The proffer stated that the expert would testify concerning: (1) the "forgetting curve," i.e., the fact that memory does not diminish at a uniform rate; (2) the fact that, contrary to common understanding, stress causes inaccuracy of perception and distorts one's subsequent recall; (3) the "assimilation factor," which indicates that witnesses frequently incorporate into their identifications inaccurate information gathered after the event and confused with the event; (4) the "feedback factor," which indicates that where identification witnesses discuss the case with each other they can unconsciously reinforce their individual identifications; and (5) the fact that studies demonstrate the absence of a relationship between the confidence a witness has in his or her identification and the actual accuracy of that identification. ... Cf. People v. Marx, 54 Cal.App.3d 100, 111, 126 Cal.Rptr. 350, 356 (1975) (in support of its holding admitting bite mark comparison evidence, the court noted that "the basic data on which the experts based their conclusions were verifiable by the court"), cited in 3 J. Weinstein & M. Berger, supra, ¶ 702 at 702-20 n. 18.
District Court Decision: Admitted
Appellate Court Decision: Affirmed
We note that although the findings of the magistrate judge and the district court were based only on the pre-Daubert Frye hearing and the general acceptance test, these findings are relevant to our examination under a Daubert analysis, first because, as the district court noted, neither the defendants nor the Government challenge the magistrate judge's findings regarding the substance of the expert testimony presented at the Frye hearing or his characterization of the testimony, and second, because general acceptance is still one factor the Supreme Court has said can impact on a court's scientific validity determination and the defendants' arguments on appeal focus on these findings and their general acceptance determination. ... The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), has now rejected Frye's general acceptance test as the exclusive test and has redefined the standard for the admission of expert scientific testimony.Repetitive DNA sequences Classical genetics Molecular biology Statistical genetics Gangs
My dissent is based upon a number of reasons, not necessarily in the sequence in which I list them: (1) The rule enunciated in Frye v. United States (the Frye test), 293 F. 1013 (D.C. Cir.1923), is much criticized, has never been adopted in Maryland, and I am opposed to its adoption. (2) The decision here is out of step with that of a number of respected courts as to the basis for admission of evidence concerning expert opinions related to fingerprints ballistics, X-ray, and the like. (3) The decision here is out of step with our prior Maryland holdings concerning expert testimony. ... It is because 457*457 he stated a reason for his conclusion that the voices are identical, not relying solely upon his aural comparison, that the case goes back for a new trial, although Chief Judge Prescott said in Miller v. Abrahams, 239 Md. 263, 273, 211 A.2d 309 (1965), a zoning case, "the prevailing general rule, almost universally followed, is that an expert's opinion is of no greater probative value than the soundness of his reasons given therefor will warrant.
We note that although the findings of the magistrate judge and the district court were based only on the pre-Daubert Frye hearing and the general acceptance test, these findings are relevant to our examination under a Daubert analysis, first because, as the district court noted, neither the defendants nor the Government challenge the magistrate judge's findings regarding the substance of the expert testimony presented at the Frye hearing or his characterization of the testimony, and second, because general acceptance is still one factor the Supreme Court has said can impact on a court's scientific validity determination and the defendants' arguments on appeal focus on these findings and their general acceptance determination. ... The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), has now rejected Frye's general acceptance test as the exclusive test and has redefined the standard for the admission of expert scientific testimony.
Recognizing that judges and juries are not always in a position to assess the validity of the claims made by an expert witness before making findings of fact, Frye guarantees that reliability will be assessed by those in the best position to do so: members of the relevant scientific field who can dispassionately study and test the new theory. ... Before expert opinion evidence based on a novel scientific principle can be admitted, the rule of Frye v. United States, supra, requires that the theory relied on be in conformity with a generally accepted explanatory theory.
We hold, therefore, that the Frye test is satisfied when the court is able to conclude that disinterested and impartial experts, knowledgeable in the scientific specialty which deals with and uses such procedures or techniques, have come to recognize the methodology as having sufficient scientific basis to produce reasonably uniform and reliable results that will contribute materially to the ascertainment of the truth. ... The court concluded that the Frye principle, adopted in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) (a spectrograph case), was inapplicable because the hypnosis issue did not involve expert testimony based upon a scientific procedure, but only the credibility of a witness' refreshed memory.
But see State v. Pierce, 64 Ohio St.3d 490, 494-97, 500-01, 597 N.E.2d 107, 111-12, 115 (1992) (distinguishing cases based on Frye and noting that Ohio does not follow Frye; court holds that objections to DNA evidence, which included prosecution experts' calculations of odds of forty billion to one against a coincidental match, go to the weight of such evidence but not to its admissibility). ... Before trial, the prosecution filed a motion requesting the court for leave to introduce expert testimony that the deoxyribonucleic acid (DNA) extracted from semen specimens taken from the crime scene matched the DNA taken from Porter's blood.
The controlling criteria regarding the admissibility of expert testimony, so long as the proffered expert is qualified and probative value is not substantially outweighed by the factors mentioned in Rule 403, are whether in the sound judgment of the presiding Justice the testimony to be given is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue. ... At the conclusion of the extensive preliminary testimony the presiding Justice ruled, over defendant's objection, that adequate foundation had been shown to satisfy him that (1) voiceprint identification has such scientific acceptance and reliability as warrants its admissibility in evidence, (2) the experts whose opinions were here being sought as evidence were qualified to assist the jury in its determinations.
We shall hold that because the evidence did not satisfy the test we adopted in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), which guides the admissibility of expert testimony in Maryland, the trial court abused its discretion in admitting the evidence. ... Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved."
Expert testimony is admissible if the witness possesses a special skill or knowledge directly applicable to a matter in issue, the skill or knowledge is not commonly shared by the average person, and the testimony would be helpful to the court or jury in considering the issues; State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); ... Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."