Clemons v. State
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Gemar Clemons v. State of Maryland, No. 70, September Term, 2005. EVIDENCE ADMISSIBILITY OF SCIENTIFIC EVIDENCE Petitioner sought review o f a decision by the Circuit C ourt for Prin ce Georg e s Coun ty admitting expert te stimony concerning comp arati ve bullet lead anal ysis ( CBLA ). After examining the germane scientific studies concerning CBLA, the Court of Appeals held that the conclusory aspects of CBLA are no t generally acce pted within the relevan t scientific commu nity as required under the Frye-Reed test for the admissibility of evidence derived from scientific pro cesses. Th erefore, the C ourt of A ppeals held that the con clusory aspec ts of CBLA are not admissible under the Frye-Reed test. IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term 2005 GEMAR CLEMONS V. STATE OF MARYLAND ________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: April 19, 2006 This case presents us with the task of determining whether certain con clusory aspec ts of comparative bullet lead analysis ( CBLA ) are admiss ible under the standard enunciated in Frye v. United States, 293 F. 10 13 (D.C . Cir. 1923), a nd adop ted by this Court in Reed v. State, 283 Md. 374, 391 A.2d 36 4 (1978), which makes evidence emanating from a novel scientific process ina dmissible absent a finding that the process is generally accepted by the relevant scientific community. We determine here that the conclusory aspects of CBLA are not generally acce pted within the scientific community and thus are not admissible under the Frye-Reed standard for admitting scientific expert testimony. Therefore, we reverse the decision of the Court of Special Appeals and remand the case to the Circuit Court for a new trial. Background On January 8, 2002, Ken ya Bryant and his thirteen-year-old son Brandon were packing their vehicle outside Mr. Bryant s home in Suitland, Ma ryland in preparation for Brandon s return home to North Carolina after visiting his father during his winter break from schoo l. Brandon went inside the house to retrieve more things, heard ten gunshots, and remained inside the home until the police arrive d and info rmed him that his father had been killed. Approx imately eighteen hours after Mr. Bryant was shot, Lachrisha Williams notified Prince George s County Police that she had witnessed the shooting. During her interview with police, M s. Williams provided a description of the driver, although she did not know his name at the time. Two days after the shooting, on January 10, 2002, District of Columbia Metropolitan Police Department officers seized a Lorcin nine-millimeter handgun and bullets from an automob ile in conjunction with an investigation of a traffic accident in the District of Columbia. Gemar Clemons, the petitioner, was a passenger in that vehicle and, among other offenses, was charged u nder the District of Columbia Code with the alleged possession of an unregistered handgun (the Lorcin) as well as possession of ammunition.1 Clemons was subseque ntly acquitted b y a jury of all charge s associated with the traffic stop, including the charges involving the possession of the handgun and ammunition. 1 Section 7-2507.06 (2)(B) of the District of Columb ia Code p rovides in pertinent pa rt: A person w ho in the person s dwelling place, place of business, or on other land possessed by the person, possesses a pistol, or firearm that could otherwise be registered, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. Section 7-2506.01 of the District of Columbia Code provides: No person sh all possess am munition in the District of Columb ia unless: (1) He is a licensed d ealer pursu ant to subch apter IV o f this unit; (2) He is an officer, agent, or employee of the District of Columb ia or the United States of America, on duty and acting within the scope of his duties when possessing such ammunition; (3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; excep t, that no such person shall possess restricted pistol bullets; or (4) He holds an ammunition collector s ce rtificate on September 24, 1976. -2- Thereafter, police were able to de termine that the Lorcin handgun seized in the District of Columbia was consistent with that used to shoot Mr. Bryant, but could not conclusive ly identify it as the weapon. After Clemons was arrested in the District, Ms. Williams also was as ked to view a ph otographic array, and she selected C lemons s picture as that of the man w ho shot Mr. Bryant. Clemons was arrested on July 2, 2002, and on August 6, 2002 was cha rged with four cou nts related to the Bryant murder: murder under the Maryland Common Law,2 robbery with a deadly weapon in violation of Maryland Code (1957, 1996 Repl. Vol., 2001 Supp.), Article 27 Section 487,3 theft in violation of Maryland 2 Under Maryland law the crime of murder remains a common law crime, although first and sec ond de gree m urder h ave be en delin eated b y statute. See Sifrit v. State, 383 Md 116, 13 8, 857 A.2d 88 , 100 (2005); Mitchell v. State, 363 Md. 130, 146-47, 767 A.2d 8 44, 854 (2001 ). Section 407 of Article 27 defined first degree murder as: All murder which shall be perpetrated by means of poison, or lying in wait, o r by any kin d of w ilful, deliberate and premeditated killing shall be murder in the first degree. Maryland Code (1957, 1996 Repl. Vol.), Article 27 Section 407 was recodified without substantive change as Maryland Code (2002), Section 2-201 of the Criminal Law Article. Section 411 of Article 27 defined second degree murder as: All other kinds of murder sh all be deem ed murd er in the second degree. Maryland Code (1957 , 1996 R epl. Vol.), Article 27 Section 411 was recodified without substantive change as Maryland Code (2002), Section 2-204 of the Criminal Law Article. 3 Section 48 7 of Article 27 provid ed in pertine nt part: (contin ued...) -3- Code (1957, 1996 Repl. Vol.), Article 27 Section 342,4 and use of a handgun in a felony or crime of violence in violation of Maryland Code (1957, 1996 Repl. Vol.), Article 27 Section 36B (b). 5 3 (...continued) (a) Prohibition. A perso n may not co mmit or attem pt to commit a robbery under ยง 486 of this subheading with a dangerous or deadly weapon. (b) Violation; penalty. A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years. Maryland Code (1957, 1996 Repl. Vol., 2001 Supp.), Article 27 Section 487 was recodified without substantive change as Maryland Code (2002), Section 3-403 of the Criminal Law Article. 4 Section 34 2 of Article 27 provid ed in pertine nt part: (a) Obtaining or exe rting unau thorized co ntrol. A person commits the offen se of theft w hen he w illfully or know ingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and: (1) Has the purpose of depriving the owner of the property; or (2) Willfully or knowingly uses, conceals, or abandons the property in such manner as to deprive the own er of the p rope rty; or (3) Uses, conceals, or abandons the property knowing the use, concealm ent, or abandonment probably will deprive the owner of th e pro perty. Maryland Code (1957, 1996 Repl. Vol.), Article 27 Section 342 (a) was recodified without substantive change as Maryland Code (2002), Section 7-104 of the Criminal Law Article. 5 Section 36 B (b) of A rticle 27 prov ided in pertin ent part: (b) Unlawful wearing, carrying, or transporting of handguns; penalties. Any person who shall wear, carry, or transport any (contin ued...) -4- Prior to trial, when it became c lear that the Sta te would attempt to prove that the handgun recovered during the traffic stop when Clemon s was the p assenger in the District of Columbia was the same gun used in Mr. Bryant s murder, Clemons filed a motion in limine to exclude the evidence of the gun that was recovered in the traffic stop premised upon his argument that admission of the evidence wo uld violate the prohibition a gainst dou ble jeopardy because Clem ons had previously been acquitted of possessing th e gun. Moreo ver, Clemons asserted that, b ecause of his acquittal in the traffic stop case, the State should be collaterally estopped from relitigating the issue of whether he possessed the handgun on January 10, 2002. The trial court denied the motion in a pretrial hearing, determining that double jeopardy did not apply because Clemons s first trial was conducted in the D.C. federal courts whereas the case sub judice was con ducted in state court in Maryland. Furthermore, the court noted, the doctrine of c ollateral estoppel was inapplicab le because the crimes w ere separate and distinct, because the murder occurred in Maryland on Ja nua ry 8, 2002, w hile 5 (...continued) handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally use d by the public in this State shall be guilty of a misdemean or; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun; Maryland Code (1957, 1996 Repl. Vol.), Article 27, Section 36B (b) was recodified without substantive change as Maryland Code (2002), Section 4-203 of the Criminal Law Article. -5- the D.C . gun vio lation oc curred on Jan uary 10, 2 002. Clemons also filed another motion in limine in which he asked the court to exclude the testimony of the State s expert witness, Charles A. Peters, a forensic chemist from the Federal Bureau of Inv estigation ( FBI ), who was represented to b e an expert on CBL A, a three-step process that involve s the comp arison of th e elementa l compos ition of bullets in an effort to de termine w hether diff erent bullets o riginated fro m the sam e vat of lead . In his motion, Clemons specifically challenged the admissibility of CBL A. At the pretrial hearing, Clemons agreed to th e court s de cision to def er addressin g the motio n to exclude Peters s testimony until trial. 6 6 Judges have discretion to defer a pre-trial ruling on a motion in limine and ordinarily do so where the issue can be better developed or achieve a better context based on what occurs at trial. Where eviden ce is subject to challenge und er Frye-Reed, however, the issue should , whenever possible, be dealt with prior to trial. The evidence bearing on whether the challenged evidence is actually the product of a novel scientific technique and, if so, whether that technique is generally acce pted in the re levant scien tific comm unity will usually be collateral to the substan tive issues at trial and may, itself, be in admissible w ith respect to those substantive issues. Tha t alone justifies resolving the issue prior to trial. Dealing with the issue pre-trial also avoids delays and diversions at trial that may inconvenience both witnesses and the jury. See Maryland Rule 5-104 (c) ( Hearings on preliminary matters shall be conducted out of the hearing of the jury when required by ru le or the interests of justice. ). As we pointed out in Reed, supra, the inquiry in Frye-Reed is entrusted to the judge rather than the jury to prevent the trial of the technique rather than the trial of the issue s involv ed in the case. Id. at 389, 391 A.2d at 372, quoting State v. Cary, 239 A.2d 680, 684 (N.J. Super. 1968). We observed in Reed: Frye was deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific princ iples. . . . Several re asons fou nded in log ic and common sense sup port a postu re of judicial c aution in this area. Lay jurors tend to give considerable weight to scientific (contin ued...) -6- At trial, the State called Peters to testify as an expert witness. Immediately prior to Peters s testimony, both parties recognized that the scientific process providing the foundation for Peters s testimony was subject to examination.7 Clemons s counsel requested 6 (...continued) evidence whe n pre sented by experts with impressive credentials. We have acknowle dged th e existen ce of a . . . misleadin g aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature. . . . [S]cientific proof may in some ins tances assume a po sture of mystic infallibil ity in the eyes of a jury. Reed, 283 Md. at 386, 391 A.2d at 370, quoting People v . Kelly, 549 P.2d 124 0, 1245 (C al. 1976). Maryland Rule 5-103 (c) also provides support for our conclusion that Frye-Reed examinations are better conducted in pre-trial hearings in its admonition that [p]roceedings shall be con ducted , to the extent practicable, so as to prevent inadmissible evidence from being suggested to a jury by any means, such as making statements or offers of proof or asking questions within the hearing of the jury. Conducting the hearing outside the presence of the jury would preclud e its memb ers from im properly cons idering evid ence that is irrelevant to the task at hand and ensure that the verdict is derived from evidence properly before it. If the issue is to b e dealt with at trial, it should be addressed , in its ent irety, as a preliminary matter prior to admission of the challenged evidence, not, as here, by having the challenge made on ly to Peters s status as an expert during the State s case and then receiving most of the evidence bearing on whether the inferences sought to be drawn from CBLA are generally accepted in the relevant scientific community during the defense case, after the challenged inference s have alrea dy been adm itted. If a party raises a Frye-Reed objection, all evidence bearing on admissibility of the challenged evidence should be presented and considered before a ruling is made on the challenge. 7 Both parties erroneously claimed that Maryland follows th e Supreme C ourt s reasoning in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), where the Supreme Court announced that the adoption of the Federal Rules of Evidence superceded the Frye test and explicated the issues that the trial court must consider when expert scientific testimony is proffered, including whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or method ology prope rly can be app lied to the fac ts in issue; whether the theory or technique has been subjected to peer review and publication; the known or potential error (contin ued...) -7- that Peters s voir dire occur outside the presence of the jury. The judge permitted the challenge to the admissibility of Peters s testimony and required that it occur in the presence of the jury. During Peters s voir dire examination, he described the methods that he emp loys in CBLA: We find if w e look a t the com position of the le ad bulle t, these are elements that make up the leads of a bullet, we look at things like antimony, copper, bismuth, silver, cadmium, tin. We look at these various elements and if they re in the same concentration in the victim b ullet as in say cartridg es left in a gun or partial box that can be related back to the suspect we can then narrow down and say th ey match in com position . We can say they re analytically the same. We can t tell them apart. That tells us that they we re manuf actured or th ey were likely manufactured in the same pot of lead at a bullet manufacturer. So out of the whole population of nine billion or so cartridges that are produced here in the U nited States, w e can narro w it down to tens of thousa nds of bu llets being pro duced tha t would have th e same comp osition. Peters s further described the general ammunition manufacturing process: It s pretty simple. It starts with actually your car battery. When they go bad, the lead in those car batteries are recycled. In a very small portion of that lead is reprocessed and goes into the making of bullet s. Th ey call that a secondary lead smelter. They ll crack these batteries open, they ll reprocess the lead. The bullet manufacturers will actually order lead from second ary smelte r in certa in alloys. The alloy in lead is defined generally in the antimony placed in 7 (...continued) rate; and the a ccep tanc e within the relev ant scien tific com mun ity. Id. at 592-94, 113 S.Ct. at 2796-97; 125 L.Ed.2d at 482-83. M aryland has co ntinued to adhere to the Frye test rather than the Daubert standa rd. See Wilson v. State, 370 Md. 191, 201 n.5, 803 A.2d 1034, 1040 n.5 (20 02). -8- the lead. The antimony either makes the bullet soft or the lack of it the lack of it makes it soft, more of it makes it hard. This will be shipped to the bullet manufacturer, the bullet manufa cturer will rem elt this lead. Th ey will pour it into what we call a billet. It s just a m old that s a cylinder of lead anywhere from betwe en 80 to 120 po unds. It s a round cylinder that will dry or become hard as a piece of lead. And with that billet they will force it into an orifice or a die of the diameter of the bullet that they want to make. It s sort of like making spaghetti, but it takes a hardening of that being forced through an orifice and out com es this wire of lead. It s this wire lead that they ll cut into segments which they call a slug. The slugs will then be molded by pressing into the shape of a bullet and then from there they can add a jacketing such as the copper jacket which is all copper. They can add a brass jacketing which is copper and zinc and the various different things they do to the bullet is for the various uses of the bullet. Hollow point so when they hit the gam e or some thing they ll spread out and give m ore stop ping po wer. *** So we re down to the making of the bullet. Then these bullets are stored in bins. Then another time in the process they ll be so-to-speak married with the cartridge case which is a brass piece, will be filled w ith gunpow der. The b ullet will be loaded into the cartridge case will end up with what s called a cartridge. These cartridges w ill be loaded in to boxes. A nd the boxes go into cases and the cases are sent throughout the United States for retail sale. Q. Now, can you describe the analytical techniques that are used to analyze bullet lead? A. It is the one technique that we use to analyze it called Inductively Coupled Plasma-Optical Emission Spectroscopy. We call it ICP for short. It s just an instrument that we use that can identify the elemen ts in the b ullet lead . It s a big name but it s being use d all over the world fo r all kinds of uses that we need to know the elem ents of compo sitions that are shown is -9- there. *** Q. And how many bullet lead analyses have you performed over your years with the FBI? A. I have done tens of thousands of analyses. Q. And have you or your colleagues engaged in research in this field? A. Yes, we hav e. We re a work ing lab, but we have found some time to do some r esearch . In 1988 w e actually started to use the technique of ICP. Before that time we used a technique called neutron activation analysis which is the use of a nuclear reactor where we radiated the lead that tells us the composition of these elements in the lead. That was the transition between the two techniq ues sho wing th at they go t comp arable r esults. And in 1991 we published a paper where we went and got boxes from various manufacturers and analyzed them. And also I have just recently published a paper that describes the whole process of comparative bullet lead analysis and some data that was from off the line of these extruded wires coming off the Winchester line showing that the sme lt will have the same composition and the nex t smelt w ill have a slightly dif ferent c ompo sition. Q. And have you ever testified as an expert in the field of comparative bullet lead analysis? A. Ye s. Q. Approximately how many times? A. Over 80. [THE STATE]: At this time, Your Hon or, the State will proffer Charles Peters as an expert in the field of comparative bullet lead analysis. [DEFE NSE C OUN SEL]: I object to that, Yo ur Honor. -10- The trial court permitted defense counsel to cross-examine Peters. On cross-examination, defense counsel established that the FBI had requested the National Academy of Sciences to study the validity of CBLA as a result of challenges to its validity in judicial proceedings. Overruling defense counsel s objection to the witness s qualifications and the general acceptance of the scientific process that was the subject of his testimony, the court noted: Comparative bullet lea d analysis . All righ t. I ll tell you what I m going to d o. I ll admit him as an exp ert. I heard a lot of voir dire on these interesting questions, challenges. So I m going to ad mit him as an e xpert in this fie ld because he s been in this field for a long time. He s done tens of thousands of these analyses. He s been around since the 70's. This test called ICP, Inductively Coupled Plasma, OES [8] version is what this witness intends to testify about. And the fact that there are some challen ges, it doesn t mean that it s such a novel and scientific kind of test that the court finds as a matter of law that it shouldn t b e submitted to the jury. And I m going to accept the witness s q ualifications in this field and of course limit his testimony to this particular test in this particular field. Immediately following this statement, Peters testified as follows with respe ct to the comparison of Exhib it 50, unfired cartridges co ntaining bullets recovered on January 10, 2002, in the District of Columbia and Exhibits 26 and 27, bullet fragments numbered K101 and K10 2, res pect ively, reco vere d fro m M r. Bryant s bod y: [THE STATE]: And as a result of that examination, were you able to reach any conclusion? 8 Inductively Coupled Plasma-Optical Emission Spectoscopy was the technique used for CBLA up to the time of its discontinuation by the FBI Laboratory. National Research Coun cil, F ORENSIC A NALYSIS : W EIGHING B ULLET L EAD E VIDENCE 15-16 (2004). -11- [PETERS]: Yes, I was. Q. Can you go through each one of your conclusions? A. In this pa rticular case the re were ex hibit Q. State s exhibit number 50. Showing you what s been admitted into evidence, which will be the ammunition recovered from the District of Columbia. A. There were five of these cartridges. A cartridge is an unfired round. It has a bullet, the gunpowd er, the primer, and its hasn t been fired. We took ammunition from them and compared them to bullets that were physically the same. One of the bullets that was physically the same was exhibit number 26. Q. Is that K 101 as w ell? A. Yes. Q. O kay. A. We compared this to these five cartridges and one of the five cartridges from here was an alytically the same. A nd basically the way I can ex plain it to you, if I gave you these two samples and said put them in your hand behind your back and give them back. I can tell you which one was which and analyze them. Elemen tally I couldn t tell th em apart. That elements such as antim ony, arsenic, silver, and copper was analytically the same in both of those samples. And that tells me that this likely came from the same pot of lead at the manufa cturer, but in th is case is Winchester. [DEFENSE COUNSEL]: Objection. He said likel y. It s not the conclusion in this report. [THE STAT E]: Well THE COURT: Is it likely or is it the same? I thought that likely -12- was you compared it to bullets that are physically the same. Physically likely the same or physically the same? What is your testim ony? [PETER S]: Where the bullet and the cartridges are analytically indistinguish able so they re the sa me in the composition. What does that mean? It means they re likely or consistent as my report says. Well, it came from the same smelt of lead. [DEFENSE COU NSEL ]: The wo rd likely is not in your report, sir. The word consistent with is. [THE STATE]: Objection. THE C OUR T: You can ask h im about th at. [THE STATE]: Now with State s exhibit State s exhibit number 27, K10 2, did you hav e occasion to analyze that? A. Yes. Q. And what w ere your results w ith that? A. Here again this is another bullet and I analyzed it and compared it to these five cartridges. And one of these cartridges was analytically indistinguishable to each other. Different composition that the first gro up I talked a bout. So the y would each come basically from a different smelt of lead made at Winchester. Q. So they re consistent with having been originated or made from the same manufactured source? A. Yes. On cross-examination, Clemons s counsel did not question the validity of CBLA, but rather, reques ted that P eters res tate his c onclus ions ba sed on the ana lysis. To counter Peters s testimony, Clemons presented the testimony of William Tobin, -13- a consulting forensic metallurgist who had been a special agent at the FBI for twenty-seven years and who had been assigned to the FBI Laboratory in Quantico, Virginia as a forensic metallurgist prior to h is retirem ent in 19 98. Tobin testified that when he retired he initiated a study of CBLA because he noticed a contrad iction betw een metallu rgic [principles] and the [principles] required to accept the practice of comparing bullet leads. After collaborating with other c hemists in the lead industry, T obin had concluded that the practice was seriously flawed; he testified: The three basic p remises are assumptio ns required for validity have been pro ven by our re search to be false premises. An d it s our general conclusion that the practice of comparing bullet lead has limited, if any, forensic value. In fact the German FBI doesn t even use it nor does the ATF over here in the U.S. for a nything other than investigative purposes. They do not use it for evidence of guilt. So our conclusion is that we I don t take issue in the study and prior to my publication in the area I decided it will be very convenient for understanding to bifurcate the process into three stages or three phases. *** The first phase being the actual sample preparation and then sticking it in the machine and very complicated and high tech machine. *** But the first phase I chose to characterize as the analysis phase where the sample is b eing prepa red and an alytically analyzed for what compositions are in the lead . I m sorry, what elements, chemical elements are in the lead. In other words, what the composition of the lead is. The second phase I considered the gro uping p hase. Where once -14- the machine spits out what the composition of the bullets are or what the samples are, the analyst then decides to group. To make a decision as to which of these compositions he or she considers analytically distinguishable or which ones are considered close enou gh to be co nsidered an alytically indistinguishable on the division of the analytical requ irement. Because there s always errors in these analyses. The third phase I designated the inference phase. In other words, what conclusions will the examiner now reach after the grouping phase. In other words, w hat is the exam iner going to conclude after he or sh e has look ed at these c ompositio ns to decide which o nes they will ca ll analytically indistinguishab le and which ones are considered analytically distinguishable. We generally do n ot challenge phase one of the practice. We don t take issue with the analysis phase. We do challenge the grouping basis for several reasons and we strenuously challenge the inference phase or conclusions that have been rendered in courtrooms for that. An d maybe a g ood one line analog y to compare the basis for our challenge will be similar to blood testing. For example, a sample of blood is taken from me and a sample of blood is taken from anybod y in the co urtroom . A generally accep ted tech nique. And the blood is analyzed for sodium, potassium, iron, coppe r, HDL , LDL . Normal analytes that blood is analyzed for. Then let s presume that those two blood samples from someone in the courtroom and my blood are found. The analytes are found to be an alytically indis tinguish able. W e don t challenge the analysis of the bloo d. That s a g enerally accepted practice. Howeve r, the practice as I have seen it practiced for over three decades is the inference phase. The conclusions, therefore, that because the analytes in by blood and the analytes in someone s blood in this courtroom are analytically indistinguishable, therefore, the two of us came f rom the sa me sourc e as to parents. It s clearly an unjustifiable extrapolation. And that has been occurring in ov er three decades in this practice an d that s one of the objections of about 18 to the practice bec ause it basically summarizes. The other primary challenge that we have is for the current proceeding relates to forensic value. And the analog y there is because of the retail study of the distribution studies that I have -15- conducted or we are conducting as well which confirms my original hypothesis. And, that is, what is the value of making these associations when it s v ery possible that e very citizen in the County has bullets of the same comp osition. Those are called distribution considerations. What we have found is that is analogous to an expert testifying that he has made an association between two denim fibers. Everyone knows how prevalent blue what is the value of the blue denim match? Next to nothing because of the prevalence of blue jeans. We find that very similar to what is being offered in court as to a bullet lead composition. It s very bad with .22 caliber. That s the h ighest turnover caliber out there in the indu stry. And those are the basis of my studies to date. In Juneau, Alaska and in Fredericksburg, Virginia. It s even wors e for calibers. The more ex pensive and low turnover calibers such as 9mm s, which I believe is involved in the case at Bar. So the second primary major objection that we have is what is the forensic value of such associations. There has never been any studies conducted to determine that prior to my own studies as in this past year. Also the University of California is now currently actively associated with my stu dy and the y re actua lly conducting studies as well on the West Coast. I hav e conduc ted the studie s in Juneau, Alaska. Extremely shocking results we find from those and in Fredericksburg, Virginia. On the bases of the National Institutes of Sciences study, an Iowa State University Study, and the German FBI and United States ATF, Tobin concluded: At this time the b est the only scientifically valid conclusion that can be rendered is under the best of circumstances is that it s possible that two bullets came from the same source. But we found in our studies that the practice is as invalid for exclusion as it is for inclusion. So I would point out as well that bullets could be to tally, radically different c ompositio ns and still come from the same source. And I can demonstrate that later with the easel if you like. But to reiterate it s our individual and collective assessment and -16- opinion that the best conclusion that can be rendered is that it s possible two bullets came from the same molten source. So then we are all in agreement as well as to what was the forensic value to that associatio n. And th e analysis I use a gain is with the blue denim fiber. At the close of the trial, the jury convicted Clemons of second degree murder and use of a handgun in the commission of a felony. On February 27, 2004, the court imposed an aggregate sentence o f forty-two years imprisonment. Clemons thereafter noted his appeal to the Cou rt of Specia l Appeals . The Co urt of Spe cial Appe als, in an unre ported opinion, determined that Clemons did not preserve the issue of the admissibility of CBLA because he failed to renew his objection to the admission of Peters s testimony regarding C BLA at trial. On July 27, 2005, Clemons filed a petition for writ of certiorari with this Court and presented the following issues for our consideration, which we have renumbered: 1. Was the issue of the admissibility of expert opinion testimony concernin g comparative bullet lead analysis preserved for review, where the parties litigated the admissibility of expert opinion testimony in this f ield, and the trial court rules it adm issib le, im med iately prec edin g the witn ess s test imony? 2. Is the testimon y of an exp ert in the field of comparative bullet lead analysis ad missible, w here that field is not gener ally accepted in the scientific community, where there has been no showing that comparative bullet lead analysis is reliable? 3. Where Mr. Clemons s alleged possession of a handgun and bullets was a critical component of the State s case, was evidence of his prior acquittal of those charges admissible, where the acquittal took place in the District of Columbia?[9 9 At trial, the prosecution also elicited testimo ny from tw o District of C olumbia (contin ued...) -17- On October 3, 2005, we granted the motion and issued the writ. Clemo ns v. State, 389 Md. 124, 883 A.2d 914 (2005). We hold that CBLA is not admissible under the Frye-Reed standard because it is not generally accepted within the scientific community as valid and reliable. Because we will rev erse the dec isions of the Court of Special Appeals and the Circuit Court on the basis of that error alone, we will not address the issue of whether Clemons s acquittal in the District of Columbia is admissible. Standard of Review It is well settled that the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting o r excluding such testimo ny will seldom constitute a ground for reversal. Oken v. S tate, 327 Md. 628, 659, 612 A.2d 258, 273 (1992), quoting Stebbing v. State, 299 Md. 331, 350, 473 A.2d 9 03, 912 , cert. denied 469 U.S. 900, 105 S.Ct. 276, 8 3 L.Ed.2d 212 (198 4); see also State v. Smullen, 380 Md. 233, 844 A.2d 429 (200 5). Appe llate review of a trial court s decision regarding the admissibility of expert scientific testimony under Frye, and Reed, however, is de novo. Wilson v. Sta te, 370 9 (...continued) Metropolitan Police Officers regarding a gun that was recovered from a car in which Clemons was a passenger during a routine traffic stop. Clemons argued that he should be permitted to introduce evidence concerning his acquittal of gun possession charges in the District of Columbia. The trial court admitted the testimony of the officers as well as the handgun and did not allow defense counsel to inquire as to whether Clemons was charged with anything as a result of the traffic incident, ostensibly leading to his acquittal of the possession charge s, becau se the S tate did n ot do so on dire ct exam ination. The Co urt of Special Appeals held that Clemons did not properly preserve the issue for appellate review because he did not attempt to raise the issue of his acquittal following the prosecution s questio ning of the polic e offic ers. -18- Md. 191, 201 n.5, 803 A.2d 1034, 1040 n.5 (2002). Moreover, we are not limited to the information contained in the record and can and should take notice of law journal articles, articles from reliab le sources that appear in scientific journals, and other publications which bear on the deg ree of acc eptance b y recognized experts that a particular process has achiev ed. Id. at 201, 8 03 A.2 d at 104 0. See Reed, 283 Md. at 399, 391 A.2d at 377 ( 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 voiceprin t analysis has ac hieved the general ac ceptance in the scientific com mun ity, at this time, which is required under Frye. ); Wilson, 370 Md. at 203-207, 803 A.2d at 1041-43 (addressing numerous studies on sudden infant dea th syndrome which were not included in the record); Collins v. Sta te, 296 Md. 670, 695-700, 464 A.3d 1028, 1041-43 (1983) (examining a variety of articles a nd studies o n hypnosis not contained in the record ). Discussion Clemons argues that he preserved the issue of the admissibility of Peters s testimony because at the time of the trial court s ruling, his objection to the testimony was still outstanding. Moreo ver, he asser ts that it is apparent from the reco rd that when the trial court issued its ruling that the testimony was admissible at the close of Peters s voir dire, it issued a final ruling on the objection to both the admissibility of expert testimony on CBLA and on the admissibility of Peters s testimony in particular. Therefore , he contends that it was unnecessary for him to re state the objection before the court ruled on his motion in limine to -19- exclud e the ev idence . Clemons also argues that expert tes timony on C BLA is not admissible because the process is not generally accepted in the scientific community as required under the Frye-Reed test. Furthermore, Clemons asserts that the State cannot produce any published studies that recognize CBLA as reliable when introduced as evidence that a bullet associated with the defendant and a bullet recovered from a crime scene were derived from the same source of lead. Therefo re, accordin g to Clemons, the trial court erred in admitting Peters s testimony concerning CBLA. Con vers ely, the State counters that neither of the issues presented to this Court has been properly prese rved for ap pellate review. Accord ing to the Sta te, Clemon s waived his objection to the admiss ion of Pe ters s testimon y regarding C BLA because h e failed to object at the conclusion of Peters s voir dire or when Peters testified to his conclusions that two bullet fragments recovered from the victim were analytically indistinguishable from cartridges recovered from a handg un seized at the time of C lemons s arrest in the District of Columbia. Moreover, the State contends that the issue also was waived when Clemons introdu ced ex pert testim ony rega rding C BLA during the def ense ca se. The State also argues that Clemons s argument based on the Frye-Reed standard is meritless. According to the State, CBLA conducted through inductively coupled plasmaoptical emission spectroscopy ( ICP-OES ) is generally accepted in the scientific community as required under the Frye-Reed test. Moreover, the State argues that if the admission of -20- Peters s testimony on CBLA was error, it was harmless beyond a reasonable doubt based on the othe r eviden ce introd uced. Issue Preservation As a threshold issue we m ust address Clemo ns s contention that the Co urt of Special Appea ls erroneously conclude d tha t he d id no t properly preserve his objection to the admissio n of Peters s e xpert testimo ny because h e did not res tate his objectio n after the comp letion of Peters s voir dire or durin g Peter s s testim ony. Maryland Rule 4-32 3 (a) mand ates that [a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for the objection become apparent. O therwise, the objection is w aived. A s we hav e repeated ly noted, generally, when a motion in limine to exclude evidence is denied, the issue of the admissibility of the evidence that was the subject of the motion is not preserv ed for app ellate review unless a contemporaneous objection is made at the time the evidence is later introduced at trial. Klauenberg v. State, 355 Md. 528, 539-40, 735 A.2d 1061, 10 67 (1999). See also Reed v. Sta te, 353 Md. 628 , 638, 728 A.2d 1 95, 200-01 (199 9). In Watson v. State, 311 Md. 370, 535 A.2d 455 (1988), however, we recognized an exception to the general requirement of contemporaneous objection for preservation of the issue. Watson, charged with rape and various lesser included offenses, filed a motion in limine asking the c ourt to rule that his 1982 Virginia attempted rape conviction and a prior theft conviction could not be used for impeachment. The trial judg e denied Watso n s -21- motion. At trial, Watson testified on his behalf and at the close of his testimony, the prosecutor informed the court of his intention to impeach Watson on cross-examination through the use of Watson s prior convictions, which the trial judge permitted without a contemporaneous objection b eing made by Watson s counsel. The prosecutor then crossexamined Watson as to his attempted rape and theft convictions without objection. This Court found that Watson s objection to the use of his attempted rape conviction for impeachment was preserved for appellate review despite the fact that Watson s counsel did not object when Watso n was subjec t to cross -exam ination a bout hi s conv ictions. Id. at 372 n.1, 535 A.2d at 457 n.1. We observed that normally Watson s prior objection to the court s pretrial ruling re garding the admissibility of the convictions would not be sufficient to preserv e the issu e for ou r review . Id. We noted, how ever, that because the trial court affirmed his pretrial ruling immediately prior to the prosecutor s cross-examination of Watson, requiring Watson to make yet another objection only a short time after the cou rt s ruling to admit the evidence would be to exalt form over substance. Id. Thus, we concluded that the issue of the admissibility of Watson s attempted rape conviction was preserved for appellate review. The case sub judice presents a similar factual scenario. In the case at bar, after the State questioned Peters regarding his qualifications and offered him as an expert in CBLA, Clemons objected regarding the admissibility of the proffered scientific evidence and the trial court permitted him to conduct a voir dire examination of Peters without ruling on h is -22- objection. After the S tate asked several more questions on redirect, the State again proffered Peters as an expert in CBLA without objection by Clemons. The trial court then stated that it would q ualify Peters as a n expert in C BLA and perm it him to testify concerning CBLA, and effectively overruled Clemons s prior objection. Although when additional information is adduced after the initial ob jection is made, the better practice is to renew the objection to ensure that the court is aware that the party intends to maintain its objection to the admission of the testimon y, based on the facts of this record, the trial judge clearly understood that he was ruling on the defense s prior objectio n during v oir dire to Peters s admission as an e xpert and the admissibility of the underlying scientific evidence, as well as outstanding motion in limine regarding Peters and CBLA. the defense s Moreover, there were no circumstances from which a reasonable person could infer that defense counsel, based on the subsequent voir dire, intended to withdraw his objection at the close of all voir dire. Furthermore, based on the proximity of Clemons s objection and the trial judge s ruling regarding the admis sibility of the scientific evidence, we find no reasonable basis for distinguishing the present case from that before us in Watson. Therefore, we determine that to require Clemons to restate his objection minutes after he orig inally made it w ould be to elevate form ov er substanc e and con clude that Clemons preserved the issue of the admissibility of Peters s expert testimony regarding CBLA and its implications for appella te review . The Frye-Reed Test -23- In Reed v. Sta te, 283 Md. 37 4, 391 A.2d 36 4 (1978), this Court adopted the standard set forth in Frye v. United States, 293 F. 1013 (D.C. 1923), to determine the admissibility of scientific eviden ce and expert te stimon y. See Reed, 283 Md. at 389, 391 A.2d at 372; Wilson, 370 Md. at 201, 803 A.2d at 1039 (affirming this Court s adoption of the Frye standard). Writing for this Court in Reed, Judge Eldridge observed that prior to the admission of expert testimony based on the application of novel scientific techniques, the party seeking to use the expe rt testimony mu st establish that th e particular m ethodolog y is valid and relia ble. Reed, 283 Md. at 380, 391 A.2d at 367. As we noted in Wilson, through our discussion of the reasoning in Reed, Where the validity and reliability is so bro adly and gen erally accepted within the scientific community, as is the case of ballistic tests, blood tests , and the like, a trial court may take judicial notice of its reliability. Likewise, a court may take judicial notice that certain procedures, widely recognized as bogus or experimental, are unreliable. When the reliability of a particular technique is not subject to judicial notice, how ever, it is necessary that th e 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 take notice of law journal articles, articles from reliable sourc es that appe ar in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved. The Court concluded that the proper test for establishing the reliability of scientific opinion is whether the basis of that opinion is generally accepted as reliable within the expert s particular scientific field. Wilson, 370 Md. at 201, 803 A.2d at 1039-40 (citations omitted). If the trial court determines that the test is adm issible, on app ellate review , this Court m ust indepen dently apply the Frye-24- Reed test to the scientif ic techn iques a t issue. See Wilson, 370 Md. at 201 n.5, 803 A.2d at 1040 n.5; Reed, 283 Md. at 399, 391 A.2d at 377 ( 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 voicep rint analysis has achieved the g ener al accept ance in the scientif ic co mmunity, at this time, wh ich is required under Frye ). To better understand the scientific procedures at issue in the case sub judice and the application of the Frye-Reed standard, a brief discussion of the bullet manufacturing process and the development of CBL A is required. The lead used to manufacture bullets is derived from secondary lead smelters which salvage lead from recycled automobile batteries. Charles A. Pete rs, The Basis for Compositional Bullet Lead Comparisons, 4 Forensic Sci. Communications (2002). After separating the batteries into their main components, plastic, acid, and lead, the smelters mix the lead derived from batteries with lead from other sources and melt th e mixture in kettles w ith capa cities up to one h undred tons. Id. The scrap lead is then proc essed into in gots 10 (also ca lled pig s in rele vant pu blication s). Id. The lead is prov ided to b ullet ma nufac turers in one of severa l forms : ingots, w hich vary from sixty-five to eighty pounds; billets, which range from one hundred to three hundred pounds; and sows, which are approximately two thousa nd pou nds. Id. If the lead is provided 10 Ingot is defined as a mass of metal cast into a convenient shape for storage or transportation to be later remitted for casting or finished. Webs ter s Third New In t l Dictionary, 1162 (2002). -25- in one of the latter two forms, it is remelted in seven- to ten-ton pots and combined with lead remnants from the bullet manufacturing process, which may include rejected bullets, excess lead from th e bullet m olding proces s, or othe r scrap le ad in the facility. Id. The molten lead is then poured into a billet mold and allowed to cool and solidify. Id. The quantities of lead are made into wire by squeezing them through a narrow opening, which is then cut into slugs. Id. Slugs are sha ped into bullets th rough a proce ss called swag ing, which inv olves a die that applies compressive force by hammering radially on the slug, then tumbled for smoothness and loaded along with gunpowder into cartridge cases. Id. The cartridges are loaded into bo xes and stampe d with a packin g code . Id. The number of bullets manufactured from a single m elt va ries w idely. For exa mple, a me lt pot of 200 ,000lbs w ill yield 35,000,000 .22-caliber bullets, which a pig or ingot will yield 10 ,000 to 20,000 bullets. The yield for larger c aliber bu llets will b e smalle r. Michael O. Finkelstein & Bruce Levin, Compositional Analysis of Bullet Lead as Forensic Evidence, 13 J. L. & Pol y 119, 121 (2005). With this manufacturing process in mind, we turn to the origin and processes of CBLA. During the 1960's, researchers at Gulf General Atomic explored the possibility of analyzing the elements found in bullet lead as a forensic tool in criminal investigations through neutron activation analysis ( NAA ) under a contract with the United States Ato mic Energy Com mission . William A. To bin, Comparative Bullet Lead Analysis: A Case Study in Flawed Forensics, 28 Champion 12, 15 (July, 2004); Edward J. Imwinkelried & William -26- A. Tobin , Comparative Bullet Lead Analysis (CBLA) Evidence: Valid Inference or Ipse Dixit?, 28 Okla . City U. L. Re v. 43, 48 (20 03). Gulf General Atomic used a nuclear reactor to irradiate the lead alloy and then analyzed the radiation emitted from the lead to identify the chemicals present and measu re their c oncen tration. Imwink elreid, supra, at 48. The Gu lf General Atomic researchers stated: It has been found that th e numbe r of (chem ical) elemen ts observab le (in lead analysis by NAA), and thus the number of points of comparison, is generally limited to three elements, due to the dominance of antimony radioisotopes in the activated bullet lead sp ecimens. T his factor, coupled with a high degree of compos ition uniform ity of bullet lead from at least one major manufacturer, imposes so me limitation s on the m ethod . . . . (T)wo bullets with the same patter of only three identification points are not usually definitively identified as having a common source. (M)atch ing conce ntrations of a ll three elements does not indicate that tw o bullets cam e from the same lot. Id., quoting H.R. Lukens, H.L. Schelsinger, V.P. Guinn & R.P. Hackleman, Forensic Neutron Activation Analysis of Bullet-Lead Specimens, United States Atomic Energy Commission Repo rt GA -1014 1 (June 30, 197 0). In the la te 19 80's a nd early 1990's, analysts shifted from NAA to a different meth odology, inductively coupled plasma-optical emission sp ectroscopy ( ICP-OE S ). The National Research Council described the process for ICP-OES as: For analysis, samples generally are dissolved to form an aqueous solution of known weight and dilution. The solution is aspired into the nebuliz er, which tra nsforms it in to an aerosol. The aerosol then proceeds into the plasma, it is transformed into atoms and ions in the discharg e, and the ato ms (eleme nts) are excited and emit light at characteristic wavelengths. The -27- intensity of the light at the wavelengths associated with each elemen t is propo rtional to that elem ent s co ncentra tion. The ICP-OES torch consists of three concentric tubes known as the outer, middle, and inner tubes usually made of fused silica. The torch is positioned in a coil of a radio-frequency generator. The sup port gas tha t flows thro ugh the m iddle annulus, argon, is seeded with free electrons collide with the argon gas and form Ar+ ions. Continued interaction of the electrons and ions with the radio-frequency field increases the energy of the particles and forms and sustains a pla sma, a gas in which some fraction of the atoms are present in an ionized state. At the same time, the sample is swept through the inner loop by the carrier gas, also argon, and is introduced into the plasma, allowing the sample to becom e ionized an d subsequ ently emit light. *** Each element emits several specific wavelengths of light in the ultraviolet-visib le spectrum that can be used for analysis. The selection of the optical wavelength for a sample depends on a number of factors, such as the other elements present in the sample matr ix. T he lig ht em itted by the atoms of an element must be conve rted to an elec tric signal that c an be measured quantita tivel y. That is ach ieved by resolv ing the light w ith a diffraction grating then using a solid-state diode array or other photoelec tric detector to m easure w avelength -specific inten sity for each element emission line. The concentration of the elements in the samp le is determined by comparin g the intensity of the emissio n signals from the sample with that from a solution of a know n concentration of the e lement (standard). National Research Coun cil, F ORENSIC A NALYSIS : W EIGHING B ULLET L EAD E VIDENCE 14 (2004) ( NRC Report ). The main purported advantage of ICP-OES over NAA was that ICP-OES permitted the laboratory to an alyze six or seve n elemen ts present in the le ad al loy: antim ony, arsenic, bismuth, cadmium, copper, silver, and tin. Imwink elreid, supra, 48; NRC -28- Repo rt at 15. After obtaining th e elementa l compos ition numb ers, the samp les are catego rized according to similarity of compositional presence. Tobin, supra, at 13. Compositions similar to a crime scene bullet(s) are put in one group and cons idered ana lytically indistinguishable ; compositions considered dissimilar are placed in different groups and considered analytically distinguishable. Id. From that data, the expert witness will draw a conclusion as to the probative significance of finding analytically indistinguishable (similar) compositions in both crime scene and known bullet samples. Id. The entire process is premised upon three assumptions: the fragmen t being ana lyzed is representative of the composition of the source from which it originated ; the source from which the sample is derived is comp ositionally homogeneous; and no two molten sources are ever produced with the same composition. Id. at 13-1 4. Recently the assumptions regarding that uniformity or homogeneity of the molten source and the uniqueness of each molten source that provide the foundation for CBLA have come under attack by the relevant scientific community of analytical chemists and metallurgists. In 1991, at the International Symposium on the Forensic Aspects of Trace Evidence, hosted by the FBI, various experts in the field cautioned that the variability (of the elemental mix) within a production run . . . has not been addressed in a comprehensive study. Imwinkelried, supra, at 50, qu oting E rnest R . Peele, e t al., Comparison of Bullets -29- Using the Elemental Composition of the Lead Component, Proceedings of the International Symposium on the Forensic Aspects of Trace Evidence 57, 57 (1991). In 2002, another study was published which detailed the metallurgical phenomena that occur in the lead refining and casting processes and result in inhomogeneity within a single smelt as well as analytically indistinguishable lots produced with relative frequency by lead smelters. E. Randich, Wayne Duerfeldt, Wade McLendon & William Tobin , A Metallurgical Review of the Interpretatio n of Bullet L ead Co mposition al Analysis, 127 Forensic Sci. Int l 174, 182 (2002) ( The Randich Study ). That study derived its conclusions from an analysis of secondary lead refiner s productio n data, wh ich is currently the only source of molten source composition data in existence. This analysis revealed that the elemental composition of samples taken from the beginn ing, middle, and end of 100-to n molten so urce pou rs at a single refiner could vary in antimony by almost 12 percent, copper by 142 percent, tin by 1,871 percent, or arsenic by 31 percent, from the beginning to the end of the pour. See William A. To bin & Wayne Duerf eldt, How P robative is C ompar ative Bullet Lead Analysis?, 17 Crim. Ju st. 26, 28 (Fa ll, 2002). M oreover, the Randich Study noted that [v]ariability in compo sition within e ach individ ual pig [ing ot] is also caused by a phenomenon known as seg regation that occurs during the solidification of the pig. As the cast pig cools, it solidifies first at the (cooler ) exterio r surfac e. The center of the pig is the last region to s olidify. Impurity elem ents that are more soluble in the liquid phase and hence become more concentrated at the center of the pig. Because of the nature of the various binary elemental phase diagrams . . . and depending on the amounts of ea ch el eme nt presen t in th e allo y, this phenomenon is expected to be more pro nounced for e leme nts like an timo ny, -30- to have only a minor eff ect for elem ents like [bism uth], and to have little effect on elements that are present at less that 10 [parts per millio n] level s uch as t in and a rsenic . . . . The eff ects for the other elements o f interest wo uld strongly depend on the amounts present and on cooling rates. Segreg ation thus increases the lack of homogeneity in each individual pig. This is a basic metallurgical phenomenon and tendency known to exist in all cas ting pro cesses. N ote, also , that differenc es in cooling rate alone can result in significantly different compositions from the surface of the pig to the center, and between samples tak en from tw o differen t pigs of iden tical, overall ( averag e) com position . Randich, et al., supra, at 179. Thus, as these studies indicate, the assumption that an ingot or vat of lead is homogenous as required for CBLA to be valid is not generally accepted by the scien tific com mun ity. The assumption that each molten lead source is unique is also being questioned by analytical chemists an d metallurgists. A recent article in the Oklahoma City Law Review noted that the use o f lead reclaim ed from a utomob ile batteries undermines the confid ence in the assum ption o f uniqu eness. See Imwinkelried, supra, at 52. The authors observed that secondary refiners obtain their bullet lead from scrap automobile ba tteries. Battery manufacturers observe relatively tight specifications because of electrical conductivity, corrosion, (and) processing. Id., quoting William A. To bin & Wayne Duerf eldt, How Probative is Comparative Bullet Lead Analysis?, 17 Crim. Just. 26, 28 (Fall, 2002 ). Moreover, Professo r Imwink elried and M r. Tobin co ncluded th at because most lead produced by secondary refiners is used in the m anufacture of new automobile batteries and the manufacturers follow stringent compositional specifications with respect to the lead -31- intended for both battery and bullet manufacturing, the probability increases that in a given year manufacturers will produce coincidental repeats whose compositions are analytically indisting uishab le. Imwinkelried, supra, at 52, citing Tobin & Duerfeldt, supra, at 27, 34. Esse ntial ly, the higher quality of lead produced by manufacturers of automobile batteries increases the probability that coincidental identical com positions will occur. This suspected probability was borne out in the research published in the Rand ich Stud y. Randich and his colleagues determined that multiple indistinguishable shipments of lead alloys from secondary lead refiners to the ammunition manufacturers are made each year and over a period of many years. Randich, et al., supra, at 17 4 ( D ata f or lead al loys supplied to two major ammunition manufacturers confirm that multiple indistinguishable shipmen ts of le ad al loys from secondary lead refiners to the ammunition manufacturers are made each year and over a period of many years. ). Similarly, FBI researchers discovered two sets of bullets manufactured seven months and fifteen months apart respectively that were analyticall y indisting uishab le. Tobin & Duerfeldt, supra, at 30-31, citing Ernest R. Peele, et al., Comparison of Bullets Using the Elemental Composition of the Lead Comp onent, Proceedings of the International Symposium on the Forensic Aspects of Trace Evide nce, 61 -62 (19 91). Furthermore, at least one study conducted by Dr. Robert D. Koons, a research chemist with the FBI Laboratory in Quantico, V irginia, and Dr. Diana M. Grant, a forensic examiner with the F BI Labo ratory in Washington, D.C., observed an error rate, which includes false -32- positives and ne gatives , of twe nty-five to thirty-three percen t. See Robert D. Koons & Diana M. Grant, Compositional Variation in Bullet Lead Manufacture, 47 J. Forensic Sci. 950 (2002). There has been no study of the error rate for the process when used in the field. Moreover, there is no incentive to finance such a study because cu rrently the FBI, which was the only laboratory en gaging in C BLA analysis in the United States, has ceased conducting CBL A for f orensic purpo ses. Tobin & Duerfeldt, supra, at 29. The only consensus that can be derived from all of this is that more studies must be conducted regarding th e validity and relia bility of CBL A. Altho ugh scien tific unanimity is not required to satisfy the Frye-Reed test s req uireme nt of ge neral ac ceptan ce, Wilson, 370 Md. at 210, 803 A.2d at 1045, it is clear that a genuine controversy exists within the relevant scientific community about the reliability and validity of CBLA. Based on the criticism of the processes and assumptions underlying CBLA, we determine that the trial court erred in admitting expert testimony based on CBLA because of the lack of general acceptance of the proc ess in the scien tific com mun ity. 11 11 In State v. Behn, 868 A.2d 32 9 (N.J. Super. Ct. App. Div. 200 5), New Jersey s intermediate appellate sim ilarly recognized the recent scientific studies that questioned the validity of CBLA and concluded that the expert testimony adduced at Behn s first trial was based on erroneous scientific foundations and its admission met the requirements for granting a new trial on the groun d of new ly discovered evidence. Id. at 331-32. Mo reover, the court noted that the assumption that the chemical composition of a bullet from one batch will never match that of a bullet from a different batch has been called into question, if not totally undermined, by the new research studies discussed above. Id. at 344. The State also presented several cases admitting CBLA into evidence; however, none of the cases addressed the issue of scientific opinion testimony was a dmissible under Frye (contin ued...) -33- The State argues that any error, under the circumstances of the case at bar, would be harmless error in light of the testimony of an eyewitness to the murder. In Reed, however, we observed that [l]ay jurors tend to give considerable weight to scientific evidence when presented by experts with impressive credentials. Reed, 283 Md. at 386, 391 A.2d at 370; Wilson, 370 Md. at 212, 803 A.2d at 1046. The sam e holds true in the case at bar. Although the case sub judice was not entirely dependen t upon the expert testimon y at issue, we are unable to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict. Wilson, 370 Md. at 212, 803 A.2d at 1046, quoting Dorsey v . State, 276 Md. 638, 659, 350 A .2d 665, 678 (197 6). Conclusion We conclude that CBLA does not satisfy the requirement under the Frye-Reed test for 11 (...continued) or even Daubert. See United Sta tes v. Davis , 103 F.3d 660, 673-74 (8th Cir. 1996) (noting that the defendant did not attempt to d emonstra te that ICP is n ot a scientifica lly valid technique for determ ining the trace elemental c ompositio n of bullets ); Commonwealth v. Fisher, 870 A.2d 864, 870-72 (Pa. 2005) (affirming the lower court s denial of defenda nt s petition for post-conviction relief due to lack of timeliness and determinin g that, even if it were timely, the new information attacking the validity of CBLA likely would not have compelled a differen t verdict); State v. Noel, 723 A.2d 602, 606 (N.J. 1999) (stating without reasoning that ICP is an accepted method of bullet lead analysis ); Commonwealth v. Daye, 587 N.E.2d 194, 207 (Mass. 1992) (noting that at trial there was no objection made to the expert s testimony and no request for a voir dire hearing to d etermine its ad missibility); State v. Krummacher, 523 P.2d 1009, 1017-18 (Or. 1974) (determining that the CBLA evidence was adm issible based on the fac t that its probative v alue outw eighed its prejudicial impact and without examining the admissibility of the evidence under either the Frye or Daubert standards). More over, it is im portan t to note t hat only o ne of th e cases , Fisher, was published after the results of the studies were released to the public, and it did not address the issue. -34- the admissibility of scientific expert testimony because several fundamental assumptions underlying the process are not generall y acce pted by the scientifi c com mun ity. Therefore, we reverse the judgmen t of the Court of Special Appeals and remand the case to the C ircuit Court fo r Prince G eorge s C ounty for a ne w trial. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCU IT COURT FOR PRINCE GEORGE S COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE S COUNTY. -35-
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