dissenting.
The reader is told by the majority opinion that the opinion of the Court of Appeals is reviewed by this Court “primarily to consider the issue of the admissibility of expert testimony regarding the interpretation of blood spatter evidence.” 119 Idaho at 1049, 812 P.2d at 1210. This suggests that the treatment of this issue by the Court of Appeals is somehow deficient. In fact, the treatment by the Court of Appeals is just as good as that provided by a majority of this Court. The problem with both opinions is their unthinking rejection of Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
Frye is a simple two page opinion that affirms a trial court’s decision not to admit evidence of the results of a lie detector test performed upon the defendant. The judges of that court, in the course of their short opinion, were convinced that they had to determine whether the lie detector involved a procedure sufficiently reliable to be admissible; not just in the case at bar but for cases to come:
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, 293 F. at 1014.
The Frye opinion, written before the adoption of the Federal Rules of Evidence or the Idaho Rules of Evidence, nevertheless responds to a problem created by those compilations of rules. Using just the rules of evidence, it is too easy to establish the admissibility of novel scientific evidence: If the evidence is I.R.E. 401 relevant, it is admissible under I.R.E. 402 unless it does not satisfy I.R.E. 702’s requirement that the evidence “will assist the trier of fact.” The practically insignificant hurdle of I.R.E. 401 (legal relevance) is easily cleared *1053by the propounder of novel scientific evidence, and does not screen out scientific evidence that in time will prove to be untrustworthy. This problem, created by the rules of evidence, is remedied by the Frye requirement that novel scientific evidence gain general acceptance in the relevant scientific community before it may be used in any court.
Instead of actively embracing the Frye standard, this Court has treated Frye inconsistently. In State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984), this Court cited to Frye for the first time. Iwakiri discussed hypnotically refreshed (or confabulated) testimony, and pointed to three approaches to the admissibility of such testimony. All three, one of which was Frye, were rejected as “per se” rules of admissibility or inadmissibility, and a fourth approach was adopted to structure the inquiry surrounding the admissibility of hypnotic testimony. The approach adopted was termed the “totality of the circumstances” approach.
Iwakiri did not acknowledge that the Frye test comes into play, if at all, at a preliminary stage to determine whether the novel theory or scientific principle that produced the evidence is sufficiently reliable. This Court in Iwakiri passed this over by simply accepting, without discussion, that hypnosis assists memory, and went immediately to the question of preventing contamination of testimony by improper suggestions offered during hypnosis: “There needs to be some method of determining the admissibility of this type of testimony that will protect against the dangers of hypnosis, particularly the dangers of cueing and confabulation, and yet allow for receipt of the benefits of memory recall which hypnosis can produce.” Iwakiri, 106 Idaho at 625, 682 P.2d at 578. In effect, Iwakiri accepts the reliability of hypnosis as a memory refresher, but does not engage in an analysis to determine that conclusion.
One would surmise on a quick reading of the opinion that Iwakiri put to rest all use of the Frye test to determine the admissibility of novel scientific evidence. However, in Iwakiri itself Frye is cited to with approval after the opinion rejected the application of the Frye test as a test for the admissibility of hypnotically induced testimony. See 106 Idaho at 626, 682 P.2d at 579 (“[a] witness should not be able to buttress his testimony by stating that his present recollection resulted from his or her hypnosis any more than a witness may buttress his direct testimony by testifying that he had made the same statements on a lie detector test and has passed the test. Cf Frye v. United States, 293 F. 1013 (D.C.Cir.1923).”).
The next use of Frye by this Court occurs in State v. Crea, 119 Idaho 352, 806 P.2d 445 (1991). In Crea the defendant challenged the results of an Intoximeter 3000 test from which the Taguchi cell had been removed. The majority declined “to adopt the Frye criterion as the basis for admission of scientifically derived evidence as relates to the issues presented in this appeal.” That statement appears to restrict the rejection of Frye to the issue involved — the reliability of Intoximeter 3000’s. However, in a footnote the attack on Frye was continued:
In [Iwakiri ], we expressly rejected several per se evidentiary rules, one of which was the Frye rule, and adopted our own standard on the admissibility of certain scientific evidence. In Iwakiri, a case involving hypnotically induced testimony, Frye v. United States was cited as establishing a rule which “conditions the admissibility of evidence based on a new scientific method of proof on a showing that the technique has been generally accepted as reliable in the scientific community in which it developed.” 106 Idaho at 623, 682 P.2d 571.
Crea, n. 2. The majority in Crea never affirmatively ruled whether the results of a breath test using an Intoximeter 3000 without the Taguchi cell is sufficiently reliable to always be admissible if relevant. Instead, and in spite of the apparent holding in State v. Wilson, 116 Idaho 771, 780 P.2d 93 (1989), that an Intoximeter 3000 with the Taguchi cell removed is not grounds for suppressing breath test results, Crea appears to leave it up to the individual trial *1054courts to determine whether a procedure is or is not reliable: “The admissibility of expert opinion testimony is discretionary with the trial court and will not be abused absent a showing of an abuse of discretion.”
In contrast to Crea and Iwakiri, the majority's opinion in State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), embraced the Frye opinion. Garrett ruled that the horizontal gaze nystagmus test was reliable, because it had been accepted by the relevant scientific community as trustworthy. This reason for identifying the gaze test as reliable is in essence the inquiry suggested by the Frye opinion. What was done implicitly in Iwakiri to determine the scientific reliability of hypnosis was done explicitly in Garrett to determine the reliability of the horizontal gaze nystagmus test.
What the Court of Appeals did in the present case is not inconsistent with a rejection of Frye. But, as we have seen, Frye has not been uniformly rejected by this Court. The Court of Appeals wrote in their Rodgers opinion that:
Rodgers’ next contention is that the practice of analyzing blood spatter patterns is not generally accepted in the scientific community. Rodgers cites Frye v. United States, 293 F. 1013 (D.C. Cir.1923), for the proposition that a foundation of general acceptance in the scientific community must be laid before expert testimony of a specific scientific technique may be admitted. However, “Rule 702 favors the admissibility of the testimony by experts if relevant and if it will assist the trier of fact to understand the evidence or resolve a controverted issue of fact, regardless of whether it is an ultimate issue of fact.” G. BELL, HANDBOOK OF EVIDENCE OF THE IDAHO LAWYER at 242 (3d ed. 1987). The purpose of the Frye test is to ensure that the probative value of the expert testimony will not be significantly outweighed by the risk of jury confusion, time wasting or undue prejudice. Id. at 243. However, I.R.E. 403 ensures such balancing of the probative value versus its prejudicial effects and eliminates the problem the Frye test created, namely, disallowing expert testimony utilizing new scientific and technological breakthroughs. Therefore, we hold the district court properly qualified [two witnesses for the State] as experts pursuant to Rule 702. Further, we hold the practice of analyzing blood spatter patterns is admissible in the Idaho courts when it is helpful for the trier of fact to determine the events that took place at the scene of the crime.
Rodgers, 119 Idaho at 1073, 812 P.2d at 1234-35. This excerpt from the Court of Appeals opinion faults the Frye test for keeping from the jury evidence worthy of consideration. In addition, the opinion declares that the study of blood spatter patterns has evolved sufficiently enough for courts to allow blood spatter experts to testify before a jury. This declaration places blood spatter analysis in the realm of I.R.E. 401 evidence, i.e. relevant evidence. In effect, the Court of Appeals opinion attacks Frye but at the same time answers the question Frye presents by holding that blood spatter evidence in this ease and in the future is reliable and acceptable.
Today’s majority opinion is somewhat better at discussing the reasons for putting faith in the reliability of blood spatter analysis, because it discusses how a few other states have treated this novel scientific evidence. However, both the Court of Appeals and this Court suffer from a desire to take short cuts through the rules of evidence, to which they are bound to follow. In particular, both opinions leave out an explicit consideration and discussion of I.R.E. 401, an important step in the determination of probative value. Instead, the opinions cut to the I.R.E. 702 determination of whether this purportedly “scientific” evidence will assist the trier of fact. Such an analysis assumes that it is indeed reliable scientific evidence that is being offered.
In more focus, the concern of this dissent is that this Court has more often than not rejected Frye without replacing it with a considered analysis. If Frye is rejected, it must be replaced with something. Other*1055wise, every form of “scientific” evidence, even evidence that does not deserve that label, will be admissible for the jury’s consideration. Such prejudice in a criminal trial is improper.
The prejudice of labelling something for the jury’s consideration as scientific, when it may not be, appears to exist here. This conclusion is reached by applying common sense to the “experiments” conducted by blood spatter “experts” in their attempts to replicate what happens when a crime victim has been injured. As one of the experts for the prosecution testified, blood spatter experiments are conducted using old blood received from blood banks. The blood is put into plastic bags and containers and dropped to the ground, or plastic bags filled with blood are strapped to one of the “scientists” before they run into an object, such as a wall. Tr. Yol. 13, 1411-413. Obviously, this sort of experimentation does not take into account factors such as the thickness of a victim’s skin at the injury site, or the presence of a large blood vessel, bone or hair that may impede or accelerate the loss of blood by the victim. These are the considerations that common sense dictates should be taken into account by any blood spatter expert.
If one reviews an article on blood spatter, it becomes quite clear that this is a new science in need of further research before it may be properly relied upon in a court of law. For example, as recently as 1983 an article on the subject concluded that “[bjackwards spatter of blood from gunshot wounds is a complex phenomenon which we do not pretend to understand completely.” In addition, the introductory paragraph warned that:
The distribution of blood projected from a gunshot wound can be valuable information in understanding and reconstructing a gunshot wound or death scene. Most forensic science experts have observed blood and material that is spattered in a backwards direction from gunshot wounds, but the phenomenon is not well described in the literature and is not generally referred to in standard texts. As a result there have been considerable differences in expert interpretation of crime scenes and court testimony. Some experts have even testified that back spatter of blood from gunshot wounds does not exist.
Stephens and Allen, Back Spatter of Blood from Gunshot Wounds — Observations and Experimental Simulation, J. of Forensic Sci. 437-39 (Apr.1983). The authors, both medical doctors, performed their research by firing bullets into blood soaked sponges.
The danger presented by expert testimony interpreting blood spatter evidence is that the prosecution is provided with an expert who appears to be able to reconstruct precisely what happened by looking at the blood left at the scene of a crime. However, a quick review of the “science” relied upon by the expert suggests that we would be better off proving guilt beyond a reasonable doubt without the help of such experts.
For the reasons above set forth I am unable to concur in the Court’s opinion.