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Reed v. Maryland9/6/1978
have tried cases. I have come away from jury trials with confidence that juries as a whole arrive at substantial justice. I concur 100% in the statement of Chief Judge Marbury for the Court in Shanks, 185 Md. at 449: "Judges and juries must be presumed to have average intelligence at least, and no
assumption to the contrary can be made for the purpose of excluding otherwise admissible testimony."
As I indicated at the outset, the majority opinion rests upon a rule criticized by eminent scholars, a rule which has never been adopted in Maryland. It not only is out of step with our prior decisions, it fails to apply the standards which respected courts have applied in the matter of opinion evidence concerning fingerprints, ballistics, and X-rays. It is out of step with the majority of reported opinions in the particular field with which we are here concerned, the most recent of which (State v. Williams, 388 A.2d 500 (Me. 1978)) was decided only about two months ago.
We would do well to keep before us the observation of Judge W. Mitchell Digges for the Court in Produce Exchange v. Express Co., 147 Md. 424, 446, 128 A. 403 (1925):
"This Court in many instances has commented upon the inherent weakness of expert testimony, because of the fact that at best it is only an expression of opinion by the witness, and is in a measure usurping the function of the jury; yet in proper cases, when a witness has qualified by demonstrating to the court his peculiar knowledge of the question to be decided by the jury, and of which the average man would not have knowledge, this class of testimony has uniformly been allowed. The jury understands that the expert's testimony is not as to a fact, but simply his opinion as to the probable result flowing from facts which the jury might determine have been proven in the case. The opinion of the expert witness has probative force by reason of his unusual and expert knowledge of the subject, gained from study, experience, and observation. The worth of such testimony is based upon the logical inference that, if the witness' experience and observation have demonstrated that certain circumstances under certain conditions did produce a certain result, like circumstances under like conditions in other cases would produce a similar result. Having decided that this witness properly
qualified as an expert, and that the questions propounded to him were proper hypothetical questions, the weight to be given to his answers was a question for the jury, with which this Court has no concern." Id. at 446-47.
We likewise would do well to keep before us the view expressed by one of the "greats" in the field of evidence prior to Wigmore and McCormick in J. Thayer, Evidence (1898):
" here is ground for saying that, in the main, any rule excluding opinion evidence is limited to cases where, in the judgment of the court, it will not be helpful to the jury. Whether accepted in terms or not, this view largely governs the administration of the rule. It is obvious that such a principle must allow a very great range of permissible difference in judgment; and that conclusions of that character ought not, usually, to be regarded as subject to review by higher courts. Unluckily the matter is often treated by the courts with much too heavy a hand; and the quantity of decisions on the subject is most unreasonably swollen." Id. at 525.
I realize that the majority has purported to leave the way open for admission of testimony such as this at some time in the future. As a practical matter, however, what trial judge in his right mind would be so bold at any time in the future as to permit the introduct
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