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In a recent decision of the Supreme Court of Florida, Ramirez v. State, a conviction was reversed because of the erroneous admission of testimony by a toolmark expert witness who had identified a particular knife as the murder weapon from a microscopic comparison of markings in a piece of cut cartilage. The expert's conclusion was backed up by four other experts for the State, but one expert for the defense testified that the methodology used by the chief State's expert was not generally accepted as reliable.

Below is an edited version of the Florida court's opinion, with most footnotes and internal citations omitted, and the remaining footnotes renumbered. It deserves noting that while Florida still adheres to the Frye test of "general acceptance," it measured this particular technique at least in part by how well the toolmark expert's technique did on the Daubert factors – a practice that many Frye states now follow. In contrast with the Ramirez case, we follow its discussion with a Kansas case going the other way on almost identical facts. But the Kansas case was much older – it was decided in 1982, before the revolution in the admissibility of expert opinion evidence that Daubert brought.

Joseph J. Ramirez v. State of Florida

2001 WL 1628609, 27 Fla. L. Weekly S18
Supreme Court of Florida, Dec. 20, 2001

SHAW, J.

We have on appeal the judgment and sentence of the trial court imposing the death penalty on Joseph J. Ramirez following his third trial for the first- degree murder of a night courier. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the convictions and vacate the sentences for the same reason as before--i.e., the trial court erroneously admitted evidence based on the knife mark identification procedure of Robert Hart.

This is an appeal following the third trial of Ramirez for a 1983 murder. The prior reversals were based on the trial court's admission ("For the first time in the history of the Florida courts," as the first trial court put it) of testimony by Miami crime technician Robert Hart wherein he stated that, based on his knife-mark identification procedure, Ramirez's knife was the murder weapon to the exclusion of all others. The facts underlying the first trial are set forth in Ramirez v. State, 542 So.2d 352 (Fla. 1989) (Ramirez I ):

The relevant facts are as follows. Early Christmas morning in 1983, the body of a twenty seven-year-old woman was discovered in the Miami Federal Express building where she worked as a night courier. She had died of multiple stab wounds to her body and blunt trauma to her head. Additional injuries included cuts on her hands and back and one stab wound into her chest cartilage. At the scene, police found blood spatters and pools throughout the dispatch area and break room indicative of a struggle. A bloody paper napkin and bloodstained fragments of a missing sixty-seven-pound telex machine were also discovered. The hot water faucet in the women's restroom was turned on full force. One truck had been tampered with and one of the loading bay doors was unlocked. The desk of an employee who sold jewelry had been opened, and a mail bag containing approximately $430 was missing. A hair was discovered on the victim's hand. Experts compared hair samples taken from Ramirez with that hair and determined that the hair found on the victim's hand did not belong to Ramirez.
The police discovered a bloody fingerprint on a doorjamb near the victim's body. From a photograph of the patent partial left thumbprint, a technician found ten points of similarity. Despite the fact that only approximately ten percent of the fingerprint area was discernible, the technician positively identified the fingerprint as belonging to Ramirez, an employee of an independent janitorial company which serviced the Federal Express offices. Based upon the fingerprint identification, Ramirez was arrested and charged with first-degree murder.
Police investigation established that Ramirez had cleaned the Federal Express office on the afternoon of December 24. A week earlier, on December 17, the victim was unable to locate her keys to the building and had duplicates made. The lost keys were never found.... Ramirez inquired about the amount of revenues coming in and was told by the supervisor that they had a good business. Several people including Ramirez were also working in the area that day when the money was counted and placed in the mail bag.
Ramirez's girlfriend testified that at approximately 6:00 p.m. on Christmas Eve Ramirez returned to their residence. She stated that Ramirez left at around 9:00 p.m. in her Renault automobile to visit the home of some friends and that he was wearing a navy blue sweater with a fox emblem on the front. He remained at his friends' home until approximately 11:00 p.m. The appellant's girlfriend testified that Ramirez had returned home at some time during the night, but that she had not noted the time. However, when she arose at 5:30 a.m., Ramirez was at home. From the time Ramirez left his friends' home until sometime in the early hours of Christmas Day, his whereabouts were unknown.
When asked to produce the clothing he wore on Christmas Eve night, Ramirez told police the sweater he had worn was at Alvarez Cleaners, but the police were unable to locate a dry cleaning establishment of that name. An inquiry of other dry cleaners in the area did not turn up the sweater. On December 28, Ramirez volunteered to the police a sweater he claimed to have worn Christmas Eve. The sweater was devoid of any emblem. Ramirez claimed the fox emblem had fallen off in the wash. When the police arrested Ramirez on December 28, they found a department store sales receipt in his wallet which indicated he had purchased the sweater that day. A store employee remembered selling Ramirez the sweater because she noticed his expensive watch. According to his girlfriend, Ramirez had purchased the watch on December 26. His old watch, found in the bedroom of his residence, appeared to have traces of blood on the band.
In the search of the Renault, police found a knife which Ramirez's girlfriend kept in the car for protection. The girlfriend testified that after Christmas she had found the knife in her kitchen sink and washed it. Her daughter returned the knife to the Renault when Ramirez, while cleaning the car, requested it to cut some string. Traces of some type of blood were detected on the knife, but in insufficient amount to determine their origin. No blood stains were detected on either Ramirez's sneakers or the pants he purportedly wore on the night of the murder. A police technician, who was qualified as a tool mark expert, testified that the knife found in the trunk of the Renault was the specific knife which produced the victim's chest wound.

Hart's specific knife mark identification evidence played a crucial role in the trial:

The trial court allowed the expert to state, "The result of my examination made from the microscopic similarity, which I observed from both the cut cartilage and the standard mark, was the stab wound in the victim was caused by this particular knife to the exclusion of all others." The technician explained that he had compared a piece of cut cartilage from the body of the victim to knife impressions, using the knife in question, but had made no comparisons with other knives. (Emphasis added).
Ramirez was convicted and sentenced to death.

This Court reversed the conviction, ruling that while the knife itself was admissible, Hart's testimony that this particular knife was conclusively the murder weapon was "self-serving" and inadmissible:

In reviewing the record, we find that no scientific predicate was established from independent evidence to show that a specific knife can be identified from the marks made on cartilage. The only evidence received was the expert's self- serving statement supporting this procedure. The medical examiner testified that this type of knife could have made this type of stab wound. The trial judge expressed concern about this type of evidence when [the judge] stated, "For the first time in the history of the Florida courts ... I have permitted into evidence knife prints, which the jury considered in the course of arriving at their verdict." Ramirez I, 542 So.2d at 354-55.

Prior to the second trial, the court conducted a hearing wherein Hart testified concerning the reliability of his identification theory and submitted an article he had written on the subject; Ramirez was not allowed to present opposing evidence at the hearing. The court ruled the State's evidence admissible, and Ramirez again was convicted and sentenced to death. This Court again reversed:

Just as important as the burden of proof [at the hearing] is the fact that the hearing must be conducted in a fair manner. There is no question that a hearing on the admissibility of novel scientific evidence is an adversarial proceeding in which conflicting evidence is presented to the trial judge as the trier of fact. Without the testimony of experts presented by both parties, the trial judge is denied a full presentation of relevant evidence. This is especially important in a criminal trial where the defendant is guaranteed certain constitutional rights, not the least of which is the due process right to present witnesses in one's behalf.

Prior to the third trial, the court conducted a hearing wherein the State presented the testimony of six experts to support Hart's identification methodology. The defense presented one expert in rebuttal. The trial court again admitted the evidence, and Ramirez was convicted and sentenced to death based on four aggravating circumstances, no statutory mitigating circumstances, and three nonstatutory mitigating circumstances, overriding the jury's nine-to three vote in favor of life imprisonment. Ramirez raises nine issues on appeal, but we find a single claim dispositive.

Ramirez asserts that the trial court erred in allowing the State's experts to testify that the knife found in Ramirez's car was the murder weapon to the exclusion of every other knife in the world. He contends that Hart's identification method is novel and untested and the State has failed to present sufficient proof of its reliability.

An expert witness is normally permitted to testify relative to generally accepted scientific theory in the witness's area of expertise. The witness's testimony is subject to the balancing test set forth in section 90.403, Florida Statutes (2000), which focuses on "legal" reliability and applies to all evidence. When a court is faced with expert testimony based on a new or untried scientific theory, however, the balancing test in section 90.403 is inapposite because the court may be unable to gauge accurately the danger of misleading or confusing the jury due to the unproven nature of the testimony. In such a case, "scientific" reliability must be established as a predicate to "legal" reliability.

Under the Florida Evidence Code, expert testimony is admissible if it will assist the trier-of-fact in his or her task:

90.702 Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
§ 90.702, Fla. Stat. (2000).

All evidence, including expert testimony, is subject to the requirements of sections 90.401, 90.402, and 90.403, which address relevancy and reliability. Section 90.401 defines relevant evidence as evidence that is both probative and material:

90.401 Definition of relevant evidence.--Relevant evidence is evidence tending to prove or disprove a material fact.
§ 90.401, Fla. Stat. (2000).

All relevant evidence is admissible, unless specifically excluded:

90.402 Admissibility of relevant evidence.-All relevant evidence is admissible, except as provided by law.
§ 90.402, Fla. Stat. (2000).

Relevant evidence is excluded inter alia if it is unreliable under the balancing test in section 90.403:

90.403 Exclusion on grounds of prejudice or confusion.--Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
§ 90.403, Fla. Stat. (2000).

In applying this balancing test, the court bars from the jury's purview evidence that is unduly prejudicial, misleading, or confusing--i.e., evidence that is "legally" unreliable. A trial court's ruling on a section 90.403 issue will be upheld on appeal absent an abuse of discretion.

Evidence based on a novel scientific theory is inherently unreliable and inadmissible in a legal proceeding in Florida unless the theory has been adequately tested and accepted by the relevant scientific community. The court in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), explained:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923) (emphasis added). This Court, in adopting the Frye test for use in Florida, pointed out the underlying reason for the rule:

The underlying theory for this rule is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use. Stokes v. State, 548 So.2d 188, 193-94 (Fla.1989).

In keeping with the State's burden in a criminal trial (i.e., the State must prove each element of the charged offense beyond a reasonable doubt), this Court has continued to use the Frye test when evaluating novel scientific evidence proposed by the State even though the United States Supreme Court, in a civil case, has adopted a different rule¹.

When applying the Frye test, a court is not required to accept a "nose count" of experts in the field. Rather, the court may peruse disparate sources--e.g., expert testimony, scientific and legal publications, and judicial opinions – and decide for itself whether the theory in issue has been "sufficiently tested and accepted by the relevant scientific community." In gauging acceptance, the court must look to properties that traditionally inhere in scientific acceptance for the type of methodology or procedure under review--i.e., "indicia" or "hallmarks" of acceptability. A bald assertion by the expert that his deduction is premised upon well-recognized scientific principles is inadequate to establish its admissibility if the witness's application of these principles is untested and lacks indicia of acceptability.²

The trustworthiness of expert scientific testimony is especially important because oftentimes "[t]he jury will naturally assume that the scientific principles underlying the expert's conclusion are valid." The Court in Ramirez v. State, 651 So.2d 1164 (Fla.1995) (Ramirez II ), explained the appropriate burden and standard of proof in a Frye inquiry:
In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand. The trial judge has the sole responsibility to determine this question. The general acceptance under the Frye test must be established by a preponderance of the evidence.

A trial court's ruling on a Frye issue is subject to de novo review, and the reviewing court must consider the level of acceptance at the time of review, not the time of trial. . . . This Court on review has applied the Frye test to determine the admissibility of various types of evidence.

Traditional "knife mark" evidence is a subgroup of the broad category of evidence commonly referred to as "tool mark" evidence. The theory underlying tool mark evidence, which is explained below, is generally accepted in the scientific community and has long been upheld by courts. Many of the analytical methods that were developed for use with tool marks in general have been applied to knife marks in particular and have similarly been accepted by courts. Hart's theory of knife mark identification, however, departs from traditional knife mark identification theory in significant ways, and the State has cited no appellate decision upholding his theory.³

The term "tool mark" refers to the mark left by a hard material when striking a softer material, and such a mark generally falls into one of two classes, i.e., (1) an impression marking, or (2) a striation marking:

A toolmark may be described briefly as the mark left by an instrument or an object composed of a hard substance coming in contact with and leaving some characteristic mark or impression on a relatively softer medium.
Toolmarks may show one of two things: (1) a negative reproduction of the tool itself--size, shape, and contour--which is a true impression; (2) a series of parallel striations [or lines] caused by dragging the tool across the surface of the softer medium.
The basic principle in toolmark comparison is the reproduction of similar marks with the suspected tool or instrument, simulating as nearly as possible the conditions under which the original marks were made. Leland V. Jones, Locating and Preserving Evidence in Criminal Cases, in 1 Am.Jur. Trials 555, 616 (1964).

An identification procedure commonly used by tool mark experts is as follows: (1) the expert attempts to duplicate the original crime-scene mark by using the suspected tool to create a comparable mark on a similar test medium; (2) the test mark (i.e., the "exemplar") is compared to the original mark via microscopic examination; (3) patterns of impressions or groups of striations are matched up under a three-dimensional stereoscopic comparison microscope; (4) two dimensional photomicrographs (i.e., photos) of the comparison are taken for record purposes; and (5) if the marks are sufficiently similar, the expert may conclude that they were made by the same tool (i.e., the suspected tool). Marks left by various tools have been studied in this manner, including screwdrivers, chisels, wire-cutters, hammers, axes, and knives.

Unlike wood, metal, plastic, and other hard surfaces, human tissue is pliable and does not readily retain detailed marks. Thus, knife mark analysis in human tissue traditionally has been limited to a gross observation of the wound itself and a microscopic examination of the interior and exterior surfaces of the wound to detect alterations in the cellular structure of the tissue or the presence of fibers or other trace materials. From this analysis, an examiner may deduce, for instance, the general length, width, shape, or contour of the knife blade, and the presence of any foreign matter.

Specifically, courts have permitted experts to attest to the following: that a particular knife could have been the murder weapon; that a particular knife was consistent with the victim's wounds; that a victim's wounds were caused either by a particular knife or a knife similar thereto; and that a victim's wounds could not have been caused by a particular knife. On the other hand, courts have approached with caution an expert's testimony that a victim's wounds were caused by a particular knife.

Hart's testing procedure is based on the premise that every knife blade is unique due to microscopic imperfections in the steel caused by the manufacturing process. These imperfections, he contends, leave lines--i.e., striations--when a knife is plunged into human cartilage, and because cartilage is a relatively firm material, as compared to human flesh, it retains the marks. The striations in the cartilage, i.e., the striation "signature," may be matched by a skilled technician to the imperfections in the blade of the knife that made the wound.

Hart employs the following technique: (1) he conducts a mock stabbing with the suspected knife in a test medium; (2) he separates the cut faces of both the incision in the exemplar and the incision in the victim's cartilage; (3) he makes a hard cast of the cut faces of both incisions; (4) he compares the casts under a firearms comparison microscope to match up the striations; (5) he makes a subjective determination concerning the degree of the match; and (6) if the marks are sufficiently similar--i.e., if the striation "signatures" are sufficiently similar--he concludes to a degree of scientific certainty that both incisions were made by the suspected knife to the exclusion of every other knife in the world.

According to Hart, a technician's ability to identify microscopic similarities in casts is developed by training and is passed on from one technician to another in the workplace. A "match" under his method is declared if there is "sufficient similarity" in the striated marks on the casts to eliminate the possibility of coincidence. This determination is entirely subjective and is based on the technician's training and experience; there is no minimum number of matching striations or percentage of agreement or other objective criteria that are used in this method. No photographs are made of the casts, Hart explained, because lay persons and those not trained in this procedure would be unable to understand the comparison process; similarly, no notes are made describing the basis for identification. Once a match is declared under his theory, no other knives are examined because an identification under this method purportedly eliminates all other knives in the world as possible sources of the wound. Under Hart's method of identification, a team of expert technicians trained by him would be virtually impossible to challenge notwithstanding the fact that his procedure is untested and yet to be accepted by the relevant scientific community. There is no objective criteria that must be met, there are no photographs, no comparisons of methodology to review, and the final deduction is in the eyes of the beholder, i.e., the identification is a match because the witness says it is a match.

At the pre-trial hearing below, the State presented the live testimony of Hart and four other tool mark experts,⁴ all of whom are or were at one time affiliated with law enforcement agencies, and one bite mark expert. The State's experts all testified in a manner that supported Hart's methodology. In counterpoint, the defense presented a single expert⁵ who testified that the validity of Hart's method has never been tested and that the underlying principle is suspect.

After Hart explained the principle underlying his testing procedure for knife mark identification, he testified that Ramirez's knife was the murder weapon to the exclusion of all others:

Q. And you are willing to say with reasonable scientific certainty that if there were two million knives made that within that one-half inch of space on that knife that there would not be those similarities whether you found two or 200 striae?
A. That is correct. I am saying that that approximate half inch area contained such similarity for me to conclude that the mark[s] were made by this knife to the exclusion of all others.
....
Q. This would be your explanation to another forensic scientist that you do not know the number [of matching striations], but if you did, it doesn't matter that there were two million other knives out there, that there would not be another knife within that one half inch space; is that correct?
A. That is correct. I am saying to the exclusion of all other similar knives.
....
Q. Mr. Hart, what is the opinion that you have reached regarding the stab wound that was in Marie Jenkins's cartilage inside her chest? What knife caused that stab wound?
A. It is my opinion as reflected in my written report that the wound to Marie Jenkins's chest was caused by this knife to the exclusion of all others.

The State's experts subsequently testified that the principles underlying Hart's testing procedure are generally accepted in the field.

One of the State's experts, Lonny Harden, testified that he too examined the evidence prepared by Hart in the present case and agreed with Hart that Ramirez's knife was the murder weapon to the exclusion of all other knives:

Q. What conclusion did you reach?
A. I was able to determine that one of the casts that Mr. Hart made the knife cut, was able to be matched back to the cast he made from the rib, indicating that the same tool was use (sic) to make both impressions.
....
Q. If I were to say that there were ten million [similar knives] created that year, is it your testimony that this one half inch [wound in the victim's cartilage] is the only one out of ten million?
A. That is correct sir.

The defense expert, Dale Nute, on the other hand, testified that Hart's knife mark identification procedure has not been properly validated. Nute testified that because Hart's procedure applies to an unusual receiving material, i.e., cartilage, and involves a stabbing rather than cutting motion, it cannot be assumed that this method is as reliable as other tool mark comparisons. Nute further stated that it is not scientific to say "it was a match because I say so," as Hart does, rather than using objective criteria and articulating the bases for making an identification. At the conclusion of the Frye hearing, the court ruled that the evidence was admissible.

Although several of the State's experts testified that the underlying principle employed by Hart is generally accepted in the field, we conclude that this testimony standing alone is insufficient to establish admissibility under Frye in light of the fact that Hart's testing procedure possesses none of the hallmarks of acceptability that apply in the relevant scientific community to this type of evidence. This is particularly true in light of the extraordinarily precise claims of identification that Hart makes under his testing procedure--i.e., he claims that a "match" made pursuant to his method is made with absolute certainty. Such certainty, which exceeds even that of DNA testing, warrants careful scrutiny in a criminal--indeed, a capital--proceeding.

First, the record does not show that Hart's methodology--and particularly his claim of infallibility- has ever been formally tested or otherwise verified. At the Frye hearing below, the State submitted no substantive proof of scientific acceptance of such testing and its reliability. In fact, the only record evidence that even hints at general acceptance of Hart's testing procedure is a single published article describing an experiment wherein German forensic scientist Wolfgang Bonte examined the wounds left in cartilage by twelve different types of serrated-blade knives. Bonte, however, did not conduct a "blind" study; he was concerned only with documenting the relationship between the nature of the wound and the size and shape of the corresponding blade. Microscopic imperfections in knife blades-- i.e., the key to Hart's test--was a non-issue in the Bonte study; the Bonte blades were grossly dissimilar to one another.

Second, the record does not show that Hart's test has ever been subjected to meaningful peer review or publication as a prerequisite to scientific acceptance. At the Frye hearing below, the court reviewed two groups of published articles addressing knife mark evidence--one group North American,⁶ the other European.⁷ The North American articles were written by law enforcement technicians⁸ and while several of those articles address principles related to Hart's theory none undertakes the kind of searching, critical review that is the sine qua non of scientific acceptance.⁹ The European articles, on the other hand, were written by medical doctors and professors and are far more discerning; they delineate general studies and contain extensive analyses. The articles in that group, however, address only traditional knife mark theory relative to striation signatures. None address Hart's testing methodology and the absolute certainty of identification deduced from such a test.

The State's experts testified that the examining technician generally takes no photomicrographs of the casts because lay persons would be unable to understand the identification process.¹⁰ This testimony, however, is belied by the published articles in the present record. Each article- including Hart's own article--contains photos of the matching striae, and the photos are instrumental in confirming--for the reader--the validity of the "match." The State's experts further testified that they do not prepare notes or written reports delineating the basis for identification because to do so would not be helpful. Again, this testimony is belied by the record. The German articles, for instance, describe at length the matching points of identification and then relate those points to specific features of the corresponding knife blade, and these descriptions, too, are helpful in confirming the validity of the "match."

Fourth, the record does not show that the error rate for Hart's method has ever been quantified. On the contrary, the State's experts testified that the method is infallible, that it is impossible to make a false positive identification.¹¹ Fifth, the record does not show that this method is governed by objective scientific standards. The State's experts repeatedly testified that the method is entirely subjective and that objective standards would be impractical.¹² This testimony, however, is contrary to language in Hart's own published article wherein he refers to the existence of objective scientific standards used in assessing the degree of match in striation marks. And finally, the record contains no written authority--including Hart's own published article--that upholds his current methodology.

We conclude that the State has failed to show by a preponderance of the evidence that Hart's procedure is generally accepted by scientists active in the field to which the evidence belongs. In applying the Frye criteria, general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation. As we emphasized in Ramirez II, "the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply the principle to the facts of the case at hand." Ramirez II, 651 So.2d at 1168. We hold that while the knife that was recovered in Ramirez's constructive possession may be admitted as conventional evidence of guilt, testimony based on Hart's knife mark identification procedure, which we find to be new and novel, does not reach the threshold for admissibility under Frye and is therefore unreliable and inadmissible. Because this evidence played a key role in the trial below, the trial court's error in admitting the evidence was harmful beyond a reasonable doubt and requires reversal of the convictions.

In each of the three successive murder trials in the present case, police crime technician Robert Hart made the extraordinary claim that his newly formulated knife mark identification procedure was infallible. He contended that he could identify the murder weapon to the exclusion of every other knife in the world--even if there had been two million consecutively produced knives of the same type--based on a striation "signature" arising from microscopic imperfections in the steel of the blade. The trial court in all three trials admitted expert testimony based on Hart's testimony, and Ramirez each time was convicted of first-degree murder and sentenced to death.

Our review of the record convinces us that under the general acceptance test of Frye, the State has failed to prove that the testing procedure used to apply the underlying scientific principle to the facts has gained general acceptance in the field in which it belongs.

In sum, Hart's knife mark identification procedure--at this point in time-- cannot be said to carry the imprimatur of science. The procedure is a classic example of the kind of novel "scientific" evidence that Frye was intended to banish--i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible. The potential for error or fabrication in this procedure is inestimable. In order to preserve the integrity of the criminal justice system in Florida, particularly in the face of rising nationwide criticism of forensic evidence in general,¹³ our state courts--both trial and appellate--must apply the Frye test in a prudent manner to cull scientific fiction and junk science from fact. Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction, especially in a capital case.

Due to the trial court's error in admitting testimony based on Hart's knife mark identification procedure, we reverse the convictions for first-degree murder, armed robbery, and armed burglary with an assault and vacate the sentences. If the State opts for a fourth trial on these charges, the maximum sentence that can be imposed on Ramirez for a first-degree murder conviction is life imprisonment due to the jury's current life recommendation.

It is so ordered.

HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

WELLS, C.J., concurs as to conviction and concurs in result only as to sentence.

Note that all of the authorities cites by the Ramirez court in support of its decision to deny admissibility are far more recent than the 1982 decision of the Kansas court which follows – the Ramirez citations flow directly from the United States Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire v. Carmichael, despite the fact that Florida is, nominally at least, a Frye state

The second toolmark case, State v. Churchill, is based on remarkably similar facts as were present in the Ramirez case. In Churchill, too, there was some blood found on the knife but it was of insufficient quantity to be of forensic use; the toolmark examiner testified to this being the first case in which he compared knife marks on bone. But here the Kansas Supreme Court, in a 1982 decision applying the Frye standard, held the evidence was properly admitted. Here is the portion of the case that is relevant to our discussion.

MILLER, Justice:

Ronald D. Churchill was convicted by a jury in Johnson District Court of murder in the first degree, K.S.A. 21-3401. He appeals, raising a number of issues, most of which challenge the propriety of the admission of evidence.

On January 30, 1980, Mr. and Mrs. Kerry Halling, with their three children, lived in a second floor unit of the Oak Park apartment complex in Lenexa, Kansas. Mr. Halling left for work at a local bottling company at 4:30 o'clock that morning; a friend, David Stevens, who was staying with the Hallings, left the apartment around 5:30 o'clock a. m. As was his custom, Mr. Halling called his wife from work at approximately 9:15 o'clock a. m., and spoke with her briefly.

Mrs. Halling's mother, Teresa Peck, arrived at the apartment about 10:30 o'clock a. m. The oldest child, age three, told her that his mother was sick. Mrs. Peck went to the bedroom and found her daughter lying on the floor. Mrs. Halling had been subjected to a savage knifing, and had been stabbed twelve or thirteen times; some of the wounds extended completely through her torso. The physician who performed the autopsy later that day found that Mrs. Halling could have died either from the stab wounds, which severed her aorta, or from strangulation.

Ronald D. Churchill and Robert Mall lived together in the same apartment complex, one floor below the Halling apartment. During the investigation, the police discovered that the defendant had been seen walking around the building with his dog earlier that morning; he had at one time been within a few feet of the front door of the Halling apartment. Detective John Meire, investigating the homicide, went to the apartment occupied by Churchill and Mall about two hours after Mrs. Halling's body was discovered. He was making an area canvass. Churchill answered the door and in response to Meire's questions stated that he had been outside four or five times that morning, once quite close to the victim's apartment. He had seen and heard nothing unusual, and had seen no strangers. Mall stated that he had been sleeping and didn't see or hear anything.

Later, Detective Meire heard from another officer that during the 9:15 o'clock telephone conversation, Mrs. Halling asked her husband to bring some grape soda pop for the two men in apartment 114, Churchill and Mall. Meire, accompanied by Detective Allen Harris, returned to apartment 114 about 1:30 o'clock p. m. Churchill and Mall invited them to come inside, and they did so. After some conversation, Meire asked Churchill if they had any large knives in the apartment; defendant replied that they had some knives; the detective and Churchill went into the kitchen. Churchill opened a drawer and picked up a large knife. Meire took it from him, noted that it appeared similar in size to the one used in the homicide, and asked Churchill if he would mind if the detectives took it with them. He said, "No." He also said that he had washed the knife that morning. Mall had worked the night before, arrived home at 8:15 o'clock a. m., and then slept until afternoon.

The knife and a doorknob from apartment 114 were subjected to laboratory examination. Human blood was found under the wooden handle of the knife; it matched the blood of the victim. A small amount of blood was found on the doorknob; it was consistent with Mall's blood, but the amount found was not large enough so that a full test could be run.

Michael Kelty, an experienced firearm and toolmark examiner with the Johnson County Criminalistics Laboratory, examined both the knife taken from the Churchill-Mall apartment, and the sternum of the victim. He expressed the opinion that the cuts in the victim's breastbone were made by the knife.

Churchill and Mall were arrested about 6:00 o'clock p. m. on February 1, two days after the homicide, and both were taken to the Overland Park police station where they were placed in separate rooms. Defendant was questioned by Detective Ellen Hanson. Around 9:00 o'clock p. m., another officer told Detective Hanson that Mall had not passed a polygraph examination. Churchill overheard this report, became very upset, and later asked to be left alone for a few minutes. He said he wanted to do the right thing. He couldn't understand why Mall didn't pass the polygraph test, and stated that he was certain that Mall had not committed the crime. Detective Hanson stepped out of the room. When she returned, Churchill told her that he had killed Mrs. Halling; that he wanted to do the right thing and that he did not want anybody else to take responsibility for what he had done. He then proceeded to confess the crime in considerable detail. The confession was written and was also tape recorded. The trial court determined that the statement was voluntary and admitted it into evidence. The tape recording was played for the jury at both of defendant's trials. The first trial resulted in a hung jury, the second in his conviction.

Defendant first contends that the trial court erred in overruling his motion to suppress the confession

Defendant next contends that the trial court erred in admitting, over objection, the opinion testimony of Michael Kelty, the firearm and toolmark examiner. It is well established that the qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court; its rulings upon such testimony will not be disturbed on appeal, unless the appellate court finds an abuse of discretion.[Citations omitted.]

Mr. Kelty had been employed for many years as a toolmark and firearms examiner; he had made hundreds of toolmark comparisons and had testified frequently as an expert during that period of time. He testified that he had not previously performed tests to determine whether marks upon the human body were made by a given tool, but he testified that toolmark examinations in human tissue were conducted by the same procedures and governed by the same principles applicable generally in toolmark examinations, and that the procedure used was acceptable in his profession. It would appear from the record that he has the requisite skill and training to perform the tests, and that the methods used were reliable. The defendant presented expert testimony to the jury in order to call into question Kelty's methods and conclusions. The witness's experience or lack of experience in previously performing similar examinations goes to the weight of the testimony, not to its admissibility. [Citation omitted.]
We hold that the trial court did not abuse its discretion in admitting the testimony.

The judgment is affirmed.

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