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Reed v. Maryland9/6/1978
ase of polygraph evidence], is the critical question." 6 N.M. L. Rev. at 201. Pointing out that this determination will turn on the reliability of the evidence, Romero continues:
"Reliability, however, is not a constant. It varies in degree ranging from minimal reliability to perfect reliability. . . . It is important, therefore, to determine to what degree the reliability of scientific evidence, in the sense that the underlying principles are valid, must be established before it is relevant and admissible." Id. at 203 (footnote omitted).
He concludes that the appropriate standard would be to require "foundation evidence tending to show that the scientific evidence is in some degree reliable." Id. at 204 (emphasis added) (footnote omitted). "Beyond this threshold, showing the degree of reliability would, of course, be a matter of weight for the jury." Id. at 204 (footnote omitted).
Romero concludes:
"In summary, the theory of admissibility for scientific evidence under the New Mexico and Federal Rules of Evidence is one of relevancy. First, scientific evidence must be relevant in order to be admissible under Rule 402. Second, there must be evidence tending to show that the scientific evidence is reliable in order to be relevant under Rule 401.
"It is submitted that the theory of admissibility embodied in the New Mexico and Federal Rules of
Evidence is correct in its treatment of scientific evidence. Scientific evidence ought to be held to the same standard of relevancy as is nonscientific evidence. Although considerations of undue prejudice, confusion of the issues, or jury competence to deal with scientific issues may affect the decision to admit scientific evidence, these considerations do not and should not affect the theory of admissibility -- one of logical relevancy. These considerations may, however, operate under Rule 403 to exclude relevant evidence, scientific or otherwise, whose probative value is substantially outweighed by these considerations." Id. at 204-05 (footnotes omitted).
It is obvious that the Federal Rules make no "express reference to a standard of general scientific acceptance." Id. at 206. The Maine court in State v. Williams, supra, said that the Maine Rules of Evidence (modeled on the Federal Rules) "do not purport to establish a special standard to govern the admissibility of testimony involving newly ascertained, or applied, scientific principles." Referring to the Federal Rules, Professor Romero points out that "probative value, can be established without demonstrating general scientific acceptance," 6 N.M. L. Rev. at 206. "Thus, a requirement of general scientific acceptance would appear to impose a more stringent condition for establishing relevancy -- a condition that is inconsistent with Rule 401. . . . vidence contesting the reliability of the results would merely affect the weight to be given the evidence." Id. at 206-07 (footnotes omitted).
Although no reference was made to Professor Romero's view, support for it is found in State v. Williams, 388 A.2d 500, where the Supreme Judicial Court of Maine said that the defendant relied on the fact that the Rules of Evidence of that state "do not deal specifically with the admissibility problem as it may arise by virtue of newness in the development, or application, of scientific principles." (Emphasis in original.) It said that the court was asked:
"to fill this gap by establishing an additional precondition of admissibility as applicable specially
to the situation in which proffered expert testimony will rest on a new ascertainment, or new application, of scientific principles -- this further co
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