Reed v. State

REED, MARYLAND JAMES JR. v. STATE OF Term, September 1977.]

[No. 6, 1978. September Decided Smith, Murphy, J., and argued C. The cause before was Eldridge Orth, JJ., reargued Levine, and Digges, and Eldridge, Levine, Smith, Digges, Murphy, J., and before C. Cole, Orth and JJ. Defender, for Wood, Assigned Specially T. Public

William appellant. General, with Handel, Attorney K. Assistant

Deborah General, Burch, A and Clarence ttorney Francis B. were whom General, brief, the for Sharp, Attorney Assistant on W appellee. Murphy,

Eldridge, J., of the Court. opinion the delivered Smith, J., JJ., filed J., Orth, dissent and and Smith and C. Orth, J., Murphy, J., dissenting a C. 400 infra. page concur

The in this criminal case is the voice issue the analysis identification based “voiceprints.” spectrograms, commonly described night, late at raped, In a September woman County, Maryland. She Montgomery outside her home in the reported treatment and hospital entered a immediately afternoon, she received police. following incident to the The himself as her from a identified telephone person call who County Police Montgomery The notified the assailant. victim to her recording device Department, police and the attached telephone. During days, the next three the victim received and calls, recorded seven all telephone placed the apparently original caller.

During conversations, the course of these telephone one of caller victim’s asked to have her again. intercourse with $1,000.00. She offered instead to him In a pay subsequent conversation, she arranged and the caller for her to deliver $1,000.00 to the locker room of the Greyhound Bus Station in the key District was to find the of locker Columbia. She box, 326 on top “plug” place number of an electrical locker, return money original inside to its key location on then her complied box. victim caller’s Afterwards, instructions. the defendant James Reed station, room, appeared at bus entered the locker picked up box, from key proceeded locker 326. toward locker, he approached police officers, As had who watching the locker room from a hole drilled in the door rooms, locker and emerged between the boiler from the boiler room and arrested Reed. Reed was indicted subsequently on rape charges growing and other out of the same incident.

In May compelled Reed was to submit voice exemplars to the Attorney. required State’s Reed was a repeat, telephone device, into to recording connected a the spoken words to the victim her assailant by September in the 1974 telephone tapes, calls. These together composite recording assailant, of the calls made then sent were to the Voice Identification of the Michigan Unit State Police Department for speetrographic analysis comparison. and The comparison inconclusive, results of this considered and were in August 1975 required Reed was set of submit another reading voice exemplars, again spoken by words assailant. These voice also samples Michigan were sent to for speetrographic analysis comparison. and This second test in an alleged positive resulted Reed identification of as the speaker on four of the calls rapist.1 seven made comparison attempted No remaining 1. was on three calls. One call was short, distorted, exemplar too too one and voice no had been secured for a third. into on the hearing pretrial suppression A on testimony based of identification evidence voice in the Court conducted Circuit was spectrographic analysis on the hearing After County. Montgomery for method spectrographic of the reliability and general validity could identification, the court ruled that State trial expert testimony based introduce Reed’s criminal trial voice purpose spectrographic analysis identification. Voiceprint 1975. to trial brought

Reed was first October Reed as introduced, identifying purportedly was to the victim. After two placed who had the calls speaker to reach deliberation, the unable jury and one-half was days 1976,Reed In March agreement, and a declared. mistrial was trial, voiceprint testimony was again brought to was trial, guilty Reed was found again introduced. In this second acts, verbal perverted robbery, sex rape, unnatural Reed threats, telephone. use unlawful crime and to rape for the imprisonment sentenced to life remaining for the imprisonment lesser concurrent terms of Special Appeals affirmed crimes. The Court State, A. 2d 243 convictions, App. 35 Md. Reed v. petition for a writ (1977). granted then Reed’s This Court voiceprint admission of certiorari to consider the trial court’s admission of this evidence was evidence. We hold that the error.2 although of recent voiceprint technique, relatively in cases and

origin, much discussed and described has been the use of legal process commentaries.3 The involves argument grant encompassed Reed’s alternate 2. Our of certiorari also permitted the trial court the Best Evidence Rule violated when was copy tapes September calls either a second or a of the of the 1974 third-hand exemplars. comparison Reed’s Reed maintains that to be used for voice tapes gross negligence original through of the the were destroyed officers, copy investigating police lost or and that the second destroyed However, light principal explanation. ruling of our on Reed’s without claim, unnecessary issue. for us to reach alternate See, e.g., Baller, (4th 1975), cert. 2d 3. United States v. 519 F. 463 Cir. denied, 423 1019, 456, (1975); S. 96 46 L.Ed.2d 391 United States U. S. Ct. denied, Franks, (6th 1975), 1042, cert. F. 95 S. Ct. v. 511 2d 25 Cir. 422 U. S. 2654, Addison, (D.C. (1975); F. 741 45 L.Ed.2d 693 States v. 498 2d United 1974); 24, 144, People Rptr. 2d Kelly, Cir. 3d 130 549 P. 1240 v. 17 Cal. Cal. 378 analyzes machine spectrograph. This machine known a — components three of the human into energy

acoustic voice — graphically displays and time, intensity and frequency, stylus, through electric by generating, these components lines, varying and dark closely spaced light series of a The electrically paper. of sensitive on a sheet position, a is called resulting representation is what graphic certain or “voiceprint.” patterns It reveals spectrogram or are to the sounds which correspond “formats” which Tosi, Dr. of Oscar analyzed. According and the suppression hearing at principal witness State’s reliability of the proponent widely most known 4 technique, spectrography voiceprint visually and aurally comparing “consists both and known voice a spectrograms questioned to decide voice, on of the similarities and the basis voices, and questioned or not two whether belong different are the same voice known persons.” is one of therefore, spectrography task

Essentially, judgment on the individual matching. dependent It is pattern Dr. Tosi: of the examiner. As stated if only reliable “I [spectrography] consider he what adjusts examiner is and reliable (1976); 191, (1975); Lykus, 327 N.E.2d 671 Commonwealth 367 Mass. State v. (1971); Hedman, 432 ex rel. 291 Minn. 192 Trimble N.W.2d (1977). See also Topa, 471 369 A. 2d 1277 Commonwealth v. Comment, Pa. Heard?, Voiceprint Be Not The Dilemma: Voices Seen and Should Voiceprint Handler, (1975); Identifícation L. 35 Md. 267 Decker and Rev. — Admissibility, Pan into L. Evidence Out and 26 Am. U. Rev. Frye Greene, Favor of (1977); Voiceprint Identification: The Case in 314 Admissibility, Voiceprints Jones, (1975); Danger— 13 Am. L. Crim. Rev. 171 Ahead, Jones, Non The Non (1973); Evidence Vel 549 Am. Crim. L. Rev. Voiceprint Identification, Ky. (1974); Kamine, The Sense L. J. Voiceprint Technique: Reliability, Its and Diego L. Structure 6 San Rev. Disguise “Voiceprint" (1969); McGlone, Effect Hollien and Identification, (1976). 2 J. of Def. 117 Crim. Speech Physics Audiology 4. Dr. Tosi is Sciences and Professor Michigan Ph.D.’s, Audiology He one holds two State University. Speech University, Engineering Sciences from State the other Ohio Physics University. of various from Buenos Aires He is member professional published papers. has and numerous societies and several books are, and he is person; he is an honest conditions rather than probability no prone opinion, to use but Then in cases of some doubt. positive identification used I and can be this It reliable good. consider Otherwise ... under these circumstances. only would disaster.” complicated what is termed task is examiner’s is, that fact that individual the

“intra-speaker” variability, precisely speakers say do not the same word apparently it, and that they spectrograms the each utter way same time Sergeant According to Detective reflect this difference. Police, examiner Michigan the the Lonnie Smrkovski of State case, utter same word speaker in the if a to the instant were of the expect he none days, fifty consecutive would maintained, It is resulting spectrograms to be identical.5 however, separate differences between are less than the speaker utterances of an individual speakers, of different so differences between the utterances not render identification intra-speaker do variations impossible. Smrkovski, points least ten

According Sgt. to before speech samples must similarity be noted between two Apparently, identification can be achieved. positive speech samples being independent of the number Smrkovski, case, Sgt. listening after compared. In the instant 2,162 him, 138 the words tapes selected submitted of these spoken comparison spectrograms and made comparison Sgt. rated one In this Smrkovski sample, words. “excellent,” good,” thirty-seven “good,” and twenty “very of his comparisons were basis thirty-five “fair.” These victim’s of the conclusion that Reed’s voice and voice caller the same. were regard

A principal consideration with according Wigmore, is: “On this expert testimony, employed by Michigan 5. Sergeant Smrkovski has Department charge years, State Police for ten the last four and one-half as officer hearing, identification unit. At the he was about to voice time of Michigan audiology speech degree receive his from bachelor’s science University. State help?” person appreciable from this jury can a receive subject § 1978). (Chadbourn Clearly, 1923 rev. 7 Evidence Wigmore, of each case. the circumstances dependent particular this is on for all cases expressed of rules could which No rule or set be from distinguish helpful expert testimony adequately would Accordingly, or Court superfluous that worse. which similar and related issues the determination of has held that of the trial the sound discretion generally are matters within 321, Shortall, 340, 368 A. 2d 1005 279 Md. court. Beahm v. Meister, 275, 283, 368 A. 2d 451 (1977); 279 Md. v. Greenstein 167, 168, Harold, Md. 367 A. 2d 472 (1977);Radman 279 v. there cited. (1977),and cases hand, regard expert particular other the with

On scientific of new application on testimony based to the admission of such recognized prior it is techniques, scientific particular that the testimony, it must be established 24, 3d 130 People Kelly, v. 17 Cal. method is itself reliable. — 144, (1976); Jones, Danger 549 P. 2d 1240 Rptr. Cal. (1973). 549, 554 See Ahead, 11 Am. L. Rev. Voiceprints Crim. (1945); 437, 440, A. 2d 85 3 State, 185 also v. Md. Shanks § 1970). (Chadbourn rev. Wigmore, Evidence a scientific occasion, reliability and of validity On accepted in the generally so and technique may broadly notice court take community may judicial that a trial scientific regard today the case commonly of Such is reliability. its tests, identification, tests, fingerprint blood ballistics State, Similarly, at 440. supra, 185 Md. the like. See Shanks v. or invalidity notice of the might judicial take a trial court scientific recognized in the widely of unreliability procedures However, if the bogus experimental. or community judicially cannot be particular technique of a reliability noticed, reliability that the be demonstrated necessary it is can introduced technique on the testimony based before normally this demonstration will Although into evidence. witnesses, and should also a court can testimony by include articles, articles from reliable journal of take notice law other journals, in scientific appear sources that acceptance by degree publications which bear process has achieved. experts particular that a recognized 708, 711 Law, Cal.App.3d Rptr. 114 Cal. People (1974). technique or of a question

The scientific reliability helpfulness example, process question, unlike specific in a to the trier of facts particular expert testimony reliability of a question about case. answer according to the vary does not technique process inappropriate circumstances of each case. It is therefore as a matter reliability this threshold within question view Instead, trial discretion. consid- judge’s each individual decision-making uniformity consistency erations of legal standard or test be articulated require a process may be established. reliability gained The test general acceptance throughout which has establishing reliability United States for such leading first in the case scientific methods was articulated 1013, (D.C. 1923): States, 293 1014 Cir. v. United F. Frye or crosses principle discovery a scientific “Just when and demonstrable experimental the line between in this stages is difficult to define. Somewhere of the twilight principle zone the evidential force go long a recognized, must be courts will while in deduced from a way admitting expert testimony discovery, well-recognized principle scientific made must be thing the deduction is from which general gained to have sufficiently established acceptance in in particular field be- longs." supplied.) (Emphasis received as opinion a scientific will be say,

That is before trial, evidence at of that must be shown the basis expert’s as reliable generally accepted within Thus, according Frye particular scientific field. standard, validity is technique’s if a scientific new or if it is controversy community, in the scientific relevant technique, expert then generally regarded experimental as an into validity admitted upon its cannot be testimony based evidence.

382 is, community of the relevant scientific identity course, particular technique depends upon a matter which scientific In relevant question. general, members background community include those whose will comprehend them training are sufficient to allow In it. process judgment understand the and form about circumstances, courts have held unusual few might from a somewhat experts qualified properly thus Williams, Supp. 164 People Cal.App.2d v. narrower field. See 858, (1958). 331 P. 2d 251 in the scientific “general acceptance”

This criterion almost all community has come to be the standard question considered the courts which have country See, e.g., Rivers v. of scientific evidence. State, Black, 528, (1953); 476 259 68 So. 2d 2 Pulakis v. Ala. 274, P. 1970); Valdez, 91 371 (Alas. P. 2d 474 State Ariz. v. (1962); Busch, 868, Rptr. 2d 16 2d 894 56 Cal. Cal. People v. Williams, Brooke 898, (1961); supra; 366 People P. 2d 314 v. 388, (1959); 993 Kaminski v. People, 339 P. 2d v. 139 Colo. 718, State, State, (Fla. 1953);Salisbury 63 v. 221 Ga. So. 2d 339 Linn, 430, P. 2d (1966); 146 93 Idaho 462 S.E.2d 776 State v. 622, 185 (1947); (1969); Kan. P. 2d 147 Lowry, 729 163 State v. 310, (1954); Casale, A. v. 150 Me. 110 2d 588 State 266, Fatalo, 191 N.E.2d 479 346 Mass. Commonwealth v. (1949); Morse, 270, 38 322 (1963); 325 Mich. N.W.2d People v. (1952); Kolander, 209, 52 State 236 Minn. N.W.2d 458 State v. (Mo. State, Stout, 1972);Boeche v. 151 Neb. 478 S.W.2d Arnwine, (1949); Super. 67 N.J. State v. N.W.2d Trimble, 68 483, 171 (1961); N. M. A. 2d 124 State v. 1077, (1961); Alston, 362 People P. 2d 788 v. 79 Misc. 2d 496, Steele, 219 (1974); App. 27 N.C. N.Y.S.2d 356 State v. (N.D. Swanson, 283 (1975); 540 v. 225 S.E.2d State N.W.2d 183, 1239 1974); Smith, N.E.2d App.2d 50 Ohio 362 State v. 495 (1976); State, 45, P. 2d Henderson 94 Crim. 230 v. Okla. 153, (1975); (1951); Green, 531 P. 2d 245 271 State v. Ore. 1971); Bruno, (E.D. Supp. F. 570 Pa. United States 333 v. 1973); (Tex. State, App. Romero v. 493 206 Crim. State S.W.2d Woo, 472, (1974); 2d 527 P. 2d 271 Puhl v. v. 84 Wash. Co., Ins. 2d Milwaukee Automobile Wis. N.W.2d 163 (1959).6 involving v. States, a case supra,

Although Frye United examination, itself has the test a lie the results of detector standard to appropriate applied, judged and broadly The discovery. methods of scientific developed apply newly in their courts consideration by has Frye test been invoked test, People, medical of, alia, supra; Brooke paraffin inter v. defects, Puhl v. cause of regarding the birth testimony analysis Co., supra; breath Ins. Milwaukee Automobile Morse, intoxication, v. People for designed devices test Linn, supra; blood v. supra; injections, truth serum State analysis, tests, Alston, supra; neutron activation People v. v. tests, Smith, Stout, gunshot residue State supra; State v. use, People of narcotics v. tests for detection supra; Nalline tests, United States v. Williams, ink identification supra; Bruno, Busch, supra. People supra; hypnotism, although citing State, supra, This in Court Shanks v. general itself, recognized the standard case Frye admissibility of acceptance in connection with See, addition, Wigmore, p. % 6. The Science Judicial Proof (3d 1937): ed. “But, possible to senses since the additions thus made our unaided knowledge are scientific obtainable construction and the the due to the use of instruments constructed laws, plain it is thus the correctness the data depend upon must of the instrument correctness Hence, ability it. technical witness use following apply testimony propositions three fundamental

based on the use A. all such instruments: apparatus purporting The to be constructed on scientific type principles accepted proposed must dependable profession by the concerned in that branch of science purpose by expert its related art. This can be evidenced qualified or, notorious, testimony; without evidence. by judge judicially if it will be noticed one particular by must be B. used the witness The apparatus good according accepted type to an and must be constructed condition for accurate work. qualified may This be evidenced expert. apparatus of his C. The as the source witness using training qualified experience. for its use must be one ordinary Case evidenced will in the “These fundamentals readily. every there are charlatans But science branch incompetents. recognition of fundamentals will the above testimony.” usually serve to diminish the risk of unreliable 384 there out Judge Marbury pointed test Chief

blood evidence. 440, (185 emphasis supplied): atMd. of the tests not early

“In the cases evidence admitted, courts here because were general acceptance reliability. of their convinced Damm, 123, 7; D. N. See State v. 62 S. 252 W. Manowitz, 888, N. Y. Beuschel v. App. 241 Div. 272 accepted everywhere, now 165. tests are S. Blood accurate, scientifically, and the courts . . . have the same generally followed view.” voiceprint Almost state court that has considered every Frye applied has or a reported opinion evidence in a its determining question similar standard Court, 778, Superior See Hodo v. Cal.App.3d 30 admissibility. People Kelly, v. 784, 106 547, (1973); 17 3d Rptr. Cal. 550 Cal. Law, People v. 144, (1976); 24, 130 549 P. 2d 1240 Rptr. Cal. King, 437, 478 supra; People v. Cal.App.2d Rptr. 266 72 Cal. States, 1978); (1968); (D.C. 2d Brown v. United 384 A. 647 C.A. State, 1972); Worley v. 613, (Fla. App. 2d 614 263 So. 671, Lykus, 367 Mass. 191, 327 678 Commonwealth v. N.E.2d (1977); People Tobey, 401 Mich. (1975); 141, 257 537 v. N.W.2d 323, 680, (1968), A. Cary, State v. 99 239 2d 685 Super. N.J. D’Arc, aff’d, D’Arc v. 16, (1970); 157 56 N. 264 A. 2d 209 J. (1978); People Rogers, v. 553, 385 A. 2d 278 86 Super. N.J. Olderman, v. (1976); State 868, 385 228, 2d 237 Misc. N.Y.S.2d 442, (1975); 130, 44 448 App.2d Ohio 336 N.E.2d 223, 1277, Topa, A. 2d 1281 Commonwealth 471 Pa. 369 Hedman, (1977). Contra, ex rel. State Trimble v. 291 Minn. 442, (1971) (scientific disagreement goes 192 432 N.W.2d State, 265 see also Alea v. 2d weight, not So. admissibility); discussed). (Dist. 1972) (issue not App. 96 Ct. Fla. criticism, Frye has to some subjected test grounds on the it is too conservative primarily the admission of unduly prevents delays relevant 44, (E.D. Sample, 53 United States v. Supp. evidence. 378 F. § 203, (2d ed. 1974); McCormick, 490-491 Evidence pp. Pa. Baller, (4th cf. States v. 1972); 463, F. 2d 466 Cir. United 519 denied, L.Ed.2d cert. 1975), 46 U. S. S. Ct. are, however, reasons (1975). compelling There principle. Frye the justify the litigant require seem to that before

Fairness to a would him, he is against can used process results of a scientific on the of that judgment reliability a scientific entitled to McGowan, for the speaking by Judge As stated process.7 (D.C. Addison, 741, 743-744 498 F. 2d court in United v. States 1974): Cir. the somewhat retards standard Frye “[T]he of methods on new proof of based

admission they attain investigation by requiring scientific general gain the and status currency sufficient community. scientific of the relevant acceptance standard however, Frye that the say, This is not to of requirement cost. The exacts an unwarranted community in the scientific acceptance general the to assess qualified most those assures the method will have of a scientific validity general determinative voice.” regard with consideration significant especially

This subjective highly techniques to those scientific from received the data upon are based judgments circumstances, the In these mechanical devices. sophisticated degree a suggest may of the machine apparent objectivity of the aspects subjective certainty inconsistent 744; Addison, 2d at 498 F. supra, States v. enterprise.8 United expert 1665, may first instances 7. In in what be one reported testimony, Norwich, trial, testifying at a delivered a certain Dr. Brown and, of himself scientific that the accused were witches the expert by practicing bidding, at the had several their witchcraft devil’s bewitched guilty hanged. at children. Bury found A Trial of Witches The accused were Edmonds, (1665). seems Trials No issue St. 6 Howell’s State validity process concerning of the to have been raised in that case determining whether one was a witch. Detector”, See, e.g., Highleyman, Certainty Deceptive of the “Lie 8. Hastings (1958): L. 47. 63 use of ‘lie detector’ evidence invites J. “[T]he (l) objective reliability physiological confusion of the facts which between (2) reliability polygraph, are recorded subjective deception those facts inferences of truth or which are drawn from examiner.” Kelly, supra. Supreme As Court California People v. 1245): (549 at Kelly P. 2d stated .. Frye deliberately intended to interpose a substantial obstacle unrestrained admission upon evidence based new scientific principles____ logic reasons founded in Several and common sense posture support judicial caution in this area. Lay jurors give tend to weight considerable ‘scientific’ evidence when presented by ‘experts’ with impressive acknowledged credentials. We have existence of misleading a'... aura of certainty which often envelops process, obscuring new its currently experimental (Huntingdon nature.’ Crowley, supra, p. at 51 Cal.Rptr. Cal.2d 262, 414 p. 390;.....) Addison, P.2d at p. As stated supra, the course of rejecting the of admissibility voiceprint ‘scientific testimony, proof may in some posture instances assume a of mystic infallibility in (United of a eyes jury Addison, —’ States v. 744.)” supra, 498 F. 2d p. at In advantage addition to the substituting of scientific for lay as judgment to scientific reliability, the court in United Addison, supra, States v. 498 F. 2d pointed at out that test Frye protects “. . . prosecution and defense alike by assuring that a experts minimal reserve exists can critically who examine the a validity of scientific determination in particular case____[T]he a ability produce rebuttal experts, equally conversant with the mechanics particular and methods of a technique, may prove be essential.” dissenting however, opinion, suggests that instead we adopt the rule McCormick, enunciated by “[a]ny that relevant conclusions which are supported by qualified expert a witness should be received unless there are other reasons for § (2d exclusion.” McCormick 1972). on Evidence 203 491 ed. McCormick, in opposition to the great weight of judicial in the scientific disagreement authority, believes process of a scientific reliability community regarding weight rather than the go should scientific evidence. recognize fails to unacceptable. to us It

This view seems a case resolve not on a case basis laymen should concerning validity community scientific dispute in the technique. positions new scientific When the contending community, factions are fixed in the scientific is evident that controversies will further only be resolved analysis, experiments. scientific studies and Juries and however, judges, cannot If or experiment. judge jurors have foundation, no accepted either in their or in the experience scientists, principles of an informed they might base Thus, judgment, left to courts they fancy.9 will be follow their should properly disputes reluctant to resolve the science. “It not for experiment the law to for science but so,” to do Cary, supra, Super. State v. at 332. N.J. Nonetheless, standard, under the juries McCormick would compelled to make regarding validity determinations experimental result, or scientific techniques. novel As a one might jury particular decide that a process reliable, might while another find that jury the identical process However, is not. reliability underlying technique process perform it is supposed to does not vary with different cases. Using the as an polygraph example, although particular polygraph may give tests different results under circumstances, different validity basic the polygraph technique general in give to the of results type which are claimed for change it does not facts of with the each Nevertheless, ease. if the trier of facts is to determine the validity polygraph basis, test on a case case one or judge jury might determine that it is reliable and convict § 9. See 2 Wigmore, Evidence p. (1940): testimony, “When the appearing thus ordinary layman basis, lack a rational is founded on observations made with esoteric — apparatus vacuum-rays, telepathy, and the like —this methods or explained by witness; ana, method should be if it is the vouched accepted as in his learning, branch of it suffices to admit his testimony.” (Emphasis supplied.) results, the test acquit or on the basis of a defendant sitting or the same judge jury, the next very whereas the operator giving to the same listening courthouse and technique the results, might determine that type same of test inconsistency the results. Such ignore is and unreliable technique validity given the scientific concerning Sullivan, v. process See Commonwealth would intolerable. (Holmes, (1888) J.). 146 Mass. however, difficulty largely is test, the Frye

Under community remains long As as the scientific avoided. divided, will techniques results controversial significantly the same admitted, and all defendants will face not be hand, process does If, on the other a novel scientific burdens. there community, scientific general acceptance the achieve there is over its as now likely dispute reliability will as little areas forensic science which have been concerning other standard, such as blood Frye under the deemed admissible tests, tests, ballistics etc. addition, danger is a related under the McCormick

In there on a scientific The of evidence introduction based view. accepted the scientific process, yet generally fact finder from its central likely to distract the community, concern, the merits of namely judgment rendition of a similar, something litigation. Frye test or Without the likely technique scientific reliability experimental introduced, it is each trial in become central issue in disagreement in the long as there remains serious Again again, its and reliability. over community will expert witnesses examination and cross-examination trial in time-consuming as it was at the protracted be as case, degenerate into proceedings may the instant well designéd test is technique Frye trials of the itself.10 Wright, See, e.g., United States dissent’s observations 10. (1967): 183, 194, 37 C.M.R. U.S.C.M.A. efficacy nothing virtually else but “The concerned with trial was process. questions infallibility voiceprint The court’s were its and demonstrated completely to effectiveness directed almost the members’ extreme to accused, identification of interest in its Moreover, made the the trial counsel all exclusion of others. argument, devoting approximately point process his the focal reliability.” sixty percent thereof its 389 this difficulty forestall well. As stated in State v. Cary, 99 332: supra, Super. N.J.

“All go through scientific aids devices experimental testing during these stage, stages there may considerable scientific con- During period troversy. controversy . . . danger is that a trial result may actually

trial of the trial of the technique rather than the case, exacting issues involved in the if some less rule general substituted for the time-honored rule scientific acceptance,...” reasons, “general

For the foregoing agree we with acceptance” rule which the forth. Frye case sets adoption not, Frye course,

Our standard does disturb traditional discretion of trial judge respect admissibility expert testimony. Frye sets only forth a legal governs which judge’s standard the trial Harold, determination of a threshold issue. Cf. Badman v. 279 supra, Md. at Testimony technique 169. based on a gained “general is found to have acceptance the scientific community” mayhe evidence, admitted into if only a trial but also discretion, determines judge exercise of his as he in all must other instances of expert testimony, that the proposed helpful to that the testimony jury, expert will be however, is properly qualified, if a Obviously, technique etc. standard, does not meet the Frye judge trial will have no occasion to reach further issues. these

Turning to the based on the voiceprint process, agreed to 1972it prior generally voiceprint process had not sufficiently tested and accepted to its results for qualify use the courts.11 The Speech Technical Committee Communication Society Acoustical of America had six scientists in requested process. the field acoustics the voiceprint to evaluate These 11. See State Cary, v. (1970); 56 N. J. People King, A. 2d 209 v. 437, 72 (1968). Rptr. Cal. But see Cal.App.2d Wright, States United (1967). 17 U.S.C.M.A. 183 David, Bolt, Cooper, Edward

scientists, Richard Franklin Stevens, reported Denes, and Kenneth Pickett Peter James experimental still its voiceprint was process in 1970 the the data based on of the conclusions stage, reliability the and {Speaker uncertain process from obtained A Scientists’ View by Speech Spectrograms: Identification Am. Soc’y 47 J. Acoustical Legal Purposes, Reliability Its 597, (1970)): 603 inadequate are to establish available results

“[T]he by identification reliability voice conclusion is shared spectrograms. We believe this knowledgeable scientists who are about most hence, many them are concerned speech; deeply in the use of spectrographic about courts.” 1972, published

In Dr. Tosi and his associates 1971 and results of an concerning experiment series of papers some voiceprint Subsequently, process.12 conducted on the courts, testimony Dr. Tosi and exclusively on the relying associates, his in evidence Michigan admitted ex rel. Trimble v. voiceprint process. See State based 442, (1971); Worley 432 v. Hedman, 291 Minn. 192 N.W.2d State, (Dist. 1972) (use for App. 2d 613 Fla. 263 Ct. So. (Dist. Fla. corroboration); State, App. 2d 96 Alea v. 265 So. Ct. Court, 1972) Superior 30 (following Worley)) Hodo v. However, 778, (1973). as 106 547 Cal.App.3d Rptr. Cal. v. Judge Kaplan, dissenting Commonwealth observed (1975): 680 N.E.2d Lykus, 367 Mass. 327 said, however, “It that when the cases fairly can had community had not were decided Nicol, Lashbrook, Pedrey, Tosi, Oyer, and Voice 12. O. H. W. C. J. Speech Hearing through Spectrography, Sci. Acoustic Identification Univ., Tosi, Lab., (1971); Oyer, Michigan Rep. 171 O. H. W. State No. Lashbrook, Nash, Pedrey, Nicol, Experiment An on Voice J. and E. C. 171, Dep’t Audiology Excerpts Report from Identification: SHSLR Michigan Sciences, (July Speech 1971); Michigan University, Lansing, East State Nicol, Nash, Tosi, Lashbrook, Oyer, J. and E. O. H. W. C. Pedrey, (1972). Identification, Experiment Soc’y 2030 Acoustical of Am. on Voice 51 J. sufficient time to Dr. Tosi’s work and reach study conclusions its possible advance over work in the field. See Law, previous People 69, 81-82, (1974). Cal.App.3d Cal.Rptr.

decisions thus less a reflected consensus community relevant scientific the Tosi method was acceptable, study than an absence of on which informed way could be one based other.” Bolt, David,

In 1973, Denes, Cooper, Pickett Stevens again voiceprint issue, light addressed the the Tosi experiment.13 The their expressed authors concern about aspects of They certain the Tosi mentioned the experiment. experiment’s Tosi problems failure to consider the of mimicking voices, disguising levels, or in changes voice changes due to stress other emotional states of the speaker. expressed in They further concern over the increase error rates comparing samples voice taken different times, as well the increase error in other circumstances. concluded, Bolt, Speaker al., Identification authors et Speech Spectrograms: Observations, Some Further 54 J. (1973): Acoustical Soc’y Am. 583-534 “The Tosi has our study improved understanding problems some of the of voice identification from spectrograms indicating the influence of several important variables the identification. accuracy In uncovering factors tend increase errors, however, identification the has study given aus definitive question: answer the ‘How reliably person can a by examining be identified spectrographic patterns speech of his sounds?’ Under certain laboratory conditions and for some sample selected of the population, probability making an error in identification can be stated. But the less-than-ideal conditions encountered authors, Stevens, One of 13. apparently Kenneth also consultant experiment, Tosi, al., Experiment Identification, supra, in the Tosi et on voice at 2043. situations,

forensic the indications are that of error probability will increase substantially. needed, Further studies are particular attention criteria, to the examiner’s decision the selection of speaker population, lapse the time between voice samples, background-noise conditions, and the psychological speaker. condition of the

“As scientists rather lawyers, than we offer no judgment as to whether or what speech extent spectrograms should be used for identification in the courts. wish only We out that point present methods for such use lack adequate basis for estimating many practical reliability situations and that evaluations of laboratory these increasing methods show as the errors conditions for evaluation move toward situations. hope real-life We explanations that our of some of the factors that affect speaker provide identification legal will profession with helpful information on which to base its own judgments concerning the spectrographic method.” The testimony in the instant case indicates that division in fundamental the scientific community reflected these articles has continued without substantial abatement. Tosi, On direct examination of Dr. he acknowledged division in the scientific community concerning validity the voiceprint process:

“Q. many experts How within field of sound that spectrography process have used that for voice oppose identification process, that who have done in actual that work field?

“A. In Bolt, addition to the al., six authorities of et of none them voice identification, worked in some Stevens had nine a small years ago experiment. There are three others oppose that it that done have — some work not too much. of Some them have no professional basis. them, Let’s of say five to the best of my knowledge.

393 “Q. many experts within field How in for voice identification are spectrography sound process? of that favor — “A. 15, At least give I the names at least can 14 among prominent them scientists.” very

Later, excluding experts, asked about the division of those identification, engaged in the field of Tosi professionally voice testified:

“A. from this Okay, opposed five were reduced I group persons published that said least have something or done professionally but were not I it engaged rough in the field. is a number. say that I Persons know of that done some have experimentation published, or have I said less than — favor____ ten; opposed five four or five are in “Q. including You are not Dr. Bolt and his group, you? are No,

“A. amI not.” expert State, Additional witnesses who testified case, Smrkovski, Sgt. the instant Dr. Peter were Jansen and Dr. A. Their McClung. John was consistent with Tosi group supporters 14. Ladefoged. included Dr. Peter Ladefoged originally opponent (see voiceprint process Ladefoged in Vanderslice, “Voiceprint" Working Mystique, Papers 7 (1967)). Ladefoged Phonetics Raymond, testified in United States v. (D.D.C. Supp. 1972), 337 F. voiceprint testimony where was admitted. Addison, This result was overturned in United States 498 F. 2d (1974), McGowan, Judge court, where speaking for the observed that: entirety, Ladefoged’s letter, its “[V]iewed Dr. as he himself simply position characterized . . . ‘of reflects abatement of skepticism voiceprint,' towards complete acceptance.” not one addition, Jones, In Evidence Vel Voiceprint Non The Non Sense of Identification, Ky. 96, Ladefoged reported L. J. 322 n. responding method of question, you say ‘voiceprints’ “Would that as a general acceptance voice identification now has in the community?” as follows: say case; “I think I probably did that in Washington some in the case [i.e., Raymond] United States v. I that. said I think now I inwas say because, having that,

error have that my friends, said numerous said, ‘No, good I thinking my true.’ said it in faith accepted it, friends had by some people. reprimanded and I now find I have been in the scientific acknowledging Tosi in the division of Dr. community. Baker, expert by called an witness

Dr. Donald neither a defense,15 spectrography reliable testified was the scientific accepted nor within process generally of of the samplings two Dr. Baker cited community. of had unfavorable community, scientific which both meeting of The first was a process. validity toward the Section Speech of the Communications in which the members 42-0 against of America voted of Society the Acoustical survey, a mail The second was procedure. of the efficacy resultéd an journal, scientific which reported majority that the Dr. Baker also noted reaction. unfavorable in their negative subject of articles on the were the process. characterization disagreement extent of in the community was emphasized in the instant case of Dr. Henry defense,16 Hollien, expert another who stated: witness major six directed about conducted or “I have voiceprint] using technique. studies [the done, and we are things have “One we applied ... have done this only people who have we crimes], it of and technique our ... [simulated course doesn’t work. wrong to use it trying

“There was nothing [the technique]. It failed. Now it is abuse. Baker, Hearing Speech 15. Dr. his Ph.D. who received and Science from University, presently teaching graduate undergraduate Ohio State speech University Maryland. hearing courses in testified that he had done research in related areas at the Dr. Baker spectrography concerning familiar with the scientific literature voice identification spectrography. degrees including from the a Ph.D. holds advanced 16. Dr. Hollien University of Florida professor speech at the

University is a of Iowa. He Study Human for Advanced Institute and is director program on research of the Institute’s is the head He Communication. societies, including the various speaker He a member of identification. Sciences, of the Communications Academy for the Forensic Application major publications. authored over member. He has he is a council “Q. you It is an abuse feel there are some because people qualified to use it? No, See,

“A. no. It is I the data. don’t think people that use know about the research literature____There are studies that many have been published problems show the this. There a huge why is literature that would demonstrate off, they put should back moratorium this until knowledge, some we have and not foster this upon judicial system agencies. law enforcement It I amounts a fraud. don’t think it. they realize on, They going don’t what you know see.” added.) (Emphasis

There sharp has among division the cases which have considered the voiceprint evidence after the emergence of the controversy over Tosi’s claims.

Three supreme courts, California, state Michigan and Pennsylvania, have held the evidence inadmissible. Topa, supra; People Commonwealth v. Kelly supra; People v. Tobey, addition, v. In supra. the District of Columbia Court of Appeals, States, (D.C. in Brown A. v. United 384 2d 647 1978), has voiceprint also held evidence inadmissible. On hand, other Supreme has, Court of Massachusetts in a opinion, admissible, divided held the evidence Commonwealth Lykus, Williams, v. And supra. (Me. see State v. A. 388 2d 500 1978).

Two lower state courts voiceprint have ruled recently Rogers, 868, evidence People admissible: v. 86 Misc. 2d 385 (1976); Supp. N.Y. 228 Olderman, 2d and State v. 44 Ohio 130, App.2d (1975). However, 336 442 N.E.2d in D’Arc v. D’Arc, 553, Super. (1978), N.J. 385 A. 2d 278 the New Superior Jersey Court ruled voiceprint evidence inadmissible. In the United States Appeal, voiceprint Courts of evidence has been held Addison, supra, inadmissible United States v. Baller, admissible States supra, United v. and United Franks, (6th States v. 1975), denied, 511 F. 2d 25 Cir. cert.

U. (1975). S. 95 Ct. S. L.Ed.2d 693 have holding inadmissible voiceprint

All evidence cases satisfy fails ground process so on the done supra. It Frye, articulated in United States standard however, note, neither States v. United important Baller, Franks, holding supra, supra, nor United States v. admissible, test. seemed to voiceprint apply Frye evidence Franks, (511 33): court F. 2d In stated we, course, are aware

“Although concerning the differences of... of ‘a are mindful voiceprints, use of we also part on the of the trial area of discretion considerable refusing admit’ admitting judge supplied.) (Emphasis processes.” on scientific based court, Baller, supra, after v. the Similarly, in United States 466): standard, (519 F. 2d stated considering Frye the of the exaggerated popular opinion “Unless its use accuracy particular technique makes of a is or to mislead the better prejudicial likely jury, the in same to admit relevant scientific evidence allow its expert testimony as other manner weight to attacked cross-examination refutation.” voiceprint held that Supreme Court Massachusetts satisfy In v.

analysis Frye did the standard. Commonwealth supra, 327 N.E.2d at 678 n. that court stated: Lykus, agree certainly that there is not uniform and “[W]e the acceptance [voiceprint] total of the method [in the ... standard community]____Yet Frye scientific view, general does of require unanimity only acceptance; divergence of degree of scientific view is In to disposed give inevitable. this case we are greater weight experts to those have had direct who in field of empirical experience the spectrography____

“Thus, the presented support we find particularly the voiceprints, of of reliability study, sufficiently persuasive in Dr. Tosi’s expressed other expressed by certain outweigh the criticism field of acoustics.” scientists the clear the Massachusetts Nevertheless, fully it is not whether standard, deciding that was, the Frye consistent with court the scientific accepted by voiceprint generally method is to determine community attempting it was itself whether event, any In of of the scientists. merits the claims various Judge Kaplan, agreement with find ourselves more we supra, 327 N.E.2d at dissenting Lykus, Commonwealth stated: who method; opinion “To sum is divided on Tosi up, and discord journal material shows turbulence ‘general acceptance’ Frye rather than lays precondition admissibility. as a case down said those adverse plausibly Nor can it with opinions worthy either unqualified views are have the relevent scientific respect strangers or are ” ‘field.’ Furthermore, court’s the Massachusetts disagree we A dispute. degree nature of the characterization inevitable, indeed but divergence is process degree divergence surrounding voiceprint process goes very fundamental and validity notably degree divergence This kind and absent itself. generally deemed other areas scientific evidence Comment, The Dilemma: Voiceprint admissible. As stated in 267, Heard?, 35 L. Not Md. Rev. Should Voices Be Seen and (1975): n. 79 280 of a

“[EJxperts may disagree application but technique, application, or as the results of that technique is question do not that the they generally capable producing the results claimed. For instance, knowledge psychiatric common other, each and it diagnoses are often at odds easy picture experts whether two disputing It is writing samples came from the same hand. 398

much more difficult 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 process itself, just the results of its application.” (Emphasis supplied.) addition, In it is the almost unanimous in recent legal voiceprint technique commentaries that the does not satisfy standards in Frye articulated States. United See, Comment, e.g., Voiceprint Dilemma: Voices Should Be Comment, Seen and Not Heard? supra; Voiceprints: The Road, End of the Brick 8 (1974); Yellow U.S.F. L. Rev. 702 — Jones, Ahead, Danger Voiceprints 11 Am. Crim. L. Rev. (1973); Jones, Evidence Non The Vel Non Sense of Identification, Voiceprint Ky. (1974); Note, L. J. Identification, Voiceprint (1973); L. Thomas, 61 Geo. J. — Voiceprint (The Myth It), or Miracle Eyes Have 3 U. San (1974). Fern. L.Y. Rev. 15 Even those authors who advocate voiceprint evidence appear to concede that it does not meet test and Frye argue instead for alternative it might revised standards under See, Handler, Voiceprint e.g., admissible. Decker — Frye Identification Evidence Out of the Pan and into (1977);Greene, Admissibility, 26 Am. U. L. Rev. 361-365 Voiceprint Identification: The Case of Admissibility, Favor (1975). 13 Am. Crim. L. Rev. 195-197 Despite this the trial court in the instant case array, determined that had achieved the standard of spectrography However, court, acceptance needed for the trial admissibility. holding admissible, voiceprint evidence construed the Frye require test to

“general acceptance group actually ... within the in the use engaged technique experimentation technique----[W]e with this are restricting experts relevant field of to those who knowledgeable through directly knowledgeable, are experimentation techniques, work, of utilization taking the are not broad forth, that we so and hearing speech and community scientific general is community probably there In that broad science. acceptance.” meets voiceprint analysis even that doubts We have serious testimony indicates Tosi’s own standard. this reduced among have done those who division substantial voiceprint relating to the experiments or performed work process. any event,

In find the trial court’s formulation we acceptance proper inconsistent standard with the of the instant necessary admissibility. for circumstances “restricting field of suggest case no basis relevant ex- experts” voiceprint performed to those who have periments, opinions eliminating from consideration hearing, speech of those scientists the fields well education, fields, who, training and are as related by concerning judgments competent professional to make experiments by purpose Frye others. The undertaken ignore approach test is defeated which allows a court to segment the informed of a opinions substantial process community opposition scientific stands which in question.

Thus, in the instant of the record based on our examination case, have considered opinions which judicial commentaries, question, legal and the available has achieved “voiceprint” analysis do not we believe community, general acceptance in the scientific at this Frye. time, required under We therefore hold that is, for the spectrograms or “voiceprints” testimony based of voice courts as evidence present, Maryland inadmissible in course, is, subject holding identification. This if of spectrograms the use reconsideration this Court in the future identification does technique some other voice general achieve the acceptance legal of the scientific and communities.

Judgment of the Court of Special reversed, Appeals case remanded to that court with directions to reverse the judgment of Court Circuit Montgomery County remand the case for a new trial. to Montgomery County pay costs. J., Smith, dissenting:

I dissent. I of respectfully Special believe the Court Appeals holding correct in expert might that the testify that his opinion person making the telephone voice calls in question was that Reed. dissent is My upon based reasons, number of sequence in the necessarily which I (1) list them: The rule Frye enunciated in v. United States (the test), Frye (D.C. 1923), criticized, F. 293 1013 is much Cir. has adopted never I Maryland, opposed been and am to its adoption. (2) The decision of step here is out with that of a number of respected courts as to basis for admission evidence concerning expert opinions related to fingerprints ballistics, (3) X-ray, and like. decision The here is out step with our prior holdings Maryland concerning expert (4) testimony. majority opinions The of reported which have considered the matter permitted have the admission of expert to relative spectrographic analysis and voice (5) identification. Even if the test were made Frye applicable, the evidence here satisfied that I shall test. consider these points seriatim.

1. The Frye test a. the subject Views authorities on Prior State, decision Reed App. Md. A. 2d (1977), Frye had never been cited in Maryland. previously have concepts its Moreover, find where I fail is in way no Obviously, in Maryland, enunicated been binding upon us.1 Wigmore generally as the regarded 1. I think Professor outstanding least, authority, I Evidence find it during in the field of evidence. thus his lifetime at (3d Wigmore, found in of interest that the ed. § reference to only Frye lifetime, 1940),produced during Wigmore’s is in a footnote Professor states, (polygraph, p. 3. It “The use the instrument 999 at 645 of Vol. through expert testimony cardiograph, pneumograph) offered when cases,” referring accused, reported rejected, in of an has twice behalf original.) Frye (Emphasis in The section concerned and another case. Testimony” Psychological Diagnosis “the “Scientific (‘Lie-Detector’) paragraph Method.” Blood-Pressure footnote appended is states: trial, might the the used at “Thirdly, fact of lie be in evidence the — a lies on other details of as basis for inference as to precisely by the traditional method as we infer from lies disclosed rarely § 1001). machine-registered lie is (post, But this use of the Supreme by a judicially sanctioned yet

desirable has not and (emphasis original). Court.” Id. at context, place appears the under the above To matter in the subtitle which Impeachment.” is “Testimonial work, ascertain, Wigmore does Professor Nowhere in this insofar as I can rigid evidenceas advocate relative the of scientific ever as that enunciated a test by today. Frye adopted the and Court the-experiments produced techniques the used which that are informed We during began Telephone War in the case at at Bell Laboratories World bar Wigmore apparently note, however, II. I find it of that Professor interest technique, such in The Judicial foresaw a because Science § Proof Of (3d 1937) ed. he states: principle, having By Vocal Traits. means of a well-understood “ many spoken applications, the voice on a vibrations the translated, diaphragm may accurately an electrical be through current, needle, may oscillations of oscillations into a these arranged ink-tracing as a It to leave a continuous variable record. long singer, ago vocal of a was demonstrated that the chords individuality, uttering song, so the sustained notes of a have that singers two such records of the noticeably. wave-lengths now differences form of aria differ same different voice, though spoken the its notes their Moreover change voice, greater rapidity far than can with the singing having made to a similar record minute also be leave individuality. for this is a The instrument available oscillograph. proved If this indi- now it can (like viduality organ fingerprint) the vocal endures through years, period of is an additional a obvious that classified, identification, readily mode of become recorded and has omitted). (footnotes practicable.” Id. at 284-85 purposes Wigmore speaking in Note that terms Professor was for identification years apart. wave-lengths made comparisons of voice from records lapse No exists case at bar. such of time in the It should at the concerned Frye be noted outset was type with a of situation different from that materially we are The which here faced. defendant there convicted degree. of murder in the second sole of error assignment His permit on the refusal2 of trial court appeal was “an expert testify witness to to the result test made deception upon precursor present defendant.” test That was a day polygraph, solely systolic and was based blood pressure. The court said: seems to truth is theory spontaneous, be that

“[T]he effort, comes without conscious while effort, requires utterance of a falsehood conscious is reflected thus pressure. blood rise produced easily distinguished detected and from produced the rise mere of the fear examination instance, pressure itself. In the former rises latter, higher than more pronounced in the and is case, in the if proceeds, the examination latter while telling truth, pressure registers subject highest at the beginning examination, gradually diminishes as the proceeds.” examination Id. 1014.

Prior to the trial the defendant had been “subjected to this test, deception and counsel offered the scientist who conducted the test as an expert testify to results obtained.” Apparently, it intended to the expert have was state that the defendant telling the truth. It was this context that thought the court said it “the systolic blood pressure deception test gained not yet standing such ha[d] and recognition scientific among physiological psychological authorities as justify would the courts in admitting expert testimony deduced from the discovery, development, experiments far thus made.”

The evidence proposed in Frye was invasion obvious of the province of the since jury the trier of fact is vested with words, appellate merely 2. In other judge’s court affirmed the trial exercise excluding of discretion in the evidence. credibility of responsibility of witnesses. determining instantly It that the perceived controversy should be here of type vastly concerns a different from that rejected Frye. admissibility of determining for standard Frye a number criticized has been

scientific evidence Others generally. to the test respected object Some scholars. Dean of case at bar. type in the inapplicability to its point as Wigmore Professor probably succeeded McCormick field of evidence. McCormick’s in the authority foremost § 1972) (2d ed. 203 at Law of Evidence Handbook rule dated, special of a states, it can the notion far “So as to have arisen seems admissibility for scientific evidence pointing out 1923,” referring Frye. After “[n]o Frye, conclusion in for the court’s authority was cited” authors state:

“ a acceptance’ proper condition scientific ‘General facts, notice of scientific but taking judicial a of scientific evidence. criterion for the a supported by are relevant conclusions which Any received unless qualified witness should be expert Particularly, are reasons for exclusion. there other the familiar probative be overborne may value dangers misleading jury, of prejudicing this If the courts used consumption undue of time. repeating supposed a re- instead of approach, quirement ‘general acceptance’ not elsewhere practical way arrive at imposed, they would 3 Id. at utilizing the results of scientific advances.” omitted). (footnotes § Richardson, (2d J. Modem Scientific ed. Evidence 2.5 1974) states: urged tests,

“It has certain detector, lie are they should barred because not infallible. Surely represents type judicial McCormick, § (1954), 3. C. Law 170 at Evidence 363-64 contains a quoted. statement almost identical to that above 404

prejudice, for infallibility has never been a test for — the' admissibility scientific or otherwise. acceptance Universal can ruled out for be reason, the same urged and it is that general acceptance scientific is proper a condition for the court judicial take fact, notice a scientific without laying foundation, the usual not a but sound criterion for the of scientific evidence. Any conclusions, relevant supported which are aby qualified expert witness, in a field finding substantial acceptance scientific should be admitted evidence, in probative its value to weighed by competent fact-finders in the light of all circumstances. The courts should not confuse novelty with want of in acceptance refusing to admit results techniques scientific offer much aiding in (footnote ascertain the truth.” Id. at omitted). §

The same in quotes author 9.2 Frye footnote then states:

“Here the court lays of general down test acceptance, which, ill-defined, though is too Actually, restrictive. the degree acceptance go probative value, should admissibility. wrote, Wigmore once ‘All that should required (to as a condition is the admissibility) preliminary testimony of a scientist proposed test an accepted one in profession his that it has reasonable measure of precision in its § Evidence, (2d 1923).” indications.’ ed. Id. at 290, n. (emphasis original).

A statement by Wigmore Professor quoted identical to that by Professor Wigmore, Richardson found in J. Evidence § (3d 1940). 990 at 626 ed. The reference in Wigmore is to psychological testing. Moenssens,

A. Inbau, R. Moses & F. Scientific Evidence § Criminal (1973), Cases at 517 n. 9 discussing voice 12.06 debatable, states, of “It spectrograms, by identification of ... Frye test course, acceptance’ the 'general whether determining used courts by has for decades been which results, proper is a test of novel scientific admissibility quote from then The authors prerequisite admissibility.” to § (1954), general the effect McCormick, Evidence the court’s upon proper “is a condition acceptance fact, a criterion but not taking notice of scientific judicial of scientific evidence.” Oregon said Strong University Professor Evidence, Affecting of Scientific Questions Admissibility (1970): Ill. 1970 U. L.F. expert requirement

“In addition or the scientific qualified supply apply tendered be another principles, there exists principle persons requirement under which unknown to professing acquaintance principles This requirement, may rejected. be tribunal States, Frye which first announced in United proposes principle upon expert is that the general acceptance must achieved testify have However, unanimity community. the scientific in a still approval, manifestly impossible world flat, required. some to believed standard, than resulting something greater himself less than acceptance by expert but field, is acceptance experts obviously all in the Some courts have lacking somewhat in definiteness. standard, and others rejected the seemingly Frye situations. tailored it to fit unusual have Nevertheless, widely the rule continues accepted. apparent

“In to the difficulties addition ascertaining general proposition whether accepted, the generally science has or has not been rigorous as overly criticized Frye standard has been inconsistency into introducing and as an element (footnotes omitted). Id. 10-11 law evidence.” Additional criticism of the is found in Frye test Decker & — Handler, Voiceprint Evidence Out of the Identification arid, Frye Admissibility, Pan Into 26 AM. U. L. Rev. 314 (1977).Specifically, it is stated: judicial

“The trend denying admissibility of voiceprint identification evidence was based literal interpretation Frye general standard of scientific acceptance. Since thé standard was drawn from dicta and formulated more than fifty years prior to in science and technology advancements such as spectrographic analysis, identification it is necessary that its validity be re-examined.

“The standard enunciated in is one that is Frye ‘neither litigation easily common to criminal nor applied in the case.’ inception, individual Since its the Frye standard has the of criticism subject been because of the it limiting effect has had on judicial acceptance of methods of new scientific investigation. light In of the rationale behind the rule Frye practical application voiceprint and its cases, apparent identification evidence it is that the quite criticism is warranted. of prevent

“One the reasons for the rule towas the development of decisions on issues of arbitrary Yet, admissibility. standard, enunciation of the Frye any without criteria as to and definitive who how large be, the pertinent community scientific must has limited the discretion a trial court unnecessarily utilizing Indeed, should input. have relevant while Frye Cary standard was utilized in and State v. People King; not until United States v. Addison that one comprehensive could find a general discussion of scientific acceptance and how it ought operate spectrographic analysis (footnotes setting.” omitted). Id. at 361-62 The authors further comment relative to Frye:

“Proponents logical relevancy have criticized the test, Frye suggested greater that there would be all unanimity in the treatment of forms evidence if rule modified in Frye were logical conformance doctrine of relevance. is, That scientific evidence could be submitted jury showing upon reliability. reasonable Based on its accuracy reliability determination evidence, weight jury would decide Recognition it. Boyce, be accorded Judicial Cases, Scientific 8 Utah L. Rev. Evidence Criminal (1963-64); Note, Evolving 325-26 Methods of Proof, Scientific 13 N.Y.L.F. 681-85 67[9], (196[8]).” Id. at 362 n. 304.

Górecki, Comment: Evidentiary Use Voice Spectrograph in 167, 169 Criminal Proceedings,11 Mil. L. Rev. (1977),notes, “Criticism has leveled at the rigidity Frye scientific standard both and with generally respect its application to the spectrograph voice technique,” citing, in addition to Strong’s Professor article which we have Note, heretofore quoted, Voiceprint Technique: A Evidence, Problem 1365, 1383 Scientific L. Wayne Rev. (1972), Note, Proof, Evolving Methods of Scientific (1968). N.Y.L.F. Major pages Górecki does not list the where the criticism is publication, found in the latter they but 683, 684-85, are 747 and 749.

It suggested is by Boyce, Recognition Judicial of Scientific Evidence in Cases, (1963-64): Criminal 8 Utah L. 313 Rev.

“There seems to why be little reason courts should juries question allow to hear both sides of the of reliability particular of form of scientific what, evidence and decide if any, weight it should be accorded, course, upon, of a foundation which shows there is a possibility reasonable Id. at reliability.” 325-26.

Some are the view that the new Federal Rules of 703, Evidence 702 governing expert testimony, have adopted the McCormick standard of “assisting the trier of fact” rather than Frye requirement “general acceptance.” Romero, The of Scientific Admissibility

408 Evidence Under the Mexico and New Federal Rules of Evidence, (1976); Comment, Expert 6 N.M. L. Rev. Testimony Spectrogram Voice Analysis, 1975 Wash. — U.L.Q. 775, (1975); Comment, n. 27 Evidence Admission of Voiceprints Does Not Exceed the Discretion of — Judge Franks, Trial United States F.2d 25 (1975) , (1975). L. 44 Cinn. Rev. Without discuss ing Frye, Berger, J. Weinstein and M. Weinstein’s Evidence (1976), states: expert’s testimony will

“Doubts about whether generally useful be resolved favor should strong are factors such as admissibility unless there The surprise favoring jury time or exclusions. counsel, ignore intelligent enough, aided what Id. at 702-9. in its unhelpful deliberations.” pertinent part: Rule 901 provides Federal New — “(a) provision. requirement General authentication or identification as a condition precedent to is satisfied by evidence sufficient to support finding that the matter in question is its proponent what claims. —

“(b) Illustrations. By way only, illustration limitation, and not are by way following examples of authentication or identification conforming requirements of this rule: —

“(3) Comparison expert trier or witness. Comparison by the trier of fact or by expert specimens witnesses with which have been authenticated. —

“(5) identification. Voice Identification of a voice, through whether heard firsthand or recording, mechanical electronic transmission or by opinion upon hearing based time any voice under circumstances it connecting alleged with the speaker.” supra, comment: Berger,

Weinstein of the identification 901(b)(5) provides “Rule connect the voice can person who by any any voice This ‘hearing’ the voice. alleged speaker by expert an not preclude does language has but who not ‘heard’ the voice has witness who Rule technique. Cf. voiceprint identified at 901-61. (4).” 901(b)(3), Evidence Weinstein’s of authors, discussion after that these It is of interest field here in the experiments early Kersta and his Lawrence technique at to this discussion, reference state with under adequate an given 901-69, development, stage “At this of is warranted.” admissibility expert’s testimony, subject on this majority opinion The b. of its support cites 28 cases

The majority in the acceptance’ ‘general “criterion of that the proposition in almost the standard has come to be community considered country which have all of the courts They evidence.” of of scientific question instance, People too For proposition broadly. state the (1961), 868, 16 366 P. 2d 314 Busch, Rptr. 2d Cal. 56 Cal. case a In that or its criteria. Frye no mention is made to his relative physician testify sought defendant to have determination tool in his analytical as an hypnosis use at the time of the defendant the mental condition pointed Court California killings question. Supreme on the and sustained made objections out that were “[t]he sufficiently scientific is not a grounds hypnosis stated mind, was that the witness the state of exploring means field, opinions were in this and that qualified and constituted on the defendant’s statements formulated conceded that “the The court said that witness hearsay.” in a criminal expert in the role of appearance his initial was mind; accused’s state on the matter of an subject case practice in the engaged had he not a psychiatrist his shortly until before general practitioner medicine as a 410

appearance expert specializing in the case at bar as an [then] in hypnosis.” The court further stated: of

“In a foundation for the introduction laying opinion of the state of mind of a defendant use of not theretofore upon technique based the a recognized sufficiently the courts as to by reliable least, form an the opinion, very the basis for such showing some its successful use in the examination of others than the defendant for the purpose, same either or other witness field, required. in the experts appear would We are that under the circumstances herein persuaded trial did not act judge unreasonably narrated the proper his determination that a foundation was not tool reliability analytical established as an seeking recognition still in the field of psychiatry, as to the of this qualifications particular witness give opinion an on the state of mind the accused homicides on the occasion the commission ‘* * * remembered, general herein. It must be court, rule trial passing upon is that qualification expert, of a offered as an has witness discretion, appellate and an court wide will ruling its in the of a manifest disturb absence abuse Chambers, (People of such discretion.’ v. 162 215, 220, 236, 239; Cal.App.2d 328 P.2d see also 600, 604-605, 130 62 P. People Goldsworthy, Cal. 1074.) In the instant case no of discretion is abuse judge justifiably demonstrated and the trial the record in objections presented by sustained the this case to of the offered the admission hypnosis.” on the use of 16 Cal. based Rptr. at 903-04. Arnwine, 483, 171

In State v. Super. (App. A. 2d 124 N.J. 1961), a Div. the issue before the court was whether defendant had to a test voluntarily polygraph who submitted but who did not consent to the admission of its results was test, prejudiced by testimony gave of a detective who The of the test. showed the result testimony indirectly out, “The record the trial below barren of pointed court equipment respect foundation with effort any lay technical Detective qualifications used or to establish examiner, than the fact Latawiec, other polygraphic John examiner, associated, he as such sergeant It noted the ironic Police.” Id. at 487. Jersey the New State States, App. Frye, fact that the defendant v. United Frye 1923), life (D. sentenced to D. F. 1013 C. Cir. “was C. his test indicated imprisonment. blood-pressure deception innocence, a subsequently corroborated when this was Had he the real murderer. person third confessed that was evidence, it the results of the test been admissible an man would not have altogether probable that innocent murder,” Id. 493. of authorities. citing been convicted 499, said concurring opinion, Super. 67 N.J. Judge Foley in his such of the of results that “because the issue court, unwilling spell he to out was before [the was] guidance, proof for future the foundation of generally, and evidential,” adding to test results that required make the to this should a case which seemed him “that await so decision therein issue raised squarely [was] live, a m[ight] light of a rather than be construed hypothetical, complex.” factual He further said: as far

“It is that dicta are to be avoided my view possible only they and should where employed in case. I think that holding serve illuminate a this is true dicta involve a particularly when the present discussion of status scientific pace The it affects the information as law. swift, impulse

research in science is so and the those field that the engaged dynamic this is so artisans of advised avoid the law would be well fixing future unnecessarily, standards which application found to on scientific may be based concepts Compare, e.g., are then outmoded. Hunter, (App. Super. v. 4 538 Div.

State N.J. 262, 269-70 1949), Miller, Super. with 64 State v. N.J. (App. 1960).” Id. at Div. 499.

412 Swanson, (N.D. 1974),

In 225 283 another State v. N.W.2d opinion, sought of the cases cited in the a defendant majority introduce his to take a willingness polygraph evidence of The refused to The accept test. trial court such evidence. urged court said it to overrule its decision in the case of Pusch, (1951), v. 77 N.D. and to State N.W.2d in criminal accept polygraph testing results After some proceedings. stating “[t]here ha[d] opposition evidence of a in the judicial breach wall device,” cases, utilizing citing this several the court said: required “This court to re-examine its may be Pusch, supra, presented decision in if State v. appropriate present record. Such record is not in this case. There was no actual test made defendant, offered such test. merely he to take offered concerning There was little evidence reliability acceptance polygraph or the its qualifications proposed operator. explain of the officer called to proposed polygraph test indicated that would be in a case of this at 285. type.” inconclusive Id. State, (Tex. 1973), App. In Romero S.W.2d Crim. opinion, Frye another of the cases cited in the majority simply having one of the cases mentioned as considered the that in a polygraph. Frye “really The court noted it [was] than a No standard monograph polygraph____” rather was set forth. that it had the previously The court said “followed concerning almost the unanimous view of American courts of the results of a test.” Id. at 210. admissibility polygraph It asserted that it at time that was “convinced [it] th[at] should Id. at 211. general adhere to the rule of exclusion.” Woo,

The 2d issue before the court State v. 84 Wash. (1974), yet majority 527 P. 2d 271 another case cited in the a examination opinion, polygraph was whether the results of upon of a criminal defendant in evidence were admissible said, of the alone. The court “The stipulation defendant rule, general Frye almost since v. exception followed without States, (D. 1923), 293 F. 1013 is that the results United C. Cir. trial.” are inadmissible examination a polygraph of The court noted standards. applicable Nothing said about Supp. 350 F. Ridling, case, States v. in a United perjury McCormick, of court, Law 1972), citing C. (E. Mich. D. expert 1972), (2d E. “viewed Cleary ed. Evidence than rather results as testimony polygraph when evidence,” admitting is such that of the science ‘the state “concluded that to understand the trier of fact assist opinions experts “will ’ ” further said: The court the evidence.” us, records again to the cases before “Turning Ridling that in either hearings, unlike of the omnibus support the any material to Zeiger, or are devoid nothing to disclose There judge. decisions of the accepted minimum there exists even whether If operators. standards polygraph qualifications are. exist, speculate they left to as what do one is records, nothing by way in the There is exhibit, concerning the trustworthiness type equipment. polygraph most modern in the instant cases used proposed equipment Further, not disclosed. reliability and its are used in the techniques to be records are silent as professionally are they examinations and whether acceptable. departure virtually from a

“If are to consider we against rule unanimous examinations, must stipulation, we absent

polygraph sufficiently adequate furnished a record with 474-75. Id. at subject.” permit review majority 16 of the 28 cases cited is of interest that It the admission concerned with for its are proposition Smith, cases, additional State evidence. Two polygraph (1976), Henderson v. 183, 362 N.E.2d 1239 App.2d Ohio (1951), concerned State, 230 P. 2d 495 are 94 Okla. Crim. gunshot another residue Smith polygraph plus test — and truth serum in Henderson. of the by

Certain cases cited the majority point to inherent weaknesses the polygraph technique, weaknesses not the instance, involved in case at For bar. in Henderson the court said that it could “foresee conditions to where ascertain truth, the it would necessary operator become to the require of the to to machine a test submit to determine the truthfulness of his interpretations.” Id. at 53. Steele,

In App. 496, 500, State v. 27 N.C. 219 S.E.2d 540 (1975),another of the cases cited by majority, the the court out, pointed quoting (1961) L. Iowa Rev. to relative “ polygraphs, ‘[reliability depends greatly the skill ” “ and experience greater the and expert’ degree much ‘[a] of interpretation is than in and involved blood ballistics ” tests.’ the in the type In of test case at the jury bar hears recording the voice known be that of the defendant and recording expert the said the the by voice of the It also spectrographic samples. sees the defendant. State, In Boeche v. (1949), 151 Neb. N.W.2d polygraph the majority another of cases cited opinion, court concerning said refusal the trial court reopen case so defendant could submit to an examination polygraph:

“Cogent support reasons in of this readily attitude suggest place, themselves. In first the vital function of impaired. cross-examination would be The operator, appearing as a and report witness to test, interpret might questioned results of qualifications, experience, methods, as to his his matters, on similar that is about all. But the — machine itself conceding the comparatively high percentage record accuracy reliability claimed all escapes cross-examination. There it — is no persuasive analogy here with such tests as basis, fingerprinting which have a strictly physical is not clearly demonstrable. It contended that the lie weighs important detector measures psychological Many factors. innocent highly but persons sensitive un- undoubtedly would show

415 reactions, many guilty while physical favorable spirit, would or less sensitive of hardened persons, This of falsification. indication register physical no understand, and of course operators trained of large percentage aof upon the basis proceed of a task too subtle quite seems But it error. Id. at jury.” an untrained impose upon evaluation 377. (1962), 894 274, 371 P. 2d Valdez, 91 Ariz.

In State v. majority, cases cited the polygraph another of technique: shortcomings polygraph of out pointed court enumerated scientific to the above addition “[I]n technique polygraph shortcomings of its use to the unrestricted following objections registered: room have in the court results juries “(1) tendency judges supposed The on the as conclusive to treat lie-detector evidence The Highleyman, guilt. issue of defendants’ See Detector’, 10 The ‘Lie Certainty Of Deceptive Kleinfeld, (1958); The Detection 47 Hastings L.Rev. Resume, (1947). 8 Fed.B.J. Deception —A procedure, test “(2) Lack standardization Method, Theory, Analysis The (Burack, A Of Critical J.Crim.L., Detector’, 46 ‘Lie The And Limitations Of Koffler, S., Lie Detector—A (1955); The & P. C. A Potential Technique The As Of Appraisal Critical Process, 3 In The Factor Judicial Undermining (1957)), qualifications examiner N.Y.L.F. 123 instrumentation. examiners’

“(3) jury evaluation Difficulty omitted). (footnote Id. at 279-80 opinions.” 2. admissibility Rules used in of fingerprints,

ballistics, etc. general concerning rule is summarized The Lie An Kaplan, as follows Detector:

Analysis Of Its Place in the of Evidence, Law 10 Wayne L. (1964):4 Rev.

“The General Standard for Admissibility. Since the purpose of a trial is to discover facts involved in a transaction or occurrence and to decide the presented issues facts, accordance such general standard used in determining whether evidence should be admitted is having that ‘all facts probative rational value are admissible unless some specific rule The probative forbids! of piece value a of evidence concerns its relationship to an issue to be decided in the If furthers, lawsuit. the evidence extent, to some the progress establishing toward issue in question, it is considered subject admissible to the existence of factors policy weighing against its admission. The factors policy include such possibilities as misleading the jury unduly prejudicing one in party’s position of the jury. In considering factors, such policy the courts weighing are effect prejudicial admitting evidence against the harm of excluding relevant evidence. Generally, the decision as to the wisdom of admitting or refusing the according evidence made to the discretion of the trial judge.” Id. at 393 (footnotes omitted).

Evidence purports which of a be “scientific” character has been carefully scrutinized to insure that the evidence is sufficiently reliable to some logical have relevance to a material However, issue in the case. as will seen from review cases considering other scientific developments this century, scientific evidence has generally been admitted if supported by the testimony qualified of a expert. Although the lie detector emphasized cases have “general a need for acceptance in the particular in field [the principle] belongs,” Frye, F. at focus other cases considering some development new has been on question 4. The prepared article for on the Seminar Administration of Criminal Justice at Harvard Law School. general acceptance.5 In an reliability, early reasonable evidence, Inbau, of scientific Scientific Evidence study (1934), L. 24 J. Crim. & C. stated: Criminal Cases (I), excluding “Regardless justification of the nature, may a court assume of a scientific — open-minded one different attitudes either of two of the possibilities perhaps hopeful the other somewhat particular question; science of the utter bigoted scornfully expressive concerning the problem of scientific aid hopelessness Throughout the numerous the court. before of scientific evidence upon decisions points are illustrations of both view.” many there omitted). (footnote Id. at 826 accorded varying

I to characterize the views attempt shall not by spectrographic identification of voices as to analysis. Fingerprints

a. identification voice spectrographic Some critics technique new scientific process suggested any have fingerprinting should as before be shown reliable accept Today to consider such evidence. we jury allowed cross the commonplace speeds may such that one travel at as late as the continent in less than the time that it took even from Baltimore by end of II to travel automobile World War Court, of this York There are even members City. New however, equally time who can remember the when was Saturday to come to town on commonplace many for farmers night carriage, hitching horse and their horses by hitching posts. relatively A short time conveniently placed noteworthy Analysis Kaplan, 5. It is The Lie Detector: An Its Place Evidence, (1964), mentioning in the Wayne Law of L. 392 after Rev. Frye applied test as in certain cases lie which had considered detector said, case, normally evidence reserved “In each the court used the strict standard taking inquire notice. In no case did the court then judicial see whether the evidence fulfilled the for the established requirements great admission of judicially bulk of evidence which is not noticed.” ago those who traveled motor vehicle were able to cross the Chesapeake Bay only,by boat. Many persons today have forgotten the travel methods of years even few back. Fingerprinting has long recognized been as an extremely reliable method of identification. Just as we may prone forget changes in the field of transportation, may forget we that even this branch of forensic science had its infancy. “Fingerprinting came into widespread use in this country from on, about 1910 after some experiments isolated on a level, local beginning Moenssens, 1902.”' al., A. et supra, process 308. The was admitted into evidence almost immediately. Inbau, See generally Scientific Evidence (III), Criminal Cases 25 J. L. (1934). Crim. & 500C. Moenssens and indicate that the first appellate Inbau considering decision in country fingerprint this evidence was (1911). People 534, 96 Jennings Ill. Jennings, N. E. home in was accused of murder at one connection with nighttime series of intrusions into the bedrooms women. porch place at the home the murder took railing where Investigators had a short painted previously. time fingers on the of four imprint railing discovered someone’s left hand. Four testified that in their witnesses prints railing prints on the and the taken from the fingers of made Jennings by the identification bureau were it, Jennings the same As the court person. put “earnestly insisted ... that this class of is not admissible evidence____” rules, taking under the common After law although note of widespread fingerprints by police, use of noting, raised has question “No case which this has been been cited in the and we find no statutes or decisions briefs touching point country,” applied this the court general rule material fact prove any “that tends to whatever competent,” stating: relevant and disposed

“We are to hold from the evidence of the four writings witnesses testified and from the who is a subject, we have referred to there system finger-print scientific basis for the identification and that the courts in justified are evidence; admitting this class of that this method of in and common use that general identification is such cognizance the courts cannot refuse to take judicial it. or may may Such evidence admissible, independent strength, it is the same but proof, tending as other to make out a case. If on the identity persons inferences as to the based voice, admissible, appearance age are why justify does not this record the admission of this finger-print under common rules of law is, general evidence? rule tends The whatever prove material any fact relevant competent.” Id. at 549. Cerciello, State v. process

The next in approved (1914). N.J.L. 90 A. 1112 The defendant there vigorously objected to introduction into of his for fingerprints purpose comparing prints upon them found hatchet which was the murder The court said that weapon. consideration, this question “presented] subject judicial res nova entirely principle, practical which while not is in its application in procedure Jersey criminal at that [New time] Id. essentially novel.” 313. It then held: “In principle legal its admission as evidence is upon based the theory practical that the evolution in life, affairs of whereby progressive and scientific tendencies of the are age manifest other every department endeavor, of human cannot ignored legal procedure, but the law in its efforts to enforce justice by issue, fact in demonstrating a will allow evidence of processes, those scientific are the work of educated and skillful men in their various departments apply them to the fact, demonstration leaving the weight and given effect to be to the effort and its results entirely 267; the consideration of the jury. Steph. Dig. Ev. 2 BestEv. 514.” Id at 314. Appeals Court of approved York New Roach, of fingerprint People v. evidence in (1915). E. said that it was N. court

N. Y. the the admission in evidence “earnestly insisted that impressions to alleged expert finger-print an testimony of wrought to such a material character as have error and of was the reversal and to necessitate defendant grave injury Seabury said for the court: Judge Samuel judgment.” of this identity to his as to the opinion “Before testifying upon the marks finger prints of the with defendant’s fully his explained the witness board circumstances qualifications, specified upon opinion his and swore that he predicated he which opinion with reasonable express was able exhaustively skillfully He and certainty. was every testimony. detail of his cross-examined as to to come to an Ample jury was afforded for basis of the as to the correctness intelligent conclusion progress he In view of expressed. students and those that has made police of crime in the charged the detection world, larger cities departments finger-print identification means of effecting of law that impressions, we cannot rule as matter fact that incompetent. Nor does the such evidence preclude its presents questions the court novel The same upon principles. admission common-law and thing photography true of typewriting, yet such X-ray reception photographs, occurrence in our courts. The is a common evidence doubtful prove identity presents often may man features. One unsatisfactory alike, or they for another because look mistaken similarity be inferred from identity person may features, height, variety or a other expression principles circumstances. Under common-law fact is prove tends to material relevant any whatever competent.” Id. at 604. of error the possibility court made it clear that The New York process in the affected only weight evidence, its admissibility:

“The fact that error may sometimes result identification, effecting by this means affords no reason for the exclusion of such evidence. Mistakes may also in effecting occur by personal identification appearance, meeting, casual 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 the jury. Courts have often proof allowed of circumstances apparently very trivial as upon which-identification might (State be 196; effected. v. Rainsbarger, 74 Ia. Hubbard, 303.)

Wilbur v. 35 Barb. The evidence of the expert as to the identity of the finger prints of defendant, the blood marks found upon the clapboards house, proper was a for the subject consideration of the The jury. weight given to this evidence court, was for the jury, not the determine. Certainly the reception of this evidence would not justify the reversal of this judgment.” Id.

at 605. As illustrates, Roach cases early concerning fingerprints admitted such evidence general under the rule which Wigmore described as second “[t]he [of two] on which our of law axiom[s] Evidence rests”: “All facts having probative rational value are unless admissible some ” specific § rule Wigmore, forbids. 1J. (3d Evidence 10 at 293 1940) ed. (emphasis original). In regard he says:

“In this respect the century of the 1800s witnessed a gradual in the improvement practical but marked enforcement of this principle. ‘People were formerly frightened out wits,’ of their said Chief Justice Cockburn, 1861, evidence, ‘about admitting lest juries should go wrong. In modern times we admit ” the evidence and discuss weight.’ its Id. at 295 (footnote omitted). fingerprint the time the issue reached this

By Court 85-86, 40 State, 70, (1944), 2d Judge 184 Md. A. Murphy v. said, take Bailey Court must notice the fact judicial “[T]his is an means fingerprints use of infallible demonstrate, and Roach As Cerciello identification.” :6 however, indisputable need not so as scientific evidence admissibility.7 notice before warrants merit judicial b. Ballistics is Although accuracy of firearms identification common § al., 149, 4.16 knowledge supra, see Moenssens et at today, Supreme point one Illinois Court at labeled claims experts “preposterous.” Berkman, People ballistics 492, 501, Inbau, (1923).8 Ill. 139 N. E. generally See fingerprints probably It to state that are "infallible” 6. not accurate basically process identifying prints of of one method of identification. “requires positive matching that minimum A identification similarities. ridge prints, though eight most must be found both identical characteristics al., prefer Moenssens et experts least 10-12 concordances.” A. § (1973). Obviously, the at 324 Evidence in Criminal Cases 708 Scientific similarity, points the more conclusive the number greater Court, however, approved admissibility of This has identification will be. fingerprint characteristics, matching only five evidence based noting weight “goes rather than to the the lack conclusiveness of State, 193, 199, A. Breeding 151 2d 743 the v. 220 Md. evidence.” Por an positive (1959). was demonstrated to be NLADA defense could not be interesting identification account of a case in which Lauritis, Lie, incorrect, 34 see Some Fingerprints (1977). similarity, points the spite of Briefcase 74 In fourteen prints points dissimilarity, proving expert that the found three identical. forged fingerprints 'planted’ or that “the use of It also should be noted possibilities, [although] practice such theoretically realm in no is actual cases citing within the § 346, al., 7.16 at et nave been discovered.” Moenssens supra, (1971). Moenssens, Techniques technique for A 284-293 Fingerprint Inbau, (III), forgeries in Cases in Evidence Criminal such is outlined Scientific 500, (1934). 504 n. 25 J. Cnm. L. & C. 9 Notice, notice, judicial Morgan, 57 Regarding generally see Judicial 7. (1944). 269 Harv. L. Rev. Evidence, Questions Admissibility Strong, Affecting the Scientific 8. (1970), P. 1 states: 1970 U. Ill. L. testimony today received is liberality with which “The expert justified by fact that it would frequently proper to be the asserted concerning ignorance the judges, in their principles validity invalidity of to undertake to assess other disciplines, testimony versed to hear of those and declineto those principles, is to some extent in No this liberalism such doubt principles. has mortification which to a consciousness of the attributable ultimately many past undertaken courts in which have befallen (I), Scientific in Evidence L. Criminal Cases J. Crim. & C. (1934). Professor Virginia Inbau notes: “A case decided 1879, Commonwealth, (Va.) Dean v. 912 (1879),] Graft. [32

is the first in appellate approved of testi court mony regarding similarity between fatal and test although weight, any rather than characteristic bullets— markings, constituted the basis for Id. at 830. comparison.” “The first semblance of firearms identification evidence we know was today, presented the 1902Massachusetts case [, Commonwealth v. Best 180 Mass. 62 N. E. 748 § (1902)].” et al., Moenssens supra, 4.16 at 147. The writer Holmes, Best was Oliver Wendell then Chief of the Supreme Justice Judicial Court of Massachusetts. He there said for the court: shot that was government Bailey

“The contended in the kitchen. Two with a rifle that was Winchester government found in his and the body, bullets were of the same prove that another bullet was allowed rifle on or through had pushed calibre put shortly after October 24. It then was allowed evidence, from photographs this bullet also from the in order to body, two bullets from in the cases show the marks the rifle two prove coincided so as to that all three bullets closely through had same rifle This passed barrel. excepted ground to. The main seems experiment

to be that the conditions of the did not correspond those of the date of the accurately with different shooting, impelling the forces kind, bullets different in that the rifle barrel were so presented them were scientific theories declare that certain much witchcraft.31 See, Berkman, 492, 501, 139 e.g., People N.E. 307 Ill. “[Note 81:] (1923), in which the court characterized offered concerning ‘preposterous,’ tacitly ballistics as a denunciation only People Fisher, 216, years withdrawn seven later in v. 340 Ill. (1930).” (footnote omitted). 172 N.E. 743 Id. -at 10

might supposed rusted more have in the little more than fortnight intervened, a had that and that 10, was fired times three on October which would have increased the leading see barrel. no We other inway jury which the could have learned so intelligently gun how that barrel would have marked a it, lead bullet fired through question of much importance to the case. Not only was it the best but the sources attainable of error suggested were trifling. photographs avowedly were arranged to bring out likeness marking the different bullets and were objected to on ground. this further But the jury could correct them by inspection of originals, if there were aspects other more favorable to the defence.” Id. at 495-96. Clark,

Prof. Inbau notes that Or. “State v. [99 (1921)], P. 360 the first one appears approving of identification of markings means upon ”24 fatal and test shells. J. L. at 833 Crim. & C. (emphasis original). In Clark the court said: testimony concerning “The admission of tests this very character rests largely within the sound Holbrook, discretion the court: State 98 Or. 43 (188 947). Pac. That discretion was properly exercised the case at bar. The tendency prove cartridge that the that was found near the from the boulder was defendant’s gun.” 99 Or. at 665. Vuckovich, (1921),

In State v. 61 Mont. 203 P. 491 Clark, decided the same year difficulty the court found no approving expert admission of testimony identifying gun weapon. Having defendant’s as the murder fired test bullet gun, from the defendant’s the experts testified that the shell peculiar “showed same or mark as crimp appearing on the shell found at the scene of the homicide,” rifling marks made the lands “[t]he grooves pistol the barrel the same.” The were court said:

“It rule that seems be well-established it is within the discretion of the trial court largely made, permit experiments to be and that caution receiving should be exercised in evidence. It such should only be admitted where it is obvious to the from experiments court the nature that the jury enlightened, will be rather than confused. Such evidence should not merely be excluded because it is not necessary establishing sought the facts be shown it prosecution, if tends to position expert corroborate the taken witness received; whose evidence has been for whenever the opinion of a person is admitted to relevant the grounds on which it is based are also relevant.” Id.

at 494. indicated, As already we have the Supreme Court of Illinois not initially favorably disposed was toward reception Berkman, ballistics testimony. (1923), In 307 Ill. 492 a police officer who purported expert on firearms maintained that he could state positively given had fired bullet aby given gun. That court scoffed “remarkable evidence,” stating: gave it his that the bullet

“[The officer] introduced in evidence was fired from the Colt automatic revolver in evidence. even He stated positively that he knew that that came bullet out of revolver, the barrel of that rifling because the marks on the bullet fitted the rifling into of the revolver in question, and markings that the particular on that peculiar, bullet were came clear they up because steel the bullet. There is no evidence in the case by which this expert officer claims to anbe shows that he anything knew about how Colt automatic revolvers are made and how they are rifled. There is no testimony in the showing record that the question revolver in rifled a manner model,

different from all others of its and we feel very produced. sure that no such evidence could be absurd, The evidence of this officer is clearly besides being upon any based known rule that would brought it If real facts make admissible. were out, that all Colt undoubtedly would show model of the same revolvers same caliber manner, precisely are rifled the same that one can that a certain statement know bullet revolver, fired there are was out a 32-caliber when hundreds and thousands of others rifled in perhaps the same manner and of the same precisely precisely character, preposterous.” Id. at 500-01.9 Commonwealth, 411, Prof. Inbau refers to 230 Ky. Evans v. (1929), 19 1091 “the first S.W.2d as exhaustive treating sanctioning firearms identification as a science while its use for the purpose establishing guilt the an accused individual.” 24 L. & C. at 837. The court Kentucky J. Crim. noted the center” of appeal at 415 that “storm the the was testimony presented by expert, and evidence the ballistics (then Major) Although Colonel Calvin Goddard.10 Goddard’s majority opinion 7 to a 1665 trial makes reference in footnote witch 9. expressed expert opinion had a doctor the that the victims been which implication too the defendants. The is that courts have been bewitched hasty accept purport theories to be based on science. supporting opposite example A the is the conviction of more famous view teaching for his that the earth is not the center of universe. Galileo 1633, Brought having Inquisition “guilty of found before Roman Galileo was taught’ Copernican ordered to recant. ‘held and doctrine and was ‘abjured, past and detested’ his recited a formula in which he cursed [He] imprisonment, portion sentence errors. The was carried but penalty immediately Pope commuted into house arrest and seclusion--- eight throughout last The sentence of house arrest remained in effect 1974). Britannica, 851, 853 (15th years Encyclopaedia ed. of his life.” 7 Galileo highly 10. Those who find it Tosi has testified that Dr. Oscar “suspicious” voiceprint might in most of the cases to learn that be interested Colonel Goddard, played primary development Calvin who role in the of ballistics science, Inbau, (I), as a see Evidence Criminal Cases 24 J. Crim. Scientific 825, many key L. (1934), early & C. 829 n. 11 was witness Ballistic See, Fisher, e.g., People 216, 172 (1930); cases. v. 340 Ill. N. E. 743 State v. 677, (1931); Commonwealth, 213 Iowa 239 N. 715 Campbell, W. Evans v. 230 411, Ky. 612 (1929); Boccadoro, 19 S.W.2d 1091 352, State v. 105 N.J.L. 144 A. (1929); State, 313, (1929). (Inbau and Galenis v. 198 Wis. 223 N. W. 790 case, notes that Colonel Goddard testified in this L. at 837 J. Crim. & C. 35.) People n. In v. Fisher the court noted that Goddard “had been consulted as an in homicide cases in more than one-half the States in this expert country findings large percentage and had testified to his in a Ill. cases.” 340 237-38. nature, no court made highly technical testimony was Rather, acceptance. any requirement reference expert applied to be appeared used the standard “The defendant 427: said at The court generally. testimony technical, highly was of Goddard the evidence says inadmis- doubtful, therefore unreasonable, extremely said of evidence plausibly as sible, just same could but day.” every is admitted prints, and that finger (1930),the N. E. 743 Fisher, Ill. In People v. had referred court, years before which but seven ruled “preposterous,” as science of firearms identification grounds such same other any admissible on the expert testimony, People Jennings, supra, relying fingerprint first case. The court said: argued

“It is that this novel and testimony was admitted; should not have that it not within expert the field of that such testimony; under the common and no statute admissible law of this State authorizes its admission. The same objection Jennings, was raised in 252 Ill. People v. finger prints to the admission of as means of question

identification. So the same was raised when (1 on photography Wigmore was first introduced. Evidence, 795.) sec. such it said in Of evidence was People it or Jennings, supra, may may v. that while admissible, it is independent strength, same as other case. proof, tending as to make out a general prove The rule is that any whatever tends to material competent. (People fact is relevant and v. 431.) Expert 251 Ill. is admissible

Gray, testimony matter of the is of such a subject inquiry when character skill persons experience that only capable in it are forming judgment a correct (People to facts connected v. any therewith. Jennings, supra.) is not confined Such evidence special professions classified and but is admissible skill, to a peculiar applied wherever and judgment by particular required explain are results subject 428

tracing them to their causes. Such evidence is as experts admissible when witnesses offered peculiar knowledge experience have or not common world, opinions which renders their founded on experience such knowledge an aid to the court determining the issues. jury (People Jennings, v. Co., supra; Chicago Yarber and Alton 235 Railway v. 589; 27; Ill. 12 People, Taylor Evans v. Mich. v. Monroe, 36; Ellingwood Bragg, Conn. v. N.H. 488; Murdock, Cl, 211; Rep. (1867) McFaddon v. 1 Ir. — — Evidence, 280.) Greenleaf on ed. Lewis’ sec. question qualification expert of an rests in the largely discretion the trial court. Bonato v. Co., 422; 248 Ill. Peabody Wigmore Coal Evidence, sec. 1923. Oliver,

“In Lyon 316 Ill. out pointed was that handwriting, photography questioned documents and typewriting identification of were for subjects expert It in that case testimony. was typewriter might, shown that the same after use, register considerable letters of different form from that which it would make of the same letter new, when machine and that was whether has occurred in any given expert case is a subject case, are of the in this testimony. We where witness has been testify able the use of magnifying instruments and reason of experience his and study he has been able exhibit, determine the condition of a certain evidence, condition he details to the such jury, while the jury accept are not bound to his conclusions as true, competent expert testimony subject on a properly expert knowledge.” one for Id. at 239-41. The same year in which Fisher decided an Ohio appellate approved court ballistics aby guns banker who made his Burchett hobby. State, (1930). v. App. Ohio 172 N. E. 555 The court recognized that science developmental the was still in the that has a bullet identifying stages, noting, possibility “The is now it projected from which was fired the firearm been at 468. App. engineers.” Ohio receiving study by intensive science, science, for if it continued, “The be court new The name, as interior ballistics. is known of a better want is in the now has said: ‘Ballistics Prof. Gunther Elsewhere when data days was the stage finger printing that same And being accumulated. duplication was probability the ” not at 468. The court quoted, it Id. fully promising.’ is rather the more language Frye, but “twilight zone” case, Jersey fingerprint the New State receptive language of Cerciello, previously L. we have v. 86 N.J. which “ law, alluded, justice by in its efforts to enforce ‘the issue, of those demonstrating a fact in will allow evidence of educated and which are work processes them to departments, apply skillful men in their various fact, effect to leaving weight the demonstration of a its results given entirely to the effort and ” holding the court said in jury.’ consideration of the evidence admissible:

“Without, therefore, assuming say that a particular fired so distinctive a mark ball will bear it, upon due to structure of the from gun fired, gun, identify it has as to enable one to been and, evidence, proper we do hold that this is a field being ordinary certainly a field with which educated, unfamiliar, trained, juror and skillful line along may men be received Commonwealth, 230 Ky., what it is worth. Evans v. 411, 19 (2d), 1091, 66A.L.R., 360.” Id. 469-70. S.W. By upon the time our first ruled ballistics predecessors (1951), State, 132, 81 evidence in 198Md. A. 2d 631 Edwards Delaplaine the science said for Judge was well established. there, the Court “For has a science many years ballistics great ferreting might value in out crimes that otherwise weapon from solved____Testimony identify which a shot fired is it is shown that admissible where training offering qualified witness such

430 and experience give expert opinion firearms and ammunition.” Id. at 142. This Court found no error in admitting the of the opinion expert firearms that bullets gun accused, had been fired from the though even expert said “it possible that was ... that could bullets have fired from a gun].” Id. at 144. [different

c. Blood al., Moenssens et at 288 supra, n. 85 indicate that the first appellate decision on the blood grouping Damm, 123, (1933), evidence was 62 State v. S. D. 252 N. W. 7 aff’d, 309, (1936). 64 D.S. 266 N. By point W. that time 667 there no dispute as to the accuracy these tests.11 Damm, 123, (1933), In State v. 62 S. D. 252 N. 7W. defendant 11. rape (his a daughter) case require asked the trial court to foster prosecutrix undergo prove a blood test. He that this would that he hoped illegitimate request was not the father of her Supreme child. The was denied. The affirmed, saying Court there was no abuse discretion: holding specifically upon proposition “We base such that it does sufficiently not medical science from the record in this that case modern appear agreed upon transmissibility of blood accepted characteristics to such an extent that it can be as an unquestioned that, groupings scientific fact if the blood of the known, parents are group offspring the blood of the can be determined, necessarily that, groupings if the blood of the mother known, and accepted positively child are it can be as a established group scientific fact that the blood of the father could not have been specific group. words, a certain characteristic In other think it we insufficiently appears proposed that the of the test meets validity generally accepted recognition with such medical men as to a undoubtedly cognizance among as a scientific fact say that it constituted an abuse discretion for justice cognizance thereof, court to refuse to take as would today be the case if a court should refuse to take accepted finger prints of the scientific fact that the no respects two individuals are in all identical. therefore We find no error here.” Id. at 136-37. opinion, Damm, (1936), In a later State v. 64 S. D. 266 N. W. court again. discussed blood tests once It said: “In generally view of the fact that our seems to have been interpreted passing upon as question the broader and more abstract reliability of the existence of as a matter of established scientific fact; novelty matter; importance view of the and any particularly in view of the fact do not we wish misapprehension deter by any as to the possibility views of this court accepting other courts from acting upon a tenet of biological acceptance fully science which we are convinced is now ripe cases, medico-legal proper we deem it at this time to stated, 1937, Muehlberger and Inbau “Blood Writing in medical accepted by the grouping tests become have measure of a ‘reasonable profession only possessing as [citing the law requires in their precision indications’—all § 1923) (2d also Wigmore, ed. Evidence 990]—but irrefutable results.” The producing exact and Scientific Tests, 27 Crim. L. Legal Application Grouping of Blood J. & (1937). C. disputed, tests was not of these accuracy the

Although of such probative value as controversy there was the same to have persons showed the tests two evidence when and wrote: Muehlberger Inbau type. blood evidence, it relevant as concomitant logically “While inference prejudicial seems that the of possibility for the is too in return against great the defendant reason For that capacity. remote evidence of of the authorities advocate that results scientific only in evidence grouping blood tests be admitted fact, i.e., that the they conclusively when establish it was parent. could be the And possibly not accused Meinhold, on the so in the of Flippen held case an ground it to draw improper that would be merely possibility paternity inference of where reasoning would Obviously, is same shown. (footnotes in a case.” Id. at 592 criminal apply omitted). state, worth, may opinion for whatever our actual on the (as question, notwithstanding fully abstract the fact will more appear) hereinafter that it is also that our view the determination question favorably appellant’s of the abstract is not contentions present appeal. decisive of the say, discussion, therefore that “We without further elaboration opinion reliability it is our considered test the blood definitely, expert unanimously, indeed established as a matter field, entertained authorities in the by undoubtedly we think the time of such has arnved when results competent tests, evidence, persons properly made offered in justice should deemed in admissible a court whenever

paternity is in issue.” Id. at 312. words, judicial indisputable reliability In other the court took of the notice of the tests. State, 437, 45 (1945), Md. A. 2d 85

In Shanks v. rape of a victim was the same as that type blood coat, viz., admitted Type stains on defendant’s court, that 45 of the spite percent the trial In his in this population Type has 0 blood. brief Court opinion that tests defendant referred to scientific blood possible identification: should be admissible show in his ‘The “Dr. Flack article Forensic Value discussing legal Blood Tests Evidence’ significance says: these tests test, result, if positive ‘The proof excluding possible affirmative If parent and as such should be admissible. test indicates negative simply result the could that the examined have been party no more. Such asser- parent and value probative no tion has obviously million fall any whatsoever since who in the same classification could have blood Consequently, parent been the well. disregarded these results must be negative being excluded from evidence rigidly as prejudicial.’ valueless and as to criminal “Referring applied to these tests suggests Dr. further generally, cases Flack ‘Evidence of this nature should used be of exclusion since solely purposes proves nothing negative value prejudice.’ exclusion constitutes at 11. Appellant’s 23 A.B.A.J. 472.” brief that should predecessors persuaded Our not were unless the results were conclusive. Chief be admissible Court, for the “The Judge Marbury objection said than to goes weight remoteness to the of the evidence rather it tends merely its To exclude admissibility. because a rather than a would possibility, probability, establish Md. thought of.” 185 results not heretofore curious produce the same reached Jersey of New Court Supreme at 446.12The 265, 268-69 50, 106 Beard, A. 2d N. J. in State conclusion (1954). conceded student comment on Shanks

A relevant, argued that but challenged logically evidence was excluded have been evidence should such scientific nonetheless: out, groups points may the court blood

“Perhaps, as knowledge. should common But it now matters of sociologists that our most noted be remembered knowledge is far in advance of agree that scientific significance. very of its public awareness layman multiplicity upon of facts that crowd knowledge, more. His serves confuse him therefore, as it and uncoordinated superficial science—all He does not understand diversified. produced the he is that science has knows and now the world sulfas and penicillin miraculous power. of atomic discovery has terrified magic to him a As a science has become consequence, anything. Why, He science can do power. feels that then, among people feeling with this prevalent expect jurists our up who make our should we juries of the true worth suddenly cognizant become or less pertinent be more may facts It is to them: conceivable presented cases blood might an innocent be convicted because person of the victim on his suit coincided in with that type enough in itself of a That is not crime. coincidence impressed with overly man. But a jury, convict a facts, may of scientific misconception value unjust. misled hand verdicts that are down Note, Proof, Evolving 13 N.Y. L.F. 12. Methods Scientific (1968), adjudication the test results describes this case as “the first Damm, 11, prosecution____” supra n. light what criminal In the of State v. obviously case in which blood test is meant is that Shanks is the first named particular against the results were used the defendant to show commission of crime. “Where scientific evidence is offered by admitted experts, there is a by the tendency jury overwhelmed the conclusiveness scientific proof attaching greater be misled into significance to this evidence than the scientist intended. In order that proof scientific may maintain rightful its position as conclusive evidence where it issue, conclusive it would be best for courts admit such evidence to show a mere possibility (except called for in when answer to explanation accused) of until the time jurors (laymen) when are sufficiently logic educated in the principles sufficiently trained in emotional control comprehend the true of such value evidence and greater infer no significance it than logically (1947) deserves.” 37 J. Crim. L. C.& in (emphasis original) (footnote omitted).

This emotional assessment jurors being incapable as understanding scientific comports with the standard arguments offered by those oppose who admissibility of any process. new scientific This Court foresaw such disposed criticism Shanks. It argument by saying, see objection “We no valid jury the idea that the (or case) might Court attach too much importance evidence, might regard positive proof----Judges and juries must be presumed to have least,' average intelligence at and no assumption to the contrary can purpose excluding be made otherwise admissible 185 Md. at testimony.” 448-49.

Although blood typing processes been relatively have noncontroversial, Groulx, the case of Groulx v. 98 N. H. 103 A. (1954), 2d 188 considered the admissibility of a test new for paternity based on the factor” in “S blood. The court said:

“Paternity plaintiff was excluded Dr. Allen’s report because of the genetic rule that a child cannot have S factor its blood cells unless S present also in cells of at blood least one parents. The report conceded genetic that the data A-B-O,M-N groups greater the blood was much said reasons which were gave two and Rh but Id. at family studies.” paucity counterbalance 484. was received report

“After Dr. Allen's York, leading court, A. of New Dr. S. Wiener tests, Dr. Allen wrote blood authority grouping paternity to exclusion his conclusions as that strongly ‘too alone were S factor based original his Dr. Allen modified Thereupon worded.’ his opinion in but reaffirmed some details... Id. at 484-85. essential conclusion----” pointed out: Supreme Court Hampshire The New and medical that scientific noted may be “[I]t generally experts qualified from evidence civil criminal and in both accepted jurisdiction in this may there defects [Citing Whatever cases. cases.] common criticism at least avoids in this trend ‘ tended courts have that ... trial made elsewhere methods utilizing probative far behind’ in lag Maguire, science. developed by medicine (1947) Evidence, and Common Law Sense Common 483-84. 30.” Id. at testimony: admitting the

The court found no error in this grouping the blood tests “We conclude though evidentiary weight even entitled were case data genetic do not have the of the full they benefit groups common blood in the more that is available Andresen, A-B-O, Rh-Hr. such as M-N and See (1952) respect 43. Groups In this Human Blood expert like other grouping blood tests were weight the Trial to such as and entitled v. Insurance Ricard give them. See Court wished Co., Id. 485. 87 N.H. 36.”

d. Intoxication Chemical intoxication tests are now well established aid to law “For a number of years, enforcement. chemical intoxication tests routinely have been used to establish a defendant had driving a motor vehicle under the while of intoxicating liquor. states, influence In most statutes for the provide admissibility of the results of chemical tests § al., supra, intoxication.” Moenssens et at 291 6.39 (footnote See, omitted). (1974,1977 e.g., Maryland Code Cum. §§ -309, Supp.) 10-302 to and Judicial Proceedings Courts Article.

The tests so always readily recognized. Writing were not in stated, unanimity one commentator is no “[T]here opinion scientific to the of the as tests have accuracy which developed, especially regard accuracy of the breath tests.” L. Kaplan, supra, 10 at 405-06.In Wayne Rev. 504, 99 (1951), v. Ill. People Bobczyk, App. 343 N.E.2d 567 the defendant the trial court erred “contended] that. permitting concerning the introduction of the evidence test [Harger] thereby, drunkometer and the result shown ground the that the not general drunkometer received ha[d] recognition as an index of accurate the amount of alcohol in the blood.” Id. at 507.The court urged to follow Morse, People (1949), v. 325 Mich. N.W.2d held the admission of evidence on this based instrument to be error, citing reversible only lie-detector cases. In that case the Michigan standard, court the applied Frye and said the the test breath should have been excluded after five doctors called the defense of the by testified that most profession medical did not consider the drunkometer reliable. The Illinois disagreement court ruled that as reliability to to goes the weight, admissibility of the evidence: argues,

“Defendant there is a lack unanimity in the medical profession as to whether intoxication can by be determined breath. so Even we think this objection goes weight testimony and does not destroy its The admissibility. evidence in this case experts shows that the called 374] field in qualified eminently the State are in the case In our view

question. S.W.(2d) 173 (Tex. App.), Crim. McKay v. State analogous most reasoned and [(1951)],is best 510-11. App. 343 Ill. present case.” considered the issue of Arizona Supreme Court Harger on the drunkometer admissibility of evidence based (1954).The Olivas, 118, 267P. 2d 893 court Ariz. v. State disagreement among scientists was some noted that there Arizona Referring Bobczyk, of the test. accuracy court said: case, Illinois refused to

“In this last mentioned Morse, held supra, and that where People follow profession in the medical unanimity is lack of there breath, can determined whether intoxication weight only affects disagreement the scientific think this We and not the evidence. character.” Id. at correct rule in tests is the 119. (1953) 528, 68 2 Black, Ala. So. 2d v. 259

But cf. Rivers dictum). test in (approving Frye (1952), 2d 222 242 P. People, 125 Colo.

In Kallnbach v. using blood of the defendant’s by analysis determined was intoxicated. The driving he was while the Nicloux method that the defendant’s to the objections court concluded of the weight method went the Nicloux accuracy admissibility: than to its evidence rather on defendant’s testimony introduced “There was method of the Nicloux blood regarding behalf thereof. Aside accuracy analysis questioning competent there analysis, was any from blood jury to warrant evidence sufficient defendant, at time of the determining that accident, driving the influence under was testimony of the Apart from the intoxicating liquor. might registered technologist, jury medical charged. guilty found defendant properly have 438 we,

Neither nor the are jury, learned in sufficiently the art of blood analysis determine whether Nicloux method or other the methods to which testified, defendant’s physicians is the better and method, more accurate weight given but to be witness, such testimony said, of this as we was have determination, matter exclusively jury’s perceive we no error its Id. reception.” at 149. e. Other scientific evidence Perhaps example the most extreme of a court’s not requiring “general acceptance” of a technique new as a prerequisite State, to admissibility Coppolino So. 2d (Fla. 1968), dismissed, (Fla. App. appeal 2d 120 So. 1969), denied, (1970). cert. 399 U. Coppolino S. was an suspected anesthesiologist murdering who was his wife. general An autopsy toxicological investigation disclosed possible death, no cause although there was a needle injection tract the left buttock deceased. The cause suspected death overdose of succinylcholine chloride, a muscle relaxant may cause cessation of breathing. thought It was this drug could be detected in a person’s body toxicologist after death. A named Umberger developed tests for this case: specifically

“The results of this ‘general test unknown’ were negative. Dr. Umberger attempted then to establish a method whereby he could determine if unusual amounts the component parts of succinylcholine chloride were present the body tissue. Dr. Umberger testified that some of his tests and procedures were standard ones and that some were As a result of Dr. Umberger new. his tests reached conclusion, testified,, and so that Carmela Coppolino received toxic dose succinylcholine chloride.” Id. at 69. the first instance which that this

There was evidence had been used: procedures such witnesses, called including those

“Several State, performance prior testified that impossible by question it was believed tests presence medical scientists to demonstrate in the component parts its chloride or succinylcholine body.” Id. at 70. for general rule

The court stated that demonstrability”: required only “reasonable general regarding “The rule admission of is: scientific evidence upon is solely the evidence based

‘Where essential experiments, scientific tests and the tests and results reliability recognized accepted by and thereof shall be shall have scientists or that the demonstration passed from stage experimentation and to that uncertainty reasonable ’ * * * demonstrability. on Evidence 2 Jones § (5th 1958). also 31 Am. Jur.2d ed. See § 44; Notes, Evidence Expert Opinion by Scientific Admissibility of Evidence Obtained L. Rev. 5 Fla. Analyses, Devices U. (1952).” Id at 70. said, “However, it is also quoting from the court Frye,

After wide discretion enjoys a rule Florida that the trial judge his evidence and that concerning in areas the admission of will not disturbed unless ruling admissibility of evidence court then an Id. at 70. The abuse discretion shown.” determining whether appropriate stated the standard problem had “The there abuse discretion: was, the scientific tests presented to the trial were judge scientifically performed by Umberger so unreliable error.” unacceptable their into evidence was admission added). (emphasis concluded, Id. at 70 It appeal it “On incumbent defendant show that the trial judge abused his discretion. This the defendant has failed to do.” Id. at 71. the into technique

Another scientific which was welcomed the acceptance process general courts discussion of without X-rays by after were discovered X-ray photography. Soon was Roentgen X-ray photograph William von Beall, of Bruce 99 Tenn. into in the case introduced evidence (1897). reading art of must 303, 41 S. Surely X-rays W. in time. stage point at that developmental in its have been However, admitting error reviewing court found no evidence, stating: is, process experiments

“New as this made by men, record, by shown have demonstrated power eye its reveal to natural body, of the human and that its the entire structure parts photographed, various can be as its exterior surface has And no now is. sound reason assigned why was at the bar a civil Court should not invention, avail itself of this apparent when was light that it on the matter in would serve throw controversy. Maps diagrams quo, the locus in hand, a by Judge drawn are often used to aid or a to an jury intelligent conception of the matters to be determined, and no of questioning one would think the competency of a witness who stated map diagram that he knew the to be accurate, entirely and who then used it to illustrate plain or make his statement. The pictorial representation leg of the condition of the broken plaintiff gave much jury intelligent more have they than would particular injury idea of it description from any verbal obtained purpose if he had used for the surgeon, even of his art.” Id. at 307-08. simplest terms of this theory behind § (16th Greenleaf, 439h ed. of Evidence Law discussed 1S. 1899): Wigmore J. taken photographs “The use — — may involve Roentgen rays

vacuum-tube will operator principles. Since slightly different — usually a perceived object usually have — vision, organs of ordinary his concealed bone with photograph forward put he not be able to will observation; his results of own corresponding to the nevertheless, process he that the testify if can otherwise) give to experience or (by known to him is in effect photograph representations, correct and stands on the same testimony, his supported by an whose footing object photograph as a rendered details have been otherwise invisible a at 548-49 magnifying discernible lens.” Id. omitted). (footnote views, al., referring stereoscopic note, to supra, et

Moenssens photomicrographs, photomacrographs, photographs, ever objection, to been no X-rays, that seems have “[t]here to admittance evidence period, early since relevancy kind, provided accuracy photographs of any at Id. 500. duly of them were established.” admitted based have also Courts positive of human hairs as evidence of microanalysis identification:

“Although yet positively is no known way there having particular come from a identifying hair as instances, an individual, in a rare except few structure, color, similarity ascertainment can be pigmentation and other characteristics along considered when value probative considerable accused Id. against person.” other an with al., supra. Moenssens et however, “It must that it is reemphasized, impossible belongs that hair definitely state a given

a individual. The most can be stated is that questioned a hair a sample matches hair of known origin microscopic all characteristics.” Id at 358. Despite the scientific inconclusiveness of identifications hair, based on an expert examination FBI was permitted testify positive identification Padilla v. People, 186, 397 2d (1964), Colo. P. where court stated: fail “We to comprehend how defendant could incompetent, characterize it as irrelevant and One immaterial. expert witnesses testified given that he was of hair strand identified as having automobile, been found in the defendant’s alleged and that he took from the samples of victim her hair and matched them in laboratory the FBI procedures under developed there. He testified that the unequivocally hairs were from one and the person.” same Id. at 188. said, agree court “We ruling trial court’s

the testimony relevant; and the exhibits were and admissible the to weight given evidence, however, to the particular was for the Id. jury.” at 189.

A Andrews, similar result was reached in State v. 86 R. I. 341, denied, 134 A. 2d (1957), cert. 355 a U. S. 898 case involving the rape murder of 86 old year retired school teacher. analysis Hair employed identify was defendant as the perpertrator. defendant,

“The request at the of the police, gave them some of his hairs and pubic Dr. Harrison compared testified that he them with other hairs which he obtained from a a red pair shorts and bedroom, shirt which taken from defendant’s were which defendant admitted had worn him, and also from the bed which Miss Franklin assaulted, was they originated and that from the same source. The doctor also testified that a white hair from which was taken the red shirt of defendant had come from the head of Miss Franklin.” Id. at 345. Harrison should argued that Dr. the defendant appeal, On rejected court give opinion. The his been allowed have argument: for subject had studied Harrison who

“Doctor says, ‘by gave opinion, his as defendant years many question. comparison’ of the hairs miscroscopic to do than a he able something was was better This jury. Harris, 5 R.I. ago in Buffum v. years

“A hundred Ames laid down law 243, 251, Justice Chief as here followed uniformly has been we believe to assist qualification experts the use and the discretion trial has rather wide justice jury. expert matter admits subject whether § 798, Jur., Evidence, p. 67L” 20 Am.

testimony. See Id. at 350-51. examining the hair from an et state that

Moenssens al. he is whether usually “it be established may individual race. This is done Caucasian, Mongoloid,or of mixed Negroid, section, distribution, cross pigment a primarily by study In People 360. characteristics.” Id. at physical denied, (1959), cert. Kirkwood, Ill. 2d 160 N.E.2d 766 (1960), performed had police a officer who U. S. that hair found using microanalysis testified laboratory tests from Negro rape charge to a on the coat of a defendant admitted that person. Although expert a white disagreed reliability as to the such authorities determination, permitting him to the court found no error express subject: his of whether question

“Defendant did object person or a colored person hairs were from white ground on the no basis that there was that a The then testified such distinction. witness on the controversy some the authorities there was experience showed question, but that the witness’s then a made. He was that such distinction could be that in replied permitted question to answer the his opinion hairs on both the sheet and the coat person. were from white We that there believe was no error in permitting express witness his the question. on The that fact there is a of opinion among difference goes authorities the weight evidence, rather than its admissibility.” Id. at 32.

Yet another technique of disputed reliability which has been admitted the courts is the Nalorphine Nalline Test Pupil the use detect of narcotics. Moenssens al., et supra, at 280 report “found was that when Nalline injected narcotics, in non-users the pupils of patients constricted markedly. narcotics, users of Heavy hand, on the other opposite pupillary showed responses.” Problems with the process are in discussed Grupp, Nalline Test III— Objections, Assessment, Limitations and L., 62 J. (1971). Crim. C. P.& S. 286 Professor Grupp pointed to studies which indicated that identified by the Nalline “[a]s Test some subjects falsely would of having drugs be accused in their system----[One study] indicates that as as nine many per seven-tenths of the subjects would falsely cent having accused of narcotics their systems____” at 292. Id. In spite of the many asserted limitations the Nalline Test, evidence based on that procedure was admitted to Williams, indicate People App.2d use of narcotics Cal. Supp. (1958), P. 2d 251 one of the 28 cases cited in Although of the test. majority opinion support Frye court there indicated at 860 that “the results tests attack, thereon, type under as well as opinions based [t]here only are if gained acceptance admissible the tests have in the use,” field of learning they citing among are in Frye cases, and, it, other as the put People’s court “Each of the experts did admit cross-examination that the medical profession generally unfamiliar with the use of Nalline and therefore it cannot said truthfully Nalline test has met general acceptance by profession medical whole, general acceptance being at limited those present

445 the narcotic problem,” field deal with specialized in a who few admissible, saying: court held the evidence general acceptance] lack of [i.e., this fact “Should not. We believe render inadmissible? reliability to the points of the medical testimony All those accepted by generally of the test. It has been its use. familiar with expected who would be not In more should age specialization required.” Id. at 862.

f. or polygraphs Lie detectors unanimous present nearly time courts have been Up polygraphs.13 on lie detectors or rejecting testimony based courts, considering concluded “that the One commentator evidence, merely admissibility of lie detector have a different judged excluded the evidence have but standard than the standard which established to other scientific determining applied at 381. This Kaplan, supra, Wayne 10 L. Rev. evidence.” first originated appellate different standard with detector, holding of that Frye. decisions to consider the lie case, however, principles same grounded was appellate merely to other court apply expert testimony; refused to hold that the his discretion. We judge trial abused together irony heretofore fully Frye have discussed to the crime the tests that another man later confessed indicated that did Frye not commit.14 polygraph admissibility of very reported cases have favored 13. A few 1972); (E.D. Supp. Ridling, 90 Mich. See, e.g., F. v. 350 evidence. United States (1974); 421, Juvenile, 120 and State N.E.2d 313 v. 365 Mass. Commonwealth 184, (1975). Dorsey, polygraph 88 N. The decision to v. M. 539 P. 2d 204 admit (D.D.C. 1972), Zeiger, Supp. evidence in United 350 F. 685 States v. (1972). summarily appeal, reversed 475 F. 2d 1280 Although exclusionary frequently justification for the effect 14. one cited Frye acceptance requires general rule of a scientific is that fairness many technique against litigant, of the lie detector cases before it is used prove attempts to use results to have involved a defendant favorable § his al. at 14.10 include State innocence. Such eases cited Moenssens et Bohner, 651, Becker, (1933); People 300 Mich. 210 Wis. 246 N. 314 v. W. 562, 181, 43, (1942); Cole, 189 2 503 188 N.W.2d State v. 354 Mo. S.W.2d (1949); (1945); State, 593 State S.W.2d Boeche v. 151 Neb. N.W.2d Comment, The Truth About the Lie Detector in Federal Court, 51 Temp. Q. (1978),states, L. “[Djespite the peculiarities obsolescence and of Frye, few cases denying admission of the lie detector explained evidence have why . Frye should be followed.”

Upon examining the early cases, lie detector Kaplan, supra, Wayne Rev., 10 L. concluded: standards of admissibility by

“[T]he which lie detector evidence has general are judged scientific acceptance and the infallibility. Along vein, same one writer says, reference to the lie detector, ‘if slightest fallible degree, it would shocking be to permit a life to gambled upon ” wheel of chance.’ Id. at 385 (Emphasis original) (footnote omitted).

Dean McCormick article, struck a similar note in his Deception-Tests and Evidence, Law 15 L. 484 Cal. Rev. (1927):

“The legal comments some writers seem tacitly to assume that the deception-tests must be shown not only to be scientifically accepted as evidential significant, but that they must be demonstrated to error-proof. apparent But it is that no for capacity anything like a per hundred cent correctness of results is required. The emotional curve is to be admitted merely as circumstantial of a evidence truthful intent or the reverse. If the test results are shown experience to render inferences of consciousness of falsity or truth substantially probable, more then the courts should accept evidence, though the of error possibility in the recognized. inference be The admission of Pusch, 860, (1950); State, v. 77 N. D. 46 508 Henderson N.W.2d v. 94 Okla. denied, 45, 495, State, (1951); cert. Crim. P. 2d 230 342 U. S. 898 Peterson v. denied, 255, reh. 157 Tex. Crim. 157 248 S.W.2d Tex. Crim. (1952); Davis, (1955); S.W.2d 130 v. People 348, 72 Mich. N.W.2d 269 People Hudson, 616, 233 (1968) (defendant sought 38 Ill. 2d N.E.2d results). introduce inconclusive evidence that trail blood-hounds have followed a accused, from the crime to the of the whereabouts footmarks, similarity evidence striking examples conduct to are all insanity, show of the fact conclusiveness the inference called the evidence is not a for requirement (footnotes omitted). admissibility.” Id. at 500 Noting general rule that all relevant evidence should be admitted some rule applies, Kaplan unless of exclusion states:

“Referring cases, back to the lie detector it seems clear do courts judge according procedure. to this Rather considering probative than value of the evidence prima to see if it is facie and then the admissible policies admission, weigh against the courts assume that the evidence should be excluded unless isit that the lie ‘general shown detector has received acceptance’ or is In way, ‘infallible.’ the courts fail to identify the policy considerations against admission and hinder attempts constructive provide safeguards against to dangers feared.” L. Wayne (emphasis at 394 original). Rev. poses Kaplan interesting question: “In reading through the cases on lie detector evidence, one may why wonder the courts have been so adamant in their refusal to admit such evidence appear that they manipulate applied standard in judging time, its admission. At the same the courts have been liberal very accepting other developments of science.” at Id. 409.

The answer up that, he comes with is unlike other scientific circumstantial, evidence is which polygraph goes evidence only to credibility, evidence, and there is no need for such since the jury capable of deciding issues of credibility without the aid of a machine. id. 413-14. See detectors from distinguishing lie

A rationale similar Judge Chief Gibson was set forth other scientific evidence Alexander, 526 F. Eighth for the United States Circuit 1975). suggested has that Alexander (8th 2d 161 Cir. It leading polygraph, displacing on the case should become Frye. focusing strong analysis,

“Alexander's careful evidence, admitting lie detector arguments against and its jury effect on the dubious namely, its carefully rejection reasoned is the first reliability, appellate court. Its detectors a federal lie decided conclusions, by the same court that formed decision, F. Oliver the liberal [525 v.] [United States denied, 1975), S. 973 (8th cert. U. 2d 731 Cir. (1976),] representative must considered courts’ reluctance underlying the federal reasons lie the results of detector tests. admit into short, likely become appears In Alexander issue, lie detector decision on the important most cursory analysis the obsolete replacing Comment, supra, Q. 51 Temp. L. at 94 Frye.” (footnotes omitted). Alexander, out for the court that pointed

In Judge Gibson lies, merely records but “the does detect polygraph are assumed to be related physiological phenomena which effect, he 2d at 163. To similar conscious 526 F. deception.” report of the Committee on Government quoted Operations Representatives, the House of concluded: machine polygraph no ‘liedetector.’ The

“There is detector’, the operator not a nor does who ‘lie machine detect ‘lies.’ The interprets graphs may or not responses may which physical records — reaction and that an emotional connected with or guilt related to may reaction or not be may psychological Many, many physical innocence. possible ‘beat’ factors make individual its by the machine or detection polygraph without operator.” [Citing Rep. 198, 89th H. R. No. Cong., 1st (1965).] Sess. 13 Id. at 165. added, “Furthermore,

The court it is often difficult to supply supportive and objective evidence to a verify polygraphist’s conclusion to a subject’s veracity since there is no assured way most cases to determine whether the subject was actually being truthful or deceitful.” Id. at 165-66. The court said: apparent “it is polygraph that a examination embraces of complexities number present in the areas of fingerprint, handwriting, voiceprint, ballistics and neutron activation analysis. These deal primarily physical phenomena rather than psychological responses.” Id. at 167 (emphasis added). The court believed that this particular form great evidence has a tendency to invade the province of the jury:

“[P]resent-day jurors, despite sophistication their and increased educational levels and intellectual capacities, are still likely give significant, if not conclusive, weight polygraphist’s to a opinion as to whether the defendant is being truthful or deceitful in his response to a question bearing dispositive on a issue in a criminal case. To the extent polygraph results are accepted as unimpeachable by jurors, conclusive despite cautionary instruc- tions trial judge, jurors’ traditional responsibility ascertain collectively the facts and adjudge guilt preempted.” or innocence is Id. at 168 (footnote omitted).

It is of interest Williams, (Me. that in State v. 388 A. 2d 500 1978), in distinguishing Casale, State v. 150 Me. A. (1954), 2d 588 a lie detector case which applied Frye-type standard, the court said:

“The reference to a special stándard Casale, however, was occasioned the peculiarly special nature of lie detector tests as evidence. Lie detector directly impinges pervasively upon that function so jury as fact-finder: uniquely prerogative the of witnesses. credibility to decide the poses therefore admissibility of lie detector evidence device, a mechanical rather danger the serious decide jury, the the will judgment than (footnote omitted). Id. at 502 credibility.” other scientific distinguish on to The court in Alexandervreat evidence, including analysis: spectrographic of scientific that all forms argued

“It be may upon jurors effect may have substantial evidence factfinding province tend to the may invade thus, is evidence jury; polygraph However, polygraph on this basis. objectionable types other distinguishable from evidence is its is much broader. scope in that analysis, evidence based ballistic Scientific fingerprint comparison, analysis, handwriting and neutron analysis, or voiceprint spectrographic solely purpose elicited for the analysis activation is object an individual or an identifying either criminal allegedly perpetration involved in indicate do not purport act.16These scientific tests of conclusiveness any degree with or connected is so identified with defendant who after jury, the crime. The actually committed object has the additional receiving expert testimony, such tend reviewing other facts which responsibility of connection defendant’s prove disprove shown, and, may participation jury crime if the defendant’s required further to ascertain be in appropriate the time of the crime mental state at cases.” types These of scientific stated to “16. various evidence have been distinguishable they polygraph further ‘are be from evidence since susceptible

much experimental more to controlled verification.’ Wilson, 510, 513 (D. 1973)]. Supp. United States v. Md. Some [361 F. testimony bearing have concluded that on the identification despite psychiatric individuals or their its contrast, condition should indispensable admitted process. disadvantages it is to the trial In because necessary jury polygraph evidence is not since capable performing United polygraph. function served Wilson, Brown, supra 514; States v. United States v. cf. (1971) (Bazelon, U.S.App.D.C. n. 461 F.2d 145-46 J., dissenting),” Id. C. at 169. Alexander, that, given in it is may It for the reasons polygraph differently to treat on the proper evidence based to physical from other scientific evidence. The distinction as psychological phenomena clearly applicable vs. is spectrographic polygraph The does not record analysis. voice “lies,” responses such as only physiological but records blood hand, pressure respiration. spectrograph,on other voice, is produces graphic representation a and there dispute no that this chart is an accurate of the “recording” into components. Additionally, voice broken down three the case spectrograph, of the is to use his own juror able senses to the conclusion of the expert. evaluate

g. Summary The distinctions noted in Alexander and Williams would seem to position Irving Younger, account for the of Professor stated, “Yes, radar, has bring spectrogram who on the identification, analysis voice and the neutron activation happened. show us it is time to decide what Yet when what is right, decent, what is is I just, what want no machine buzzing ‘the truth’ at me____Keep the lie detectors out of the go courthouse: I’ll a and a judge jury any day.” Younger, Evidence, On Technology and the L. Law U. Colo. Rev.

1, (1977)(footnotes 7-8 omitted). being

Not subject to the special apply considerations which detector, to the lie other types scientific evidence would appear to be properly admissible when relevant under the general rule, regard acceptance.” without to “general

The standard used courts generally for the admission ballistics, evidence in such matters as fingerprints, recognition psychologist of a 15. One noted that the lack official necessarily professional groups is not indicative technique by Burack, A “scientific bodies take a stand on a test.” disapproval: rarely Analysis Method, Theory, Critical “Lie and Limitations of the Detector," L., (1955). AS J. Crim. C. & P. S. from tests, substantially different X-rays intoxication People It noted that Frye. may that enunciated in be case, the Illinois Jennings, fingerprint 252 Ill. the first (1) analysis: prints two-step employed whether the court (2) testimony thereon admissible, expert whether were A similar analysis applied appropriate. It is might simplify controversy. the entire spectrogram graphic an accurate spectrogram that the beyond dispute of a voice.16It would components representation of various follow, clearly therefore, voiceprint that the itself would of voices is comparison cases admissible Further, expert subject is an appropriate material. unskilled in juror being commentary, typical lay then appear It would examining “pictures” such voices. examiner should allowed spectrographic enough his that there are similarities between express to conclude that the spectrograms for him voices were same. of to scientific Holdings

3. this Court relative expert testimony and admission relative to the admission of this Court position testimony of expert the admission scientific evidence and of Dean has much closer to view generally opinions courts in v. and the of the United States McCormick Baller, denied, 1019 (4th Cir.), 463 cert. 423 U. S. 519 F. 2d Cir.), (6th 25 cert. Franks, 511 F. 2d (1975); United States v. Williams, denied, (1975); 388 A. 422 U. 1042 and State v. S. Baller, 1978), Frye. in I shall discuss (Me. 2d 500 than to that Franks, opinion. 4 of this part and Williamsin (1969), 185, 192-93, 249

In Nizer 112 Phelps, v. 252Md. A. 2d in the sound is that it is that it established we observed well not or a of the trial to determine whether judge discretion or expert and “whether is competent testify witness Admissibility, Greene, Voiceprint in 16. Identification: The Case Favor 171,171-72 spectrograph (1975), “the sound 13 Am. Crim. L. states that Rev. part and technicians for better has been utilized of the same effect see acoustical scientists speech analyze classify century human sounds----"To 20th (Me. 1978). Williams, A. 2d 500 v. 388 State 453 help to the expert appreciable not the will be testimony In statements abound. jury____” Similar Court 585, 589, 165 (1960), Md. A. 2d 898 Carnaggio, v. 223 Shivers Court, Hammond, by Judge strongly in an opinion as to Wigmore when supports theory McCormick admissible, that the expert “namely opinion testimony will be in the rejected superfluous should be when it is sense only there jury.” quoted that will be of no value The Court Dawidowicz, 87, 77, A. from Williams 209 Md. 120 2d 399 v. (1956), expert “If predecessors opinion where our said: assist not to reasonably jury, calculated to confuse it, admissible, in the discretion such sound of the testimony court____” State, trial 280 Md. recently, More Raithel v. 301, 291, (1977), 372 A. 2d said for the Judge 1069 Levine Court, is a expert testimony matter “[T]he court, and its largely within the discretion the trial action admitting excluding such will seldom reversal,” ground Putting constitute a it in citing cases. State, manner, 134 slightly different Md. Newkirk v. 318, 106 A. (1919), 694 Judge predecessors Burke for our quoted from Blake, Ore Iron Chateaugay Company & v. 476, 484, 12 731, 36

U. (1892). S. S. L. Ed. 510 The Supreme Ct. said, Court there much knowledge “How witness must possess before a party is entitled to his as an expert which, is a matter things, the nature of must be left largely to the discretion court, ruling trial and its thereon will clearly be disturbed unless expert erroneous.” Relative to testimony, see Farley Yerman, 444, 451, 190 also v. 231 Md. (1963). A. 2d

I have State, previously referred Shanks 185 Md. (1945), 2dA. concerning evidence pertaining blood. Shanks Since has held repeatedly Court evidence which tends the accused the identify as criminal admissible regard positiveness, without the lack of positiveness going weight of evidence. only the For example, State, 555, in (1948), Barber v. 191 Md. 62 A. 2d 616 Judge Henderson said for the Court: appellant

“The contends that the of cloth piece found in the father automobile owned his was by

454 But we have held

improperly admitted evidence. lack identification of instrument positive that ‘a rather of the evidence weight of crime affects State, 1, 5, v. 181 Md. Wilson admissibility.’ its than State, 773. See also Shanks v. 770, 185 Md. A. 2d 931, v. 447, 85, 163 Smith 2d A. L. R. 437, 45 A. State, 176, 184, 32 A. 2d 863.” Id. at 566-67. 182 Md. (1957), State, 213 Md. 90, 131 2d 267 in Daniels v. A. Similarly said: Court said that if there “We repeat previously what we that there is a connection between probability is a admissible, crime, it is and the and the evidence is a matter extent its connection test ‘The real jury. determination proved is the connection of the fact has a charged, the offense which evidence with at should the fact issue tendency natural establish State, 174 Md. 152, 161, Hitzelherger v. admitted.’ Id. 605, 103. 197 A. 609.” State, 244, v. Hursey, Daniels was cited Jr. 233 Md. (1964), an in-court identification upholding 196 A. 2d 472 identify defendant unable to by a witness who had State, 244, 247, See also Parker v. 189 Md. lineup. at the police possible (1947), A. as to cause noting 2d 784 permitted. State, (1954), A. 2d 243 Nixon In Md. victim, by claimed that he had been attacked defendant — him a “waxer handle” allegedly who had beaten applicator. of a Court apparently mop-like the handle wax said:

“However, ruled out a definitely the trial court Baker, proffer Dr. Charles micro-biologist employed biochemist chemists, that an Brown, Penniman and to the effect that there of the waxer handle revealed examination was on the handle material waxy fibers, red identical with fibers embedded

455 shirt, appellant’s waxy red there and material short, In embedded the fabric shirt.

proffer was to prove by analysis that the contact, and handle had come into shirt inference that Lassiter had Nixon struck with the handle.” Id. at 480. did Court not discuss reliability scientific fiber main

analysis, being an objection adequate lack of chain However, of custody. holding the exclusion to be reversible error, the Court said:

“In case, the instant fibers, red possibility that identical those of which the shirt the accused was made as determined by chemical microscopic examination, could have become embedded subsequent waxer handle shooting, is so remote as to be Id. negligible.” at 483.

Other cases sanctioning scientific evidence varying degrees of Phelps, conclusiveness include: Nizer v. Md. 252 at 193-94 (point Melville, of impact); Acme Poultry Corp. v. 365, 370-74, 53 188 (1947)(automobile Md. marks), A. 2d 1 skid accord, 318, 322, 176 (1962); State v. Gray, 227 Md. A. 2d 867 State, 561, 569, 45 Corens v. (1946)(chemical 185 Md. A. 2d 340 blood); analysis of Langenfelder v. 179 Md. Thompson, 507, 20 2d (1941) A. 491 (opinions of medical experts admissible as to the cause which might produced have certain physical condition); Bank, Councilman Towson 469, 478-79, Md. (1906) (cashier 64 A. 358 permitted testify as to genuineness of a signature); State, Williams v. 384, 393, 1 (“It

Md. (1885) A. 887 is well settled that an expert may give only as to the nature and effect an injury, but also the manner instrument by which it was inflicted.”). also catalog See of items of scientific received courts of this Judge State set forth by Chief Gilbert for the Court of Special Appeals State, in Reed v.

Md. App. at 480. 601, 92 (1952), State, Judge A. 200 Md. 2d 582

In McGuire v. said for the Henderson Court: no there was appellant “The contends McGuire, as the of identification of voice sufficient tap the and making officers wire heard the course, time, At that of on the machine. recorded McGuire, seen of the officers had ever but neither trial, after the at the Glass testified Officer 25, that he him June conversations with person the same recognized his and that he was voice occasions prior to Hess on several who talked may It noted answering the name of 'Mack.' heard these conversations only that the officer not back played heard the record through earphones, but quite It is immaterial the time it transcribed. at was heard having after person he heard in that McGuire At the rather than before. telephone, his voice on the to make the position in a time of the trial he was clearly testimony and his was comparison State, 495, 504, 80 A. Md. Lenoir 197 admissible. v. 547, 558, 3 753; State, 2d 3, 7; 175Md. A. 2d Rowan v. § (3d ed.) (a). Both officers 2155 Wigmore,Evidence person Hess as the identified they testified that this phone on the placing bets taking 17 605-06. challenged.” Id. identification is not no error majority find Ironically, under McGuire would that after expert simply had the of called the individual had listening the recorded voice of who Reed recordings voice prosecuting witness identical.18It because it his that voices were opinion was oppose expert produced the defense 17. The lone University apparently evidence, Joseph Maryland, Dr. Baker of the of this State, holding approved v. of the Court McGuire would not have 200 out, because, point (1952), 601, we he shall later A. 2d 582 92 Md. making way listening a a is not valid alone was voice identification. says: agreed of facts here The statement 18. 20, 1974, placed Appellant September or about “On Montgomery County lineup Detention Center. anyone, recognize but after visually to prosecutrix was unable he stated a for his reason conclusion that the voices are identical, not relying solely upon comparison, his aural trial, goes the case back for a new although Judge Chief Abrahams, 263, said 273, Prescott v. Miller 239 Md. 211 A. (1965), case, rule, 2d 309 zoning general prevailing “the followed, almost universally expert’s opinion is that greater probative no value than of his the soundness reasons given State, Critzer, therefor will etc. warrant. Cf. 230 Md. Accord, 286.” Doub, 263, 272, Surkovich v. 258 Md. 265 A. 2d (1970); Aviation, and Creswell v. Baltimore 257 Md. A. (1970). 2d 838 seen From cases will be that this Maryland review Frye Court has not similar to a standard. anything followed I holdings Our are in line with the cases reviewed from have other of this part opinion. states Holdings

4. of other courts relative to voice analysis identification and spectrographic In each instance where an court has appellate rejected voices, upon it has spectrographic analysis the basis McDaniel, (D. See 2d 408 Frye. United States v. 538 F. C. 1976); Addison, 199, App. Cir. United v. 162 D. States U. S. C. 24, (1974); 498 F. 741 3d People Kelly, 2d v. 17 Cal. 130 Cal. 144, Rptr. (1976); 549 P. 1240 People Tobey, 2d v. 401 Mich. 141, (1977); 257 N.W.2d 537 v. 49 N. Cary, State J. (1967); 223, 369

A. 2d 384 Topa, and Commonwealth v. 471 Pa. (1977).19 A. 2d 1277 on Actually, McDaniel was decided not hearing participants lineup the speak, in the she identified with certainty Appellant being person raped 85-90% called her. Montgomery the as the who Sergeant Sergeant Evans, Lennon and both of the Appellant County Department, Police also identified speaker composite tape personal the on copy their the based on Appellant permitted jury contact with after his arrest. was to composite listen to both copy tape Appellant’s the and the voice exemplars. 6,1975, Montgomery “On December while in the confined County Center, prosecutrix Appellant telephoned Detention the ana Appellant.” she identified the voice as that of it 19. Lest be said that I D’Arc, have omitted from this D’Arc list v. (Ch. Super. 1978), States, N.J. 385A. 2d 278 Div. Brown United (D. 1978), point 384A. 2d 647 C. I hasten appellate out that \s D’Arc not an The trial court’s on the of Addison. Frye, but basis basis identification expert spectrographic voice permitting action in interest error. I find of to be harmless testimony was found court said: that the McDaniel however, overwhelming

“Unfortunately, the trial precedent upon which weight of judicial circuit. judicial outside this relied has evolved judge States v. relies United Appellant predictably 199, 498 F. 2d 741 Addison, D. C. App. 162 U. S. held (1974), recently of this court division identification ‘techniques speaker not attained comparison have spectrogram community of the general acceptance jurisdiction Frye in this degree required [v. 46, 293 F. 1013 States, App. D.C. U.S. United Addison decided (1923)].’ Admittedly, 745. Id. at ago, at a time new two when years almost technique may accepted have been less than widely Addison, other courts have numerous today. Since so-called question whether examined their sufficiently justify reliable voiceprints are concluded and all but a few have admissibility, has that the time come are. well may It they of the light Addison in holding of reexamine the general reliability increased apparently using community in the scientific acceptance Brown opinion, Chancery Superior one of Court. In but Division the court said: greater appellate favor “While number opinions (cited above) evidence, admissibility denying reasons, opinions the recent of such Cogent indicate admission the absence of a clear trend. courts, are enunciated of members well-respected continuing on In the debate on this available both sides. view of subject, light and of the state of this on the issue of record reliability particular sample, of this decline to the voice we adopt ruling spectrographic trial court’s that voice identification evidence sufficiently was shown to reliable and the within accepted community permit scientific If its introduction in this criminal case. error, however, Id. at error harmless.” 650. the was difficulty agreeing they I majority thus this case have with the when listed among has or proposition every those cited for its that court that state "[almost Frye reported opinion considered has evidence applied voiceprint admissibility.” question determining a similar of its standard techniques for voice analysis spectrographic F. 2d 412-13. purposes.” 538 identification decided, its Addison recently so “Because of issue. over consideration this shadow looms our voice identification reliability spectrographic The its within the scientific general acceptability in the changed dramatically have so community may earlier explain that past years may we two state of primitive a reflection of the then as a clear spectrographic voice identification. Absent en banc so, however, showing that Addison, by the we are bound reconsideration spectrographic voice identification prior opinion, at this in this circuit evidence remains inadmissible time.” Id. át 413. to the area in Supreme Jersey Court New returned Andretta, Cary, (1972). 61 N. A.

State J. 2d 644 Andretta judge. same 49 N. written were J. in its later opinion: The court said has much

“Certainly voiceprint today method than more for its support Cary. at the Dr. Tosi’s increases study time knowledge reliability, we have method’s of this and the admission into evidence of Lieutenant Nash’s identifications in Trimble and Raymond demonstrates growing judicial acceptance. How- ever, we need not this time whether decide at routinely results voiceprint analysis will be us is at trial. The narrow issue before admissible compelled should whether defendants significant test. The speak voiceprint for acceptance experiments judicial and recent Cary us that method since convince voiceprint rests this method now support man. In single more than the word considerably Cary, light developments since we believe 460 no to order these longer unreasonable of this test.” Id. speak purposes for

defendants to 551, A. 2d at 648. 296 which were Eliminating equation opinions from the Supp. 641 Raymond, F. (e.g., 337 States v. reversed United Addison, 741) 498 F. 2d (D.D.C. 1972), sub nom. rev’d opinions court in California appellate (e.g., overruled thé Court Supreme supplanted by holdings 24), substantially are 17 3d there Kelly, Cal. California such than there reported admitting opinions more Jenkins, 525 F. 2d 819 v. it. United rejecting are See States Baller, (4th Cir.), (6th 1975); 2d 463 v. States 519 F. United Cir. Franks, denied, (1975); v. 423 1019 United States cert. U. S. denied, (1975); (6th Cir.), 1042 F. 2d 25 cert. 422 U. S. 511 Williams, (S.D. 1977); Supp. F. 269 N.Y. 443 States v. United (E.D. 1974); Pa. Alea Supp. F. 44 v. Sample, States 378 United v. (Fla. 1972); State, 263 State, App. Worley 265 2d 96 v. So. v. Williams, 388 2d 500 1972); A. (Fla.App. 2d 613 State So. Vitello, 224, 1978); 327 Commonwealth v. (Me. 367 Mass. 191, v. (1975); 819 367 Mass. Lykus, N.E.2d Commonwealth Hedman, 291 (1975); v. 327 N.E.2d 671 State ex rel. Trimble Evans, 442, 192 (1971); People 432 v. 90 Misc. N.W.2d Minn. 1977); 195, People Rogers, 674 v. (Sup. 2d 393 Ct. N.Y.S.2d 1976); 868, (Sup. 2d 228 and State Misc. 385 N.Y.S.2d Ct. 86 130, (1975), Olderman, 336 442 all App.2d N.E.2d Ohio Annot., also 49 A.L.R.3d 915 approve admission. of which See in 19 (1973); technique the full discussion of this likewise see (1967), supplements of Facts 423-41 and the Am. Jur. Proof Greene, Voiceprint Identification: The Case in Favor thereto. 171, 184-85 states, (1975), Am. Crim. L.R. Admissibility, judges District Court who have “Fourteen 15 United States voiceprint admissibility accepted on the have ruled issue evidence, the 37 which while all but two of state tribunals such admissible. reached the issue have held have has been single presented Canadian court which of voice issue has also found favor prints.” number, including 20. The writer lists each of the court cases Montgomery County. case in the Circuit Court Franks, 511 F. 2d upon Jenkins, 2d relied 525 F. court. the same year by earlier that had been decided said: court Circuit In Franks Sixth dif course, of the are aware we, of “Although concerning and scientific judicial ferences voiceprints, use of we also are the mindful ‘a part considerable area of discretion on the refusing trial to admit’ judge admitting evi processes. dence based on scientific United States Stifel, 431, (6th 1970), v. 483 F.2d 487 Cir. cert. 1232, 28 531 denied, L.Ed.2d 401 91 S.Ct. U.S. (1971). lack of absolute

‘[Njeither nor newness render in a test suffices certainty new Every useful court. inadmissible in court. day its first development must have conflicting are full of the And court records doctors, engineers and account- opinions of 438. ....’ 488 F.2d at ants Moreover, recognized opposing the that those SUM can direct their of scientific tests such weight the evidence. criticisms toward Stifel, expert admitted which Applying find that we concerning analysis, neutron activation its discretion court was within the district court voiceprint analysis. The district admitting only after qualified expert voiceprint witness inquiry qualifications into his 25-page extensive process; defense of the scientific reliability counsel to cross-examine witness permitted were concerning role as an purported his advocate courts' refusals to admit process and some other Moreover, nor neither Britton voiceprint evidence. rebutting produced Mitchell a witness government’s voiceprint analysis claim that Id. admissible.” sufficiently accurate added) (emphasis (footnotes omitted). Baller,

In 2d the Fourth F. Circuit summarized said, spectrographic theories identification and “The behind technique so principles scientific have been that we need summarize them. exhaustively only chronicled See, e.g., Lykus, 191], Mass. Commonwealth [367 noted, (1975).” “A of state courts majority N.E.2d 621 It since the Tosi question study which have considered favor group Jersey, includes New admissibility. Significantly, excluded In previously had such evidence.” which determining the court relied that the evidence was admissible principles many enunciated this Court have been “[tjhere good times. After are reasons observing why every technique recognized should ostensibly expert the court said: testimony,” basis

“Deciding whether these conditions have been met normally judge. within the discretion of the trial (10th 466 F.2d 911 Brumley, United States v. Cir. 1972); States, (9th F.2d 417 Fineberg v. United 393 1968). of certainty unanimity Cir. Absolute result or opinion of scientific is not required admissibility. for ‘Every development useful must its first new have And full of the day court. court records are doctors, conflicting opinions engineers, accountants, a just legions name few of the Stifel, expert 433 F.2d witnesses.’ United States v. (6th 1970). 438 exaggerated Cir. Unless an of a popular opinion accuracy particular technique prejudicial makes its use or likely mislead the jury, it is better admit relevant scientific in the evidence same manner as other its expert testimony weight and allow to be attacked cross-examination and refutation. by United States Stifel, State, (Fla. supra; v. Coppolino v. So.2d § 1968); McCormick, see 490-91 App. Evidence 203 at (2d 1972).” ed. Id. at 466.

It tapes exemplars noted that “the of Bailer’s voice and all of the bomb threats so that the could make played jury were comparisons,” its own aural that “the court instructed the Lt. Nash’s spectrograms only that basis jury were his if disregard they could opinion and that they education adequate decided that his was not based voiceprint science of or that his experience ‘professed reliable, accurate, and sufficiently not identification’ was cautioned the jury and that the trial “also dependable,” judge if believed accept opinion they they that need [Lt. Nash’s] contradictory or if it were unsound supporting the reasons was followed procedure cast doubt on it.” A similar evidence in this case. given and similar instructions were 269, one Williams, Supp. F. In United States (decided upon subject December more recent decisions introduced 1977), sought spectrographic analysis as “a voice an individual described by had conducted been Alcohol, Bureau of print specialist employed by U.S. expert proponents and Firearms----” Tobacco Dr. Louis J. Henry Truby. Dr. Tosi and Dr. admission were held: The court opponent. Gerstman was compari- identification aural “I find that voice has analysis probative spectrographic son spectrographic value; technique has analysis accepted by substantial concerned; community section field, expert in this proposed government’s that the that the Lundgren, qualified; Mr. Frederick I not be misled such evidence. will have jury spectrographic therefore ruled and identification be admitted analysis voice will Id. 273. case.” 613, Alea, 2d Worley, Neither 265 2d nor 263 So. So. of concurring opinion I of the upon relied find interest Frye. in he Judge Mager Worley, where said: “I fail to discern a difference between distinctive expert of anby the and identification a voice analysis thereof upon reproduction the scientific solely based (i.e. by of a the identification voice voiceprints) and the voice. lay upon hearing a witness based" merely Fla.App.1968, State, 682. It So.2d would Simonv. one question in each instance becomes seem that weight or value to be properly relating to more testimony by or the trier given to such identification or an threat obscene Clearly of fact. the victim as the identification testify is to permitted call alleged that of the comparison with such voice State, supra; See v. Weinshenker perpetrator. Cason State, State, supra. v. See also supra; v. and Simon 1261.” 615 (emphasis in 24 Id. at annotation A.L.R.3d in original). 191, rested Lykus,

The in 367 Mass. Massachusetts court standard, stating: squarely Frye its decision on the be, may though experts “Limited number rule general acceptability requirement Frye satisfied, if the is opinion, principle in our accepted expected those who would be generally 203, 327 use.” Id. at N.E.2d familiar with its be at 677. People language

The used emphasized court 861-62, P. 2d 251 Williams, Supp. App.2d 164 Cal. (1958), by those who generally accepted “It saying, has been use," its familiar with expected would be added, more age specialization court “In this California Lykus 203. The court in required." should not 367 Mass. at requirement general suggestion noted a “that [, Fatalo in ... acceptance, Frye [Commonwealth v.] modified 266, 191 (1963)]..., should be 346 Mass. N.E.2d adopted standard was Frye abandoned.” The court then said: Massachusetts Fatalo. § 203, (2d ed. McCormick, p. 491 “See Evidence ‘

1972), said, scientific ac- where “General taking judicial is a condition for ceptance” proper facts, a criterion for notice of scientific but not Any evidence. relevant qualified supported by conclusions which are there are unless expert witness should be received by suggestions other reasons for exclusion.’ (see concurring of and others author case, supra, 263 So.2d J., in the Mager, Worley a qualified of urge opinions that the [1972]) and that received expert should be Frye in the expressed those similar to considerations to the fact finder as for and Fatalo cases should be opinions. value of the weight and general of the modification “There is no need for to cases in order Frye or Fatalo principle of ruling in this case. Examination uphold the judge’s admissibility presented (1) as to of the evidence other (2) opinions from judge, judicial before the (3) writings jurisdictions, relevant admission provides convincing proof justify proved by the reliability evidence. The considerable reliability added experiment, greatly Tosi by the of further skills application induced by under forensic working experienced examiner conditions, totality and the evidence received to minimize the hearing at the voir dire which tended skeptical or of adverse importance weight general writings all a conclusion support serve rule of the Fatalo required by as acceptability Frye cases. in the hold that there no error admission “We at of Nash.” 367 Mass. opinions the contested Lt. omitted). 203-05, (footnote at 327 N.E.2d 678-79 Trimble, court observed: In 291 Minn. the Minnesota by that identification aural

“In of the fact view telephone respecting comparison, voice either lineup, or spoken at conversations words admissible, means is recorded other mechanical by comparisons by and the admission voice means spectrograms corroborate identification ear, spectrograms ought we are convinced corroborating purpose admissible least alone. opinions means ear identification ought also to They purpose for the admissible impeachment. The weight and of such credibility facts, evidence lie with the finder of that does but not question the of involve Id. at admissibility.” 457-58, 192 N.W.2d at 441.

It then on to “The say, qualification expert went of an is left to the the normally judge discretion of trial and we think that ought to the rule here in as well as other fields of scientific a statement study,” should sound familiar to which Maryland See, State, 223, lawyers. e.g., Yudkin 229 Md. 229, (1962). 182 A. 2d 798 Williams, (Me. 1978),

State v. 388 A. 2d 500 the most recent decision I spectrographic concerning any which have knowledge. The Maine court that “position said Williams’ appeal it speech was error to admit the [was] spectrograph evidence the scientific community because has the generally accepted speech spectrograph as a Thus, scientifically reliable method of identification.” voice said threshold question” with which it was “[t]he standard, to determine what under the [was] “confront[ed] evidence, governs law in to admissibility relation the type of evidence (Emphasis original.) involved.” Williams [t]here sought application of the test. After Frye discussing Maine Evidence, adopted Rules are pat- terned after the Evidence, Federal Rules of the court alluded § to that portion McCormick, Evidence, (2d 1972), ed. from which I previously quoted have and said:

“In accordance the provisions, and basic spirit, of our Rules regard of Evidence in to the expert conclude that admissibility testimony, we there is no distinction in justifiable principle arising expert because such testimony may happen involve ascertained or newly newly applied scientific principles. controlling regarding criteria expert testimony, long so proffered expert qualified probative value is not the factors substantially outweighed by sound mentioned Rule are whether testimony Justice presiding discretion of the trier of fact assist the given is relevant will a fact in or determine understand issue. expert particular

“In cases where ascertained, applied, or newly rests on proffered may stronger showing become principles, is satisfied presiding Justice necessary before the in terms admissibility, preconditions fact-finder, have helpfulness relevance Thus, circumstances of in the particular met. may place see fit to given presiding case the Justice consideration whether greater emphasis on the proffered involved in not the scientific matters accepted or conform generally testimony have been theory. Cf. accepted explanatory a generally to Baller, 463, (4th Cir. 466 519 F.2d United States 541, 1975) Brown, F.2d 556 557 States v. United 1977). (6th may believe The Justice Cir. (1) might prejudice which

appropriate either avoid principle, or the arise because the assertion an may import a ‘scientific’ basis technique, has the as unduly jury could influence objectivity which (2) presiding or to assist the Justice lay fact-finder relevance, within to determine responsibility his M.R.Evid., i.e., the 401 whether the definition Rule make the existence proffered testimony likely to or less consequence probable any fact more without the evidence. probable than would be “This, however, as does saying, is not the same rule, presiding bound the Justice Frye the additional, controlling standard independently (Rule 401 relevance which exists over and above M.R.Evid.) expert testimony capability and the M.R.Evid.). (Rule trier of fact On assist the adopt presiding we Justice will be approach denies, to latitude, rule Frye allowed a which proffered hold case particular admissible in ascertained, or applied, involving newly scientific principles which have not yet achieved general acceptance might whatever be thought the applicable if a community, showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable be held Franks, relevant. Cf. 25, United States v. 511 F.2d (6th 1975).” Cir. Id. at 503-04. The court concluded “that it not error for the presiding Justice to admit the expert voice identification case” reason “of the evidence of presented reliability th[at] Tosi,” by Dr. adding that the trial judge justified “was finding that the spectrograph principle was sufficiently reliable to qualify as ‘relevant’ within definition of Rule Evid., 401 M.R. qualified and that the expert testimony based jury on it could ofbe assistance to the as fact-finder.” particular Of interest is the concurring opinion of Justice Nichols. He observed that the Maine Rules of Evidence were Evidence____” “modeled after the Federal Rules of He was of the view that the Maine court “should continue to adhere to the Frye However, standard.” Baller, supra, basis 519 F. 2d and Lykus, supra, he Mass. said that “[tjhere is sufficient basis in those uphold cases to admission of spectrographic evidence in the trial of the ... case before the Maine abandoning without [then court] important protections Frye affords.”

The majority opinion in the states, case at bar is the “[I]t almost unanimous opinion in recent legal commentaries that voiceprint technique does not satisfy standards articulated in Frye v. United It States.” refers to six law articles, review two which by were same individual. Included in its six are three Thus, student articles. I no have hesitancy pointing to student comments which have — approved admission of Note, such evidence. See Evidence — Spectrographic Method of VoiceIdentification Tendency of the Courts Admitting Evidence, Toward Scientific 12 Wake Forest L. (1976); 879 Comment, Rev. supra, 44 L. Cinn. Rev. (1975);Comment, 616 supra, (1975); 1975 U.L.Q. Wash. 775 Note, supra, 18 Wayne 1365, 1397; L. Note, Rev. supra,

469 Note, Voiceprint (1968). In 679, 745-51 13 N.Y.L.F. 9 New Admissibility, Trend Towards The Identification: stated, “The trend since (1975), it is England L. Rev. evidence, voiceprint to admit decidedly most 1971 has ....” Admission purpose of corroboration least for the at Boren, Voiceprint..... The by supported testimony such (1974); Comeback, 3 Fern. Y.L. Rev. San Staging a U. and, course, (1977); by Gorecki, Mil. L. Rev. supra, 77 (1975); Decker Greene, L. Rev. 13 Am. Crim. supra, (1977). 314, 316 Handler, 26 Am.U.L. Rev. supra, & of the test Frye 5. Application in this case evidence trial By judge a. the trial analysis of that which proceed

I shall now admissibility upon him he ruled had before when judge I of voices. believe analysis to spectrographic as evidence required, acceptance if a of scientific were showing that even admitting erred in McAuliffe Judge it cannot be said that experts here. Four were identification voice by the defense State and one produced by hearing subject.21 on this preliminary produced the State. The Dr. Tosi was the first witness background: trial to his judge said relative unimpeachable “Dr. Tosi is a scientist I say in this area.... think it'fair to credentials country and leading Dr. Tosi is the in this authority in the on voice identification perhaps world stated, analysis, properly or more spectrographic appears He spectrographic analysis. the aid of reported to have testified in most of the cases Hollien, testimony Henry majority opinion to “the of Dr. 21. refers It noted expert another for the defense ....” should be witness specifically hearing preliminary on the issue Dr. at the that of the Hollien was a witness analysis. upon After admissibility based spectrographic produced guilt, Hollien was on the issue of Dr. the State had closed its case way in no defense witness. His went evidence, weight jury to be accorded before the on the but was evidence. he said here that had he made some to50 55 court appearances on subject. He has conducted controlled experiments which have widely- been acclaimed for the approved utilization of methodology.” stated,

The defense agree qualified. Dr. Tosi is We “[W]e don’t challenge qualifications.” his

Tosi indicated he had been in spectrographic involved for analysis years, over 25 his experience but in connection with voice identification begin did not until He had 1966.22 skeptical process of the prior here issue his studies In 1968. that he year engaged by Michigan State Police to system evaluate Kersta’s of voice identification. Dr. Tosi told the trial judge “opinion that at that time his was that analysis spectrographic many 22. It should be recalled that of sound has applications other than McClung, voice identification. Dr. Baker and Dr. two question, other scientists who testified on the had each used spectrograph in research unrelated to voice identification. course, analysis Of spectra of is not new to scientists. anything study electromagnetic spectrum of the dates back to Sir Isaac Newton. (15th Encyclopaedia 1974),says Principles Spectroscopy: Britannica ed. of of study “Spectroscopy absorption light is the of the emission radiation, length ana other as related to the wave of the radiation. Light and lamps, (such Sun, stars, fireflies, flames, from natural sources as the (such lightning) and from manmade sources as incandescent arcs, lasers, lamps) generally composed and fluorescent many light, colours. This nature of discovered composite by English physical Newton, usually scientist Sir Isaac is not observer, by light evident the casual but it can be shown passing through a or other device that it into constituent prism splits display description A is called the colours. of these colours emitted a source source____ light spectrum (plural: spectra) “Spectroscopy sources, is the science deals with the measurements, analyses, spectra. practical and uses technical It has application constituents and spectroscopic field, identifying every in almost for especially any light. source that emits With processes methods, analyze one can in the laboratory, example, composition of a small amount of material with accuracy speed processes. that cannot be achieved chemical Samples of compared identity. can to test their A continuous flow products pollutants. Apparatus can be monitored for variations or (the to measure in controlled thermonuclear fusion temperatures uniting part of certain atoms so their mass is converted energy) type application spectroscopy. another another Still special spectroscopic possible makes detailed studies observation magnetic astronomy, of atomic and molecular In solar structures. predicted storms can be be chemical constitution of stars can analyzed by spectroscopy.” Id. at 455. studies, to reach more data in order more the method need[ed] that he “said Dr. Tosi testified a final conclusion.” [his] However, I need more promise. ‘The method shows report, ” my mind.’ up and make data to reach a conclusion [final] noted: judge The trial through identification concept

“The entire voice off to a bad start when spectrograms got aid of interest as Kersta, had a commercial obviously who interest, game on in the very early aas scientific well pronounced on his experiments after some own and effect that one This had the system infallible. might anticipate community, in the scientific which was, horror, quite if not at least resentment.

“Dr. that he resented the fact that this Tosi said as propose relatively system man new would Tosi in one of the earlier being infallible. Dr. testified upon cases and said that his observations based identification showed spectrograms use of voice more study it needed more and promise, but approach, it needed a scientific some particularly constructed experiments, scientifically controlled interpreted, and that in the supervised experiments using controlled absence such unwilling say he that approved methodology was acceptance. sufficiently it was for courtroom reliable given under him the United Acting grant a States just Dr. Tosi did undertake Department Justice in the being as he needed study such a described 35,000 field, in some trials voice which resulted go I into all of the details of identification. will not study his are the record and have since details discussed courts elsewhere.” (1968), upon Cary, Super. 23. In A. 2d State 99 N.J. opinion judge remand the trial said that Dr. Tosi “was enforcement, technique has aid but before considerable as an to law potential give experimentation he would firm scientific he felt that further infancy testing required was of its in the related because fields.” Judge McAuliffe commented relative to these tests: tests, approximately years,

“These took two which of 1970 and the completed were December through data the utilization statistical was obtained for our significant The most result computers. mean of percent is that there 6.3 purposes of 12 false percent false and a mean identifications eliminations. keep in mind the important

“It is terribly false false identification and difference between simply identifications are those elimination. False samples that these says the examiner two not. False eliminations they match in fact do when say one fails to two of course occur when do. they Forensically, match in fact samples when stage talking investigatory the and I am not about in court of now, talking prosecution I am about case, concerned errors vitally a criminal we are with are generally of a false identification. We not much very in this case the Court certainly before elimination, although false concerned with errors of making this must consider it is a factor we near But it has nowhere preliminary determination. significance errors false identification. The If presented reasons are the examiner is obvious. recording of the actual perpetrator’s with voice a recording of a defendant’s and he voice erroneously being eliminates a defendant as offender, same voice as the he has not thereby However, caused an innocent man to be convicted. if he makes a false identification and are says they not, the same they consequences when fact are are much more grave. system At least that is our American are jurisprudence. very We much concerned that people we not convict innocent that is our concern. primary

“... this are country terribly interested [I]n [we] in errors of false public identification. Obviously elimination, of false an interest errors large has on the consequence more of a but will it be at trial. level than would investigatory reached these results were we note that “Now done as to the testing considering all of when Tosi categories. then in these four decisions reached of error computer percentage what the asked the if considered been we false identification would have the examiners which were only responses those certain, not thereby fairly or almost certain or almost uncertain considering fairly uncertain projection This because responses. was a valid permit would equates forensic situations. We uncertain he almost any expert testify that to make attempting or uncertain in fairly always identification. In the field we have medical and in the required probability medical reasonable This probability. scientific field reasonable scientific erroneously spoken is sometimes I think what to that certainty. scientific answer reasonable question considering only the results was that fairly certain and certain generated by the almost false responses error we reduced Furthermore, has percent. to 2.4 Tosi identification will, finding if extrapolated, projected his you proper he finding on what considers be [a] thesis, reliability further be would of error on a false percentage increased and the if identification diminished in fact would further be safeguards employed certain and cautions were him in employed by which were not forensically testing. logic, Tosi says only

“Now Dr. that not if these but common sense dictates that added are that the safeguards system, cranked into the percent error of 2.4 even false identification will be Tosi has significantly more diminished. Dr. himself 80,000 spectrograms. examined some He testified general acceptance that there is of technique the among actually scientists in the field working the genuinely familiar field. He recounted with the of names those that he considers qualified so and that 15 or says approved, 16 of these he named them, and he named some three or five that opposed.[24]He noted those opposed who have commented on the effect as not possible yet totally of poor recordings, distortion, known noise psychological factors such as the of emotions speaker, speaker, stress of the physical makeup of speaker, lag samples, the time between the voice, disguising effects intentionally one’s regard factors, to all with of these some which he extent, has studied some but as to most which agrees order, he are in further studies that the most that these elements do could would to increase the possible error of false elimination and would not increase error of false identification. He said if noise, you poor recording have a lot your with is going examiner for no opt opinion because it is good just enough not express to allow him to an If opinion. stress or other emotions a change cause in pitch, it is going difficult, voice make it more therefore, to finding be a of a you match. may So a false It have elimination. is the same time lag, might change voice, cause a and the effect disguising the voice would be to increase elimination, chance of error false but not increase, opinion, his the error of false identification. favoring following process 24. Dr. Tosi listed the scientists as voice Ladefoged, spectrography: identification sound Dr. Peter Dr. John W. Black, Henry Pac, Jansen, Dr. Truby, Hecker, Michael Peter Dr. Dr. Dr. Dr. Serróla, Hall, Ora, Deal, Caling, Philip John Dr. Dr. Malcolm Leo Dr. William Dr. Lashbrook, Pedrey, Charles addition to Kersta and Lawrence Poza, Henry Ernest Nash. The were: Dr. Dr. he named Fausto opponents really Hollien, Louis and Dr. Gerstman. He “the Bolt regarded group” identification, being stating, spectrographic in the field of voice active “[w]itn think, exception very experiment of a I small conducted in Stevens, experiment of them identification/’ none ever conducted voice for acceptability that

“Dr. Tosi said should not be less than in court identification agrees words, Sergeant Smrkovski matching and in regard.” him this with Leendert Dr. was expert presented by State

The next Africa, character from a new Jansen South Peter Christian holds concerning technique, who in court controversies His engineering. electrical degree physics and a master’s Judge identification. speaker entirely thesis was written to him: McAuliffe observed relative working and has been currently “Dr. Jansen grant speaker Africa on a working under South Tosi, He, and indeed like Dr. identification research. field, originally in his was like of the scientists many some studies he had done skeptical and then after accuracy, percent an 80 90 felt that there was and good enough concluded that this was he trips took several opinion. use in his He courtroom scientists, States, number United visited literature, and, on his first around, read the looked his identification here connection with voice visit growing he numbers reported process, process accepting courts American were to more gave rise being more done. This work being initiated South program intensive studies he is here under Africa, and now 1975] [summer he training. says He came with intensive mind, although skeptical. somewhat essentially open having having here intensively But studied workings of identification into the real voice gotten he spectrograms the aid of now believes sufficient care if the examiner uses training, positive has he make sufficient can identifications. impressed particularly

“Dr. Jansen interformant telltale availability examiner energy peaks. energy involuntary are peaks. These lines and indeed are more than the other They subtle may represented they by lines, the of absence or spaces shadings. Dr. Jansen particularly was impressed fact that these interformant energy peaks might provide, well himto do provide, positive so-called clinchers for many identification in cases. Dr. Jansen said that of he people recognized met had who in expertise field, particular one only spoke against process, and this I Dr. believe was [Fausto Poza].

“I would perhaps comment that Dr. Jansen is more conservative than the Court would be with regard to his approval of the use of type of He evidence. [this] impressed me as wanting be near certain before it, he agree would to the use of yet he now acceptable believes that it generally among those who are familiar it and it truly with has obtained or the reliability, reliability has been demonstrated to him in such fashion that he that properly believes done and with the properly trained examiner it should utilized in the forensic courtroom situation.” study spectrographic

Jansen’s first identification voice in opinion was 1964. It because of was differences he originally it, found the field that as he he put people “visited spoke against who the method and for the response method.” In question he met whether with (Dr. Dr. Bolt and other critics Bolt being prime one opponents), replied spent he that he had “[approximately one each of day people” during those his 1974 study-tour of the United At period States. the end of this he still was skeptical process. He asked his initial was whether process that the was “unreliable was enhanced contacts with Dr. Bolt’s He group.” replied: [his] Well,

“A since ask you question, I have to be honest and tell you many people those did not speak against the use of spectrograms for identifying people. They against the use for spoke use in courts. And law most them convinced were comparing for good had value spectrograms such against being the method they had speakers. What argument the main used courts law method is not thought objective, that it is they also, not enough, possible it is objective percentage of a definite the examiner state error, finding. in his accuracy, conversely, or method. arguments against main Those were the were “Q up you I until June of take them; agreement? in basic agreement with “A Yes. hours with

“Q spent It until you wasn’t changed your opinion? Tosi you Dr. that “A That is correct. opinion might affected

“Q you Do think your Dr. time with spent again if the same amount of you group? Bolt and his no, these were people

“A The because answer There is in comparing spectrograms. not involved gone prove could who I could have to who nobody me that the method does not work.” regarded he he had met whom Of the individuals whom field, or in the about six having expertise “only which was against people,” only spoke seven he said “one of them personally Bolt He testified that he was advised by method.” expert spectrographic that he did “consider himself an Poza. comparisons.” negative that of Fausto position He to him: observed relative No, don’t, concerning

“A I can this you I but tell case, that completely I have not been convinced— — stating his integrity

“THE in WITNESS: he felt not be allowed evidence should [such] In could court. his case there motives that were other him say cause that.

“BY MR. SHAW:

“Q What were those motives?

“A Financial. For one thing, I applied know he for grants field, studies if he obviously spoke for the case there would no reason for the grant being given to him because of the previous grant given Tosi, to Dr. the results of those studies. words,

“In other the Courts have decided the results Dr. Tosi’s studies sufficient. were You good would have to have a reason to come very something opposite that is to that.” explained Dr. Jansen his conversion: “THE COURT:... general ...[,]

“We have talked terms somewhat Dr. Jansen. Apparently you were unconvinced that the reliability gotten high enough had for your purposes for to recommend the use of you voiceprint or spectrographic analysis courts of until you law had done further some of work saw refinements and techniques being employed.

“What did see? What is particularly you new you, changed what has in this your regard, and why?

“THE Yes. I think I say WITNESS: can it in terms of this here. The exhibit we have bold lines drawn in there refer speech. to the formants of the I Previously used those lines in only comparing speakers. I found I What when came here that often very there is additional information around lines, those bordering them, them or in that between is not to the really speech, relevant this but information I can felt sometimes additional useful for extremely identifying speaker. I may I say that found that that information is not always words, there. In other cannot take you any two samples of one person’s and the same voice which he says one and the I thing. you same don’t think are going to find all things. got those You to keep have do find until samples you some of the comparing same, people If the are not like that. something found I have going are to find that. never not you find those But if do experience. you in my it that experience I found similarities, my only then in never same. It is people actually were when found and that you were not same people these kinds similarities. be, example,

“THE this COURT: Would speech? or that occurs between words lapse space that, so Your Honor. “THE Not much WITNESS: its main lines I can that these black would say thing talking I am other regions energy. main regions secondary are to a certain extent about is the main line. That what energy. person A controls try He not understand the does speech. is needed to from his energy amount of secondary to control the really speech, is not mouth. That relevant controlling really he doesn’t bother about because constant, that, very turns out that remains always to make it though change he tries to his voice even secondary different. He not aware of these of energy. amounts depicted shown?

“THE How are they COURT: as much They “THE are WITNESS: shown dark as the main They nearly fainter lines. are not are are regions. They they faint. very Sometimes cases, you there. do find them both you even When each can see these resemble closely how would other. used you

“THE In studies your prior COURT: prior training? examiners no apparently That’s Your Honor. right, “THE WITNESS: qualifications “THE COURT: One your the examiners be changing your opinion trained? competently seen this Very Having

“THE much. WITNESS: I realized process experienced happening, make full use of going an examiner is great amount got unless he has spectrogram — is got that in this field. If he hasn’t training year, I last people I visited what found with against that were people well as the other regions the main They only compare method: could personal had themselves no energy. They knowledge aspects of these which I found could be comparisons. used to make If similarities did not “THE those other COURT: occur; your if could not find those between you known, questioned your you yourself would be unwilling opinion they were one and express the same? Yes, one

“THE Your Honor. most WITNESS: is a say could in a case like that is there resemblance. expressed. I opinion doubt that would be taught Dr. “THE That is what COURT: words, feeling Tosi? In other consistent with your his, from under him? you studying as far as know Yes,

“THE I so. WITNESS: believe “THE Mr. COURT: Wood.

“BY MR. WOOD counsel]: [defense lines? “Q Is there a name for these subtle faint striations. “A It is sometimes called vertical “Q spell do that? you How all S-t-r-i-a-t-i-o-n-s; explain, “A that does not but is, know, I no definite things. of these There as far as name, it is called interformant except sometimes energy peaks. to see

“Q And would need you your these interformant either striations or vertical spectrographs energy peaks tapes both both opinion? to form being your before able “A to feel certain that being Before able or from samples are the same unknown known a certain extent person. experience My the same good under has, is sometimes easier are the same than voices to be certain circumstances same, not the they are to be certain opposite, spoke I things information these additional because are speakers present can when about same, you then same, are not they but when regions main Although the things. find these never samples all the about quite just similar may you Do sure. compare, so are never you you I mean? understand what negative: When Trying prove

“THE COURT: say certainty, are are unable to they you absent opinion. in your had I have may happen, yes. It

“THE WITNESS: of like that.” experience some cases Smrkovski, the officer Sgt. Detective expert The third was Michigan of State unit of identification charge the voice Society of America of the Acoustical He is member Police. testimony: said of his The trial judge and other societies. studies in forensic reported certain “Smrkovski a survey reported and addition lab studies cases, there had been an of field cases actual where of all utilizing spectrograms, identification have either the defendants percent those cases thereafter. Now guilt pled guilty admitted their some valid about this and there is some criticism always proof not plea guilty that a criticism are certain, think there nonetheless we but study. for actual field significant statistics extremely this is an testified “Sergeant Smrkovski aural and visual method if one uses both reliable trained, properly comparisons and if the examiner is repeat I not will fully, which he defined rather on the interesting statistics gave here.... He some Michigan Lab and actual at the State done work in 60 the examiners all the forensic cases sent there no In percent expressed opinion. the cases have therefore, cases, percent they have kind, and on a three of some expressed suspects.” opinions to one ratio these eliminated McClung Wayne Dr. expert last was John State’s degree in the field University. His master’s State science, his in the field Ph.D. was audiology physical speech that he had specifically science. He stated Tosi, “self-taught.” describing under Dr. himself as studied “Speech Pathology,” he teaches is One of the courses which of and spectrographs the sound operation which involves He indicated that he was production spectrograms. of sound of experimentation “as a result engaged then in studies and Gerstman, Stevens, Kenneth Dr. Louis by the Dr. objections In such this.” proceedings and Fausto Poza in trial as doing to as he this “to response question a to whether was information, learn more to more so that try give [he] c[ould] replied: the he subject,” about my own sufficiently No, “A sir. I convinced am the of validity and reliability as to the opinion specific this the of procedure. purposes One of to these to demonstrate to data project is obtain support my gentlemen I mentioned other have validity.” reliability on the and conviction reliability to as his “as the question to a to In answer sound identification process of of voice he said: spectrography,” that My opinion

“THE WITNESS: of reliability procedure itself would have accuracy percent my opinion approximately — of the two proper identification identifying or coming speaker from the same two prints speakers.” different People 141, 257 Michigan Tobey, 25. The court in 401 Mich. N.W.2d (1977), of fact the research relative to which 539-40 made much that Kersta, Tosi, Nash. given primarily the of either was was work

testimony Thus, any important McClung study to did not under it is note that Dr. them. The sole produced opposition witness Dr. Joseph Baker, the evidence Associate Professor of Hearing Speech at the University Maryland with a hearing master’s and doctorate in and speech science. The trial judge being described him as “mostly familiar with particular through area of identification voice the assistance of spectrograms reading area, his articles in the although he has done some class demonstrations spectrograph machine, and he is familiar with the use of the having used it in speech other areas hearing He science.” has never conducted controlled any experimentation in using voice spectrograms. identification response question In to a process “the whether voice by spectrographic reliable,” identification comparison he [is] said:

“A I do not feel the state art sufficiently question advanced answer I affirmatively. say So no.”

At point another the record reflects relative examination of Dr. Baker:

“Q general put What field would you voice identification using spectrographic analysis? one,

“A My best answer to that would that it ais field speech associated with sciences. It interacts interphases and forensic law.

“Q Let me ask you question this way: Has voice using identification spectrographic analysis gained general acceptance in field that that you just designated? [prosecutor]:

“MR. I is object. SHAW That as to that no irrelevant field and also there is foundation.

“MR. Honor, WOOD Your we [defense counsel]: talking have morning been here since 10 this about being expertise the foundation Dr. Baker his field. All I asking am him for now a further opinion on general acceptance process. this Baker, Well, who cares Dr.

“THE COURT: and studies about argues and writes worries and this? scientists. people

“THE Voice Some WITNESS: phoneticians. call themselves Among group who would “THE COURT: made themselves able able or who would have restricting I am field, in the interested to, opinion as to you do an whether question have or accepted as a reliable generally there has been identification? for the aid of voice valid method I not believe it has been “THE do WITNESS: accepted. no for a Again yes it calls

“THE COURT: opinion? an have such you answer. Do “THE Yes. WITNESS: All right.

“THE COURT: “BY MR. WOOD:

“Q opinion? is that What that it is I do not believe “THE WITNESS: my opinion.” accepted procedure. That The record further to the cross-examination reflects relative of Dr. Baker: accepted

“Q generally is not you can say How talking are many people if not know we you do how about? I do reading

“A the literature I have been From procedure. not as an acceptable find it accepted, “Q generally it is You did find that necessarily literature is not written but spectrography? persons actively Do group. that is define that Again you “A how you definition? Do group the Bolt in that you include include of the Speech members Communications Society Section Acoustical of America that voted [against] in numbers 42 0?

“Q What are from you saying majority that you they opposed? articles have read are “A in majority my purview articles that deal have to with this are not in necessarily positive their characterization of the proceeding.

“Q That is your your opinion basis is not generally accepted?

“A That is correct. “Q you saying process What are is that the whole observing is a matter of spectrographs? two No, “A I said more. two

“Q And determining or not whether it is same individual?

“A particular Whether or not those displays two individual, are in fact of the same that is correct.

That essence of the technique.

“Q But your definition of the technique would include that expert listening same trained to a tape itself, would it?

“A morning question Well now this I believe the was raised about this as far as whether could you look fact making things these without themselves and you whether did fact to listen have to material to make sure it correctly fact reproduced for analyze the machine to it.

“Q I am trying get to define the you term all using we have all voice day, comparison by spectrography. sound Does that method mean comparing of spectrograms, one or more or does it comparison experts mean that addition trained listening to it? depends

“A It you on how to define sound want to define voice you how want

spectrography, identification.

“Q Define it. if it is. Now want way you I said it the

“A have to, right all include, perfectly if it is one wants to me, game, you if long up as as set ball you also, way is another listening include that by to want identification, It by listening. accomplish speaker to that that can be done procedures set of is another way. talking about that

“Q Everything you have been well, that now, to it as is listening did it include up to that correct, game the ball nobody defined because yet? you for way to questions I do not answers my

“A remember talking in mind were also constantly keeping that we listening to make the an aural exercise about particular spectrograms. of these decision by you to it considered “Q listening alone Well procedure? a valid No, the whole “A I think it introduces because attempts disguise problem disguise of voice a voice.” words, the defense expert produced by

In this lone other technique opposition on the issue prosecution experts used and said four on behalf that familiar with sufficiently to be one a valid senses, it man’s technique to that involved two know way there is no that seeing. appear It that hearing would Thus, feel, smell, comparison. only one or taste the could brought to on the matter two senses that could be bear identification were Baker was brought Since Dr. bear. hearing say that could not that two view one — voices identical our case law to the contrary were — that notwithstanding that he was the view follows opine voices no one could that two way that just there was out, he appears, judge pointed It as the trial the same. were certainty rather looking for mathematical apparently was testifying the basis probability than probability, court. Baker continued: cross-examination of Dr.

The is, I right question “THE now COURT: it, trained if assumes understand one identification, says makes an that it examiner only are the reasonably they he is that same certain as well spectrograph he has had the when benefit by he is comparison only as aural when satisfied comparison spectrographic analysis aural as aswell If is the are one and the same voice. that they criteria, Baker, not Dr. and the examiner will that it express opinion an affirmative will match that any missing, change your when of that would as to of the opinion reliability the essential procedure?

“I him question. will allow answer “THE I of no toway WITNESS: know other it other say yes, any particular answer than to procedures additional that would cause advisable, elimination errors certainly would be as I have tried to the inclusion of another explain, but of the necessarily does not eliminate all procedure this. problems associated with again talking about two different

“Now we are is and one procedures. eye. One ear “BY MR. SHAW: For

“Q question? Are you able to answer problem have no with it. you some reason are not. I using to the you validity state an as opinion Can together analysis aural one both visual and agree? and where both those already I He answered object.

“MR. WOOD: he He has testified that considers question. reliable. going your I am overrule

“THE COURT: objection. opinion.” (Em- I no

“THE have WITNESS: added.) phasis him on redirect to rehabilitate attempt an

There was examination: answer. may You ...

“THE COURT: examiner than an rules other ground no “Given analysis spectrographic both using comparing you do have comparison specimens, aural procedure? reliability opinion an Yes, opinion. I have “THE WITNESS: MR. “BY WOOD:

“Q opinion? is that What two the combination is that “A My false greater introduce conceivably methods could into the false elimination identification and/or conceivably. could proceeding, is it not a is it or point on the “Q specifically But aspects? using those two procedure, valid procedure.” it to a valid “A consider be I don’t the record reflects: point At another have said from you I what gather “THE COURT: have work to your helpful found it you have spectrogram? Yes.

“THE WITNESS: to a visual reduce That does “THE COURT: one’s voice? picture right. That is

“THE WITNESS: but component, not one And just “THE COURT: in several? Yes.”

“THE WITNESS: background With this it is to see easy why Dr. Baker’s testimony, only evidence adduced on behalf of the defense on the issue of did not State’s admissibility, undermine the of voice reliability relative identification spectrographic analysis Judge which had been heard by McAuliffe. He characterized Dr. Baker’s in this manner:

“I that Dr. find Baker has an excellent background science, generally speech but voice comparisons by means spectrographic or otherwise is peripheral clearly field of interest to He him. testified that state of the art is not sufficiently permit advanced to to say him that voice by spectrogram identification is reliable. He particularly concerned about what he believes to unknown effects of and noise the consequent degradation signals effects of stress on the voice. We have noted earlier that Dr. Tosi addressed himself to these issues felt that while needed, study was he had introduced some noise into his experiments and that the introduction of noise stress or psychological factors should only serve increase errors in false eliminations and would increase the percentage of error of false identification. Dr. Baker testified that the Tosi studies legitimate. were But Dr. scientifically Baker would more desire studies.

“We think that Dr. Baker one of the people Judge Murphy spoke Tim of in Brown case when he spoke of desire certitude. We agree scientists like things precise to be and exact variation, and mathematically without reliable and desire, and that is a fine but the court and law has held never the standard for the admissibilitiy of scientific evidence. must We remember the scientific bent affects judgment some of these people keep in mind our independent to make a responsibility judgment general and reliability acceptance on based our If

criteria. we did not decide except cases where things and absolutely certain, were mathematically would not we decide cases. a ever Even in criminal proof case a beyond reasonable doubt does not require mathematical certainty.

“We also note Dr. Baker about that he thinks that listening alone a making is not valid way voice identification. But know that long we courts have accepted universally and this testimony, that a witness who has two heard conversations has been permitted to testify they are same person. Perhaps earliest case the one and cited generally Maryland State, is Rowan v. State, leading Md. and our case is McGuire v. State, 200 Md. 601. There is Lenoir v. 197 Md. at State, there is Dyson These Md. 398. are cases standing proposition all for that witness may and, testify having speak, after heard someone being familiar having with the defendant’s or voice speak, opinion heard the express defendant an they are one and the same or are the same. they not very significant It is that the universally courts have permitted lay express witnesses hearing. voice identifications from It merely pretty points well out the difference philosphy between the quest of the scientists for who are adamant their so. disagree certitude do properly We not that. But it points out difference between their and the of our approach necessity approach, which something certitude, certainly short of but we it to reasonably want reliable.

“Dr. Baker that the process technique thinks gained has not acceptance in this field. But unaware, note that Dr. example, we Baker was Ladefoged’s Ladefoged at least conditioned shift. had once opposition technique testified in Columbia, recently more in the case of the District of least his position, although had shifted excluding I proponent, as a generally but entirely, involved women’s voices were think in cases where disguising attempts there were intentional not with type Dr. Baker was familiar voice. Dr. Baker Helene.

experimentation used opponent, thought Hecker was an that Dr. Mike not, proponent. says is now although he is he Tosi Study, Hazen but had Dr. had not read the Baker only summary of it. read a

“Furthermore, he had no first said Dr. Baker or reliable to would be valid as to whether opinion it together aural if one used make a voice identification who would a trained examiner with visual and used satisfied both match unless he was say it was a redirect said that and then on aurally visually, thought he would not be valid.” Baker, the sole of Dr. of the Any careful review there was not to show that in an effort expert produced technique analysis voice spectrographic acceptance surely would reveal community, the scientific excluding this lean in which to upon weak crutch miserably evidence. aid of identification concluding

In “that the voice with in the is and should be admissible State spectrograms voices,” male ruling trial limited his “to Maryland,” judge provisos: with certain - trained properly “a present

1 That there was examiner____” - to permitted or trier of fact is the jury “[T]hat upon tape, spectrograms

listen to the and the or made available opinion is offered fact----” inspection by for trier - given were cautionary instructions 3 “[T]hat the jury.” - by the forbidden specifically 4 That counsel were as technique here judge

trial to refer possibility any as “voiceprint” so to eliminate might fingerprints that it confused accuracy. - right preserved 5 That of the defense “to produce experts testify concerning their reliability process as to of this other produce indeed to allow defendant if the defense so comparison spectrograms desires.” pursuant

It was to this determination of the trial judge the defense its produced expert, second Dr. Hollien. He attacked the spectrographic technique voice analysis before and testified that in his jury opinion listening after exemplars recording of Reed’s voice and the of the telephone person. calls to the victim that the not of the voices were same The instructions of the trial court to the include: jury gentlemen,

“Ladies and the rules of evidence a permit testify do not witness to as to his ordinarily or There I opinions exceptions. conclusions. are think in the this you course of trial have learned that even a person prior experience expertise, or without particular experience,. training expertise, or permitted our if are by they law familiar with voice, particular particular voice or have heard a to an as to is the express opinion whether another voice same as or different from the other they voice which speaking, heard. But is not generally witness express opinion allowed to or a conclusion. An expert exception is an to this rule. witness

“A experience witness who education and has art, expert any profession, may become or science permitted opinion be to state his as to a matter in which he is is material to the case. versed which He also state the This may opinion. reasons testimony weighed should considered and by you any given like other in the case and weight to deem the entitled. you opinion which upon if the facts may reject “You your not been established it is based have evidence, are not you or if satisfaction given support reasons with the satisfied it is for disagree, expert witnesses opinion. Where one, either, if is to be believed. you decide which case, you and gentlemen, “In ladies particular to voice pertaining testimony heard have spectrographic aid of with the identification to that apply type The same rules analysis. your function to gave as I It is

testimony just you. weigh of the various when witnesses assign and to such testifying are in that area they give such weight you may You proper. as deem weight all, weight, some much testimony no weight, it to you find be entitled.” § al., 1.03 supra, It A. et noted that Moenssens should be states: Frye the court ‘particular

“The field’ which physiology in mind was the one of case had combined is no recognition general Such psychology. longer required, nor should it be. Sufficient recognition of satisfy caution should be judicial general aby speciality accorded within a reliability original). (emphasis field of science.” Id. at 4 This relied. He said: upon Judge is basis McAuliffe if pure

“This concludes use the Frye Court that we isme standards before admitted; that this evidence should persuasive, be a general acceptance, though not that there is a acceptance, group actually universal within engaged technique in the use of technique. a little experimentation with this Stated speaker by differently find that identification bit we spectrograms comparisons ac- visual when comparison companied aural examinations trained accomplished by properly and when examiner has general now received acceptance by recognized experts familiar such procedures with and has reached standards of scientific acceptance and reliability necessary for admissibility into and, therefore, evidence ultimate consideration the trier of fact.”

It will be recalled that the California court in People v. Williams, supra, App.2d Supp. 164 Cal. 862 said test, Nalline “All of the medical testimony points to the reliability of the test. It has generally accepted by those who would expected age be to be familiar with its use. In this of specialization required.” more should not be It further will be recalled that in Lykus, supra, Commonwealth v. 367 Mass. 191, 203, this language repeated.

b. The majority opinion 10, 1978, On April we ordered that this case reargued so that the full might Court consider it.26We directed that new briefs be filed and that parties should address themselves to certain specific questions, including whether test Frye should if adopted; adopted, were by whom the determination general acceptance scientific should be made; and, if by the trial judge, the standard of review.27 originally argued judges case was before six 26. at a time between the announcement of the Judge Singley retirement of appointment and the Judge Cole. portion 27. The text of the relevant of the order is: upon reargument parties “ORDERED that are to include following questions: consideration of the “1. adopt Should this Court Frye standard enunciated in States, United (D.C. validity 1923), 293 F. 1013 Cir. relative to of processes; concerning of scientific instruments Frye “2. If adopted, persons test what are to be considered determining in acceptance, technique general whether has expected those ‘who would be to be familiar its use’ Lykus, as held in 671, Commonwealth v. 191, 203, 367 Mass. 327 N.E.2d (1975), group; or some broader based (1) “3. If ‘yes,’ the answer to given above test a is whether or not a technique Frye question fact; meets the (3) “4. If ‘yes,’ by answer to above is whom is the made; determination to be opinion does majority I fact that disappointing find appellant issues. The to these directly not address itself more to question a of fact as whether that it was the view general acceptance, which technique has scientific given a fact, it a then question makes a lot to me. If of sense were judge the trial and the determination would be obviously clearly erroneous basis the standard for would be the review 886 and 1086. Maryland Rules specified puzzled I opinion, myself From the find somewhat majority determining considered in groups as to are to be what acceptance what process general a has scientific whether required are knowledge, experience qualifications, In the case subject. order for one to offer an graduate training I suppose anyone at hand would “of the relevant physics in the field of would be a member background ... whose scientific community scientific to to comprehend sufficient allow training [him] [would be] it,” and form a about process judgment and understand the some kind use Are to undertake words. we majority’s — acceptance there is poll general to determine whether all technique accepted by generally or that the would be if as to tests have they those so trained were informed what performed? determining use in is a trial practical judge What basis Will technique acceptance? has general whether majority opinion of the in the upon language we now the basis case this of one has considering the in a such as who view (such field testing or in the any experiments never done listened Dr. did not even that an examiner Baker who know adding opinions those exemplar), up to each and then (4) judge,’ then what is “5. If answer to above the 'trial standard, decision, clearly basis review his erroneous discretion, test; abuse of or some other (1) ‘no,’ “6. If the answer to then standard should above what used, of the Law McCormick's Handbook that set forth in § Evidence, (2d 1972) (‘Any 203 at 491 ed. relevant conclusions expert supported qualified are should be witness exclusion.’), there are other reasons for that stated received unless by (whether (1898) Thayer, judgment Evidence in the ” court, helpful jury), some other test? will be general determine that there is scientific or a lack acceptance of general acceptance? scientific permit

We identification court. regularly eyewitness is no more than Certainly eyewitness voice unreliable identification. the documented instances of erroneous See al., by identification set forth B. et Personal Wentworth 1932). (2d ed. For in one instance example, Identification 26-27 a thought person man he saw a train was his mistakenly good wedding. friend had the best man at his In who person another instance a mistook a man he saw on a train college for his roommate.28 majority that the can

Upon apparent close it seems analysis adopting reasons” for up only “compelling come with two the jury’s of One is Frye type test for this evidence. The second incompetence expert testimony. to evaluate minimal of is to insure a reserve “compelling” justification experts. The states: majority advantage substituting

“In addition to the reliability, as to scientific lay judgment scientific for Addison, 498 F. supra, court in United States v. protects 2d out that the test ‘... pointed Frye assuring alike that a prosecution and defense exists can experts critically minimal reserve of who validity examine the of a scientific determination case____ particular [Tjhe ability produce with equally conversant experts, rebuttal technique, of a particular mechanics and methods ” prove to essential.’ may qualified persons I assume that mean there should be they given conclusion that a expert’s can issue an who take impact great on a has too 28. Critics fear that who eyewitness very highly recall that reliable should to be admissible unless jury said, certainly impressive jury, also. It has been to a identifications are very the most eyewitness one of unreliability identification evidence “The poses Note, justice.” Did Your problems of criminal in tne administration serious Unreliability Testimony on the Psychological Eves Deceive You? Expert (1977). remedy Identification, proposed Eyewitness L. 29 Stan. Rev. testimony, such but rather not exclusion of the aforementioned note was unreliability testimony by psychologists permitting opposing eyewitness reports. as to the (It must be the accused. is or voice exemplar may It ways. technique works both that this remembered him.) a minimal as convict Such as well clear an individual available, list in the as witness obviously is reserve “ Package” Practising Law Defense ‘Voiceprint’ criminal workshop on advanced Spring-1974 for its Institute a “minimal cannot mean techniques. They surely defense issue of the on the joust experts” prepared reserve demonstrated They have technique itself. validity of carrying forward to its but validity, there opponents are today finger- philosophy impede introduction would probable print ballistics evidence or because testify experts” is not “minimal reserve of available from opposition differentiated to the use of such evidence as expert has drawn on the issue of whether the from a correct conclusion that which he has observed.

6. The standard appropriate approval Court’s Supreme In Mexico the wake New Dorsey, 88 State polygraph of the admission evidence 184, (1975), reviewed N.M. 539 P. 2d 204 Professor Romero under that evidence admitting the standards rules, Federal noting, “The Mexico and the state’s new New relate they Rules of Evidence are identical essentially Romero, Admissibility scientific evidence.” Scientific Rules of Mexico Federal Evidence Under the New (1976). He Evidence, began by n. N.M. L. Rev. expert testimony. examining pertaining Rules 702 702 provides: Federal Rule by Experts

“Testimony scientific, technical, “If or specialized other knowledge will assist the trier of fact to understand or issue, evidence to determine a fact in a witness skill, qualified as an expert by knowledge, experience, training, education, or may testify thereto in the form of an or otherwise.” The Advisory Note includes this Committee’s comment:

“Whether the situation is a one for proper the use expert testimony is to determined on the basis trier____ assisting opinions When are excluded, it is they unhelpful because are therefore and a of time. 7 superfluous waste § Wigmore 1918.” rule, it

Regarding this is said in 11Moore's Federal Practice § (2d 1976): 702.02 ed. give weight

“Since finder of fact undue may expert ‘because of its aura special testimony, trustworthiness,’ reliability and the rule continues the existing practice federal of limiting expert testimony by two standards.

“Under this test the testimony expert witnesses acceptable where ^[1] witness is properly qualified his knowledge and where ^[2] his ‘assist testimony will the trier of fact to understand ” to determine a fact in issue.’ (Footnotes omitted.)

Referring to “the that triers of attach possibility may fact special significance said, of an it is testimony expert,” “this seems unlikely opposing experts.” where there are Id. §at 702.10 n. 4.

It nothing will be noted that there is in the rule which requires character, if expert the is of a scientific that its theories must the underlying generally accepted by be scientific community. out, But Romero points “By requiring fact,’ that scientific evidence ‘assist the trier of Rule 702 implicitly requires specialized knowledge' that the scientific or Romero, reliable.” subject expert is be that the of added). This, supra, N.M. L. at 197 he (emphasis says, Rev. “is a question of to Rule 401 is addressed.” relevancy which Id. at 198. provides:

Federal Rule 401 ‘Relevant Evidence’ “Definition of “ having any ‘Relevant evidence’ means evidence is any the of fact that to make existence tendency consequence to the action the determination or less it would be probable probable more than f without the evidence.” says, probative has any Romero “Whether scientific evidence value, or, prove tendency the terms of Rule to any evidence], the critical case of is credibility polygraph [in this Pointing out that Rev. at 201. 6 N.M. L. question.” evidence, reliability turn on determination will continues: Romero however, It varies is not a constant.

“Reliability, perfect degree ranging reliability from minimal therefore, important, It is reliability____ of scientific degree reliability determine to what principles evidence, underlying that the in the sense valid, relevant established before are must be omitted). (footnote Id. at and admissible.” standard appropriate would He concludes tending to show require “foundation evidence Id. at degree is in some reliable.” scientific evidence omitted). threshold, (footnote added) “Beyond (emphasis would, course, a matter reliability showing degree omitted). (footnote weight jury.” Id. at 204 for Romero concludes: theory summary,

“In the New Mexico scientific evidence under First, of relevancy. is one Federal Rules of Evidence to be relevant in order must be evidence Second, there must be Rule 402. admissible under that the scientific evidence tending show 401. relevant under Rule in order to be reliable admissibility theory of “It is submitted that of Federal Rules in the New Mexico and embodied Evidence is correct its treatment of scientific ought held to the evidence. Scientific evidence of as is relevancy same standard nonscientific of undue Although evidence. considerations issues, jury prejudice, confusion or competence may to deal with scientific issues affect evidence, the decision to admit scientific these do not and should not affect considerations — theory logical relevancy. one of admissibility however, under may, operate These considerations evidence, or Rule 403 to exclude relevant scientific otherwise, probative substantially is whose value these 204-05 outweighed by considerations.” Id. at omitted). (footnotes

It obvious that the Federal “express Rules make no reference to a of general standard scientific acceptance.” Id. at Williams, 206. The Maine court State v. said that supra, (modeled Rules) Maine Rules of Evidence on the Federal purport “do not special to establish a govern standard to admissibility testimony involving ascertained, newly or applied, scientific principles.” Referring Rules, to the Federal value, Professor points “probative Romero out that can be established demonstrating general without scientific acceptance,” “Thus, L. N.M. Rev. 206. requirement general acceptance appear would a more impose — stringent condition establishing condition relevancy inconsistent Rule 401____[Ejvidence with contesting the reliability of results merely affect weight would given (footnotes omitted). evidence.” Id. at 206-07

Although no reference was made Romero’s Professor view, support Williams, for it is found in State v. A. 2d the Supreme where Judicial Court Maine said that the defendant relied on the fact that the Rules of of that Evidence “do state not deal specifically the admissibility problem as may arise by in the development, virtue newness application, of scientific principles.” (Emphasis original.) It said that the court was asked:

“to fill gap establishing an additional precondition applicable specially testimony expert proffered in which to the situation ascertainment, application, or new on rest a new will —- to be further condition this principles of scientific of such acceptance’ ‘general must be that there or new principle, discovered newly relevant in the principle, of scientific application (emphasis original). Id at 503 scientific field.” course,” saying court to take The Maine th[is] “refuse[d] at odds with fundamental would be “believe[d] [this] Evidence, more as revealed Rules philosophy Maine] [the favoring the generally in Rules 402 and particularly it is relevant and expert whenever (Emphasis trier of fact.” can of assistance original.) voice spectrographic Romero’s analysis

Applying are sufficient identification, that there appear it would opinions on the reliability say based indications that the technique of the admit process are relevant. Critics (Romero’s threshold for degree reliable.” process is “in some laboratory certain The Bolt said: group “Under admissibility.) sample population, and for some selected conditions an error in can be stated. probability making identification But rate of error is relatively low.] [That situations, in forensic encountered less-than-ideal conditions of error will increase indications are that the probability Denes, David, Pickett & Bolt, Cooper, substantially.” — Stevens, Speaker identification Letter the editor observations, 54 J. speech spectrograms: some further (1973). essence, In Acoustical of Am. 533-34 Soc. identification said that reliability critics have demonstrated process under ideal conditions has been prove as would reliable satisfactorily; process whether the proven by something under adverse conditions cannot and concerns study. group’s Tosi The Bolt criticism totally read unreliable. stating process as that the 504-05, A. said: Williams, 2d at Maine court in State testified of the acoustical scientists who “[N]one of different recordings questioned facts time, human vary frequency voices more intensity recordings than of the same voice and that the spectrograph plot can these accurately variables. The opposition experts focused only of comparison difficulties and the exercise of judgment and spectrograph the failure of the experiments to account for many real world variables.” the

Certainly process limitations the should be considered the trier of fact by determining proper weight in the to be given this sort of testimony, the limitations do not but indicate that the spectrograph process is so opinion unreliable that an based on that process irrelevant.

Professor Romero’s of the for view standard Evidence, of scientific under the evidence Federal Rules of and the by standard outlined in the Maine court State v. Williams, 500, 388A. 2d are in accord with the cases discussed under part opinion of this regarding ballistics and other analysis, prior our Maryland involving expert cases and the testimony, put standard forth Dean by McCormick that “[a]ny relevant conclusions are supported by a received____” qualified expert witness should be

7. Conclusion I conclude that even under the Frye judge test the trial did not abuse his discretion in permitting opinion testimony the upon spectrographic analysis. based voice the Given gave instructions which he I possible see no jury, basis believing for jurors that would in some manner against become biased I accused. think it obvious that a experts” “minimal reserve of I do not available. believe that jurors in Montgomery County any are less intelligent or well informed than the I juries before whom have tried I cases. have away jury come from trials with confidence a juries arrive justice. whole at substantial I concur in the Judge 100% statement of Marbury Chief Shanks, in Court 185 Md. at “Judges 449: must juries presumed intelligence least, to have average and no made for the contrary purpose can be assumption testimony.” excluding otherwise admissible outset, upon rests majority opinion at the As I indicated scholars, has never eminent a rule which rule criticized our only step It not is out of with adopted Maryland. decisions, respected the standards which apply it fails to prior in the matter applied courts have ballistics, step isIt out of X-rays. concerning fingerprints, field opinions particular reported majority concerned, most recent of which here we are with which (State Williams, (Me. 1978)) 388 A. 2d 500 only v. decided ago. months about two us the observation keep before do

We would well Exchange in Produce Digges for the Court Judge W. Mitchell (1925): A. 403 Co., Express 147 Md. instances has commented many “This Court expert testimony, inherent weakness upon the only at best it is fact because witness, and is in a opinion by the expression of jury; yet usurping measure function cases, qualified by has proper when witness peculiar knowledge demonstrating to the court his by the and of question jury, of the to be decided average knowledge, man not have which the would uniformly this has been allowed. testimony class testimony is expert’s understands that the jury fact, opinion his as to the simply not as to a but the probable flowing jury result from facts which case. The proven in the might determine have been expert by has force probative of the witness knowledge of the expert reason of his unusual and and gained experience, from subject, study, is based testimony The worth of such observation. that, if the witness’ logical the inference upon and have demonstrated experience observation did circumstances under certain conditions certain result, under produce certain like circumstances a a produce like in other cases similar conditions would Having properly witness result. decided that this questions and that the expert, as an qualified proper hypothetical him to were propounded to given to his answers weight be questions, has no for the with which Court question jury, a Id. at 446-47. concern.” us the view keep do to before would well

We likewise prior in the field of “greats” evidence expressed by one of (1898): Thayer, in J. Evidence Wigmore and McCormick that, main, any in the “[Tjhere ground saying is is limited to cases excluding opinion rule court, it not be where, in of the will judgment not, in terms or accepted Whether helpful jury. the administration governs largely this view principle a must allow It that such rule. is obvious difference range permissible very great of that character and that conclusions judgment; as not, regarded subject ought usually, Unluckily the matter higher courts. by review heavy much too the courts with often treated subject on the hand; of decisions quantity and 525. Id. at unreasonably most swollen.” way purported has leave majority I realize that the time in such as this at some open for admission matter, however, judge what trial practical future. As a in the future any so time right in his mind bold would such testimony when permit as to introduction thoughtful very today rejected has Court Judge McAuliffe in this case thoroughgoing analysis thorough analysis by Chief thoughtful as the equally well Special Appeals? Judge for the Court Gilbert Judge Judge Murphy say I am authorized to Chief expressed. here Orth concur in the views

Case Details

Case Name: Reed v. State

Court Name: Court of Appeals of Maryland

Date Published: Sep 6, 1978

Citation: 391 A.2d 364

Docket Number: [No. 62, September Term, 1977.]

Court Abbreviation: Md.