US 1019 (1975); United States v Franks, 511 F2d 25 (CA 6,1975).
The continuing debate over the proper approach to novel scientific evidence is generated by the tension between a reluctant approach to novel evidence which may carry great weight for the factfinder and the principle that evidence which may be of value to the factfinder should be precluded only when necessary to carry out the dictates of a conflicting and overriding policy. I do not advocate that this Court abandon the Frye test. I would, however, reject the requirement that the reliability of novel scientific evidence must be established by disinterested witnesses, People v Barbara, 400 Mich 352 ; 255 NW2d 171 (1977), and People v Tobey, 401 Mich 141 ; 257 NW2d 537 (1977), that is, those whose livelihood is not "intimately connected with the new technique.” While it may be appropriate for the Court to use Frye for its intended purpose, I do not see a basis for the expansion of the rule in a direction which erects insurmountable obstacles to forensic evidence and thus needlessly impedes the admission of probative evidence. Such a rule establishes a "Catch 22” approach to admissibility in the face of a national *512 trend toward a more liberal approach to the admissibility standard. 9
Contrary to the contention that the approach of the majority is not a modification of People v Barbara and People v Tobey, neither case can be read as standing for the proposition that a foundation must be established by disinterested scientists, or that while "a certain degree of 'interest’ must be tolerated,” ante at 483, the testimony of a scientist whose livelihood is intimately connected with the new technique must be disregarded. Rather, in Barbara , the Court specifically noted that the credentials of the witnesses, "although outstanding for polygraph technicians, are not those of scientists.” Id., p 377. The Court also noted "[u]nder the present state of the art the general acceptance of the polygraph among psychologists and physiologists cannot be demonstrated, because such acceptance does not exist.” Id., p 390. While the Court stated that "one would want, where the task was to demonstrate general scientific acceptability, an acknowledgment of the value of the device and the techniques by disinterested scientists whose livelihood was not intimately connected with it,” id., p 376, Barbara did *513 not stand for the proposition that the Frye standard could only be met by disinterested scientists.
Nonetheless, the Court in Tobey, supra, p 145 , cited the rule of Barbara as follows: "[Gjeneral scientific recognition may not be established without the testimony of . . . 'disinterested scientists whose livelihood was not intimately connected with’ the new technique.” The Court in Tobey then applied the rule to the testimony of a police officer "but not a scientist” and to the testimony of a professor of audiology and noted that "[n]either Nash nor Tosi, whose reputations and careers have been built on their voiceprint work, can be said to be impartial or disinterested.” 10 Id., p 146.
I do not quarrel with the Court’s conclusion in either Tobey or Barbara that the record was insufficient to establish general acceptance in the relevant scientific community. What I do take issue with is the majority’s conversion of the rationale of Barbara into a rule requiring the disqualification of the testimony of witnesses who indisputably have education, formal training, and background in the applicable scientific disciplines.
That a court may weigh the credentials and self-interest of a witness in determining whether a sufficient showing of reliability has been made is self-evident; it does not logically follow, as the majority suggests, that a witness’ self-interest compels this result. 11 _
*514 A trial or appellate court could comfortably conclude that the testimony of technicians is insufficient to establish reliability. There is, however, simply no basis for placing wholesale the "disinterested expert/intimately connected” gloss on the Frye test. Indeed, as the trial court noted, the effect of such a test diminishes, as a matter of law, the testimony of Mark Stolorow, who is not a technician, but the holder of a bachelor of science degree and a master’s degree in forensic chemistry, is a codeveloper of the technique, and who has been working with it and teaching it since 1975. It also diminishes the testimony of James Kearney of the serology unit of the fbi who holds a bachelor of science degree in bacteriology and a master’s degree in microbiology, and who also has worked with and taught the procedure of electrophoresis of evidentiary dried bloodstains since 1978 (in a laboratory that does 8500 electrophoretic examinations a month, ninety percent of which are done by the multisystem).
The instant record is a paradigm of the problems created by such an approach. The testimony of those who have the most knowledge in the field, the forensic scientists, is regarded as suspect. The testimony of Drs. Sensabaugh, Grunbaum, 12 and Juricek, all of whom may be said to have an advocacy interest in the issue, is accorded greater weight. The witnesses who have no financial interest in forensic phenotyping and no actual experi *515 ence in the process are accorded the most deference in this variation of the Frye/Tobey/Barbara analysis. The result is that those scientists who know the most about the process are viewed, as a matter of law, as the least persuasive witnesses. The "livelihood . . . intimately connected with the new technique” test represents a regressive approach to scientific developments which, parenthetically, would have devalued the opinions of Jonas Salk, Albert Einstein, or Marie Curie, each of whose life work, livelihood, and standing in their professional community was intimately connected with a new scientific procedure.
THE THEORY OF ELECTROPHORESIS
Electrophoresis is the movement of charged particles through a buffered conducting medium by application of a direct current. The term isozyme is used to describe enzymically active blood proteins which can be identified by their relative mobilities in an electric field. After separation of the proteins into marker bands by application of a current, specific chemicals are applied to make the proteins visible. Biology Methods Manual, Metropolitan Police Forensic Science Laboratory, London, England (1978). The relative distance of the bands from a common origin is compared with known standards, and evaluated by established guidelines.
The results are then compared to population studies which show the known frequency of each factor in a given population. This produces a statistic which is representative of the percentage of the population that has that group and those factors in common. 13 The more genetic markers *516 identified, the smaller the population of persons who might possess a particular combination of factors.
APPLICATION OF THE THEORY TO EVIDENTIARY BLOODSTAINS
It is undisputed on this record that the theory of electrophoresis is generally accepted as reliable in the scientific community. Indeed all witnesses at the hearing on remand so testified.
There is ample basis in the record, even apart from defendant’s concession, that the theory of serological electrophoresis, and the application of the theory to laboratory-produced dried blood samples, has achieved general scientific acceptance as a reliable identification technique. 14 Dr. Grunbaum testified at trial to these conclusions and also acknowledged that proficiency tests established that, as to evidentiary materials, "there are many competent analysts in the country that can do it [electrophoresis on evidentiary bloodstains] with a great deal of confidence.”_
*517 In general, fewer marker systems are usable in stain analysis than in fresh materials. There are in excess of seventy-five markers in human blood, approximately a dozen of which are amenable to stain analysis. Whether a genetic marker can be typed in a stain depends on whether it persists in recognizable form in the stain material. This inquiry has required a determination of the life expectancy of particular markers in samples exposed to air and other possible contaminants. If the marker persists, then methods which produce reliable results with fresh blood will also give reliable results with stain material, Denault, Detectability of selected genetic markers in dried blood on aging, 25 J Forensic Sciences 479 (1980), provided the samples are carefully prepared and interpreted, Grunbaum, "Procedures for Phenotyp-ing of Genetically Controlled Enzyme and Protein Systems,” Handbook for Forensic Individualization of Human Blood and Bloodstains (1981).
The record establishes that the five genetic markers tested for in this case (eap, esd, glo, pgm, and Hp) persist in dried stains and that it is a common practice, accepted in both this country and the international scientific community, to transmit dried stains, on paper or cloth by mail. The testimony also revealed that these stains remain readable through the use of accepted protocols. See also Denault supra; Gaensslen, Source-book in Forensic Serology, Immunology, and Biochemistry, National Institute of Justice (1983). Gaensslen, supra, pp 431-432, reports fourteen studies on the survival of pgm enzymes in dried bloodstains and notes that all the samples could be correctly typed up to thirty-two days. Denault’s study reports the detectability of eap, pgm, Ak, and ada. The markers in all samples were unknowns to the investigators. Denault, supra. See also testi *518 mony of Dr. Rachael Fisher, Michigan State University, and Dr. Harvey Mohrenweiser, University of Michigan, Department of Human Genetics. The literature also reports that in 1976 Wraxall and Eames reported a starch gel method for electro-phoretic typing of eap in stains and that "blind trial studies” indicated that the procedure was completely reliable. Gaensslen, supra, p 451. Dr. Rachael Fisher also testified that alterations from drying were not seen in pgm or ead and that the effect of aging on ada and eap could be reversed by Cleland’s reagent.
Thus, while it is true that blood degrades rapidly while drying, the literature and the record establish that markers which undergo alteration during drying are rejected for forensic use and that the markers in question in this case may be reliably identified by electrophoresis. Sensabaugh, Uses of polymorphic red cell enzymes in forensic science, 10 Clinics in Haematology 185 (1981).
The results of a Law Enforcement Assistance Administration study of dried stains were not published, but the study, conducted by Brian Wra-xall, is available in the National Criminal Justice Reference Service and the findings have been circulated to, and adopted by, a sizeable number of forensic laboratories. Thus, both the theory and its application to stains have been put into practice and relied upon for an extended period of time. Wraxall, Final Report, Bloodstain Analysis System, United States Department of Justice, 1978.
The literature and the record in this case indicate a continual effort to monitor results and to further reduce the possibility of error in electrophoresis of dried bloodstains. As a result of this effort, scientists and technicians are now well aware of procedures and indicators unique to dried bloodstain analysis, and genetic markers which undergo changes which will affect the typing re- *519 suits are rejected for use by forensic scientists (and by geneticists for population studies).
Also, the forensic process itself includes the systematic evaluation of the stability of markers stored under various known conditions such as aging, humidity, chemicals, heating, and freezing. If the typing of a marker substrata system cannot be made reliable, then it is discarded. Sensabaugh, supra, p 198.
Because the principal effect of bacteria is on wet blood, contamination in a dried stain will signal itself as untypeable or will result in different band patterns. These patterns are evaluated by guidelines set forth in the literature. Biology Methods Manual, supra, pp 2-88 to 2-138. Bacteria, thus, manifests itself as a problem which is different from those normally seen and not comparable to the control marker. Forensic and nonforensic scientists routinely analyze air dried samples which have been contaminated by bacteria. One example of this process is illustrated by the method in which difficulties in the eap system have been addressed. See Williams & Shah, "Enzyme Patterns in Bacterial Classification and Identification,” Microbiological Classiñcation and Identiñcation, 1980, pp 299-318. The eap system is based on a genetic explanation of six phenotypes called A, ba, b, ca, cb, and c. The differences between these phenotypes on electrophoretic plates are a matter of band intensity. Misinterpretation of phenotypes is possible if these effects are not fully appreciated. The methodology, therefore, dictates the inclusion of appropriate controls of known phenotypes when using any phenotypic procedure, and particularly when attempting to diagnose b, cb, and c phenotypes. Gaensslen, supra, p 452.
Finally, and most significantly, the record indicates that the consequence of virtually all typing errors is a false exclusion. If one typing error is *520 made on a true person, that person is excluded. 15 The possibility of false inclusion is more remote. 16
As the trial court correctly observed, the reliability of the particular sample in a given analysis is a distinct question from the reliability of the theory or the technique. The claim that the possibility of contaminants in a crime scene sample precludes a conclusion of the reliability of the technique or the theory of electrophoresis, is in reality a claim that there can never be a reliable forensic opinion, 17 since as Dr. Grunbaum noted, the range of potential contaminants "goes on beyond anybody’s imagination.” While it is true that specimens may be contaminated with impurities, the literature indicates that different conditions of exposure cause variation in the persistence of typeable markers and that those markers that persist can be reliably identified. Although, as the majority notes, Dr. Juricek has testified and written that Type 2 pgm may contaminate Type 1 blood and lead to a Type 1 pgm being identified as *521 a Type 2-1, the literature indicates that the only false positives that have been reported for pgm are in whole blood samples. Gaensslen, supra, p 433.
The effects of heating, humidity, aging, metals, chemicals, air born bacteria, and substrata have been investigated for the markers in question in this case. Culliford, The Examination and Typing of Bloodstains in the Crime Laboratory, Department of Justice, 1971, pp 108, 117, 120; Denault, supra; Biology Methods Manual, supra, pp 2-88 to 2-138. The application of electrophoresis to eviden-tiary dried bloodstains is generally accepted in the relevant scientific community and is reliable.
DISTINCTION BETWEEN RELIABILITY OF THEORY AND TECHNIQUE AND THE EVALUATION OF EXPERT OPINION PROFFERED IN A PARTICULAR CASE
If there is a question regarding the sample offered as the basis for the opinion in this case with regard to potential error in age of the marker, the fabric from which it was obtained, the particular test used or other factors going to the foundation of the expert opinion, these are factors to be evaluated by the trial court in its traditional function of determining admissibility, MRE 103, 104. If the test results are determined preliminarily to be admissible, facts affecting the weight and credibility of the opinion may, of course, be placed before the factfinder.
The effect of crime scene contaminants on a particular sample is a question that relates to the trial court’s duty to determine, as a preliminary issue of admissibility, whether the expert opinion offered in a given case with regard to a particular sample has a sufficient foundation to be relevant. 18 If the testimony is admitted, questions concerning *522 the reliability of the sample and the test employed are explored through cross-examination and go to the weight and credibility of the opinion. 19
Because both the theory of electrophoresis and its application to evidentiary bloodstains are generally accepted in the relevant scientific community, I conclude that the testimony was properly admitted below.
THE MULTISYSTEM TECHNIQUE
While the issue of the particular technique used in this case was not within the scope of the remand order, and is not a proper subject for review by this Court, the majority deals extensively with the multisystem method as if that were the technique in question. Indeed, the observation in the majority opinion, p 491, that "[bjecause the results of the glo test were not interpretable in the instant case, the only issue is the reliability of the pgm results in the multisystem analysis,” highlights the fact that this is a question that goes to the discrete issue of admissibility and credibility of the opinion offered in this case.
It may, however, he noted that combination analysis, or a system that analyzes more than one enzyme at a time, is routinely used and accepted as reliable in the scientific community. The testi *523 mony reveals that a combination method for the three markers tested simultaneously in this case, pgm, esd, and glo, is used in genetic research in the Departments of Pediatrics and Pathology at Michigan State University. A combination method involving two sequential markers on the same gel is also in use at the University of Michigan Medical School, and a combination method was used for three years at the Minneapolis Blood Bank. 20 The literature establishes that there are a wide variety of multiple systems used to determine polymorphic enzymes on the same electrophoretic run and that these procedures are used by forensic and nonfor-ensic scientists. See Gaensslen, supra, p 432.
The particular multisystem method used in this case has been used by the fbi since 1979, is in use in more than one hundred crime laboratories in the country, and is taught to and used by students as a protocol at the University of California in Berkeley. It is also used for fresh blood testing in an independent laboratory available to any seeker of its services.
This method was tested by blind trial tests conducted in four separate laboratories. Final Report, supra. While the results were returned to and tabulated by Beckham Laboratories, to which Brian Wraxall was then under contract, it is not correct to suggest that this was not an independent study or that these tests were self-verifying. These blind trials were not "conducted” by Mr. Wraxall. Rather, five batches of six bloodstains, each of various ages, were sent to serologists in *524 their own labs, for typing of eight genetic markers. Thus, while it appears that the examiners knew what they were looking for, the tests were blind in the sense that the examiners did not know the identity of the markers in the particular sample. 21 Of a total of 912 readings, only one reading was incorrect. Wraxall, p B-7. 22
*525 Subsequent blind trial proficiency tests for laboratories using the multisystem and those using other systems were conducted by the Forensic Science Foundation from 1979 to 1983. The sum total error rate on individual marker analyses was 1.6 percent of 3107 total tests per protocol. 23
I also disagree with my colleagues’ evaluation of Dr. Rachael Fisher’s testimony with regard to the multisystem. Dr. Fisher was qualified as an expert and is on staff at Michigan State University in the Departments of Pediatrics and Pathology. She testified that she had run the enzymes in hundreds of different systems in her research on inherited diseases, had read the manual for the multisystem, and offered her opinion that the system incorporated all the features that "are necessary to make it work.” She further stated that the protocols for ead, pgm, glo, eap, and Hp are recognized and, in reply to the specific question, "If you had a dried bloodstain or a limited supply of blood, could you use a thin gel method and develop all three on that one thin gel?”, she answered, "yes, one could be done certainly.”
In any event if, as Dr. Grunbaum opined, there was a misapplication of the particular technique in the Young case, in my judgment this is an issue to be resolved by the trial court. As the Ninth Circuit noted in United States v Gwaltney, 790 F2d 1378, 1382 (CA 9,1986):
*526 To the extent Gwaltney complains of the application of the procedure in this instance, he does so in the wrong forum. Criticism of the application of a valid test in a particular instance bears on weight, not admissibility.
I would affirm.
Riley, J., concurred with Boyle, J.
When first the Court considered this case, the issue was the reliability of serological electrophoresis. At the remand hearing conducted pursuant to this Court’s order, the defendant conceded that electrophoresis is a reliable and accurate method of determining enzyme and other protein genetic markers in whole blood and blood serum and in laboratory produced dried bloodstains, which has been reliably used for years by geneticists, for paternity testing and in blood banks.
We do not deal here with a question of detection of a mixed stain of blood and semen or semen mixed with saliva, or of semen stains. See People v Greenwood Brown, 40 Cal 3d 512; 220 Cal Rptr 637; 709 P2d 440 (1985).
The reliability of the particular method of electrophroesis, i.e., the multisystem thin gel procedure is not an issue before this Court. First, counsel for defendant, Ronald J. Bretz, whose performance on the record on remand, at oral argument, and in briefing before this Court is commendable both for its advocacy and its integrity, does not suggest to this Court that the issue before us is the reliability of the multisystem technique. Rather, despite the fact that, as both counsel and the trial court recognized, the record on remand went beyond the apparent scope of the remand order, Mr. Bretz, has carefully framed the issue before us as: Whether dried bloodstains from an unknown source which are left at a crime scene and exposed to unknown conditions can be accurately tested using electrophoretic technology.
Second, acceptance of the contention that we must decide on the reliability of the multisystem used in this case results in an application of the test articulated in Frye v United States, 54 App DC 46; 293 F 1013 (1923), that would make it necessary for every modification of an already accepted technique to pass the Frye hurdle, an issue not argued or briefed here. The question before us is not whether electrophoresis of dried bloodstains using the multisystem is reliable, but, as the trial judge correctly found on remand:
Whether there [is] any scientific process, by whatever name, that has achieved sufficient scientific reliability and acceptance so as to attempt to accomplish result in a court of law .... Is there any process that has sufficient scientific reliability that it should be considered as competent evidence? ... It appears that is a question that the Supreme Court sent back, using the Young trial in the first instance as a vehicle to determine whether, by whatever name, there is any process that we should be concerned with.
... I am saying at this juncture, as a matter of order of proofs, get to the first question. Is there anything by whatever name that has achieved scientific reliability and acceptance to identify — to link unknown persons with dried bloodstains under forensic circumstances.
The reliability of the particular technique used for the electrophoresis testing of the dried bloodstain in this case is not properly before us, nor is it a question we should be considering. Our only role is to decide whether or not dried evidentiary bloodstains can be reliably typed using an electrophoretic method, not whether it works better on one gel medium than another. Questions as to the technique used by Mr. Stolorow to effectuate the electrophoresis in the Young case must be addressed to the trial court.
Frye v United States, n 2 supra.
It is clear that, in a system which approaches the admission of expert testimony with a presumption of admissibility, MRE 702/FRE 702, resistance to a novel scientific technique is a paradox based upon a fear that the usual vehicle for evaluating credibility, the fact-finding function, is inadequate to the task. It is further founded on the belief that judges themselves cannot, at the threshold level, deal with the complexities of the evidentiary issue. The test of general acceptance in the scientific community is, in this context, simply a reformulation of the principle that men and women do not ordinarily react to or act upon information in which they do not have confidence. Thus, adoption of a theory and use of a technique are circumstantial indications of the probative value of the evidence.
It is interesting to note that the defendant in Frye, although convicted, was subsequently pardoned when another person confessed to the crime.
Giannelli, The admissibility of novel scientiñc evidence: Frye v United States, A half century later, 80 Colum L R 1197, 1205 (1980).
Costley, Scientiñc evidence — Admissibility Fryed to a crisp, 21 S Tex L J 62, 64 (1980).
There is considerable controversy in the federal courts as to whether or not Frye survived the enactment of the new Federal Rules of Evidence. Although there are no specific statements repudiating the standard, those who believe it did not survive, point to Rule 401 which defines relevant evidence and Rule 402 which mandates that all relevant evidence is admissible, except as otherwise provided by the rules, an Act of Congress, the United States Constitution or by other rules prescribed by the United States Supreme Court.
See, e.g., Trautman, Logical or legal relevancy — A conflict in theory, 5 Vein L R 385 (1952); Boyce, Judicial recognition of scientific evidence in criminal cases, 8 Utah LR 313 (1963); Strong, supra; Giannelli, supra; Costley, supra; McCormick, Scientific evidence: Defining a new approach to admissibility, 67 Iowa L R 879 (1982).
Perhaps most well known for his criticism of the Frye test is Dean McCormick. In his text on evidence he notes:
General scientific acceptance is a proper condition for taking judicial notice of scientific facts, but it is not a suitable criterion for the admissibility of scientific evidence. Any relevant conclusions supported by a qualified expert witness should be received unless there are distinct reasons for exclusion. These reasons are the familiar ones of prejudicing or misleading the jury or consuming undue amounts of time. [McCormick, Evidence (3d ed), § 203, p 608.]
Pennsylvania and California have held that the testimony of a _ single witness, whose career has been "built ... on the reliability of the technique,” People v Kelly, 17 Cal 3d 24, 38; 130 Cal Rptr 144; 549 P2d 1240 (1976), and who was not a scientist, was insufficient to establish the reliability of a new technique, Commonwealth v Topa, 471 Pa 223, 231; 369 A2d 1277 (1977). See also People v Brown, 40 Cal 3d 512; 220 Cal Rptr 637; 709 P2d 440 (1985) (forensic technicians identified with law enforcement, with career interest in acceptance of tests and lack of formal training and background in the applicable scientific field not qualified to state the view of the relevant community of impartial scientists).
Nor does it follow that scientific community approval is absent *514 where those who have developed the technique and whose reputation and livelihood depend on use of the new technique alone certify the validity of the technique. Situations can certainly be hypothesized where the background, education, experience and reputation of one individual would be such as to persuade the appellate court of that individual’s qualifications to express an opinion on the question of general scientific acceptance.
Dr. Grunbaum has, according to the reply brief in People v Brown, supra, invented a machine for pgm typing and receives a percentage.
The samples in this case, upon which the prosecution’s witness offered his opinion, had previously been determined to be type o, in *516 the abo system, a type occurring in forty-five percent of the population.
My colleague’s reliance on Jonakait’s article, Will blood tell?, 31 Emory L J 833, 851 (1982), is problematic, given the fact that Professor Jonakait is a lawyer, not a scientist [see People v Shirley, 31 Cal 3d 18; 181 Cal Rptr 243; 641 P2d 775 (1982)], and that he describes his initial "problem” as a concern that "[t]he forensic scientist stands alone in the attempt to classify genetic markers in dried blood . . . .” He further claims that "[t]he geneticist. . . does not have an interest in classifying genetic markers in dried blood. Instead [the geneticist,] like the blood bank, works with fresh or preserved liquid blood.” This observation by Professor Jonakait is directly contrary to the testimony of Dr. Rachael A. Fisher, who holds a Ph.D. in Biochemical Genetics from the University of London. Dr. Fisher testified that she routinely tests dried stains in her research on inherited diseases. It is also contrary to the testimony of Dale Dykes of the Minneapolis War Memorial Blood Bank who stated that, in acting as a referral agency for laboratories in other countries who are comparing their own genetic variants, their laboratory finds it more suitable if dried blood is sent to them for analysis.
Assuming, as in this case, five markers with three possible types, Sensabaugh testified as follows:
I think it is important to have a sense of the large number. Three to the third is 27, three to the fourth is 81, three to the fifth is 243 .... In any case, those are all possible outcomes of the typing tests, some very large number. You end up with one outcome. If the person is the true source and you make a mistake on the typing, then you have excluded that person
The possibility of a false inclusion is very much less than the possibility of a false exclusion, and that is because you would have to have one by chance, one of the . . . two hundred and forty possible types would have to match the false result that you got.
This appears to be the basis for Jonakait’s claim that the Frye test is inadequate to guarantee reliability of the genetic tests since, in Jonakait’s view, these procedures are only used in the forensic lab and general acceptance in the field cannot and will not be possible.
I note that what we are not presented with in this case is a *522 situation where the test results and photographs of the test itself are not available. In this case, photographs were taken and test results were recorded. Sensabaugh, supra, p 202, opines that every effort should be made to maintain the sample in a. scientific test in order to ensure admissibility. The proposed new Michigan Rules of Criminal Procedure on discovery would make available to the defendant the results of any scientific testing done by the prosecution. Proposed MCR 6.202
The fact for example that the Denault study indicated four false positives for the antigens a and b at twenty-six weeks is not a reason for rejection of the theory of electrophoretic typing of evidentiary bloodstains. Rather, the Denault work is a basis for a challenge to an opinion about the reliability of testing on a comparable sample.
It also appears that the data, created from the occurrence of genetic markers in a population study conducted by Mark Stolorow, was determined to be reliable and is in fact relied upon at the University of Michigan School of Medicine. Further, the percentage frequency of genetic markers for these systems was independently and repeatedly confirmed by an independent laboratory and incorporated in a published report of the American Association of Blood Banks.
My colleagues’ conclusion with regard to the Wraxall tests (ante, p 492) is perplexing in light of the fact that the Denault study, relied on by the majority, clearly defines the term "blind trial” as a test in which the investigator has no knowledge of the identity of the tested samples. Denault, supra, p 485.
The whole purpose of the test, then, is to achieve results without the experimenter knowing beforehand what those results should be. Clearly, a blind trial, if conducted properly and absent fraudulent practices not in evidence in the Wraxall test, precludes manipulation whether performed by Denault or Wraxall.
While this testing, if taken alone, may not be adequate evidence to prove the reliability of the system, I question the conclusion that blind tests initiated but not performed by those who developed a system are unreliable per se. .
The majority claims that the findings of a panel convened to review Dr. Grunbaum’s criticisms of Wraxall’s study were not entered into evidence and that the prosecution and defense disagree about what the panel concluded. In fact, the panel findings were entered into evidence as People’s Exhibit 3 along with a letter from the Associate Director for Service and Technology for the leaa which stated that "no evidence was found to substantiate Dr. Grunbaum’s allegations . . . .” Discussion of the report at trial between the prosecution and Dr. Grunbaum details the gravamen of the "controversy alleged by the majority.
Q. Are you familiar with a letter written to Mr. J. L. Morgan on September 11, 1979, as Senior Contract Administrator, Beckman Instruments, in which Mr. Morgan was advised that the review group examining the allegations made by yourself, they found no evidence or — excuse me — no evidence was found to substantiate Dr. Grunbaum’s allegations, although a number of minor discrepancies were noted; are you familiar with that letter?
A. I am familiar with that letter, yes, and I said that Mr. Kochanski did not tell the truth, because I have another letter from counsel of leaa that says just the opposite.
Q. Mr. Kochanski, who is the Associate Director for Service and Technology, Office of Research Programs, U.S. Department of Justice was not telling the truth?
A.That is correct.
*525 Q. Doesn’t it [the panel report], in fact, say that, "Although it is preferable to avoid personality conflicts, a consideration of that subject cannot be avoided in this case because it is the crux of the problem”?
A, This is what it says, but this is not the truth.
Q. This is the panel’s own report, is it not?
A. Unfortunately, they injected that.
Since one marker exclusion between a stain and a blood sample being compared will exclude the donor as the contributor of the stain, the error rate per marker, not per stain, is the indicator of the system’s reliability.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9686140. Public record. Not legal advice.