dissenting.
I am deeply disturbed by the majority’s haste to admit novel scientific evidence of unparalleled complexity when that evidence is still in the early stages of its development and its reliability is yet unknown.1 As it hurries to admit forensic restriction fragment length polymorphism analysis (RFLP) for forensic purposes, the majority does not apply State v. Brown, 297 Or 404, 687 P2d 751 (1984), with due care and therefore errs in its analysis.
In the majority opinion, the seven Brown guidelines are applied to forensic DNA testing in general but not to RFLP testing in particular. Contrary to the majority’s position that “ [d] efendant does not attack the validity of the RFLP method in general,” 123 Or App at 188, defendant assigns error to admission of “the state’s proffered evidence of identification based on DNA testing.” Read in context, this assignment of error refers to RFLP testing, as that was the only DNA evidence offered by the state.
Under State v. Brown, supra, we need to treat types of examinations, not just general fields, as novel scientific evidence. The defendant in Brown sought admission of a “peak of tension” polygraph test. The Supreme Court’s analysis begins:
*192“There are several different types of polygraphic examinations, each based on different assumptions and each possessed of different degrees of accuracy. If the question is asked, ‘Should the results of polygraph examinations be admissible as evidence?,’ the response should not be an answer, but another question: ‘What type of polygraphic examination produced the results?’ ” 297 Or at 422.
The Supreme Court proceeded to analyze the “peak of tension” test at some length. 297 Or at 422-25. Later in the opinion, the Supreme Court criticized researchers who “do not distinguish which type of polygraph test is being evaluated.” 297 Or at 428. There is no suggestion in Brown that had the peak of tension test been admissible, the seven other tests would be examined under the laxer standards for admission of scientific evidence which is no longer novel.
Plemel v. Walter, 303 Or 262, 735 P2d 1209 (1987) further supports the application of the Brown guidelines to RFLP testing. In Plemel, the Supreme Court held that because the probative value of statistics derived from blood test results and the dangers in their presentation to the trier of fact will be substantially the same in all cases, an appellate court should determine their admissibility under the Brown guidelines.2 303 Or at 278. Here, the probative value and the dangers of forensic RFLP will be the same in all cases, so the Brown guidelines apply.
When we apply the Brown guidelines to forensic RFLP, we should keep in mind the Supreme Court’s statement that
“what is important is not lockstep affirmative findings as to each factor, but analysis of each factor by the court in reaching its decision on the probative value of the evidence * * 297 Or at 418.
It is also important not to let the guidelines blind us to the ultimate issue: has the proponent established that the novel scientific evidence is reliable. 297 Or at 418 n 6.
*193The first Brown guideline is the technique’s general acceptance in the field. 297 Or at 422. The Supreme Court determined that the peak of tension polygraph test is widely used and is a generally accepted technique. 297 Or at 422. It is apparently taught in every school of polygraphy. 297 Or at 425. Whether the forensic use of RFLP DNA testing is generally accepted in the field is a more problematic inquiry. The majority quotes the Office of Technology Assessment (OTA) as finding that the forensic uses of DNA tests are reliable and valid when properly performed. 123 Or App at 185. However, that same body goes on to question the frequency with which forensic RFLP tests are properly performed and interpreted.
“Setting standards for forensic applications of DNA testing is the most controversial and unsettled issue. Standards are necessary if high-quality DNA forensic analysis is to be ensured, and the situation demands immediate attention.” The Genetic Witness: Forensic Uses of DNA Tests, Office of Technology Assessment, 10 (1990).
The OTA report recognizes that questions about technical standards and quality assurance remain to be resolved. The Genetic Witness at 23. The report, while favorable, does not translate into general acceptance of RFLP’s forensic uses.3 The National Research Council, an equally august body,4 reports that important questions have been raised about the reliability and validity of forensic RFLP. DNA Technology in Forensic Science (Summary), National Research Council, at 1 (1992). The scientific community is hotly debating the reliability of forensic RFLP testing, and the technique has not yet achieved general acceptance.5 An expert witness for the prosecution admitted that he could not say that the database used in this case was generally accepted in the scientific community.
*194In sum, as to the first Brown guideline, while the peak of tension test in Brown found general acceptance, the same cannot be said of RFLP testing at this time.
The second guideline in Brown is the qualification of experts. The Supreme Court held that the two polygraphers who tested Brown were experts because they were state licensed, had special training, and were experienced and prominent in their fields. The Supreme Court noted that state licensing is not a guarantee of expertise. 297 Or at 425-27.
In regard to RFLP, the academic qualifications of the molecular biologists, population geneticists, and statisticians who testify are often excellent. Though many RFLP experts are affiliated with the handful of laboratories in the country that do forensic RFLP testing, potential bias can presumably be revealed at trial. The most serious problem with the qualification of RFLP experts lies with the technicians who perform the highly complex tests and declare matches. Though their jobs involve tremendous responsibility, there is no federal or state oversight of their qualifications. The Genetic Witness at 76. The technician who testified in this case testified that her training on how to determine a match consisted of “simple visual instructions * * * of what is alike and what isn’t alike.”6 A related problem is the lack of laboratory certification.
Under guideline two, RFLP testing fares better than polygraphy where some categories of expert witnesses are concerned, but questions about the qualifications of the technicians and the laboratories will ultimately diminish the technique’s probative value until problems surrounding technician and laboratory certification are resolved.
Brown guideline three is the use that has been made of the technique. Use of forensic RFLP testing is neither rare nor widespread. The Supreme Court said that widespread use is not equivalent to general acceptance by the scientific community but has “some” bearing on probity. Guideline three is not particularly helpful in assessing RFLP’s probity.
*195Guideline four is the technique’s potential rate of error. Polygraphy’s potential rate of error was subjected to lengthy analysis before the Supreme Court concluded that the rate of error could not be established despite a plethora of studies purporting to do just that. 297 Or at 427-33. The majority’s discussion of RFLP’s reliability is terse. Its conclusion that RFLP is reliable rests on (1) a brief quote from the OTA (sans the OTA’s qualifications of its own statement) that DNA testing is valid (2) a statement that the tests results and testing protocol are available for objective review. The majority’s discussion of RFLP’s reliability for forensic use is inadequate.
According to the OTA, the reliability of RFLP analysis hinges on these factors: procedures used, laboratory performance, laboratory record keeping, quality control and quality assurance. Genetic Witness at 7. The OTA report is more concerned with urging the implementation of standards to monitor these factors than in assessing the current state of the field.
Many researchers harbor grave doubts about the technique’s reliability. Procedures used and laboratoiy performance are inadequate, according to Thompson and Ford. At the time of trial there were no state or nationwide standards by which the procedures used by laboratories could be compared or judged. Each lab’s procedures were considered trade secrets and are not subject to peer review. Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va L Rev 45, 59 (1989). Quality control and assurance are made difficult by the nature of the samples used in forensic RFLP testing. In contrast to DNA samples used in paternity testing, research and medical diagnosis, the samples used for forensic testing are subject to degradation due to age and environmental factors.7 Samples used in diagnostic tests are *196plentiful enough to permit repeated testing, another procedural safeguard forensic DNA testing lacks.8
In summary, there is no consensus about and no blind study of the reliability of RFLP tests for forensic use. Problems with the databases and the statistics used to interpret the RFLP test results are another problem. At least at the time of trial databases were small, unvalidated and not subject to peer review. Lack of data on reliability reduced the Supreme Court’s estimate of polygraphy’s reliability in Brown. Here, while the lack of data on reliability does not reduce RFLP’s probative value to zero, it does diminish it.
The fifth Brown guideline is the existence of specialized literature. 297 Or at 433. There is a great deal of specialized literature on the forensic use of RFLP. Most of the law review articles on the subject evidence alarm, while the scientific papers are more evenly divided between acceptance and rejection of current methods until standards and controls are implemented. We note that the National Research Council is worried about premature acceptance of the technique. DNA Technology in Forensic Science at 6.
The sixth Brown guideline is the novelty of the invention. The Supreme Court defined “novelty” as new or unusual. 297 Or at 434. Newness is hard to define in this context. The technique has been used since 1985, so it is neither brand-spanking new nor hoary with age. The technique is unusual for several reasons. Unlike the well-established use of DNA for paternity tests, there are no controls with RFLP testing.9 Also, the samples are degraded and subject to contamination, which increases the rate of false positives and false negatives. The need for population genetics also distinguishes RFLP testing from its more established cousin, paternity testing. Another unusual aspect of *197RFLP testing is that only two laboratories in the U.S. perform the test for forensic purposes. The evidence’s admissibility hinges, in part, on the credibility of two for-profit companies who consider their procedures trade secrets.
The seventh Brown guideline, the extent to which the technique relies on an expert’s subjective interpretation, is somewhat troubling. When the test in this case was performed, uncertified technicians “eyeballed” the data and declared matches on the basis of unvalidated, in-house standards. The same is not true of blood testing, ballistics, fingerprinting and other forensic tests. Tests in those areas are public, standardized, and the practitioners are certified. Life-code’s own scientific papers repudiate visual comparisons and suggest that matches be declared by computers. M. Baird et al, The Application of DNA-Print for Identification of Forensic Biological Materials, in Advances in Forensic Haem-ogenetics 396-402 (1988).
Summingup the Brown analysis of forensic RFLP, it appears that the technique did not have high probative value at the time of trial. As the OTA said, the technique has potential for high accuracy, but until the two laboratories implement greater controls and standards, the technique is somewhat undependable in practice. If RFLP is compared with polygraphy point by point, they have approximately the same probative value under Brown.
Having assessed the probative value currently possessed by forensic RFLP, we now turn to an OEC 403 balancing test to see if the probative value substantially outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury or considerations of undue delay or needless presentation of cumulative evidence. 297 Or at 438.
In Brown, the Supreme Court said that polygraphy presented two dangers: that the jury would overvalue polygraph evidence and that the jury would defer credibility determinations to the polygrapher. 297 Or at 440. In this case, the principal danger is that a jury will overvalue the RFLP test results. The court echoed the concern of United States v. Addison, 498 F2d 741, 744 (DC Cir 1974), that scientific evidence has the potential to assume an aura of “mystic infallibility” in the eyes of a lay jury. 297 Or at 440. *198Misunderstanding of a polygraph’s reliability might divert the jury’s attention from direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence. 297 Or at 440.
The majority gives short shrift to the danger that a jury might overvalue RFLP test results. Its discussion of the danger that a jury will overvalue RFLP test results is set out below.
“The [RFLP] evidence is not infallible, nor would it necessarily be considered as such by the trier of fact. Because of the availability of cross-examination and the defendant’s ability to call other witnesses to rebut the opinions expressed by the prosecution’s witnesses, the potential problem that the jury may be overly impressed by the aura of reliability of the evidence is lessened. * * * Rather than causing the trier of fact to abdicate its role of critical assessment, it enhances the ability of the juxy to perform the its constitutional function.” 123 Or App at 186.
The majority presents as self-evident truth the proposition that a jury would not necessarily consider the technique infallible. However, most of the authorities who have considered the issue are worried. As the OTA report states:
“[B]ecause statistical probabilities introduced in DNA cases are extremely small (sometimes one in billions) and are generally presented — or at least perceived — as an absolute identification, courts must decide if numbers that are introduced can be understood by juries.” The Genetic Witness at 105.
Studies indicate that juries are overwhelmed by scientific evidence they do not understand. Egesdal, The Frye Doctrine and Relevancy Approach Controversy: An Empirical Evaluation, 74: Geo L J 1769, 1790 (1986). Jurors commonly misuse or misinterpret statistical information. Thompson and Schumann, Interpretation of Statistical Evidence in Criminal Trials, 11 Law and Human Behavior 167 (1987). The Supreme Court based its holding that admission of poly-graphic evidence would divert the jury, in part, on a study of juror behavior. 297 Or at 440. Here, the available evidence suggests that the majority seriously underestimates the problem that juries will abdicate their role when faced with the *199extreme complexity of RFLP tests and the statistics used to interpret those tests.
The majority suggests that an opposing party’s ability to cross-examine expert witnesses and present its own expert witnesses lessens the “potential” problem that juries will be overly impressed with RFLP evidence. In Brown, the Supreme Court considered the opposing party’s ability to call expert witnesses not a help but a hindrance, and referred to “time-consuming and confusing battles of expert witnesses.” 297 Or at 441. If anything, a battle between opposing armies of molecular biologists, population geneticists, laboratory technicians and statisticians would be more time-consuming and more confusing than a battle between polygraphers.
The Supreme Court also cited prejudice to the administration of justice as a consideration under OEC 403. It stated that admission of polygraphic evidence would hamper justice in Oregon because at that time there were 35 licensed polygraphers in Oregon and over half a million criminal cases. 297 Or at 441. The court quoted with approval a federal case holding that the time required to analyze polygraphy tests would be “virtually incalculable.” 297 Or at 442.
Prejudice to the administration of justice is likewise a problem with RFLP testing. The costs of providing expert witnesses to the state and indigent defendants would be high.10 And, debates over RFLP tests would be time-consuming at a time when trial court dockets are full.11 While prejudice to the administration of justice is not a dispositive issue in OEC 403 analysis, practical problems deserve the same attention in this case as they received in Brown.
Besides the problems of juror over-reliance and undue delay, the Supreme Court considered a third problem with polygraphy: it directly comments on witness credibility. This third problem is not present with RFLP analysis. However the problems shared by RFLP analysis and polygraphy: juror confusion and over-reliance, and prejudice to the *200administration of justice, are arguably greater with RFLP testing. Furthermore, forensic RFLP has questionable reliability in practice. Reliability was the paramount concern in Brown. 297 Or at 418 n 6. After weighing the three considerations under OEC 403 against polygraphy’s probative value, the Supreme Court found that the probative value of polygraph evidence was “far outweighed” by the reasons for its exclusion.
In regards to forensic RFLP, it appears that the probative value was not high in this case. And, however great the temptation to gloss over the reasons for exclusion: overvaluation by the jury, jury confusion over statistics, expense and delay, those problems cannot be ignored. I conclude that the reasons for exclusion substantially outweighed probative value.
I dissent.
Warren and Durham, JJ., join in this dissent.Because defendant was tried in 1990, this court’s analysis of RFLP’s reliability is properly confined to what the record showed existed at that time.
The Brown and Plemel positions find support in the scientific community. For instance, the National Research Council states that “[i]t is meaningless to speak of the reliability of DNA typing in general-i.e. without specifying a particular method.” DNA Technology in Forensic Science (Summary) at 8.
The majority cites figures concerning the use of RFLP in criminal cases, presumably as evidence of the technique’s widespread acceptance. 123 Or App at 185. However, Brown refers to general acceptance as acceptance by the relevant scientific community. 297 Or at 427.
The National Research Council is part of the National Academy of Sciences.
The National Research Council admonishes against premature acceptance of the technique, “lest society and the criminal justice system be unable to benefit fully from advances in science and technology.” DNA Technology at 6.
The secrecy of laboratory protocols has inhibited oversight. See the discussion of laboratory secrecy under the discussion of guideline four hereafter.
“[T]he differences between the scientific technique applied to diagnostics and those same techniques applied to forensics have thus far proven fatal to the reliability of the forensic test.” Hoeffel, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 Stanford Law Rev. 465 (1990).
“Research scientists can tolerate relatively high rates of error and unreliability in their procedures. Scientific experiments which produce a finding of interest are usually repeated, sometimes many times, to be sure they are accurate. * * * In any case, errors tend to stand out because they are inconsistent with scientific knowledge and theory. The situation in a forensic laboratory is quite different. Tests are often not repeated.” Thompson and Ford, supra, at 56.
In paternity testing, a blood sample from the mother is used as a control.
Eleven experts testified at the trial, at state expense.
In this case, it took the court 13 months to rule on the admissibility of forensic RFLP. Expert witness took the stand 17 times in the pre-trial hearings alone.