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Reed v. Maryland9/6/1978
f experts" prepared to joust on the issue of the validity of the technique itself. They have demonstrated that there are opponents to its validity, but carrying forward that philosophy would impede the introduction today of fingerprint or ballistics evidence because it is probable that a "minimal reserve of experts" is not available to testify in opposition to the use of such evidence as differentiated from testimony on the issue of whether the expert has drawn a correct conclusion from that which he has observed.
6. The appropriate standard
In the wake of the New Mexico Supreme Court's approval of the admission of polygraph evidence in State v. Dorsey, 88 N.M. 184, 539 P. 2d 204 (1975), Professor Romero reviewed the standards for admitting scientific evidence under that state's new rules, noting, "The New Mexico and the Federal Rules of Evidence are essentially identical as they relate to scientific evidence." Romero, The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence, 6 N.M. L. Rev. 187, 188 n. 5 (1976). He began by examining Rules 702 and 703, pertaining to expert testimony. Federal Rule 702 provides:
"Testimony by Experts
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
The Advisory Committee's Note includes this comment:
"Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. . . . When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore § 1918."
Regarding this rule, it is said in 11 Moore's Federal Practice § 702.02 (2d ed. 1976):
"Since the finder of fact may give undue weight to expert testimony, 'because of its aura of special reliability and trustworthiness,' the rule continues the existing federal practice of limiting expert testimony by two standards.
"Under this test the testimony of expert witnesses is acceptable where the witness is properly qualified by his knowledge and where his testimony will 'assist the trier of fact to understand the evidence or to determine a fact in issue.'" (Footnotes omitted.)
Referring to "the possibility that triers of fact may attach special significance to the testimony of an expert," it is said, "this seems unlikely where there are opposing experts." Id. at § 702.10 n. 4.
It will be noted that there is nothing in the rule which requires if the expert testimony is of a scientific character, that its underlying theories must be generally accepted by the scientific community. But Romero points out, "By requiring that scientific evidence 'assist the trier of fact,' Rule 702 implicitly requires that the scientific or specialized knowledge that is the subject of expert opinion be reliable." Romero, supra, 6 N.M. L. Rev. at 197 (emphasis added). This, he says, "is a question of relevancy to which Rule 401 is addressed." Id. at 198.
Federal Rule 401 provides:
"Definition of 'Relevant Evidence'
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Romero says, "Whether scientific evidence has any probative value, or, in the terms of Rule 401, any tendency to prove credibility [in the c
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