Eldridge, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Orth, JJ., dissent and Smith, J., filed a dissenting opinion in which Murphy, C. J., and Orth, J., concur at page 400 infra.

The issue in this criminal case is the admissibility of voice identification testimony based on the analysis of spectrograms, commonly described as “voiceprints.”

In September 1974, a woman was raped, late at night, outside her home in Montgomery County, Maryland. She immediately entered a hospital for treatment and reported the incident to the police. The following afternoon, she received a telephone call from a person who identified himself as her assailant. The victim notified the Montgomery County Police Department, and the police attached a recording device to her

telephone. During the next three days, the victim received and recorded seven telephone calls, all apparently placed by the original caller.

During the course of one of these telephone conversations, the victim’s caller asked to have intercourse with her again. She offered instead to pay him $1,000.00. In a subsequent conversation, she and the caller arranged for her to deliver $1,000.00 to the locker room of the Greyhound Bus Station in the District of Columbia. She was to find the key of locker number 326 on top of an electrical “plug” box, place the money inside the locker, and return the key to its original location on the box. The victim then complied with her caller’s instructions. Afterwards, the defendant James Reed appeared at the bus station, entered the locker room, picked up the key from the box, and proceeded toward locker 326. As he approached the locker, police officers, who had been watching the locker room from a hole drilled in the door between the locker and boiler rooms, emerged from the boiler room and arrested Reed. Reed was subsequently indicted on rape and other charges growing out of the same incident.

In May 1975, Reed was compelled to submit voice exemplars to the State’s Attorney. Reed was required to repeat, into a telephone connected to a recording device, the words spoken to the victim by her assailant in the September 1974 telephone calls. These tapes, together with a composite recording of the calls made by the assailant, were then sent to the Voice Identification Unit of the Michigan State Police Department for speetrographic analysis and comparison. The results of this comparison were considered inconclusive, and in August 1975 Reed was required to submit another set of voice exemplars, again reading the words spoken by the assailant. These voice samples were also sent to Michigan for speetrographic analysis and comparison. This second test resulted in an alleged positive identification of Reed as the speaker on four of the seven calls made by the rapist.1

A pretrial suppression hearing on the admissibility into evidence of voice identification testimony based on spectrographic analysis was conducted in the Circuit Court for Montgomery County. After hearing evidence on the general validity and reliability of the spectrographic method of identification, the trial court ruled that the State could at Reed’s criminal trial introduce expert testimony based on spectrographic analysis for the purpose of voice identification.

Reed was first brought to trial in October 1975. Voiceprint testimony was introduced, purportedly identifying Reed as the speaker who had placed the calls to the victim. After two and one-half days of deliberation, the jury was unable to reach agreement, and a mistrial was declared. In March 1976, Reed was again brought to trial, and voiceprint testimony was again introduced. In this second trial, Reed was found guilty of rape, unnatural and perverted sex acts, robbery, verbal threats, and unlawful use of the telephone. Reed was sentenced to life imprisonment for the crime of rape and to lesser concurrent terms of imprisonment for the remaining crimes. The Court of Special Appeals affirmed the convictions, Reed v. State, 35 Md. App. 472, 372 A. 2d 243 (1977). This Court then granted Reed’s petition for a writ of certiorari to consider the trial court’s admission of voiceprint evidence. We hold that the admission of this evidence was error.2

The voiceprint technique, although of relatively recent origin, has been much discussed and described in cases and legal commentaries.3 The process involves the use of a

machine known as a spectrograph. This machine analyzes the acoustic energy of the human voice into three components — time, frequency, and intensity — and graphically displays these components by generating, through an electric stylus, a series of closely spaced light and dark lines, varying in position, on a sheet of electrically sensitive paper. The resulting graphic representation is what is called a spectrogram or “voiceprint.” It reveals certain patterns or “formats” which correspond to the sounds which are analyzed. According to the testimony of Dr. Oscar Tosi, the State’s principal witness at the suppression hearing and the most widely known proponent of the reliability of the voiceprint technique,4 spectrography

Essentially, therefore, the task of spectrography is one of pattern matching. It is dependent on the individual judgment of the examiner. As stated by Dr. Tosi:

conditions are, and he is an honest person; and he is prone to use no opinion, but probability rather than positive identification in cases of some doubt. Then I consider this good. It is reliable and can be used only ... under these circumstances. Otherwise it would be a disaster.”

The examiner’s task is complicated by what is termed “intra-speaker” variability, that is, the fact that individual speakers apparently do not say the same word in precisely the same way each time they utter it, and that spectrograms reflect this difference. According to Detective Sergeant Lonnie Smrkovski of the Michigan State Police, the examiner in the instant case, if a speaker were to utter the same word on fifty consecutive days, he would expect none of the resulting spectrograms to be identical.5 It is maintained, however, that the differences between the separate utterances of an individual speaker are less than the differences between the utterances of different speakers, so that intra-speaker variations do not render identification impossible.

According to Sgt. Smrkovski, at least ten points of similarity must be noted between two speech samples before a positive identification can be achieved. Apparently, this is independent of the number of the speech samples being compared. In the instant case, Sgt. Smrkovski, after listening to the tapes submitted to him, selected 138 of the 2,162 words spoken for comparison and made spectrograms of these words. In this sample, Sgt. Smrkovski rated one comparison “excellent,” twenty “very good,” thirty-seven “good,” and thirty-five “fair.” These comparisons were the basis of his conclusion that Reed’s voice and the voice of the victim’s caller were the same.

A principal consideration with regard to the admissibility of expert testimony, according to Wigmore, is: “On this

subject can a jury receive from this person appreciable help?” 7 Wigmore, Evidence § 1923 (Chadbourn rev. 1978). Clearly, this is dependent on the particular circumstances of each case. No rule or set of rules could be expressed for all cases which would adequately distinguish helpful expert testimony from that which is superfluous or worse. Accordingly, this Court has held that the determination of similar and related issues are generally matters within the sound discretion of the trial court. Beahm v. Shortall, 279 Md. 321, 340, 368 A. 2d 1005 (1977); Greenstein v. Meister, 279 Md. 275, 283, 368 A. 2d 451 (1977); Radman v. Harold, 279 Md. 167, 168, 367 A. 2d 472 (1977), and cases there cited.

On the other hand, with particular regard to expert testimony based on the application of new scientific techniques, it is recognized that prior to the admission of such testimony, it must be established that the particular scientific method is itself reliable. People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P. 2d 1240 (1976); Jones, Danger — Voiceprints Ahead, 11 Am. Crim. L. Rev. 549, 554 (1973). See also Shanks v. State, 185 Md. 437, 440, 45 A. 2d 85 (1945); 3 Wigmore, Evidence § 795 (Chadbourn rev. 1970).

On occasion, the validity and reliability of a scientific technique may be so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like. See Shanks v. State, supra, 185 Md. at 440. Similarly, a trial court might take judicial notice of the invalidity or unreliability of procedures widely recognized in the scientific community as bogus or experimental. However, if the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved.

People v. Law, 40 Cal.App.3d 69, 75, 114 Cal. Rptr. 708, 711 (1974).

The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge’s individual discretion. Instead, considerations of uniformity and consistency of decision-making require that a legal standard or test be articulated by which the reliability of a process may be established.

The test which has gained general acceptance throughout the United States for establishing the reliability of such scientific methods was first articulated in the leading case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923):

That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.

The identity of the relevant scientific community is, of course, a matter which depends upon the particular technique in question. In general, members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it. In unusual circumstances, a few courts have held that the experts thus qualified might properly be from a somewhat narrower field. See People v. Williams, 164 Cal.App.2d Supp. 858, 331 P. 2d 251 (1958).

This criterion of “general acceptance” in the scientific community has come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence. See, e.g., Rivers v. Black, 259 Ala. 528, 68 So. 2d 2 (1953); Pulakis v. State, 476 P. 2d 474 (Alas. 1970); State v. Valdez, 91 Ariz. 274, 371 P. 2d 894 (1962); People v. Busch, 56 Cal. 2d 868, 16 Cal. Rptr. 898, 366 P. 2d 314 (1961); People v. Williams, supra; Brooke v. People, 139 Colo. 388, 339 P. 2d 993 (1959); Kaminski v. State, 63 So. 2d 339 (Fla. 1953); Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776 (1966); State v. Linn, 93 Idaho 430, 462 P. 2d 729 (1969); State v. Lowry, 163 Kan. 622, 185 P. 2d 147 (1947); State v. Casale, 150 Me. 310, 110 A. 2d 588 (1954); Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (1963); People v. Morse, 325 Mich. 270, 38 N.W.2d 322 (1949); State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); State v. Stout, 478 S.W.2d 368 (Mo. 1972); Boeche v. State, 151 Neb. 368, 37 N.W.2d 593 (1949); State v. Arnwine, 67 N.J. Super. 483, 171 A. 2d 124 (1961); State v. Trimble, 68 N. M. 406, 362 P. 2d 788 (1961); People v. Alston, 79 Misc. 2d 1077, 362 N.Y.S.2d 356 (1974); State v. Steele, 27 N.C. App. 496, 219 S.E.2d 540 (1975); State v. Swanson, 225 N.W.2d 283 (N.D. 1974); State v. Smith, 50 Ohio App.2d 183, 362 N.E.2d 1239 (1976); Henderson v. State, 94 Okla. Crim. 45, 230 P. 2d 495 (1951); State v. Green, 271 Ore. 153, 531 P. 2d 245 (1975); United States v. Bruno, 333 F. Supp. 570 (E.D. Pa. 1971); Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973); State v. Woo, 84 Wash. 2d 472, 527 P. 2d 271 (1974); Puhl v.

Milwaukee Automobile Ins. Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959).6

Although Frye v. United States, supra, was a case involving the results of a lie detector examination, the test itself has been broadly applied, and judged the appropriate standard to apply to newly developed methods of scientific discovery. The Frye test has been invoked by courts in their consideration of, inter alia, paraffin test, Brooke v. People, supra; medical testimony regarding the cause of birth defects, Puhl v. Milwaukee Automobile Ins. Co., supra; breath analysis devices designed to test for intoxication, People v. Morse, supra; truth serum injections, State v. Linn, supra; blood tests, People v. Alston, supra; neutron activation analysis, State v. Stout, supra; gunshot residue tests, State v. Smith, supra; Nalline tests for detection of narcotics use, People v. Williams, supra; ink identification tests, United States v. Bruno, supra; and hypnotism, People v. Busch, supra.

This Court in Shanks v. State, supra, although not citing the Frye case itself, recognized the standard of general scientific acceptance in connection with the admissibility of

blood test evidence. Chief Judge Marbury there pointed out (185 Md. at 440, emphasis supplied):

Almost every state court that has considered voiceprint evidence in a reported opinion has applied the Frye or a similar standard in determining the question of its admissibility. See Hodo v. Superior Court, 30 Cal.App.3d 778, 784, 106 Cal. Rptr. 547, 550 (1973); People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P. 2d 1240 (1976); People v. Law, supra; People v. King, 266 Cal.App.2d 437, 72 Cal. Rptr. 478 (1968); Brown v. United States, 384 A. 2d 647 (D.C. C.A. 1978); Worley v. State, 263 So. 2d 613, 614 (Fla. App. 1972); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671, 678 (1975); People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977); State v. Cary, 99 N.J. Super. 323, 239 A. 2d 680, 685 (1968), aff’d, 56 N. J. 16, 264 A. 2d 209 (1970); D’Arc v. D’Arc, 157 N.J. Super. 553, 385 A. 2d 278 (1978); People v. Rogers, 86 Misc. 2d 868, 385 N.Y.S.2d 228, 237 (1976); State v. Olderman, 44 Ohio App.2d 130, 336 N.E.2d 442, 448 (1975); Commonwealth v. Topa, 471 Pa. 223, 369 A. 2d 1277, 1281 (1977). Contra, State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971) (scientific disagreement goes to weight, not admissibility); see also Alea v. State, 265 So. 2d 96 (Dist. Ct. App. Fla. 1972) (issue not discussed).

The Frye test has been subjected to some criticism, primarily on the grounds that it is too conservative and unduly prevents or delays the admission of relevant scientific evidence. United States v. Sample, 378 F. Supp. 44, 53 (E.D. Pa. 1974); McCormick, Evidence § 203, pp. 490-491 (2d ed. 1972); cf. United States v. Baller, 519 F. 2d 463, 466 (4th Cir. 1975), cert. denied, 423 U. S. 1019, 96 S. Ct. 456, 46 L.Ed.2d

391 (1975). There are, however, compelling reasons which justify the Frye principle.

Fairness to a litigant would seem to require that before the results of a scientific process can be used against him, he is entitled to a scientific judgment on the reliability of that process.7 As stated by Judge McGowan, speaking for the court in United States v. Addison, 498 F. 2d 741, 743-744 (D.C. Cir. 1974):

This is an especially significant consideration with regard to those scientific techniques in which highly subjective judgments are based upon the data received from sophisticated mechanical devices. In these circumstances, the apparent objectivity of the machine may suggest a degree of certainty inconsistent with the subjective aspects of the enterprise.8 United States v. Addison, supra, 498 F. 2d at 744;

People v. Kelly, supra. As the Supreme Court of California stated in Kelly (549 P. 2d at 1245):

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

The dissenting opinion, however, suggests that instead we adopt the rule enunciated by McCormick, that “[a]ny relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion.” McCormick on Evidence § 203 at 491 (2d ed. 1972). McCormick, in opposition to the great weight of judicial

authority, believes that disagreement in the scientific community regarding the reliability of a scientific process should go to the weight rather than the admissibility of scientific evidence.

This view seems to us unacceptable. It fails to recognize that laymen should not on a case by case basis resolve a dispute in the scientific community concerning the validity of a new scientific technique. When the positions of the contending factions are fixed in the scientific community, it is evident that controversies will be resolved only by further scientific analysis, studies and experiments. Juries and judges, however, cannot experiment. If a judge or jurors have no foundation, either in their experience or in the accepted principles of scientists, on which they might base an informed judgment, they will be left to follow their fancy.9 Thus, courts should be properly reluctant to resolve the disputes of science. “It is not for the law to experiment but for science to do so,” State v. Cary, supra, 99 N.J. Super. at 332.

Nonetheless, under the McCormick standard, juries would be compelled to make determinations regarding the validity of experimental or novel scientific techniques. As a result, one jury might decide that a particular scientific process is reliable, while another jury might find that the identical process is not. However, the reliability of the underlying technique or process to perform as it is supposed to does not vary with different cases. Using the polygraph as an example, although particular polygraph tests may give different results under different circumstances, the basic validity of the polygraph technique in general to give the type of results which are claimed for it does not change with the facts of each ease. Nevertheless, if the trier of facts is to determine the validity of the polygraph test on a case by case basis, one judge or jury might determine that it is reliable and convict

or acquit a defendant on the basis of the test results, whereas the very next judge or jury, sitting in the same courthouse and listening to the same operator giving the same type of test results, might determine that the technique is unreliable and ignore the results. Such inconsistency concerning the validity of a given scientific technique or process would be intolerable. See Commonwealth v. Sullivan, 146 Mass. 142, 145 (1888) (Holmes, J.).

Under the Frye test, however, this difficulty is largely avoided. As long as the scientific community remains significantly divided, results of controversial techniques will not be admitted, and all defendants will face the same burdens. If, on the other hand, a novel scientific process does achieve general acceptance in the scientific community, there will likely be as little dispute over its reliability as there is now concerning other areas of forensic science which have been deemed admissible under the Frye standard, such as blood tests, ballistics tests, etc.

In addition, there is a related danger under the McCormick view. The introduction of evidence based on a scientific process, not yet generally accepted in the scientific community, is likely to distract the fact finder from its central concern, namely the rendition of a judgment on the merits of the litigation. Without the Frye test or something similar, the reliability of an experimental scientific technique is likely to become a central issue in each trial in which it is introduced, as long as there remains serious disagreement in the scientific community over its reliability. Again and again, the examination and cross-examination of expert witnesses will be as protracted and time-consuming as it was at the trial in the instant case, and proceedings may well degenerate into trials of the technique itself.10 The Frye test is designéd to

forestall this difficulty as well. As stated in State v. Cary, supra, 99 N.J. Super. at 332:

For the foregoing reasons, we agree with the “general acceptance” rule which the Frye case sets forth.

Our adoption of the Frye standard does not, of course, disturb the traditional discretion of the trial judge with respect to the admissibility of expert testimony. Frye sets forth only a legal standard which governs the trial judge’s determination of a threshold issue. Cf. Badman v. Harold, supra, 279 Md. at 169. Testimony based on a technique which is found to have gained “general acceptance in the scientific community” mayhe admitted into evidence, but only if a trial judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues.

Turning to the admissibility of testimony based on the voiceprint process, prior to 1972 it was generally agreed that the voiceprint process had not been sufficiently tested and accepted to qualify its results for use in the courts.11 The Technical Committee on Speech Communication of the Acoustical Society of America had requested six scientists in the field of acoustics to evaluate the voiceprint process. These

scientists, Richard Bolt, Franklin Cooper, Edward David, Peter Denes, James Pickett and Kenneth Stevens, reported in 1970 that the voiceprint process was still in its experimental stage, and the reliability of the conclusions based on the data obtained from the process was uncertain {Speaker Identification by Speech Spectrograms: A Scientists’ View of Its Reliability for Legal Purposes, 47 J. Acoustical Soc’y Am. 597, 603 (1970)):

In 1971 and 1972, Dr. Tosi and his associates published a series of papers concerning the results of an experiment conducted on the voiceprint process.12 Subsequently, some courts, relying exclusively on the testimony of Dr. Tosi and his Michigan associates, admitted in evidence testimony based on the voiceprint process. See State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971); Worley v. State, 263 So. 2d 613 (Dist. Ct. App. Fla. 1972) (use for corroboration); Alea v. State, 265 So. 2d 96 (Dist. Ct. App. Fla. 1972) (following Worley)) Hodo v. Superior Court, 30 Cal.App.3d 778, 106 Cal. Rptr. 547 (1973). However, as observed by Judge Kaplan, dissenting in Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671, 680 (1975):

sufficient time to study Dr. Tosi’s work and reach conclusions as to its possible advance over the previous work in the field. See People v. Law, 40 Cal.App.3d 69, 81-82, 114 Cal.Rptr. 708 (1974). The decisions thus reflected less a consensus in the relevant scientific community that the Tosi method was acceptable, than an absence of study on which an informed opinion could be based one way or the other.”

In 1973, Bolt, Cooper, David, Denes, Pickett and Stevens again addressed the voiceprint issue, in light of the Tosi experiment.13 The authors expressed their concern about certain aspects of the Tosi experiment. They mentioned the Tosi experiment’s failure to consider the problems of mimicking or disguising of voices, changes in voice levels, and changes due to stress or other emotional states of the speaker. They expressed further concern over the increase in error rates in comparing voice samples taken at different times, as well as the increase of error in other circumstances. The authors concluded, Bolt, et al., Speaker Identification by Speech Spectrograms: Some Further Observations, 54 J. Acoustical Soc’y Am. 531, 583-534 (1973):

forensic situations, the indications are that the probability of error will increase substantially. Further studies are needed, with particular attention to the examiner’s decision criteria, the selection of speaker population, the time lapse between voice samples, background-noise conditions, and the psychological condition of the speaker.

The testimony in the instant case indicates that the fundamental division in the scientific community reflected in these articles has continued without substantial abatement. On direct examination of Dr. Tosi, he acknowledged the division in the scientific community concerning the validity of the voiceprint process:

“Q. How many of the experts within the field of sound spectrography for voice identification are in favor of that process?

Later, asked about the division of experts, excluding those professionally engaged in the field of voice identification, Tosi testified:

Additional expert witnesses who testified for the State, in the instant case, were Sgt. Smrkovski, Dr. Peter Jansen and Dr. John A. McClung. Their testimony was consistent with

that of Dr. Tosi in acknowledging the division in the scientific community.

Dr. Donald Baker, an expert witness called by the defense,15 testified that spectrography was neither a reliable process nor generally accepted within the scientific community. Dr. Baker cited two samplings of opinion of the scientific community, both of which had been unfavorable toward the validity of the process. The first was a meeting in which the members of the Speech Communications Section of the Acoustical Society of America voted 42-0 against the efficacy of the procedure. The second was a mail survey, as reported in a scientific journal, which resultéd in an unfavorable reaction. Dr. Baker also noted that the majority of articles on the subject were negative in their characterization of the process.

The extent of disagreement in the scientific community was emphasized in the instant case by the testimony of Dr. Henry Hollien, another expert witness for the defense,16 who stated:

“Q. It is an abuse because you feel there are some people not qualified to use it?

There has been a sharp division among the cases which have considered the admissibility of voiceprint evidence after the emergence of the controversy over Tosi’s claims.

Three state supreme courts, California, Michigan and Pennsylvania, have held the evidence inadmissible. Commonwealth v. Topa, supra; People v. Kelly supra; People v. Tobey, supra. In addition, the District of Columbia Court of Appeals, in Brown v. United States, 384 A. 2d 647 (D.C. 1978), has also held voiceprint evidence inadmissible. On the other hand, the Supreme Court of Massachusetts has, in a divided opinion, held the evidence admissible, Commonwealth v. Lykus, supra. And see State v. Williams, 388 A. 2d 500 (Me. 1978).

Two lower state courts have recently ruled voiceprint evidence admissible: People v. Rogers, 86 Misc. 2d 868, 385 N.Y. Supp. 2d 228 (1976); and State v. Olderman, 44 Ohio App.2d 130, 336 N.E.2d 442 (1975). However, in D’Arc v. D’Arc, 157 N.J. Super. 553, 385 A. 2d 278 (1978), the New Jersey Superior Court ruled voiceprint evidence inadmissible.

In the United States Courts of Appeal, voiceprint evidence has been held inadmissible in United States v. Addison, supra, and admissible in United States v. Baller, supra, and United States v. Franks, 511 F. 2d 25 (6th Cir. 1975), cert. denied, 422 U. S. 1042, 95 S. Ct. 2654, 45 L.Ed.2d 693 (1975).

All cases holding voiceprint evidence inadmissible have done so on the ground that the process fails to satisfy the standard articulated in United States v. Frye, supra. It is important to note, however, that neither United States v. Baller, supra, nor United States v. Franks, supra, in holding voiceprint evidence admissible, seemed to apply the Frye test. In Franks, the court stated (511 F. 2d at 33):

Similarly, in United States v. Baller, supra, the court, after considering the Frye standard, stated (519 F. 2d at 466):

The Massachusetts Supreme Court held that voiceprint analysis did satisfy the Frye standard. In Commonwealth v. Lykus, supra, 327 N.E.2d at 678 n. 6, that court stated:

expressed in Dr. Tosi’s study, sufficiently persuasive to outweigh the criticism expressed by certain other scientists in the field of acoustics.”

Nevertheless, it is not fully clear whether the Massachusetts court was, consistent with the Frye standard, deciding that the voiceprint method is generally accepted by the scientific community or whether it was attempting itself to determine the merits of the claims of the various scientists. In any event, we find ourselves more in agreement with Judge Kaplan, dissenting in Commonwealth v. Lykus, supra, 327 N.E.2d at 682, who stated:

Furthermore, we disagree with the Massachusetts court’s characterization of the nature of the dispute. A degree of scientific divergence of opinion is indeed inevitable, but the degree of divergence surrounding the voiceprint process is fundamental and goes to the very validity of the process itself. This kind and degree of divergence is notably absent in other areas of scientific evidence generally deemed admissible. As stated in Comment, The Voiceprint Dilemma: Should Voices Be Seen and Not Heard?, 35 Md. L. Rev. 267, 280 n. 79 (1975):

much more difficult to imagine experts disputing whether psychiatric diagnoses or handwriting identifications are possible with any significant degree of reliability. Yet that is precisely the nature of the voiceprint dispute; experts question the capability of the process itself, not just the results of its application.” (Emphasis supplied.)

In addition, it is the almost unanimous opinion in recent legal commentaries that the voiceprint technique does not satisfy the standards articulated in Frye v. United States. See, e.g., Comment, The Voiceprint Dilemma: Should Voices Be Seen and Not Heard? supra; Comment, Voiceprints: The End of the Yellow Brick Road, 8 U.S.F. L. Rev. 702 (1974); Jones, Danger — Voiceprints Ahead, 11 Am. Crim. L. Rev. 549 (1973); Jones, Evidence Vel Non The Non Sense of Voiceprint Identification, 62 Ky. L. J. 301 (1974); Note, Voiceprint Identification, 61 Geo. L. J. 703 (1973); Thomas, Voiceprint — Myth or Miracle (The Eyes Have It), 3 U. San Fern. Y. L. Rev. 15 (1974). Even those authors who advocate the admissibility of voiceprint evidence appear to concede that it does not meet the Frye test and argue instead for alternative revised standards under which it might be admissible. See, e.g., Decker and Handler, Voiceprint Identification Evidence — Out of the Frye Pan and into Admissibility, 26 Am. U. L. Rev. 314, 361-365 (1977); Greene, Voiceprint Identification: The Case in Favor of Admissibility, 13 Am. Crim. L. Rev. 171, 195-197 (1975).

Despite this array, the trial court in the instant case determined that spectrography had achieved the standard of acceptance needed for admissibility. However, the trial court, in holding voiceprint evidence admissible, construed the Frye test to require

are knowledgeable, directly knowledgeable through work, utilization of the techniques, experimentation and so forth, that we are not taking the broad general scientific community of speech and hearing science. In that broad community there probably is not acceptance.”

We have serious doubts that voiceprint analysis meets even this reduced standard. Tosi’s own testimony indicates substantial division of opinion among those who have done work or performed experiments relating to the voiceprint process.

In any event, we find that the trial court’s formulation is inconsistent with the proper standard of acceptance necessary for admissibility. The circumstances of the instant case suggest no basis for “restricting the relevant field of experts” to those who have performed voiceprint experiments, and eliminating from consideration the opinions of those scientists in the fields of speech and hearing, as well as related fields, who, by training and education, are competent to make professional judgments concerning experiments undertaken by others. The purpose of the Frye test is defeated by an approach which allows a court to ignore the informed opinions of a substantial segment of the scientific community which stands in opposition to the process in question.

Thus, based on our examination of the record in the instant case, the judicial opinions which have considered this question, and the available legal and scientific commentaries, we do not believe that “voiceprint” analysis has achieved the general acceptance in the scientific community, at this time, which is required under Frye. We therefore hold that testimony based on “voiceprints” or spectrograms is, for the present, inadmissible in Maryland courts as evidence of voice identification. This holding is, of course, subject to reconsideration by this Court if the use of spectrograms or some other technique of voice identification does in the future

achieve the general acceptance of the scientific and legal communities.

dissenting:

I respectfully dissent. I believe the Court of Special Appeals was correct in holding that the expert might testify that in his opinion the voice of the person making the telephone calls in question was that of Reed. My dissent is based upon a number of reasons, not necessarily in the sequence in which I list them: (1) The rule enunciated in Frye v. United States (the Frye test), 293 F. 1013 (D.C. Cir. 1923), is much criticized, has never been adopted in Maryland, and I am opposed to its adoption. (2) The decision here is out of step with that of a number of respected courts as to the basis for admission of evidence concerning expert opinions related to fingerprints ballistics, X-ray, and the like. (3) The decision here is out of step with our prior Maryland holdings concerning expert testimony. (4) The majority of reported opinions which have considered the matter have permitted the admission of expert testimony relative to spectrographic analysis and voice identification. (5) Even if the Frye test were made applicable, the evidence here satisfied that test. I shall consider these points seriatim.

a. Views of authorities on the subject

Prior to the decision in Reed v. State, 35 Md. App. 472, 372 A. 2d 243 (1977), Frye had never been cited in Maryland.

Moreover, I fail to find where been enunicated in Maryland, binding upon us.1 its concepts have previously Obviously, it is in no way

It should be noted at the outset that Frye was concerned with a type of situation materially different from that with which we are here faced. The defendant there was convicted of murder in the second degree. His sole assignment of error on appeal was the refusal2 of the trial court to permit “an expert witness to testify to the result of a deception test made upon defendant.” That test was a precursor of the present day polygraph, and was based solely on systolic blood pressure. The court said:

Prior to the trial the defendant had been “subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained.” Apparently, it was intended to have the expert state that the defendant was telling the truth. It was in this context that the court said it thought “the systolic blood pressure deception test ha[d] not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”

The evidence proposed in Frye was an obvious invasion of the province of the jury since the trier of fact is vested with

the responsibility of determining the credibility of witnesses. It should be instantly perceived that the controversy here concerns a type of evidence vastly different from that rejected in Frye.

The Frye standard for determining admissibility of scientific evidence has been criticized by a number of respected scholars. Some object to the test generally. Others point to its inapplicability in the type of case at bar. Dean McCormick probably succeeded Professor Wigmore as the foremost authority in the field of evidence. McCormick’s Handbook of the Law of Evidence § 203 at 489 (2d ed. 1972) states, “So far as it can be dated, the notion of a special rule of admissibility for scientific evidence seems to have arisen in 1923,” referring to Frye. After pointing out that “[n]o authority was cited” for the court’s conclusion in Frye, the authors state:

J. Richardson, Modem Scientific Evidence § 2.5 (2d ed. 1974) states:

prejudice, for infallibility has never been a test for the' admissibility of evidence — scientific or otherwise. Universal acceptance can be ruled out for the same reason, and it is urged that general scientific acceptance is a proper condition for the court to take judicial notice of a scientific fact, without laying the usual foundation, but not a sound criterion for the admissibility of scientific evidence. Any relevant conclusions, which are supported by a qualified expert witness, in a field finding substantial scientific acceptance should be admitted in evidence, for its probative value to be weighed by competent fact-finders in the light of all the circumstances. The courts should not confuse novelty with want of acceptance in refusing to admit the results of scientific techniques which offer much in aiding to ascertain the truth.” Id. at 24 (footnote omitted).

The same author in § 9.2 quotes Frye in a footnote and then states:

A statement by Professor Wigmore identical to that quoted by Professor Richardson is found in J. Wigmore, Evidence § 990 at 626 (3d ed. 1940). The reference in Wigmore is to psychological testing.

A. Moenssens, R. Moses & F. Inbau, Scientific Evidence in Criminal Cases § 12.06 at 517 n. 9 (1973), in discussing voice

identification by spectrograms, states, “It is debatable, of course, whether the 'general acceptance’ test of Frye ... which has for decades been used by courts in determining admissibility of novel scientific test results, is a proper prerequisite to admissibility.” The authors then quote from McCormick, Evidence § 170 (1954), to the effect that general scientific acceptance “is a proper condition upon the court’s taking judicial notice of scientific fact, but not a criterion for the admissibility of scientific evidence.”

Professor Strong of the University of Oregon said in Questions Affecting the Admissibility of Scientific Evidence, 1970 U. Ill. L.F. 1 (1970):

Additional criticism of the Frye test is found in Decker & Handler, Voiceprint Identification Evidence — Out of the Frye Pan arid, Into Admissibility, 26 AM. U. L. Rev. 314 (1977). Specifically, it is stated:

The authors further comment relative to Frye:

unanimity in the treatment of all forms of scientific evidence if the Frye rule were modified in conformance with the doctrine of logical relevance. That is, scientific evidence could be submitted to the jury upon a showing of reasonable reliability. Based on its determination of the accuracy and reliability of the evidence, the jury would decide the weight to be accorded it. Boyce, Judicial Recognition of Scientific Evidence in Criminal Cases, 8 Utah L. Rev. 313, 325-26 (1963-64); Note, Evolving Methods of Scientific Proof, 13 N.Y.L.F. 67[9], 681-85 (196[8]).” Id. at 362 n. 304.

Górecki, Comment: Evidentiary Use of the Voice Spectrograph in Criminal Proceedings,11 Mil. L. Rev. 167, 169 (1977), notes, “Criticism has been leveled at the rigidity of the Frye scientific standard both generally and with respect to its application to the voice spectrograph technique,” citing, in addition to Professor Strong’s article which we have heretofore quoted, Note, The Voiceprint Technique: A Problem in Scientific Evidence, 18 Wayne L. Rev. 1365, 1383 (1972), and Note, Evolving Methods of Scientific Proof, 13 N.Y.L.F. 679 (1968). Major Górecki does not list the pages where the criticism is found in the latter publication, but they are 683, 684-85, 747 and 749.

It is suggested by Boyce, Judicial Recognition of Scientific Evidence in Criminal Cases, 8 Utah L. Rev. 313 (1963-64):

Some are of the view that the new Federal Rules of Evidence 702 and 703, governing expert testimony, have adopted the McCormick standard of “assisting the trier of fact” rather than the Frye requirement of “general scientific acceptance.” Romero, The Admissibility of Scientific

Evidence Under the New Mexico and Federal Rules of Evidence, 6 N.M. L. Rev. 187, 197 (1976); Comment, Expert Testimony and Voice Spectrogram Analysis, 1975 Wash. U.L.Q. 775, 782 n. 27 (1975); and Comment, Evidence — Admission of Voiceprints Does Not Exceed the Discretion of the Trial Judge — United States v. Franks, *511 F.2d 25 (1975), 44 Cinn. L. Rev. 616, 621 (1975). Without discussing Frye, J. Weinstein and M. Berger, Weinstein’s Evidence* (1976) , states:

New Federal Rule 901 provides in pertinent part:

Weinstein and Berger, supra, comment:

It is of interest that these authors, after discussion of Lawrence Kersta and his early experiments in the field here under discussion, state with reference to this technique at 901-69, “At this stage of development, given an adequate expert’s testimony, admissibility is warranted.”

b. The majority opinion on this subject

The majority opinion cites 28 cases in support of its proposition that the “criterion of ‘general acceptance’ in the scientific community has come to be the standard in almost all of the courts in the country which have considered the question of the admissibility of scientific evidence.” They state the proposition too broadly. For instance, in People v. Busch, 56 Cal. 2d 868, 16 Cal. Rptr. 898, 366 P. 2d 314 (1961), no mention is made of Frye or its criteria. In that case a defendant sought to have a physician testify relative to his use of hypnosis as an analytical tool in his determination of the mental condition of the defendant at the time of the killings in question. The Supreme Court of California pointed out that “[t]he objections were made and sustained on the stated grounds that hypnosis is not a sufficiently scientific means of exploring the state of mind, that the witness was not qualified in this field, and that the opinions were formulated on the defendant’s statements and constituted hearsay.” The court said that “the witness conceded that this was his initial appearance in the role of an expert in a criminal case on the subject matter of an accused’s state of mind; that he was not a psychiatrist and had engaged in the practice of medicine as a general practitioner until shortly before his

appearance in the case [then] at bar as an expert specializing in hypnosis.” The court further stated:

In State v. Arnwine, 67 N.J. Super. 483, 171 A. 2d 124 (App. Div. 1961), the issue before the court was whether a defendant who had voluntarily submitted to a polygraph test but who did not consent to the admission of its results was prejudiced by testimony of a detective who gave the test,

which testimony indirectly showed the result of the test. The court pointed out, “The record of the trial below is barren of any effort to lay a foundation with respect to the equipment used or to establish the technical qualifications of Detective John Latawiec, the polygraphic examiner, other than the fact that he was a sergeant associated, as such an examiner, with the New Jersey State Police.” Id. at 487. It noted the ironic fact that Frye, the defendant in Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (D. C. Cir. 1923), “was sentenced to life imprisonment. The blood-pressure deception test indicated his innocence, and this was subsequently corroborated when a third person confessed that he was the real murderer. Had the results of the test been admissible evidence, it is altogether probable that an innocent man would not have been convicted of murder,” citing authorities. Id. at 493. Judge Foley in his concurring opinion, 67 N.J. Super. 499, said that “because the issue of the admissibility of such results was not before [the court, he was] unwilling to spell out generally, and for future guidance, the foundation of proof required to make the test results evidential,” adding that it seemed to him “that this should await a case in which the issue [was] squarely raised so that the decision therein m[ight] be construed in light of a live, rather than a hypothetical, factual complex.” He further said:

In State v. Swanson, 225 N.W.2d 283 (N.D. 1974), another of the cases cited in the majority opinion, a defendant sought to introduce evidence of his willingness to take a polygraph test. The trial court refused to accept such evidence. The court said it was urged to overrule its decision in the case of State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1951), and to accept the results of polygraph testing in criminal proceedings. After stating that “[t]here ha[d] been some evidence of a breach in the wall of judicial opposition to utilizing this device,” citing several cases, the court said:

In Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973), another of the cases cited in the majority opinion, Frye is simply one of the cases mentioned as having considered the polygraph. The court noted that in Frye it “really [was] a monograph rather than a polygraph____” No standard was set forth. The court said that it had previously “followed the almost unanimous view of American courts concerning the admissibility of the results of a polygraph test.” Id. at 210. It asserted that it was “convinced at th[at] time that [it] should adhere to the general rule of exclusion.” Id. at 211.

The issue before the court in State v. Woo, 84 Wash. 2d 472, 527 P. 2d 271 (1974), yet another case cited in the majority opinion, was whether the results of a polygraph examination of a criminal defendant were admissible in evidence upon a stipulation of the defendant alone. The court said, “The general rule, followed almost without exception since Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), is that the results

of a polygraph examination are inadmissible at trial.” Nothing was said about applicable standards. The court noted that in a perjury case, United States v. Ridling, 350 F. Supp. 90 (E. D. Mich. 1972), the court, citing C. McCormick, Law of Evidence 505 (2d ed. E. Cleary 1972), “viewed the expert testimony on polygraph results as opinion rather than scientific evidence,” admitting the evidence when it “concluded that ‘the state of the science is such that the opinions of experts “will assist the trier of fact to understand the evidence.” ’ ” The court further said:

It is of interest that 16 of the 28 cases cited by the majority for its proposition are concerned with the admission of polygraph evidence. Two additional cases, State v. Smith, 50 Ohio App.2d 183, 362 N.E.2d 1239 (1976), and Henderson v. State, 94 Okla. Crim. 45, 230 P. 2d 495 (1951), are concerned with polygraph plus another test — gunshot residue in Smith and truth serum in Henderson.

Certain of the cases cited by the majority point to inherent weaknesses in the polygraph technique, weaknesses not involved in the case at bar. For instance, in Henderson the court said that it could “foresee conditions where to ascertain the truth, it would become necessary to require the operator of the machine to submit to a test to determine the truthfulness of his interpretations.” Id. at 53.

In State v. Steele, 27 N.C. App. 496, 500, 219 S.E.2d 540 (1975), another of the cases cited by the majority, the court pointed out, quoting 46 Iowa L. Rev. (1961) relative to polygraphs, that “ ‘[reliability depends greatly on the skill and experience of the expert’ ” and “ ‘[a] much greater degree of interpretation is involved than in blood and ballistics tests.’ ” In the type of test in the case at bar the jury hears the recording of the voice known to be that of the defendant and the recording said by the expert to be the voice of the defendant. It also sees the spectrographic samples.

In Boeche v. State, 151 Neb. 368, 37 N.W.2d 593 (1949), another of the polygraph cases cited by the majority opinion, the court said concerning the refusal of the trial court to reopen the case so the defendant could submit to an examination by polygraph:

favorable physical reactions, while many guilty persons, of hardened or less sensitive spirit, would register no physical indication of falsification. This the trained operators of course understand, and proceed upon the basis of a large percentage of error. But it seems quite too subtle a task of evaluation to impose upon an untrained jury.” Id. at 377.

In State v. Valdez, 91 Ariz. 274, 371 P. 2d 894 (1962), another of the polygraph cases cited by the majority, the court pointed out shortcomings of the polygraph technique:

2. Rules used in admissibility of fingerprints, ballistics, etc.

The general rule concerning the admissibility of evidence is summarized as follows in Kaplan, The Lie Detector: An

Analysis Of Its Place in the Law of Evidence, 10 Wayne L. Rev. 381 (1964):4

Evidence which purports to be of a “scientific” character has been scrutinized carefully to insure that the evidence is sufficiently reliable to have some logical relevance to a material issue in the case. However, as will be seen from a review of cases considering other scientific developments of this century, scientific evidence has generally been admitted if supported by the testimony of a qualified expert. Although the lie detector cases have emphasized a need for “general acceptance in the particular field in which [the scientific principle] belongs,” Frye, 293 F. at 1014, the focus in other cases considering some new development has been on

reasonable reliability, not general acceptance.5 In an early study of scientific evidence, Inbau, Scientific Evidence in Criminal Cases (I), 24 J. Crim. L. & C. 825 (1934), stated:

I shall not attempt to characterize the varying views accorded the testimony as to identification of voices by spectrographic analysis.

a. Fingerprints

Some critics of the spectrographic voice identification process have suggested that any new scientific technique should be shown to be as reliable as fingerprinting before a jury is allowed to consider such evidence. Today we accept as commonplace travel at speeds such that one may cross the continent in less than the time that it took even as late as the end of World War II to travel by automobile from Baltimore to New York City. There are even members of this Court, however, who can remember the time when it was equally commonplace for many farmers to come to town on Saturday night by horse and carriage, hitching their horses to conveniently placed hitching posts. A relatively short time

ago those who traveled by motor vehicle were able to cross the Chesapeake Bay only, by boat. Many persons today have forgotten the travel methods of even a few years back. Fingerprinting has long been recognized as an extremely reliable method of identification. Just as we may be prone to forget changes in the field of transportation, we may forget that even this branch of forensic science had its infancy. “Fingerprinting came into widespread use in this country from about 1910 on, after some isolated experiments on a local level, beginning in 1902.”' A. Moenssens, et al., supra, 308. The process was admitted into evidence almost immediately. See generally Inbau, Scientific Evidence in Criminal Cases (III), 25 J. Crim. L. & C. 500 (1934).

Moenssens and Inbau indicate that the first appellate decision in this country considering fingerprint evidence was People v. Jennings, 252 Ill. 534, 96 N. E. 1077 (1911). Jennings was accused of murder at one home in connection with a series of nighttime intrusions into the bedrooms of women. The porch railing at the home where the murder took place had been painted a short time previously. Investigators discovered the imprint on the railing of four fingers of someone’s left hand. Four witnesses testified that in their opinion the prints on the railing and the prints taken from the fingers of Jennings by the identification bureau were made by the same person. As the court put it, Jennings “earnestly insisted ... that this class of testimony is not admissible under the common law rules, of evidence____” After taking note of the widespread use of fingerprints by police, although noting, “No case in which this question has been raised has been cited in the briefs and we find no statutes or decisions touching the point in this country,” the court applied the general rule “that whatever tends to prove any material fact is relevant and competent,” stating:

admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending to make out a case. If inferences as to the identity of persons based on the voice, the appearance or age are admissible, why does not this record justify the admission of this finger-print testimony under common law rules of evidence? The general rule is, that whatever tends to prove any material fact is relevant and competent.” Id. at 549.

The process was next approved in State v. Cerciello, 86 N.J.L. 309, 90 A. 1112 (1914). The defendant there vigorously objected to introduction into evidence of his fingerprints for the purpose of comparing them with prints found upon the hatchet which was the murder weapon. The court said that this question “presented] a subject for judicial consideration, which while not entirely res nova in principle, is in its practical application in criminal procedure in [New Jersey at that time] essentially novel.” Id. at 313. It then held:

The Court of Appeals of New York approved the admissibility of fingerprint evidence in People v. Roach, 215

N. Y. 592, 109 N. E. 618 (1915). The court said that it was “earnestly insisted that the admission in evidence of the testimony of an alleged expert as to finger-print impressions was error and of such a material character as to have wrought grave injury to the defendant and to necessitate the reversal of this judgment.” Judge Samuel Seabury said for the court:

The New York court made it clear that the possibility of error

in the process affected only the weight of the evidence, not its admissibility:

As Roach illustrates, the early cases concerning fingerprints admitted such evidence under the general rule which Wigmore described as “[t]he second [of the two] axiom[s] on which our law of Evidence rests”: “All facts having rational probative value are admissible unless some specific rule forbids. ” 1J. Wigmore, Evidence § 10 at 293 (3d ed. 1940) (emphasis in original). In this regard he says:

By the time the fingerprint issue reached this Court in Murphy v. State, 184 Md. 70, 85-86, 40 A. 2d 239 (1944), Judge Bailey said, “[T]his Court must take judicial notice of the fact that the use of fingerprints is an infallible means of identification.” :6 As Cerciello and Roach demonstrate, however, scientific evidence need not be so indisputable as to merit judicial notice before it warrants admissibility.7

b. Ballistics

Although the accuracy of firearms identification is common knowledge today, see Moenssens et al., supra, § 4.16 at 149, the Illinois Supreme Court at one point labeled the claims of ballistics experts as “preposterous.” People v. Berkman, 307 Ill. 492, 501, 139 N. E. 91, 94 (1923).8 See generally Inbau,

Scientific Evidence in Criminal Cases (I), 24 J. Crim. L. & C. 825 (1934). Professor Inbau notes: “A Virginia case decided in 1879, Dean v. Commonwealth, [32 Graft. (Va.) 912 (1879),] is the first in which an appellate court approved of testimony regarding the similarity between fatal and test bullets — although weight, rather than any characteristic markings, constituted the basis for comparison.” Id. at 830. “The first semblance of firearms identification evidence as we know it today, was presented in the 1902 Massachusetts case of Commonwealth v. Best [, 180 Mass. 492, 62 N. E. 748 (1902)].” Moenssens et al., supra, § 4.16 at 147. The writer of the opinion in Best was Oliver Wendell Holmes, then Chief Justice of the Supreme Judicial Court of Massachusetts. He there said for the court:

might be supposed to have rusted more in the little more than a fortnight that had intervened, and that it was fired three times on October 10, which would have increased the leading of the barrel. We see no other way in which the jury could have learned so intelligently how that gun barrel would have marked a lead bullet fired through it, a question of much importance to the case. Not only was it the best evidence attainable but the sources of error suggested were trifling. The photographs avowedly were arranged to bring out the likeness in the marking of the different bullets and were objected to on this further ground. But the jury could correct them by inspection of the originals, if there were other aspects more favorable to the defence.” Id. at 495-96.

In State v. Vuckovich, 61 Mont. 480, 203 P. 491 (1921), decided the same year as Clark, the court found no difficulty in approving the admission of expert testimony identifying the defendant’s gun as the murder weapon. Having fired a test bullet from the defendant’s gun, the experts testified that the shell “showed the same peculiar crimp or mark as that appearing on the shell found at the scene of the homicide,” and that “[t]he rifling marks made by the lands

and grooves in the barrel of the pistol were the same.” The court said:

As we have already indicated, the Supreme Court of Illinois initially was not favorably disposed toward reception of ballistics testimony. In Berkman, 307 Ill. 492 (1923), a police officer who purported to be an expert on firearms maintained that he could state positively that a given bullet had been fired by a given gun. That court scoffed at this “remarkable evidence,” stating:

different from all others of its model, and we feel very sure that no such evidence could be produced. The evidence of this officer is clearly absurd, besides not being based upon any known rule that would make it admissible. If the real facts were brought out, it would undoubtedly show that all Colt revolvers of the same model and of the same caliber are rifled precisely in the same manner, and the statement that one can know that a certain bullet was fired out of a 32-caliber revolver, when there are hundreds and perhaps thousands of others rifled in precisely the same manner and of precisely the same character, is preposterous.” Id. at 500-01.9

Prof. Inbau refers to Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), as “the first exhaustive opinion treating firearms identification as a science while sanctioning its use for the purpose of establishing the guilt of an accused individual.” 24 J. Crim. L. & C. at 837. The Kentucky court noted at 415 that the “storm center” of the appeal was the testimony and evidence presented by the ballistics expert, Colonel (then Major) Calvin Goddard.10 Although Goddard’s

testimony was highly technical in nature, the court made no reference to any requirement of scientific acceptance. Rather, the standard used appeared to be that applied to expert testimony generally. The court said at 427: “The defendant says the evidence of Goddard was highly technical, unreasonable, extremely doubtful, and therefore inadmissible, but the same could just as plausibly be said of evidence of finger prints, and that is admitted every day.”

In People v. Fisher, 340 Ill. 216, 172 N. E. 743 (1930), the court, which but seven years before had referred to the science of firearms identification as “preposterous,” ruled such testimony admissible on the same grounds as any other expert testimony, relying on People v. Jennings, supra, the first fingerprint case. The court said:

tracing them to their causes. Such evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge and experience an aid to the court or jury determining the issues. (People v. Jennings, supra; Yarber v. Chicago and Alton Railway Co., 235 Ill. 589; Evans v. People, 12 Mich. 27; Taylor v. Monroe, 43 Conn. 36; Ellingwood v. Bragg, 52 N.H. 488; McFaddon v. Murdock, 1 Ir. Rep. (1867) Cl, 211; 1 Greenleaf on Evidence, — Lewis’ ed. — sec. 280.) The question of the qualification of an expert rests largely in the discretion of the trial court. Bonato v. Peabody Coal Co., 248 Ill. 422; 3 Wigmore on Evidence, sec. 1923.

The same year in which Fisher was decided an Ohio appellate court approved the admissibility of ballistics testimony by a banker who made guns his hobby. Burchett v. State, 35 Ohio App. 463, 172 N. E. 555 (1930). The court recognized that the science was still in the developmental

stages, noting, “The possibility of identifying a bullet that has been fired with the firearm from which it was projected is now receiving intensive study by engineers.” 35 Ohio App. at 468. The court continued, “The new science, if it be a science, for want of a better name, is known as interior ballistics. Elsewhere Prof. Gunther has said: ‘Ballistics now is in the same stage that finger printing was in the days when data on the probability of duplication was being accumulated. And it is fully as promising.’ ” Id. at 468. The court quoted, not the “twilight zone” language of Frye, but rather the more receptive language of the New Jersey fingerprint case, State v. Cerciello, 86 N.J. L. 309, to which we have previously alluded, that “ ‘the law, in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes which are the work of educated and skillful men in their various departments, and apply them to the demonstration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury.’ ” The court said in holding the evidence admissible:

By the time our predecessors first ruled upon ballistics evidence in Edwards v. State, 198 Md. 132, 81 A. 2d 631 (1951), the science was well established. Judge Delaplaine said for the Court there, “For many years ballistics has been a science of great value in ferreting out crimes that otherwise might not be solved____Testimony to identify the weapon from which a shot was fired is admissible where it is shown that the witness offering such testimony is qualified by training

and experience to give expert opinion on firearms and ammunition.” Id. at 142. This Court found no error in admitting the opinion of the firearms expert that the bullets had been fired from the gun of the accused, even though the expert said that “it was ... possible that the bullets could have been fired from a [different gun].” Id. at 144.

c. Blood

Moenssens et al., supra, at 288 n. 85 indicate that the first appellate decision on the admissibility of blood grouping evidence was State v. Damm, 62 S. D. 123, 252 N. W. 7 (1933), aff’d, 64 S. D. 309, 266 N. W. 667 (1936). By that point in time there was no dispute as to the accuracy of these tests.11

Writing in 1937, Muehlberger and Inbau stated, “Blood grouping tests have become accepted by the medical profession not only as possessing a ‘reasonable measure of precision in their indications’ — all that the law requires [citing 2 Wigmore, Evidence (2d ed. 1923) § 990] — but also as producing exact and irrefutable results.” The Scientific and Legal Application of Blood Grouping Tests, 27 J. Crim. L. & C. 578, 586 (1937).

Although the accuracy of these tests was not disputed, there was controversy as to the probative value of such evidence when the tests showed two persons to have the same blood type. Muehlberger and Inbau wrote:

In Shanks v. State, 185 Md. 437, 45 A. 2d 85 (1945), evidence that the blood type of a rape victim was the same as that of stains on the defendant’s coat, viz., Type 0, was admitted by the trial court, in spite of testimony that 45 percent of the population has Type 0 blood. In his brief in this Court the defendant referred to scientific opinion that blood tests should not be admissible to show possible identification:

Our predecessors were not persuaded that testimony should not be admissible unless the results were conclusive. Chief Judge Marbury said for the Court, “The objection of remoteness goes to the weight of the evidence rather than to its admissibility. To exclude evidence merely because it tends to establish a possibility, rather than a probability, would

produce curious results not heretofore thought of.” 185 Md. at 446.12 The Supreme Court of New Jersey reached the same conclusion in State v. Beard, 16 N. J. 50, 106 A. 2d 265, 268-69 (1954).

A student comment on Shanks conceded that the challenged evidence was logically relevant, but argued that such scientific evidence should have been excluded nonetheless:

“Where scientific evidence is offered by admitted experts, there is a tendency by the jury to be overwhelmed by the conclusiveness of the scientific proof and be misled into attaching greater significance to this evidence than the scientist intended. In order that scientific proof may maintain its rightful position as conclusive evidence where it is conclusive on the issue, it would be best for courts not to admit such evidence to show a mere possibility (except when called for in answer to an explanation of accused) until the time when jurors (laymen) are sufficiently educated in the principles of logic and sufficiently trained in emotional control to comprehend the true value of such evidence and infer no greater significance than it logically deserves.” 37 J. Crim. L. & C. 300, 303 (1947) (emphasis in original) (footnote omitted).

This emotional assessment of jurors as being incapable of understanding scientific testimony comports with the standard arguments offered by those who oppose the admissibility of any new scientific process. This Court foresaw such criticism in Shanks. It disposed of the argument by saying, “We see no valid objection in the idea that the jury (or the Court in this case) might attach too much importance to the scientific evidence, and might regard it as positive proof----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.” 185 Md. at 448-49.

Although blood typing processes have been relatively noncontroversial, the case of Groulx v. Groulx, 98 N. H. 481, 103 A. 2d 188 (1954), considered the admissibility of a new test for paternity based on the “S factor” in blood. The court said:

was much greater in the blood groups A-B-O, M-N and Rh but gave two reasons which were said to counterbalance the paucity of family studies.” Id. at 484.

The New Hampshire Supreme Court pointed out:

The court found no error in admitting the testimony:

d. Intoxication

Chemical intoxication tests are now well established as an aid to law enforcement. “For a number of years, chemical intoxication tests have been routinely used to establish that a defendant had been driving a motor vehicle while under the influence of intoxicating liquor. In most states, statutes provide for the admissibility of the results of chemical tests for intoxication.” Moenssens et al., supra, § 6.39 at 291 (footnote omitted). See, e.g., Maryland Code (1974,1977 Cum. Supp.) §§ 10-302 to -309, Courts and Judicial Proceedings Article.

The tests were not always so readily recognized. Writing in 1964, one commentator stated, “[T]here is no unanimity of scientific opinion as to the accuracy of the tests which have been developed, especially in regard to the accuracy of the breath tests.” Kaplan, supra, 10 Wayne L. Rev. at 405-06. In People v. Bobczyk, 343 Ill. App. 504, 99 N.E.2d 567 (1951), the defendant “contended] that. the trial court erred in permitting the introduction of evidence concerning the [Harger] drunkometer test and the result shown thereby, on the ground that the drunkometer ha[d] not received general scientific recognition as an accurate index of the amount of alcohol in the blood.” Id. at 507. The court was urged to follow People v. Morse, 325 Mich. 270, 38 N.W.2d 322 (1949), which held the admission of evidence based on this instrument to be reversible error, citing only lie-detector cases. In that case the Michigan court applied the Frye standard, and said the evidence of the breath test should have been excluded after five doctors called by the defense testified that most of the medical profession did not consider the drunkometer reliable. The Illinois court ruled that disagreement as to reliability goes to the weight, not the admissibility of the evidence:

by the State are eminently qualified in the field in question. In our view the opinion in the case of McKay v. State (Tex. Crim. App.), 235 S.W.(2d) 173 [(1951)], is best reasoned and most analogous to the present case.” 343 Ill. App. 510-11.

The Supreme Court of Arizona considered the issue of the admissibility of evidence based on the Harger drunkometer in State v. Olivas, 77 Ariz. 118, 267 P. 2d 893 (1954). The court noted that there was some disagreement among scientists as to the accuracy of the test. Referring to Bobczyk, the Arizona court said:

But cf. Rivers v. Black, 259 Ala. 528, 68 So. 2d 2 (1953) (approving Frye test in dictum).

In Kallnbach v. People, 125 Colo. 144, 242 P. 2d 222 (1952), it was determined by analysis of the defendant’s blood using the Nicloux method that he was driving while intoxicated. The court concluded that the defendant’s objections to the accuracy of the Nicloux method went to the weight of the evidence rather than to its admissibility:

Neither we, nor the jury, are sufficiently learned in the art of blood analysis to determine whether the Nicloux method or other of the methods to which defendant’s physicians testified, is the better and more accurate method, but the weight to be given such testimony of this witness, as we have said, was a matter exclusively for the jury’s determination, and we perceive no error in its reception.” Id. at 149.

e. Other scientific evidence

Perhaps the most extreme example of a court’s not requiring “general acceptance” of a new technique as a prerequisite to admissibility is Coppolino v. State, 223 So. 2d 68 (Fla. App. 1968), appeal dismissed, 234 So. 2d 120 (Fla. 1969), cert. denied, 399 U. S. 927 (1970). Coppolino was an anesthesiologist who was suspected of murdering his wife. An autopsy and general toxicological investigation disclosed no possible cause of death, although there was a needle injection tract in the left buttock of the deceased. The cause of death was suspected to be an overdose of succinylcholine chloride, a muscle relaxant which may cause a cessation of breathing. It was thought that this drug could not be detected in a person’s body after death. A toxicologist named Umberger developed tests specifically for this case:

There was evidence that this was the first instance in which such procedures had been used:

The court stated that the general rule for admissibility required only “reasonable demonstrability”:

After quoting from Frye, the court said, “However, it is also a rule in Florida that the trial judge enjoys wide discretion in areas concerning the admission of evidence and that his ruling on admissibility of evidence will not be disturbed unless an abuse of discretion is shown.” Id. at 70. The court then stated the appropriate standard for determining whether there had been an abuse of discretion: “The problem presented to the trial judge was, were the scientific tests performed by Umberger so unreliable and scientifically unacceptable that their admission into evidence was error.”

Id. at 70 (emphasis added). It concluded, “On appeal it is incumbent for defendant to show that the trial judge abused his discretion. This the defendant has failed to do.” Id. at 71.

Another scientific technique which was welcomed into the courts without discussion of general acceptance is the process of X-ray photography. Soon after X-rays were discovered by William von Roentgen in 1895, an X-ray photograph was introduced into evidence in the case of Bruce v. Beall, 99 Tenn. 303, 41 S. W. 445 (1897). Surely the art of reading X-rays must have been in its developmental stage at that point in time. However, the reviewing court found no error in admitting the evidence, stating:

The theory behind the admissibility of this evidence was

discussed in 1S. Greenleaf, Law of Evidence § *439h* (16th ed. J. Wigmore 1899):

Moenssens et al., supra, note, referring to stereoscopic views, photographs, photomacrographs, photomicrographs, and X-rays, that “[t]here seems to have been no objection, ever since this early period, to the admittance in evidence of photographs of any kind, provided the accuracy and relevancy of them were duly established.” Id. at 500.

Courts have also admitted testimony based on microanalysis of human hairs as evidence of positive identification:

a given individual. The most that can be stated is that a questioned hair matches a hair sample of known origin in all microscopic characteristics.” Id at 358.

Despite the scientific inconclusiveness of identifications based on an examination of hair, an FBI expert was permitted to testify to a positive identification in Padilla v. People, 156 Colo. 186, 397 P. 2d 741 (1964), where the court stated:

The court said, “We agree with the trial court’s ruling that the testimony and the exhibits were admissible and relevant; the weight to be given to the particular evidence, however, was for the jury.” Id. at 189.

A similar result was reached in State v. Andrews, 86 R. I. 341, 134 A. 2d 425, cert. denied, 355 U. S. 898 (1957), a case involving the rape and murder of an 86 year old retired school teacher. Hair analysis was employed to identify the defendant as the perpertrator.

On appeal, the defendant argued that Dr. Harrison should not have been allowed to give his opinion. The court rejected the argument:

Moenssens et al. state that by examining the hair from an individual “it may usually be established whether he is Caucasian, Negroid, Mongoloid, or of mixed race. This is done primarily by a study of pigment distribution, cross section, and physical characteristics.” Id. at 360. In People v. Kirkwood, 17 Ill. 2d 23, 160 N.E.2d 766 (1959), cert. denied, 363 U. S. 847 (1960), a police officer who had performed laboratory tests using microanalysis testified that hair found on the coat of a Negro defendant to a rape charge was from a white person. Although the expert admitted that the authorities disagreed as to the reliability of such a determination, the court found no error in permitting him to express his opinion on the subject:

his opinion the hairs on both the sheet and the coat were from a white person. We believe that there was no error in permitting the witness to express his opinion on the question. The fact that there is a difference of opinion among the authorities goes to the weight of the evidence, rather than its admissibility.” Id. at 32.

Yet another scientific technique of disputed reliability which has been admitted by the courts is the Nalorphine or Nalline Pupil Test to detect the use of narcotics. Moenssens et al., supra, at 280 report that it was “found that when Nalline was injected in non-users of narcotics, the pupils of the patients constricted markedly. Heavy users of narcotics, on the other hand, showed opposite pupillary responses.” Problems with the process are discussed in Grupp, The Nalline Test III— Objections, Limitations and Assessment, 62 J. Crim. L., C. & P. S. 286 (1971). Professor Grupp pointed to studies which indicated that “[a]s identified by the Nalline Test some subjects would be falsely accused of having drugs in their system----[One study] indicates that as many as nine and seven-tenths per cent of the subjects would be falsely accused of having narcotics in their systems____” Id. at 292.

In spite of the many asserted limitations of the Nalline Test, evidence based on that procedure was admitted to indicate use of narcotics in People v. Williams, 164 Cal.App.2d Supp. 858, 331 P. 2d 251 (1958), one of the 28 cases cited in the majority opinion in support of the Frye test. Although the court there indicated at 860 that “the results of tests of the type [t]here under attack, as well as opinions based thereon, are admissible only if the tests have gained acceptance in the field of learning in which they are in use,” citing Frye among other cases, and, as the court put it, “Each of the People’s experts did admit on cross-examination that the medical profession generally is unfamiliar with the use of Nalline and therefore it cannot be truthfully said that the Nalline test has met with general acceptance by the medical profession as a whole, general acceptance being at present limited to those

few in a specialized field who deal with the narcotic problem,” the court held the evidence admissible, saying:

f. Lie detectors or polygraphs

Up to the present time courts have been nearly unanimous in rejecting testimony based on lie detectors or polygraphs.13 One commentator concluded “that the courts, in considering the admissibility of lie detector evidence, have not merely excluded the evidence but have judged it by a different standard than the standard which is established for determining admissibility and applied to other scientific evidence.” Kaplan, supra, 10 Wayne L. Rev. at 381. This different standard originated with the first appellate decisions to consider the lie detector, Frye. The holding of that case, however, was grounded in the same principles that apply to other expert testimony; the appellate court merely refused to hold that the trial judge abused his discretion. We have heretofore fully discussed Frye together with the irony that another man later confessed to the crime which the tests indicated that Frye did not commit.14

Comment, The Truth About the Lie Detector in Federal Court, 51 Temp. L. Q. 69, 81 (1978), states, “[Djespite the obsolescence and peculiarities of Frye, few cases denying the admission of the lie detector evidence have explained why Frye should be followed.” .

Upon examining the early lie detector cases, Kaplan, supra, 10 Wayne L. Rev., concluded:

Dean McCormick struck a similar note in his article, Deception-Tests and the Law of Evidence, 15 Cal. L. Rev. 484 (1927):

evidence that blood-hounds have followed a trail from the crime to the whereabouts of the accused, of evidence of similarity of footmarks, and of conduct to show insanity, are all striking examples of the fact that conclusiveness in the inference called for by the evidence is not a requirement for admissibility.” Id. at 500 (footnotes omitted).

Noting the general rule that all relevant evidence should be admitted unless some rule of exclusion applies, Kaplan states:

Kaplan poses an interesting question:

The answer he comes up with is that, unlike other scientific evidence which is circumstantial, polygraph evidence goes only to credibility, and there is no need for such evidence, since the jury is capable of deciding issues of credibility without the aid of a machine. See id. at 413-14.

A similar rationale for distinguishing lie detectors from other scientific evidence was set forth by Chief Judge Gibson for the Eighth Circuit in United States v. Alexander, 526 F. 2d 161 (8th Cir. 1975). It has been suggested that Alexander should become the leading case on the polygraph, displacing Frye.

In Alexander, Judge Gibson pointed out for the court that “the polygraph does not detect lies, but merely records physiological phenomena which are assumed to be related to conscious deception.” 526 F. 2d at 163. To similar effect, he quoted a 1965 report of the Committee on Government Operations of the House of Representatives, which concluded:

operator.” [Citing H. R. Rep. No. 198, 89th Cong., 1st Sess. 13 (1965).] Id. at 165.

The court added, “Furthermore, it is often difficult to supply supportive and objective evidence to verify a polygraphist’s conclusion as to a subject’s veracity since there is no assured way in most cases to determine whether the subject was actually being truthful or deceitful.” Id. at 165-66. The court said: “it is apparent that a polygraph examination embraces a number of complexities not present in the areas of fingerprint, handwriting, voiceprint, ballistics and neutron activation analysis. These deal primarily with physical phenomena rather than psychological responses.” Id. at 167 (emphasis added). The court believed that this particular form of evidence has a great tendency to invade the province of the jury:

It is of interest that in State v. Williams, 388 A. 2d 500 (Me. 1978), in distinguishing State v. Casale, 150 Me. 310, 110 A. 2d 588 (1954), a lie detector case which applied a Frye-type standard, the court said:

uniquely the prerogative of the jury as fact-finder: to decide the credibility of witnesses. The admissibility of lie detector evidence therefore poses the serious danger that a mechanical device, rather than the judgment of the jury, will decide credibility.” Id. at 502 (footnote omitted).

The court in Alexandervreat on to distinguish other scientific evidence, including spectrographic analysis:

It may be that, for the reasons given in Alexander, it is proper to treat evidence based on the polygraph differently from other scientific evidence. The distinction as to physical vs. psychological phenomena is clearly applicable to spectrographic voice analysis. The polygraph does not record “lies,” but only records physiological responses such as blood pressure and respiration. The spectrograph,on the other hand, produces a graphic representation of the voice, and there is no dispute that this chart is an accurate “recording” of the voice as broken down into three components. Additionally, in the case of the spectrograph, the juror is able to use his own senses to evaluate the conclusion of the expert.

g. Summary

The distinctions noted in Alexander and Williams would seem to account for the position of Professor Irving Younger, who has stated, “Yes, bring on the radar, the spectrogram voice identification, and the neutron activation analysis to show us what happened. Yet when it is time to decide what is right, what is decent, what is just, I want no machine buzzing ‘the truth’ at me____Keep the lie detectors out of the courthouse: I’ll go with a judge and a jury any day.” Younger, On Technology and the Law of Evidence, 49 U. Colo. L. Rev. 1, 7-8 (1977) (footnotes omitted).

Not being subject to the special considerations which apply to the lie detector, other types of scientific evidence would appear to be properly admissible when relevant under the general rule, without regard to “general acceptance.”15

The standard used by courts generally for the admission of evidence in such matters as fingerprints, ballistics,

intoxication tests, and X-rays is substantially different from that enunciated in Frye. It may be noted that in People v. Jennings, 252 Ill. 534, the first fingerprint case, the Illinois court employed a two-step analysis: (1) whether the prints were admissible, and (2) whether expert testimony thereon was appropriate. A similar analysis applied to the spectrogram might simplify the entire controversy. It is beyond dispute that the spectrogram is an accurate graphic representation of various components of a voice.16 It would follow, therefore, that the voiceprint itself clearly would be admissible in cases in which a comparison of voices is material. Further, this is an appropriate subject for expert commentary, the typical lay juror being unskilled in examining such “pictures” of voices. It would appear then that the spectrographic examiner should be allowed to express his opinion that there are enough similarities between the spectrograms for him to conclude that the voices were the same.

3. Holdings of this Court relative to scientific evidence and admission of expert testimony

The position of this Court relative to the admission of scientific evidence and the admission of expert testimony generally has been much closer to the view of Dean McCormick and the opinions of the courts in United States v. Baller, 519 F. 2d 463 (4th Cir.), cert. denied, 423 U. S. 1019 (1975); United States v. Franks, 511 F. 2d 25 (6th Cir.), cert. denied, 422 U. S. 1042 (1975); and State v. Williams, 388 A. 2d 500 (Me. 1978), than to that in Frye. I shall discuss Baller, Franks, and Williams in part 4 of this opinion.

In Nizer v. Phelps, 252 Md. 185, 192-93, 249 A. 2d 112 (1969), we observed that it is well established that it is in the sound discretion of the trial judge to determine whether or not a witness is competent to testify as an expert and “whether or

not the expert testimony will be of appreciable help to the jury____” Similar statements by this Court abound. In Shivers v. Carnaggio, 223 Md. 585, 589, 165 A. 2d 898 (1960), the Court, in an opinion by Judge Hammond, strongly supports the theory of Wigmore and McCormick as to when expert testimony will be admissible, “namely that the opinion should be rejected only when it is superfluous in the sense that it will be of no value to the jury.” The Court there quoted from Williams v. Dawidowicz, 209 Md. 77, 87, 120 A. 2d 399 (1956), where our predecessors said: “If the expert opinion is reasonably calculated to assist the jury, and not to confuse it, such testimony is admissible, in the sound discretion of the trial court____” More recently, in Raithel v. State, 280 Md. 291, 301, 372 A. 2d 1069 (1977), Judge Levine said for the Court, “[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal,” citing cases. Putting it in a slightly different manner, in Newkirk v. State, 134 Md. 310, 318, 106 A. 694 (1919), Judge Burke for our predecessors quoted from Chateaugay Ore & Iron Company v. Blake, 144 U. S. 476, 484, 12 S. Ct. 731, 36 L. Ed. 510 (1892). The Supreme Court there said, “How much knowledge a witness must possess before a party is entitled to his opinion as an expert is a matter which, in the nature of things, must be left largely to the discretion of the trial court, and its ruling thereon will not be disturbed unless clearly erroneous.” Relative to expert testimony, see also Farley v. Yerman, 231 Md. 444, 451, 190 A. 2d 773 (1963).

I have previously referred to Shanks v. State, 185 Md. 437, 45 A. 2d 85 (1945), concerning evidence pertaining to blood.

Since Shanks this Court has held repeatedly that evidence which tends to identify the accused as the criminal is admissible without regard to positiveness, the lack of positiveness going only to the weight of the evidence. For example, in Barber v. State, 191 Md. 555, 62 A. 2d 616 (1948), Judge Henderson said for the Court:

improperly admitted in evidence. But we have held that ‘a lack of positive identification of an instrument of crime affects the weight of the evidence rather than its admissibility.’ Wilson v. State, 181 Md. 1, 5, 26 A. 2d 770, 773. See also Shanks v. State, 185 Md. 437, 447, 45 A. 2d 85, 163 A. L. R. 931, and Smith v. State, 182 Md. 176, 184, 32 A. 2d 863.” Id. at 566-67.

Similarly in Daniels v. State, 213 Md. 90, 131 A. 2d 267 (1957), the Court said:

Daniels was cited in Hursey, Jr. v. State, 233 Md. 243, 244, 196 A. 2d 472 (1964), in upholding an in-court identification by a witness who had been unable to identify the defendant at the police lineup. See also Parker v. State, 189 Md. 244, 247, 55 A. 2d 784 (1947), noting that evidence as to possible cause is permitted.

In Nixon v. State, 204 Md. 475, 105 A. 2d 243 (1954), the defendant claimed that he had been attacked by the victim, who allegedly had beaten him with a “waxer handle” — apparently the handle of a mop-like wax applicator. The Court said:

appellant’s red shirt, and there was waxy material embedded in the fabric of the shirt. In short, the proffer was to prove by scientific analysis that the handle and the shirt had come into contact, and by inference that Lassiter had struck Nixon with the handle.” Id. at 480.

The Court did not discuss the reliability of scientific fiber analysis, the main objection being a lack of an adequate chain of custody. However, in holding the exclusion to be reversible error, the Court said:

Other cases sanctioning scientific evidence of varying degrees of conclusiveness include: Nizer v. Phelps, 252 Md. at 193-94 (point of impact); Acme Poultry Corp. v. Melville, 188 Md. 365, 370-74, 53 A. 2d 1 (1947) (automobile skid marks), accord, State v. Gray, 227 Md. 318, 322, 176 A. 2d 867 (1962); Corens v. State, 185 Md. 561, 569, 45 A. 2d 340 (1946) (chemical analysis of blood); Langenfelder v. Thompson, 179 Md. 502, 507, 20 A. 2d 491 (1941) (opinions of medical experts admissible as to the cause which might have produced a certain physical condition); Councilman v. Towson Bank, 103 Md. 469, 478-79, 64 A. 358 (1906) (cashier permitted to testify as to genuineness of a signature); and Williams v. State, 64 Md. 384, 393, 1 A. 887 (1885) (“It is well settled that an expert may give an opinion not only as to the nature and effect of an injury, but also the manner or instrument by which it was inflicted.”). See also the catalog of items of scientific evidence received by the courts of this State set forth by Chief Judge Gilbert for the Court of Special Appeals in Reed v. State, 35 Md. App. at 480.

In McGuire v. State, 200 Md. 601, 92 A. 2d 582 (1952), Judge Henderson said for the Court:

Ironically, under McGuire the majority would find no error had the testimony of the expert been simply that after listening to the recorded voice of the individual who had called the prosecuting witness and recordings of the voice of Reed it was his opinion that the voices were identical.18 It is because

he stated a reason for his conclusion that the voices are identical, not relying solely upon his aural comparison, that the case goes back for a new trial, although Chief Judge Prescott said in Miller v. Abrahams, 239 Md. 263, 273, 211 A. 2d 309 (1965), a zoning case, “the prevailing general rule, almost universally followed, is that an expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant. Cf. State, etc. v. Critzer, 230 Md. 286.” Accord, Surkovich v. Doub, 258 Md. 263, 272, 265 A. 2d 447 (1970); and Creswell v. Baltimore Aviation, 257 Md. 712, 721, 264 A. 2d 838 (1970).

From this review of Maryland cases it will be seen that this Court has not followed anything similar to a Frye standard. Our holdings are in line with the cases I have reviewed from other states in part 2 of this opinion.

4. Holdings of other courts relative to voice identification and spectrographic analysis

In each instance where an appellate court has rejected spectrographic analysis of voices, it has been upon the basis of Frye. See United States v. McDaniel, 538 F. 2d 408 (D. C. Cir. 1976); United States v. Addison, 162 U. S. App. D. C. 199, 498 F. 2d 741 (1974); People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P. 2d 1240 (1976); People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977); State v. Cary, 49 N. J. 343, 230 A. 2d 384 (1967); and Commonwealth v. Topa, 471 Pa. 223, 369 A. 2d 1277 (1977).19 Actually, McDaniel was decided not on

the basis of Frye, but on the basis of Addison. The trial court’s action in permitting expert spectrographic voice identification testimony was found to be harmless error. I find it of interest that the McDaniel court said:

spectrographic analysis techniques for voice identification purposes.” 538 F. 2d at 412-13.

The Supreme Court of New Jersey returned to the area in State v. Andretta, 61 N. J. 544, 296 A. 2d 644 (1972). Cary, 49 N. J. 343, and Andretta were written by the same judge. The court said in its later opinion:

it is no longer unreasonable to order these defendants to speak for purposes of this test.” Id. at 551, 296 A. 2d at 648.

Eliminating from the equation opinions which were reversed (e.g., United States v. Raymond, 337 F. Supp. 641 (D.D.C. 1972), rev’d sub nom. Addison, 498 F. 2d 741) or overruled (e.g., appellate court opinions in California supplanted by the holdings of thé Supreme Court of California in Kelly, 17 Cal. 3d 24), there are substantially more reported opinions admitting such testimony than there are rejecting it. See United States v. Jenkins, 525 F. 2d 819 (6th Cir. 1975); United States v. Baller, 519 F. 2d 463 (4th Cir.), cert. denied, 423 U. S. 1019 (1975); United States v. Franks, 511 F. 2d 25 (6th Cir.), cert. denied, 422 U. S. 1042 (1975); United States v. Williams, 443 F. Supp. 269 (S.D. N.Y. 1977); United States v. Sample, 378 F. Supp. 44 (E.D. Pa. 1974); Alea v. State, 265 So. 2d 96 (Fla. App. 1972); Worley v. State, 263 So. 2d 613 (Fla.App. 1972); State v. Williams, 388 A. 2d 500 (Me. 1978); Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975); Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975); State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971); People v. Evans, 90 Misc. 2d 195, 393 N.Y.S.2d 674 (Sup. Ct. 1977); People v. Rogers, 86 Misc. 2d 868, 385 N.Y.S.2d 228 (Sup. Ct. 1976); and State v. Olderman, 44 Ohio App.2d 130, 336 N.E.2d 442 (1975), all of which approve admission. See also Annot., 49 A.L.R.3d 915 (1973); likewise see the full discussion of this technique in 19 Am. Jur. Proof of Facts 423-41 (1967), and the supplements thereto. Greene, Voiceprint Identification: The Case in Favor of Admissibility, 13 Am. Crim. L.R. 171, 184-85 (1975), states, “Fourteen of 15 United States District Court judges who have ruled on the issue of admissibility have accepted voiceprint evidence, while all but two of the 37 state tribunals which have reached the issue have held such evidence admissible. The single Canadian court which has been presented with the issue has also found in favor of admissibility of voice prints.”20

Jenkins, 525 F. 2d 819, relied upon Franks, 511 F. 2d 25, which had been decided earlier that year by the same court. In Franks the Sixth Circuit court said:

In Baller, 519 F. 2d 463, the Fourth Circuit summarized the theories behind spectrographic identification and said, “The scientific principles of the technique have been so exhaustively chronicled that we need only summarize them. See, e.g., Commonwealth v. Lykus, [367 Mass. 191], 327 N.E.2d 621 (1975).” It noted, “A majority of state courts which have considered the question since the Tosi study favor admissibility. Significantly, this group includes New Jersey, which previously had excluded such evidence.” In determining that the evidence was admissible the court relied on principles which have been enunciated by this Court many times. After observing that “[tjhere are good reasons why not every ostensibly scientific technique should be recognized as the basis for expert testimony,” the court said:

It noted that “the tapes of Bailer’s voice exemplars and all of the bomb threats were played so that the jury could make its own aural comparisons,” that “the court instructed the

jury that the spectrograms were only a basis for Lt. Nash’s opinion and that they could disregard his testimony if they decided that his opinion was not based on adequate education or experience or that his ‘professed science of voiceprint identification’ was not sufficiently reliable, accurate, and dependable,” and that the trial judge “also cautioned the jury that they need not accept [Lt. Nash’s] opinion if they believed the reasons supporting it were unsound or if contradictory evidence cast doubt on it.” A similar procedure was followed and similar instructions were given in this case.

In United States v. Williams, 443 F. Supp. 269, one of the more recent decisions upon the subject (decided December 20, 1977), the spectrographic analysis sought to be introduced had been conducted by an individual described as “a voice print specialist employed by the U.S. Bureau of Alcohol, Tobacco and Firearms----” The expert proponents of admission were Dr. Tosi and Dr. Henry Truby. Dr. Louis J. Gerstman was the opponent. The court held:

Neither Alea, 265 So. 2d 96, nor Worley, 263 So. 2d 613, relied upon Frye. I find of interest the concurring opinion of Judge Mager in Worley, where he said:

Simon v. State, Fla.App.1968, 209 So.2d 682. It would seem that in each instance the question becomes one more properly relating to the weight or value to be given to such identification or testimony by the trier of fact. Clearly the victim of a threat or an obscene call is permitted to testify as to the identification of such voice by comparison with that of the alleged perpetrator. See Cason v. State, supra; Weinshenker v. State, supra; and Simon v. State, supra. See also annotation in 24 A.L.R.3d 1261.” Id. at 615 (emphasis in original).

The Massachusetts court in Lykus, 367 Mass. 191, rested its decision squarely on the Frye standard, stating:

The court emphasized the language used in People v. Williams, 164 Cal. App.2d Supp. 858, 861-62, 331 P. 2d 251 (1958), saying, “It has been generally accepted by those who would be expected to be familiar with its use," to which the California court added, “In this age of specialization more should not be required." 367 Mass. at 203. The court in Lykus noted a suggestion “that the requirement of general acceptance, as in ... Frye and [Commonwealth v.] Fatalo [, 346 Mass. 266, 191 N.E.2d 479 (1963)]..., should be modified or abandoned.” The Frye standard was adopted in Massachusetts in Fatalo. The court then said:

other reasons for exclusion.’ The suggestions by this author and others (see the concurring opinion of Mager, J., in the Worley case, supra, 263 So.2d 613, 615 [1972]) urge that the opinions of a qualified expert should be received and that the considerations similar to those expressed in the Frye and Fatalo cases should be for the fact finder as to weight and value of the opinions.

In Trimble, 291 Minn. 442, the Minnesota court observed:

They ought also to be admissible for the purpose of impeachment. The weight and credibility of such evidence lie with the finder of facts, but that does not involve the question of admissibility.” Id. at 457-58, 192 N.W.2d at 441.

It then went on to say, “The qualification of an expert is normally left to the discretion of the trial judge and we think that ought to be the rule here as well as in other fields of scientific study,” a statement which should sound familiar to Maryland lawyers. See, e.g., Yudkin v. State, 229 Md. 223, 229, 182 A. 2d 798 (1962).

State v. Williams, 388 A. 2d 500 (Me. 1978), is the most recent spectrographic decision concerning which I have any knowledge. The Maine court said that Williams’ “position on appeal [was] that it was error to admit the speech spectrograph evidence because the scientific community has not generally accepted the speech spectrograph as a scientifically reliable method of voice identification.” Thus, it said “[t]he threshold question” with which it was “confront[ed] [was] to determine what standard, under the law of evidence, governs admissibility in relation to the type of evidence [t]here involved.” (Emphasis in original.) Williams sought application of the Frye test. After discussing the Maine Rules of Evidence, adopted in 1976, which are patterned after the Federal Rules of Evidence, the court alluded to that portion of McCormick, Evidence, § 203 at 491 (2d ed. 1972), from which I have previously quoted and said:

discretion of the presiding Justice the testimony to be given is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue.

scientific principles which have not yet achieved general acceptance in whatever might be thought to be the applicable scientific community, if a showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable to be held relevant. Cf. United States v. Franks, 511 F.2d 25, 33 (6th Cir. 1975).” Id. at 503-04.

The court concluded “that it was not error for the presiding Justice to admit the expert voice identification testimony in th[at] case” by reason “of the evidence of reliability presented by Dr. Tosi,” adding that the trial judge “was justified in finding that the spectrograph principle was sufficiently reliable to qualify as ‘relevant’ within the definition of Rule 401 M.R. Evid., and that the qualified expert testimony based on it could be of assistance to the jury as fact-finder.”

Of particular interest is the concurring opinion of Justice Nichols. He observed that the Maine Rules of Evidence were “modeled after the Federal Rules of Evidence____” He was of the view that the Maine court “should continue to adhere to the Frye standard.” However, on the basis of Baller, supra, 519 F. 2d 463, and Lykus, supra, 367 Mass. 191, he said that “[tjhere is sufficient basis in those cases to uphold the admission of spectrographic evidence in the trial of the ... case [then before the Maine court] without abandoning the important protections which Frye affords.”

The majority opinion in the case at bar states, “[I]t is the almost unanimous opinion in recent legal commentaries that the voiceprint technique does not satisfy the standards articulated in Frye v. United States.” It refers to six law review articles, two of which were by the same individual. Included in its six are three student articles. Thus, I have no hesitancy in pointing to student comments which have approved admission of such evidence. See Note, Evidence — Spectrographic Method of Voice Identification — Tendency of the Courts Toward Admitting Scientific Evidence, 12 Wake Forest L. Rev. 879 (1976); Comment, supra, 44 Cinn. L. Rev. 616 (1975); Comment, supra, 1975 Wash. U.L.Q. 775 (1975); Note, supra, 18 Wayne L. Rev. 1365, 1397; and Note, supra,

13 N.Y.L.F. 679, 745-51 (1968). In Note, Voiceprint Identification: The Trend Towards Admissibility, 9 New England L. Rev. 419, 430 (1975), it is stated, “The trend since 1971 has most decidedly been to admit voiceprint evidence, at least for the purpose of corroboration ....” Admission of such testimony is supported by Boren, The Voiceprint..... Staging a Comeback, 3 U. San Fern. Y.L. Rev. 1 (1974); Gorecki, supra, 77 Mil. L. Rev. 167 (1977); and, of course, by Greene, supra, 13 Am. Crim. L. Rev. 171 (1975); and Decker & Handler, supra, 26 Am.U.L. Rev. 314, 316 (1977).

a. By the trial judge

I shall now proceed to an analysis of that which the trial judge had before him when he ruled upon the admissibility of evidence as to spectrographic analysis of voices. I believe that even if a showing of scientific acceptance were required, it cannot be said that Judge McAuliffe erred in admitting the evidence of voice identification here. Four experts were produced by the State and one by the defense at the preliminary hearing on this subject.21

Dr. Tosi was the first witness produced by the State. The trial judge said relative to his background:

he said here that he had made some 50 to 55 court appearances on this subject. He has conducted controlled experiments which have been widely-acclaimed for the utilization of approved scientific methodology.”

The defense stated, “[W]e agree Dr. Tosi is qualified. We don’t challenge his qualifications.”

Tosi indicated he had been involved in spectrographic analysis for over 25 years, but his experience in connection with voice identification did not begin until 1966.22 He had been skeptical of the process here in issue prior to his studies in 1968. In that year he was engaged by the Michigan State Police to evaluate Kersta’s system of voice identification. Dr. Tosi told the trial judge that at that time his “opinion was that

the method need[ed] more studies, more data in order to reach a final conclusion.”23 Dr. Tosi testified that he “said in [his] report, ‘The method shows promise. However, I need more data to reach a [final] conclusion and make up my mind.’ ”

The trial judge noted:

Judge McAuliffe commented relative to these tests:

at large has an interest in errors of false elimination, but this will be more of a consequence on the investigatory level than it would be at trial.

examined some 80,000 spectrograms. He testified that there is general acceptance of this technique among the scientists actually working in the field or genuinely familiar with the field. He recounted the names of those that he considers so qualified and says that 15 or 16 of these approved, and he named them, and he named some three or five that opposed.[24] He noted that those who opposed have commented on the possible effect as yet not totally known of poor recordings, noise distortion, psychological factors such as the emotions of the speaker, stress of the speaker, physical makeup of the speaker, the time lag between the samples, the effects of intentionally disguising one’s voice, and with regard to all of these factors, some of which he has studied to some extent, but as to most of which he agrees further studies are in order, that the most that these elements could do would be to increase the possible error of false elimination and would not increase the error of false identification. He said if you have a poor recording with a lot of noise, your examiner is going to opt for no opinion because it is just not good enough to allow him to express an opinion. If stress or other emotions cause a change in the voice pitch, it is going to make it more difficult, therefore, to be a finding of a match. So you may have a false elimination. It is the same with time lag, which might cause a change in the voice, and the effect of disguising the voice would be to increase the chance of error of false elimination, but not to increase, in his opinion, the error of false identification.

“Dr. Tosi said that the acceptability for identification in court should not be less than 10 matching words, and Sergeant Smrkovski agrees with him in this regard.”

The next expert presented by the State was Dr. Leendert Peter Christian Jansen from South Africa, a new character in court controversies concerning this technique, who holds a master’s degree in physics and electrical engineering. His thesis was written entirely on speaker identification. Judge McAuliffe observed relative to him:

they may be represented by the absence of lines, spaces or shadings. Dr. Jansen was particularly impressed by the fact that these interformant energy peaks might well provide, and to him do provide, the so-called clinchers for positive identification in many cases. Dr. Jansen said that of the people he met who had recognized expertise in this particular field, only one spoke against the process, and this I believe was Dr. [Fausto Poza].

Jansen’s first study of spectrographic voice identification was in 1964. It was because of differences of opinion which he originally found in the field that in 1974, as he put it, he “visited people who spoke against the method and for the method.” In response to a question as to whether he met with Dr. Bolt and other critics (Dr. Bolt being one of the prime opponents), he replied that he had spent “[approximately one day with each of those people” during his 1974 study-tour of the United States. At the end of this period he was still skeptical of the process. He was asked whether his initial opinion that the process was “unreliable was enhanced by [his] contacts with Dr. Bolt’s group.” He replied:

such spectrograms had good value for comparing speakers. What they had against the method being used in courts of law was the main argument that they thought that it is not objective, the method is not objective enough, and also, it is not possible for the examiner to state a definite percentage of accuracy, or conversely, of error, in his finding. Those were the main arguments against the method.

Of the individuals whom he had met whom he regarded as having expertise in the field, which was “only about six or seven people,” he said only “one of them spoke against the method.” He testified that he was advised by Bolt personally that he did not “consider himself an expert on spectrographic comparisons.” The negative position was that of Fausto Poza. He observed relative to him:

“BY MR. SHAW:

Dr. Jansen explained his conversion:

comparing some of the samples until you do find something like that. If the people are not the same, you are not going to find that. I have never found it in my experience. But if you do find those similarities, then in my experience I only found that when the people were actually the same. It is never that the people were not the same and that you found these kinds of similarities.

an examiner is not going to make full use of a spectrogram unless he has got a great amount of training in this field. If he hasn’t got that — that is what I found with the people I visited last year, as well as the other people that were against the method: They could only compare the main regions of energy. They had themselves no personal knowledge of these aspects which I found could be used to make comparisons.

the same person. My experience to a certain extent has, been it is sometimes easier under good circumstances to be certain voices are the same than the opposite, to be certain they are not the same, because these additional information things I spoke about can be present when the speakers are the same, but when they are not the same, then you never find these things. Although the main regions may be quite similar for just about all the samples you compare, so you are never sure. Do you understand what I mean?

The third expert was Detective Sgt. Smrkovski, the officer in charge of the voice identification unit of the Michigan State Police. He is a member of the Acoustical Society of America and other societies. The trial judge said of his testimony:

percent of the cases have expressed no opinion. In 40 percent of the cases, therefore, they have expressed an opinion of some kind, and on a three to one ratio these opinions eliminated suspects.”

The State’s last expert was Dr. John McClung of Wayne State University. His master’s degree was in the field of audiology and physical science, and his Ph.D. was in the field of speech science. He stated specifically that he had not studied under Dr. Tosi, describing himself as “self-taught.”25 One of the courses which he teaches is “Speech Pathology,” which involves the operation of sound spectrographs and production of sound spectrograms. He indicated that he was then engaged in studies and experimentation “as a result of the objections by Dr. Kenneth Stevens, Dr. Louis Gerstman, and Fausto Poza in trial proceedings such as this.” In response to a question as to whether he was doing this “to try to give more information, so that [he] c[ould] learn more about the subject,” he replied:

In answer to a question as to his opinion “as to the reliability of the process of voice identification by sound spectrography,” he said:

The sole witness produced in opposition to the admissibility of the evidence was Dr. Joseph Baker, an Associate Professor of Hearing and Speech at the University of Maryland with a master’s and doctorate in hearing and speech science. The trial judge described him as being “mostly familiar with this particular area of voice identification through the assistance of spectrograms by his reading of articles in the area, although he has done some class demonstrations with the spectrograph and he is familiar with the use of the machine, having used it in other areas of the hearing and speech science.” He has never conducted any controlled experimentation in voice identification using spectrograms. In response to a question as to whether “the process of voice identification by spectrographic comparison [is] reliable,” he said:

At another point the record reflects relative to the examination of Dr. Baker:

“THE COURT: Well, Dr. Baker, who cares and worries and argues and writes and studies about this?

The record further reflects relative to the cross-examination of Dr. Baker:

include members of the Speech Communications Section of the Acoustical Society of America that voted [against] in numbers 42 to 0?

spectrography, how you want to define voice identification.

In other words, this lone expert produced by the defense on the issue of admissibility in opposition to the technique used and said by four experts on behalf of the prosecution to be a valid one was not sufficiently familiar with that technique to know that it involved two of man’s senses, hearing and seeing. It would appear that there is no way that one could feel, smell, or taste the comparison. Thus, the only two senses that could be brought to bear on the matter of identification were brought to bear. Since Dr. Baker was of the view that one could not by hearing say that two voices were identical — our case law to the contrary notwithstanding — it follows that he was of the view that

there was just no way that one could opine that two voices were the same. It appears, as the trial judge pointed out, he apparently was looking for mathematical certainty rather than probability, and probability is the basis for testifying in court.

The cross-examination of Dr. Baker continued:

“MR. WOOD: I object. He already answered that question. He has testified that he considers it not reliable.

There was an attempt to rehabilitate him on redirect examination:

At another point the record reflects:

With this background it is easy to see why Dr. Baker’s testimony, the only evidence adduced on behalf of the defense on the issue of admissibility, did not undermine the State’s evidence relative to the reliability of voice identification by spectrographic analysis which had been heard by Judge McAuliffe. He characterized Dr. Baker’s testimony in this manner:

criteria. If we did not decide cases except where things were absolutely and mathematically certain, we would not ever decide cases. Even in a criminal case proof beyond a reasonable doubt does not require mathematical certainty.

entirely, but generally as a proponent, excluding I think in cases where women’s voices were involved or there were intentional attempts at disguising the voice. Dr. Baker was not familiar with the type of experimentation used by Helene. Dr. Baker thought that Dr. Mike Hecker was an opponent, although Tosi says he is not, he is now a proponent. Dr. Baker had not read the Hazen Study, but had only read a summary of it.

Any careful review of the testimony of Dr. Baker, the sole expert produced in an effort to show that there was not acceptance of the spectrographic voice analysis technique in the scientific community, would surely reveal that it is a miserably weak crutch upon which to lean in excluding this evidence.

In concluding “that the voice identification with the aid of spectrograms is and should be admissible in the State of Maryland,” the trial judge limited his ruling “to male voices,” with certain provisos:

that it might be confused with fingerprints as to accuracy.

It was pursuant to this determination of the trial judge that the defense produced its second expert, Dr. Hollien. He attacked the spectrographic voice analysis technique before the jury and testified that in his opinion after listening to the exemplars of Reed’s voice and the recording of the telephone calls to the victim that the voices were not of the same person.

The instructions of the trial court to the jury include:

“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.

It should be noted that A. Moenssens et al., supra, § 1.03 states:

This is the basis upon which Judge McAuliffe relied. He said:

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.26 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.27

I find disappointing the fact that the majority 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 [him] 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.28

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:

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 of 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.

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:

The Advisory Committee’s Note includes this comment:

Regarding this rule, it is said in 11 Moore's Federal Practice § 702.02 (2d ed. 1976):

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:

Romero says, “Whether scientific evidence has any probative value, or, in the terms of Rule 401, any tendency to prove credibility [in the case 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:

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:

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____[Ejvidence 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 the situation in which proffered expert testimony will rest on a new ascertainment, or new application, of scientific principles —- this further condition to be that there must be ‘general acceptance’ of such newly discovered scientific principle, or new application of scientific principle, in the relevant scientific field.” Id at 503 (emphasis in original).

The Maine court “refuse[d] to take th[is] course,” saying it “believe[d] [this] would be at odds with the fundamental philosophy of [the Maine] Rules of Evidence, as revealed more particularly in Rules 402 and 702, generally favoring the admissibility of expert testimony whenever it is relevant and can be of assistance to the trier of fact.” (Emphasis in original.)

Applying Romero’s analysis to spectrographic voice identification, it would appear that there are sufficient indications of reliability to say that opinions based on the process are relevant. Critics of the technique admit that the process is “in some degree reliable.” (Romero’s threshold for admissibility.) The Bolt group said: “Under certain laboratory conditions and for some selected sample of the population, the probability of making an error in identification can be stated. [That rate of error is relatively low.] But for the less-than-ideal conditions encountered in forensic situations, the indications are that the probability of error will increase substantially.” Bolt, Cooper, David, Denes, Pickett & Stevens, Letter to the editor — Speaker identification by speech spectrograms: some further observations, 54 J. Acoustical Soc. of Am. 531, 533-34 (1973). In essence, the critics have said that the reliability of this identification process under ideal conditions has been demonstrated satisfactorily; whether the process would prove as reliable under adverse conditions was something not proven by the Tosi study. The Bolt group’s criticism and concerns cannot be read as stating that the process is totally unreliable. The Maine court in State v. Williams, 388 A. 2d at 504-05, said:

human voices vary more in time, frequency and intensity than recordings of the same voice and that the spectrograph can accurately plot these variables. The opposition experts focused only on the difficulties of comparison and the exercise of judgment and the failure of the spectrograph experiments to account for many real world variables.”

Certainly the limitations on the process should be considered by the trier of fact in determining the proper weight to be given this sort of testimony, but the limitations do not indicate that the spectrograph process is so unreliable that an opinion based on that process is irrelevant.

Professor Romero’s view of the standard for admissibility of scientific evidence under the Federal Rules of Evidence, and the standard outlined by the Maine court in State v. Williams, 388 A. 2d 500, are in accord with the cases discussed under part 2 of this opinion regarding ballistics and other scientific analysis, our prior Maryland cases involving expert testimony, and the standard put forth by Dean McCormick that “[a]ny relevant conclusions which are supported by a qualified expert witness should be received____”

I conclude that even under the Frye test the trial judge did not abuse his discretion in permitting the opinion testimony based upon spectrographic voice analysis. Given the instructions which he gave the jury, I see no possible basis for believing that jurors would by this testimony in some manner become biased against the accused. I think it obvious that a “minimal reserve of experts” is available. I do not believe that jurors in Montgomery County are any less intelligent or well informed than the juries before whom I 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):

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):

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 introduction of such testimony when the Court has today rejected the very thoughtful and thoroughgoing analysis by Judge McAuliffe in this case as well as the equally thoughtful and thorough analysis by Chief Judge Gilbert for the Court of Special Appeals?

I am authorized to say that Chief Judge Murphy and Judge Orth concur in the views here expressed.