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Reed v. Maryland9/6/1978
as or different from the other voice which they heard. But generally speaking, a witness is not allowed to express an opinion or a conclusion. An expert witness is an exception to this rule.
"A witness who by education and experience has become expert in any art, science or profession, may be permitted to state his opinion as to a matter in which he is versed and which is material to the case. He may also state the reasons for that opinion. This testimony should be considered and weighed by you like any other evidence in the case and given the weight to which you deem the opinion to be entitled.
"You may reject the opinion if the facts upon which it is based have not been established to your satisfaction by the evidence, or if you are not satisfied with the reasons given in support of the opinion. Where expert witnesses disagree, it is for you to decide which one, if either, is to be believed.
"In this particular case, ladies and gentlemen, you have heard testimony pertaining to voice identification with the aid of spectrographic analysis. The same rules apply to that type of testimony as I just gave you. It is your function to weigh the testimony of the various witnesses when they are testifying in that area and to assign such weight as you deem proper. You may give such testimony no weight at all, some weight, or much weight, as you find it to be entitled."
It should be noted that A. Moenssens et al., supra, § 1.03 states:
"The 'particular field' which the court in the Frye case had in mind was the combined one of physiology and psychology. Such general recognition is no longer required, nor should it be. Sufficient to satisfy judicial caution should be recognition of reliability accorded by a speciality within a general field of science." Id. at 4 (emphasis in original).
This is the basis upon which Judge McAuliffe relied. He said:
"This Court concludes that if we use the pure Frye standards that the testimony before me is persuasive, that this evidence should be admitted; that there is a general acceptance, though not a universal acceptance, within the group actually engaged in the use of this technique and in experimentation with this technique. Stated a little bit differently we find that speaker identification by visual comparisons of spectrograms when accompanied by aural examinations and comparison and when accomplished by a properly trained
examiner has now received general acceptance by recognized experts familiar with such procedures and has reached standards of scientific acceptance and reliability necessary for admissibility into evidence and, therefore, ultimate consideration by the trier of fact."
It will be recalled that the California court in People v. Williams, supra, 164 Cal. App.2d Supp. 858, 862 said of the Nalline test, "All of the medical testimony points to the reliability of the test. It has been generally accepted by those who would be expected to be familiar with its use. In this age of specialization more should not be required." It will further be recalled that in Commonwealth v. Lykus, supra, 367 Mass. 191, 203, this language was repeated.
b. The majority opinion
On April 10, 1978, we ordered that this case be reargued so that the full Court might consider it. We directed that new briefs be filed and that the parties should address themselves to certain specific questions, including whether the Frye test should be adopted; if it were adopted, by whom the determination of general scientific acceptance should be made; and, if by the trial judge, the standard of review.
I find disappointing the fact that the majority
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