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Reed v. Maryland9/6/1978
opinion does not address itself more directly to these issues. The appellant was of the view that it was a question of fact as to whether a given technique has general scientific acceptance, which makes a lot of sense to me. If it were a question of fact, then obviously the determination would be by the trial judge and the standard for review would be the clearly erroneous basis specified in Maryland Rules 886 and 1086.
From the majority opinion, I find myself somewhat puzzled as to what groups are to be considered in determining whether a process has general scientific acceptance and what knowledge, qualifications, and experience are required in order for one to offer an opinion on the subject. In the case at hand I would suppose that anyone with graduate training in the field of physics would be a member "of the relevant scientific community . . . whose scientific background and training [would be] sufficient to allow to comprehend and understand the process and form a judgment about it," to use the majority's words. Are we to undertake some kind of poll to determine whether there is general acceptance -- or that the technique would be generally accepted by all of those so trained if they were informed as to what tests have been performed?
What practical basis is a trial judge to use in determining whether a technique has general scientific acceptance? Will we now upon the basis of the language in the majority opinion be considering the view in a case such as this of one who has never done any experiments or testing in the field (such as Dr. Baker who did not even know that an examiner listened to each exemplar), and then adding up those opinions to
determine that there is general scientific acceptance or a lack of general scientific acceptance?
We regularly permit eyewitness identification in court. Certainly voice is no more unreliable than eyewitness identification. See the documented instances of erroneous identification set forth by B. Wentworth et al., Personal Identification 26-27 (2d ed. 1932). For example, in one instance a man mistakenly thought a person he saw on a train was his good friend who had been the best man at his wedding. In another instance a person mistook a man he saw on a train for his college roommate.
Upon close analysis it seems apparent that the majority can come up with only two "compelling reasons" for adopting the Frye test for this type of evidence. One is the jury's incompetence to evaluate expert testimony. The second "compelling" justification is to insure a minimal reserve of experts. The majority opinion states:
" In addition to the advantage of substituting scientific for lay judgment as to scientific reliability, the court in United States v. Addison, supra, 498 F. 2d at 744, pointed out that the Frye test '. . . protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. . . . he ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential.'"
I assume that they mean there should be qualified persons who can take issue with an expert's conclusion that a given
exemplar is or is not the voice of the accused. (It must be remembered that this technique works both ways. It may clear an individual as well as convict him.) Such a minimal reserve obviously is available, as witness the list in the "'Voiceprint' Defense Package" of the Practising Law Institute for its Spring-1974 workshop on advanced criminal defense techniques. They surely cannot mean a "minimal reserve o
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