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.
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.
(3) Even if litigants were afforded an adequate supply of highly qualified experts, extensive procedural safeguards should be established either by court rule or legislation before the introduction of polygraph tests at trial. ... Following a contradictory hearing, the trial judge concluded that, if the 976*976 polygraph examination were conducted under safeguards prescribed by the court, the testimony of the polygraph expert explaining the test results would be admissible at trial.
At the hearing two witnesses testified: Dr. William Setzer, the director of the University of Colorado Health Sciences Center DNA Diagnostic Laboratory who was qualified as an expert in the area of molecular biology, genetics, and "DNA testing"; and Dr. Lisa Forman, an employee of Cellmark Diagnostics, who was qualified as an expert in population genetics. ... The evidence connecting the defendant to these crimes included the victim's identification of defendant, fingerprint evidence, and expert testimony that a DNA profile from seminal fluid obtained by a medical examination of the victim after the assault matched a DNA profile from a blood sample taken from defendant.
But, if the Legislature did not intend the results that have been reached via Daubert and this decision, the Legislature should act to sufficiently restrict the application of Section 2702 expert testimony to require a foundation be laid prior to the admissibility of the opinion evidence. ... The Daubert reliability approach provides a uniform method of addressing the admissibility of expert testimony on all types of scientific evidence.
(4) "Acceptance in the scientific community" is a nebulous concept; as it has been said, "court records are full of the conflicting opinions of doctors, engineers and accountants, to name just a few of the legions of expert witnesses," United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971) (neutron activation analysis evidence admitted), and "[i]n testing for admissibility of a particular type of scientific evidence, whatever the scientific `voting' pattern may be, the courts cannot in any event surrender to scientists responsibility for determining the reliability of that evidence." ... In the present case, the evidence offered to show the reliability of the bloodstain analysis included: (1) Professor MacDonell's considerable experience and his status as the leading expert in the field; (2) the existence of national training programs; (3) the existence of national and state organizations for experts in the field; (4) the offering of courses on the subject in several major schools; (5) use by police departments throughout the country in their day-to-day operations; (6) the holding of annual seminars; and (7) the existence of specialized publications.
Cf. Annotation, Admissibility Of Opinion Of Medical Expert As Affected By His Having Heard The Person In Question Give The History Of His Case, 51 A.L.R.2d 1051 (1957) (permissibility of physician's reliance on patient statement as to symptoms); State v. Ward, 10 Utah 2d 34, 347 P.2d 865 (1959) (same). ... He appeals his conviction, arguing, inter alia, that the trial judge erred in admitting certain testimony by expert witnesses called on behalf of the prosecution in which one or more of them affirmed the truthfulness of his daughter's version of events, testified to the psychological profile of the typical victim of child sexual 390*390 abuse, compared his daughter's characteristics with those of the profile, opined that his daughter was a victim of abuse on the basis of both the profile comparison and impressions gathered during interviews with the daughter, and in some instances, also opined that she was the victim of incest and that her father was the perpetrator.
At any event, whether Frye is the rule to be applied to a new or controversial scientific technique is not one we are called upon to decide since we conclude that the method by which testimony is hypnotically induced is not one that falls within the ambit of Frye. "[T]echnically the test is not directly applicable because it is concerned with the admissibility of expert opinion deduced from the results of a scientific technique, such as a lie detector test, and not with the admissibility of eyewitness testimony." ... On the following day, just before trial, appellant's counsel sought a continuance, claiming prejudice based on the short notice of the hypnosis session, alleging that he was unable to depose the hypnotist until the day before trial and that he wished to obtain another expert for the purpose of presenting evidence concerning hypnosis in appellant's favor.
In this view, traditional legal devices such as cross examination, expert testimony on the inherent risks of hypnosis, and cautionary instructions enable the jury to evaluate the credibility of previously hypnotized witnesses. ... FBI fingerprint experts found Valdez's right palm print on the first extortion note and his left palm print on the second one.
There are generally three ways in which a proponent of expert testimony or scientific results can prove the required reliability in terms of its general acceptance within the professional community: (1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions which acknowledge such general acceptance of expert testimony. ... The majority, despite the expert's testimony and the Court's reference to "at least five books and almost seventy scientific articles and papers 380*380 about battered-woman's syndrome," refrained from ruling that New Jersey's standard of acceptability for scientific evidence had been satisfied.