dissenting:
Judge Walton assigns three reasons for his conclusion that the voice demonstration which he considered lacked the “minimal reliability” required for admissibility: (1) “... substantial variance between the quality of the voices recorded by Welch’s tape recorder and the proposed live voice exemplar which would have been presented by the defendant in the courtroom; (2) the inability to adequately duplicate the circumstances which existed during the commission of the crime; and (3) the ease with which the defendant could disguise or change his voice when submitting the proposed exemplar, and therefore deliberately mislead a jury, which lacks the expertise to detect such deception.” These “findings” are either basically truisms, erroneous or without adequate evidentiary support.
As his first reason, Judge Walton says we can’t replicate the scene and dynamics at which the crime scene tape was made. While this statement is true, it is basically a truism. It is always inherently difficult and indeed quite often impossible to replicate in the present, past real life occurrences. Such precision, while perhaps common in scientific laboratories, is virtually unheard of in the events which become the meat of the law of evidence. The proper test is (1) are there sufficient similarities to make the comparison probative, and (2) are the dissimilarities likely to distort the comparison to the extent that the evidence is not relevant? In this regal’d, can the dissimilarities be adjusted for and/or explained so that their effect on the comparison can be explained to and/or understood by the jury? American Nat’l Water-mattress Corp. v. Manville, 642 P.2d 1330, 1337-38 (Alaska 1982); see also Norfolk & W. By. v. Henderson, 132 Va. 297, 111 S.E. 277 (1922); Blevins v. Cushman Motors, 551 S.W.2d 602, 610 (Mo.1977) (“the degree of similarity or difference should be judged in the light of the fundamental principal that any fact should be admissible which logically tends to aid the trier in determination of the issue”) (citations omitted).
I have no quarrel with the majority adopting the test concerning the admissibility of experimental evidence as articulated in Love v. State, 457 P.2d 622, 628 (Alaska 1969). This is particularly so since it was only after my circulating to the majority the original version of this dissent, citing the cases above cited, that the majority deigned to address the issue of the proper legal test to determine the admissibility of “experimental” demonstrative evidence. It does so now by citing Love, which is cited and relied on in American Nat’l Watermattress Corp. v. Manville, supra, my lead citation on this issue. Compare Washington Gas Light Co. v. Public Serv. Comm’n, 450 A.2d 1187, 1242 (D.C.1982) (per curiam) (Hams, J., concurring and dissenting) (“While I concur in the results reached on many of the issues in this appeal — and in fact authored, but for a number of selective changes, most of the portions of the per curiam opinion with which I do not disagree— ... ”). Having originally ignored the need to articulate the legal test and only when challenged deigning to do so, the majority proceeds to contend that, unlike the majority originally, Judge Walton was in fact aware of the proper test and properly applied it. A fair reading of the entirety of the record belies this contention.
Cases are legion where voice exemplars have been ordered by courts to compare with the questioned voice although the questioned voice scenes and circumstances could not be replicated. For example, in one of the first cases in which it dealt with voice identifications, the Supreme Court gave its imprimatur to an order sought by the government compelling suspects in a lineup to speak the words allegedly spoken by the bank robber so that witnesses could attempt a voice identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Later, the Court gave similar sanction to a trial court granting the government’s request for an order compelling suspects to give voice exemplars consisting of the suspect’s reading the transcripts of taped telephone conversations so that a voice comparison could be *650made. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 36 L.Ed.2d 67 (1973). And in United States v. Williams, 704 F.2d 315 (6th Cir.1983), the Sixth Circuit sustained the trial court’s order (on government motion) compelling the defendant to read a neutral passage from a news magazine in the presence of a jury for comparative purposes. See United States v. Mitchell, 556 F.2d 371 (6th Cir.1977) (formal voice exemplars ordered of defendants by court on government motion so that jury could compare with tape recordings); United States v. Woods, 544 F.2d 242 (6th Cir.1976) (formal voice exemplars of defendants on government motion to compare with wiretap tape as well as “informal aural showups” admitted); see also United States v. Brown, 644 F.2d 101 (2d Cir.1981) (on government motion, court ordered defendant to state in the presence of the jury words allegedly uttered by the bank robber so that witnesses could make in court identification).
During the remand hearing, Dr. Shuy opined that lay jurors have the natural capacity to do voice comparison since human beings do the same thing from infancy. He further testified that the greater the similarity between the circumstances of the exemplar and the questioned exhibit, the more likely a proper comparison. As he put it, the best comparison is “apples and apples”; the next best is “apples and near apples.”
While conceding that lay jurors “would not be very good” at determining whether the speaker on the exemplar was disguising his voice, and that it would be virtually impossible to exactly replicate the circumstances surrounding the making of evidentiary tape, he believed an adequate exemplar could be created to permit jury comparison.
Based on the foregoing testimony and de-cisional law, I would hold that the first basis of Judge Walton’s decision is plainly wrong or without evidentiary support, D.C.Code § 17-305(a) (1989), as well as otherwise constituting an abuse of discretion. See Johnson v. United States, 398 A.2d 354 (D.C. 1979).
Judge Walton’s second basis is little more (if any at all) than a restatement of his first basis. The second basis is fatally flawed, as is the first. What Judge Walton seems to require “to adequately duplicate the circumstances” is much more than the law requires to establish minimal reliability and relevance of this type evidence. See American Nat’l Watermattress Corp. v. Manville, supra, 642 P.2d at 1337-39 (video tape of experiment was properly admitted where there was “substantial similarity of conditions” and where expert testimony “satisfactorily explained the effect of the various dissimilarities”)1 (as well as other cases cited there also).
The third reason given by Judge Walton is the ability of the defendant to disguise or change his voice and the inability of the jury to detect his feigning. With all due respect, I submit this proves too much. Such a factor exists in every case of voice exemplars where the exemplars are created after a criminal defendant is accused. Common experience indicates that there will seldom be audio recordings of a defendant’s known voice made prior to him becoming a suspect. Thus, in the vast majority of eases, where introduction of a voice exemplar is sought either by the government or by the defense, the defendant will have a motive to feign. However, a defendant’s ability to disguise or change his voice at will is often very limited, as illustrated by the defendant in this case. According to Dr. Shuy, the voice on the evidentiary tape, which the government identified as Taylor’s voice, was quite distinctive in its qualities and would be quite difficult to feign or disguise. As he says:
In any ease, voice quality and pronunciation are the clues most often called on for lay voice identification. There should be no problem in eliciting the speaker’s true voice quality and pronunciation, since these are the most difficult language features to successfully disguise. People can spruce up their vocabulary and, to an extent, their grammar much more easily. But people are much less aware of their own pronunciation or voice quality, which is why they are often shocked to hear themselves on *651tape. The tape recorded passages of “Taylor’s voice in this conversation provides a quite suitable exemplar for a live-voice comparison.”
Finally, with respect to the fear of feigning, another option is available. The jury need not be unaided in its comparison of the two voices. Both sides could call expert witnesses to assist the jury in its comparison. This is a common procedure in making evaluations of this kind. See, e.g., Nat’l Water-mattress Corp. v. Manville, supra, 642 P.2d at 1338; Blevins v. Cushman Motors, supra, 551 S.W.2d at 609-10.
II.
We continue to adhere to an antiquated standard concerning the admissibility of expert testimony and scientific evidence. In Dyas v. United States, 376 A.2d 827 (D.C. 1977), we reiterated our requirement on expert testimony adopting that given by MoCoRmicK on Evidence § 13 at 29-31 (E. Cleary, 2d ed. 1972):
“(1) [T]he subject matter ‘must be so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman,’ (emphasis in original); (2) ‘the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the tñer in his search for truth ’ (emphasis in original); and (3) expert testimony is inadmissible if the ‘state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be exerted even by an expert.’ ”
Id. at 832.
We have applied this test to sustain the trial court’s rejection of expert testimony pertaining to the fallibility of eyewitness identification on the grounds that the subject of defects in identification “was not beyond the ken of the average layman” and that the expert’s testimony “would not aid the jury in evaluating an eyewitness identification.” Id. (emphasis in original) (citations omitted). We so held in spite of the fact that the proffered expert testimony would have pointed out to the jury a number of mispercep-tions lay persons have about eyewitness identification. Id. This approach has been rejected by many courts which have held such testimony admissible. See, e.g., United States v. Downing, 753 F.2d 1224, 1226 (3d Cir.1985); United States v. Smith, 736 F.2d 1103 (6th Cir.1984); State v. Chappie, 135 Ariz. 281, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984).
We have applied the Dyas test to sustain the exclusion of expert testimony on the battered women syndrome. See Ibn-Tamas v. United States, 455 A.2d 893 (D.C.1983). In Middleton v. United States, 401 A.2d 109 (D.C.1979), where it was established that the perpetrator of the offense was a black male with a gap between his front teeth, we sustained the exclusion of the testimony of an expert in dental science which would have shown that such an orthodontic configuration occurring in approximately twenty percent of black males as being information “not beyond the ken of the average layman.” Also applying Dyas, we have sustained the exclusion of the testimony of a psychologist that a defendant with a strong heterosexual orientation would have been unlikely to engage in homosexual acts. Douglas v. United States, 386 A.2d 289, 295 (D.C.1978) (“beyond the ken of the average layman”).
In my view, these eases manifest an unduly narrow view concerning the admissibility of expert testimony. We should reject Dyas and its restrictive approach in favor of the Federal Rules of Evidence. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise.
Fed.R.Evid. 702 (emphasis added).
Thirty-five states plus Puerto Rico have already adopted the Federal Rule on this issue. See Weinstein’s Evidence § 702(06).2 I reiterate, it is time that we do likewise. In doing so, we should further recognize the relationship between the third prong of the *652Dyas test and Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), our controlling test on the admissibility of new scientific evidence. We should join the Supreme Court’s rejection of Frye, see Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Our standard should be that adopted by the Supreme Court in Daubert.
III.
Regardless of what the test may be with respect to the admissibility of an item of evidence, it must be the same for both the prosecution and the defense — the evidentiary rales of a trial must constitute a level playing field.3 My colleagues in the majority, as others often do, ignore this principle with results such as the one the majority approves here. Equal justice under law requires more.
. "[SJubstantial similarity does not require an identity of conditions but only that degree of similarity which will insure that the results of the experiment are probative.” Id. 642 P.2d at 1337 (emphasis added) (citation omitted).
. In several states, minor stylistic changes were made. Id.
. See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5 th Cir.1978) (construing Fed.R.Evid. 804(b)(3) on inculpatory statements as to the accused as requiring the same "corroborating circumstances clearly indicate the trustworthiness of the statement” as when such statements are offered to exculpate the accused as the last sentence of Fed.R.Evid. 804(b)(3) explicitly requires, thereby “avoiding constitutional difficulties." Accord United States v. Riley, 657 F.2d 1377, 1383 (8th Cir.1981), cert, denied, 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 962 (1983) (citing Alvarez, supra, 584 F.2d at 701); United States v. Casamento, 887 F.2d 1141, 1170 (2d Cir.1989), cert, denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). See also Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)’s Penal Interest Exception, 69 Geo. L.J. 851 (1981); Comment, Federal Rules of Evidence 804(b)(3), and Inculpatory Statements Against Penal Interest, 66 CalX.Rev. 1189 (1978).