(concurring):
I have expressed elsewhere my concern that purported “experts” may be allowed to express opinions for which there is no scientific basis. See United States v. Snipes, 18 M.J. 172, 180 (C.M.A.1984) (Everett, C.J., concurring in the result); United States v. Moore, 15 M.J. 354, 367 (C.M.A.1983) (Everett, C.J., dissenting). However, whether I apply the Frye * test or some more liberal test, my examination of this record convinces me that the military judge acted within his discretion in allowing the blood-spatter testimony of Special Agent Herndon. As the principal opinion points out, there is ample precedent for receiving such evidence, which has an obvious basis in recognized laws of physics.
In a summation question, trial counsel virtually invited Herndon to go beyond the proper scope of his expertise. The prosecutor asked: “Analyzing all the evidence you have discussed here this morning, what is your theory as to how this incident occurred?” (Emphasis added). In my view, “theories” should be the subject of argument by counsel; and experts should only state their opinions and conclusions and testify whether the evidence is consistent with various hypotheses. However, because there was no objection to the form of this question and no motion to strike the answer, appellant has waived any complaint he might otherwise have. Accordingly, I concur.
Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923).