¶1specially concurring.
¶2Prior to the adoption of the evidence code and Datibert v. Merrell Dow Pharmaceuticals, — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) the courts of Oklahoma were content to allow the scientific community determine the scientific reliability of new scientific theories.
¶3By making the judge the “gatekeeper” for the admission of scientific evidence, we are requiring him and not the relevant scientific community to determine if a theory is scientifically valid. This opinion does not eliminate the element of acceptance of the scientific community from the consideration, but it adds other factors that are a part of the testing procedures used by the scientific community such as whether the theory has been tested and can it be tested; has it been subject to peer review and publication; and, what is the known or potential rate of error. During the consideration of this ease we dealt with such terms as “product rule”, “linkage disequilibrium”, “Hardy-Weinberg equilibrium”, “population substructure”, “ceiling principle”, “frequency calculation”, “deoxyribonucleic acid”, “polymorphic sequence” and “polymorphisms”. Even with a dictionary open at my side I felt completely inadequate to interpret the scientific reliability of the theory because of my lack of proper skill and training. Heaven help us if a case comes along that relies on sub-atomic physics.
¶4The legal analysis used by the majority is correct. Since my concern is with the practical application of the results, I recommend that the legislature and the practicing members of the bar seriously consider what we have done and determine if new legislation is needed.
¶5. The repetitive use of the word "scientific" is intentional.
¶6concurring in result.
¶7I concur with the Court’s affirming the judgments and sentences in this case, and agree with the Court’s determination the DNA evidence is admissible based on the standard set out in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)
¶8In addition, I complement my colleague on an extremely well-researched opinion. Based on the decision in Daubert v. Merrell Doiv, 509 U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), together with the language in Section 2702 of the Oklahoma Evidence Code, I agree the opinion of the Court finds support in the law, if the issue were properly before the court at this time.
¶9However, merely because the United States Supreme Court has made a determination of the procedure to be utilized in Federal Courts, it does not mean the State of Oklahoma must follow in trace. Footnote 22 in the Court’s opinion recognizes the hesitancy of other state appellate courts to summarily adopt the Daubertmethodology.
¶10In this case the DNA evidence was admitted pursuant to a Fryestandard and this Court has determined both the Fryestandard was met and the admission proper. The applicability of Daubertwas not presented to the trial court or raised in the briefs *342filed with this Court. Therefore, the Court’s discussion, and adoption, of Daubertcan be construed as nothing more than dicta. This Court- should not give advisory opinions nor create issues where none exist.
¶11In addition, prior to adopting a new procedure the Court should have before it a record which will allow the Court to assess the impact the procedure will have on the trial courts.
¶12However, since the Court has reached out to bring Daubertinto our jurisprudence, whether as dicta or holding, some discussion of the potential impact is warranted.
¶13Justice Blackman, in Daubert, incorporated a statement of faith in the federal judiciary to be able to administer the Daubertadmissibility procedure. Id.at -, 113 S.Ct. at 2796, 125 L.Ed.2d at 482. This statement was more appropriately placed in perspective by Chief Justice Rehnquist in his separate opinion. Id.at--, 113 S.Ct. at 2799, 125 L.Ed.2d at 487. I have no doubt the judges of the Oklahoma judicial system also have the inherent qualities and abilities to apply these same procedures if armed with the same resources which are afforded to federal judges. However, as the Court seeks to move the validation of scientific theory from the laboratory to the courtroom, certain pragmatic considerations should be addressed.
¶14Initially, it should be noted state courts are tasked with the administration and resolution of over 98% of all litigation in the United States today. See Schwarzer & Wheeler, On the Federalization of the Administration of Civil and Criminal Justice, 23 STETSON LAW REVIEW 651, 681 (1994). Justice Blackman’s comments concerning faith in the federal judiciary to administer the Daubertprocess must be placed in perspective. Federal judges have virtually unlimited resources when compared to state court systems. Judges on the federal level are afforded law clerks and support personnel to assist them in their administrative and adjudicatory duties. In addition, federal judges have utilization of Federal Rule 706, which was not incorporated into the Oklahoma Evidence Code, for the appointment of an independent expert to assist in the evaluation of these “novel” scientific theories. Armed with these many resources, the federal courts only are required to address 2% of the litigation in the United States today. Federal courts are limited jurisdiction courts with jurisdictional thresholds that limit the types of litigation brought to the Court. The District Courts of the state of Oklahoma are general jurisdiction trial courts and are empowered to adjudicate all issues in law and equity brought before them.
¶15The procedure the Court seeks to adopt today applies to a broad range of issues which come within the scope of Section 2702 of the Oklahoma Evidence Code. Simply put, this means that judges in domestic, as well as criminal and civil, cases may be confronted with the time-consuming process of adjudicating admissibility issues which previously have been determined in the laboratory of the respective scientific communities. Few judges on the federal or state bench are endowed with the educational and experiential background to be able to determine the technical validity of scientific theory.
¶16In this day and age it is extremely difficult to initially determine the validity of a “novel” scientific theory, as opposed to the mere marketing of a new entrepreneurial methodology for use in the legal arena. The trial of lawsuits has tragically evolved into a process of one-upmanship, with one party trumping opposing party’s experts with its own expert. Apparently, litigants believe there is virtually nothing in this day and age a trier of fact can determine without an expert’s assistance. This is graphically exemplified by the page after page of expert witness listings in most legal publications today. The bottom line on the Daubert-type methodology is the best sales person will be determined reliable, and each court in this state will be required to spend insurmountable amounts of time serving as the laboratory for each new theory which comes down the pike. I do not find it appropriate for this Court to unduly yoke trial judges with the burden of determining the scientific validity of each and every “blue-light special” (similar to the five-minute specials offered by discount stores) which the marketers of expert opinion seek to impose upon our judicial system. We should contin*343ue to require some threshold validity determination within the appropriate scientific community to preclude erosion of the validity of the judicial process.
¶17I do find it somewhat ironic the Daubert, and now the Taylor decision, seek to place the trial judge in the role of the laboratory scientist verifying the scientific theory presented to the Court; yet at the same time, substantially, applying the Fryestandard on appellate review. Whatever the label, an appellate court, which is bound to the eviden-tiary record presented in the trial court and which verifies the trial court’s decision through the use of peer review writings and analysis from other courts, is substantially applying the Fryestandard.
¶18Before placing this type of requirement on the trial judges of the state of Oklahoma, this Court, together with the Supreme Court of the State of Oklahoma, should work to ensure the Oklahoma Legislature provides funding to allow trial judges the resources needed to conduct these types of preliminary determinations. The Oklahoma Legislature should adopt the provisions of Rule 706 of the Federal Rules of Evidence.
¶19In addition, the statutory language should not only permit the use of court-appointed experts by trial courts, but also create the procedure for them appointment, the scope of their role in serving as a court-appointed expert, and provide for appropriate compensation and funding. If the Oklahoma Legislature truly envisioned and intended the results that have been determined by this decision pursuant to Section 2702 of the Oklahoma Evidence Code, then it should ensure the judges of the District Courts have the resources available to administer this type of procedure. In addition, the Oklahoma Legislature should provide access to appropriate research tools for each judge in the District Court of the state of Oklahoma and support personnel to allow them to accomplish the requirements of determining “reliability” of “novel” scientific evidence. The Legislature should also ensure funding is- provided to allow trial judges to attend Continuing Legal Education courses which will provide them the educational base to address the evaluation of the reliability of specialized areas of this type.
¶20I realize under the present system these issues do not arise that often. However, under the basic “law of cause and effect”, this decision could be a potential GATT (General Agreement on Tariffs and Trade) and NAFTA (North American Free Trade Agreement) rolled into one for aspiring courtroom experts. This is especially true in the field of psychiatry and psychology, where it seems a new syndrome is born each hour of the day. As a result, trial courts should be sufficiently funded and staffed to meet the additional demands which may be presented to them.
¶21Extended hearings to determine the “reliability” of new scientific theories will steal time a judge should spend on other proceedings. These additional hearing requirements overburden already overcrowded dockets. Additional resources should be provided to meet those needs. But, if the Legislature did not intend the results that have been reached via Daubertand this decision, the Legislature should act to sufficiently restrict the application of Section 2702 expert testimony to require a foundation be laid prior to the admissibility of the opinion evidence.
¶22Contrary to the Court’s statement concerning the appropriate standard of review, I do not find current jurisprudence inconsistent in determining the scope of appellate review. We consistently apply a presumption of regularity to the trial court proceedings, absent some specific showing to the contrary. See Huntley v. State, 750 P.2d 1134, 1136 (Okl.Cr.1988); Hayes v. State, 738 P.2d 533, 543 (Okl.Cr.1987); Gray v. State, 650 P.2d 880, 883 (Okl.Cr.1982). It is from this presumption that we review evidence in the light most favorable to the trial court’s ruling. See Black v. State, 871 P.2d 35, 43 (Okl.Cr.1994). I do agree we review caselaw from other jurisdictions, together with legal, scientific and other writings, to formulate the jurisprudence which will be applied in the courts of this state. However, that methodology on appellate review does not obviate the presumption of regularity, nor the review for abuse of discretion. If we are placing the role of “gatekeepers” on the trial judges of this state for the admissibility of evidence *344then we must place full faith and credit in their abilities and not initiate a process that seeks to second-guess their decision making process.
¶23In addition, a basic responsibility of the party seeking the admission of evidence in the course of a trial is to establish a proper foundation in law and fact for admitting the evidence. It is outside the scope of an appellate court’s authority to fill the gaps in the evidence presented to support or deny the admissibility of evidence at the trial level. Being ever mindful of the limitations placed on the scope of appellate review, we should refrain from establishing legal precedent which dilutes the responsibility of the party offering the evidence to ensure the evidence presented supports the admission of the evidence.
¶24The admissibility of DNA evidence includes the admissibility of statistical probability evidence relating to the DNA match. However, this authorization is limited to the narrow application within the confines of DNA evidence. Trial judges and attorneys should not perceive the narrow application in this case as a carte blanche authorization for the admissibility of statistical probability evidence.
¶25In summary, I agree the enactment of the Oklahoma Evidence Code, particularly Section 2702, supersedes the Fryerequirements of admissibility of novel scientific evidence. However, this Court should still require the party seeking admission of evidence to be responsible to establish admissibility through sufficient evidence in the trial court record; and that record should bind this Court in determining whether the trial judge abused his or her discretion in admitting or denying the evidence based on the evidence presented to the trial court.
¶26Finally, this Court should always consider the impact of procedures adopted on the trial courts of the state of Oklahoma and fashion new rules of procedure which will allow the trial courts to implement those procedures within the confines of resources available to the courts.