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Reed v. Maryland9/6/1978
trial. Montgomery County to pay costs.
Smith, J., dissenting :
I respectfully dissent. I believe the Court of Special Appeals was correct in holding that the expert might testify that in his opinion the voice of the person making the telephone calls in question was that of Reed. 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. (4) The majority of reported opinions which have considered the matter have permitted the admission of expert testimony relative to spectrographic analysis and voice identification. (5) Even if the Frye test were made applicable, the evidence here satisfied that test. I shall consider these points seriatim.
1. The Frye test
a. Views of authorities on the subject
Prior to the decision in Reed v. State, 35 Md. App. 472, 372 A.2d 243 (1977), Frye had never been cited in Maryland.
Moreover, I fail to find where its concepts have previously been enunciated in Maryland. Obviously, it is in no way binding upon us.
It should be noted at the outset that Frye was concerned with a type of situation materially different from that with which we are here faced. The defendant there was convicted of murder in the second degree. His sole assignment of error on appeal was the refusal of the trial court to permit "an expert witness to testify to the result of a deception test made upon defendant." That test was a precursor of the present day polygraph, and was based solely on systolic blood pressure. The court said:
" he theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds." Id. at 1014.
Prior to the trial the defendant had been "subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained." Apparently, it was intended to have the expert state that the defendant was telling the truth. It was in this context that the court said it thought "the systolic blood pressure deception test ha not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made."
The evidence proposed in Frye was an obvious invasion of the province of the jury since the trier of fact is vested with
the responsibility of determining the credibility of witnesses. It should be instantly perceived that the controversy here concerns a type of evidence vastly different from that rejected in Frye.
The Frye sta
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