State v. Williams

NICHOLS, Justice

(concurring in the judgment).

I concur in the judgment.

I cannot, however, join in the opinion of the Court this day because I believe it retreats too far from the position often taken — and well taken — by this Court that before we recognize the evidential force of new applications of scientific principles, these should have attained general acceptance in the scientific community.

This standard of “general acceptance” was recognized by the Court of Appeals of the District of Columbia in Frye v. United States, 54 App.D.C. 46, 47 , 293 F. 1013, 1014 (1923), in which a systolic blood pressure deception test was held to have been properly excluded from evidence.

When our Court had occasion to reject evidence of a polygraph test in State v. Casale, 150 Me. 310, 320 , 110 A.2d 588 (1954), it quoted from the opinion of the Nebraska court in Boeche v. State, 151 Neb. 368 , 37 N.W.2d 593 (1949). There the Nebraska court had expressly relied upon Frye .

When eight years later our Court in State v. Mottram, 158 Me. 325, 329 , 184 A.2d 225 (1962) reaffirmed that evidence of the results of “lie detector tests” was inadmissible, the lack of general acceptance of the results of such tests was again the determinative factor.

*506 Even more recently when in State v. Mower, Me., 314 A.2d 840, 841 (1974) our Court ruled that evidence of the defendant’s willingness to take a polygraph test was properly excluded, it reiterated the language of Mottram . 1

Such was the state of the law in this jurisdiction when in 1976 the Maine Rules of Evidence, modeled after the Federal Rules of Evidence, were promulgated. Rule 702, M.R.Evid., relates generally to testimony by experts without addressing specifically the question of new application of scientific principles. This rule was regarded by the Advisers, not as relaxing the standards of admissibility, but as declaratory of Maine law. Advisers’ Note, M.R.Evid. 702. A rule intended as a codification of existing law, however, is today being employed to change that law.

We should continue to adhere to the Frye standard. It is not merely because such has been the law in this jurisdiction. It is not merely because the Frye standard continues to be applied in many federal courts notwithstanding the promulgation of Federal Rules of Evidence. United States v. McDaniel, 176 U.S.App.D.C. 60, 65 , 538 F.2d 408, 413 (1976); United States v. Brown, 557 F.2d 541, 557 (6th Cir., 1977); United States v. Kilgus, 571 F.2d 508 (9th Cir., 1978). Rather, it is because there are good reasons why each new scientific technique should not become the basis for expert testimony as quickly as the expert can persuade the court that it will assist the trier of fact to understand the evidence or to determine a fact in issue.

To adhere to the Frye standard of requiring general — but not universal — acceptance within the scientific community will enhance the fairness of the trial, especially in criminal cases. It will avoid the difficulty of rebutting the expert’s opinion except by other experts or by cross-examination grounded upon a thorough acquaintance with the novel application of scientific principles. This burden of rebuttal is generally borne in these criminal eases by defendants without the economic means to marshal scientific witnesses for a battle of the experts.

As was observed in United States v. Brown, supra, 557 F.2d at 556 , the fate of a defendant should not hang on his ability to rebut scientific evidence when the expert may be testifying upon the basis of an unproved hypothesis arrived at in an isolated experiment. It is far better that the expert first expose his new ideas to the critical review of his peers. The courtroom, after all, is not a laboratory. Id.

Furthermore, adherence to the Frye standard would result in more uniformity within our trial courts than if scientific evidence may come in whenever the trial judge decides it is relevant and concludes it will help to determine a factual issue.

Moreover, the litigants would be protected by a clearer standard of review.

Finally, it would avoid the risk that, by announcing a lesser standard, the door may inadvertently be opened to pseudo-scientific expertise.

As acknowledged by the majority, a number of courts have admitted spectrographic evidence without abandoning the Frye standard. E. g., United States v. Baller, 519 F.2d 463, 465-466 (4th Cir.) cert. den. 423 U.S. 1019 , 96 S.Ct. 456 , 46 L.Ed.2d 391 (1975); Commonwealth v. Lykus, 367 Mass. 191 , 327 N.E.2d 671, 674-676 (1975). There is sufficient basis in those cases to uphold the admission of spectrographic evidence in the trial of the instant case without abandoning the important protections which Frye affords.

*507 See Comment: Evidentiary Use of the Voice Spectrograph in Criminal Proceedings, 77 Mil.L.Rev. 167 (1977).

For our Court as well, I submit that such adherence to the Frye standard would be the better course.

. I do not accept the suggestion that the Frye standard is “occasioned by the peculiarly special nature of lie detector tests as evidence,” because it may impinge upon the jury function of resolving questions of credibility. While Frye involved an early version of the polygraph, the Frye standard has been generally applied to situations involving application of new scientific principles. E. g., United States v. Brown, 557 F.2d 541 (6th Cir., 1977) (ion microprobic analysis of hair samples); United States v. Kilgus, 571 F.2d 508 (9th Cir., 1978) (forward looking infrared system); People v. Lauro, 91 Misc.2d 706 , 398 N.Y.S.2d 503 (Sup.Ct., 1977) (trace metal detector).