By pretrial motion, defendant seeks an order barring expert testimony from a state witness regarding the use of a bloodhound to track defendant after the alleged commission of a crime. There is no published authority in this State that addresses the admissibility of bloodhound evidence. For the reasons set forth below, I find that this evidence is reliable and admissible.
The defendant is charged with the crime of arson. After his arrest and while in custody, the police removed from the defendant's person his shoe and shirt and presented the items to a bloodhound dog, for the purpose of familiarizing the dog with the defendant's body odor or scent. The dog thereafter followed a certain trail allegedly marked by the scent. The State seeks to offer evidence of the trail followed by the dog as circumstantial evidence corroborative of other evidence offered by the State.
There is a split in decisional law of other jurisdictions regarding the admissibility of evidence of trailing by bloodhounds. The great weight of authority, however, is that the evidence is admissible if a proper foundation is first laid.*fn1 The theory upon
which bloodhound evidence is offered is based upon the proposition that the bloodhound has an acute sense of smell, which enables him to follow the scent of a particular individual. See Evidence of Trailing by Dogs in Criminal Cases, 18 A.L.R. 3d 1221, et seq. The proponents of its admissibility contend that it is competent and reliable evidence where a proper preliminary foundation has been set.
The detractors of bloodhound evidence argue that the many variables involved in this type of evidence makes it uncertain and unreliable. They contend further that there are numerous other reasons to compel its exclusion. For example, they argue that the evidence is hearsay; that the defendant would be placed in jeopardy by the actions of an animal; that a defendant is unable to cross-examine a dog; and that a jury might be overly impressed by such testimony. People v. Centolella, 61 N.Y.Misc. 2d 723, 305 N.Y.S. 2d 279 (Oneida Co.Ct.1969). None of these additional arguments has substance. It is the handler, not the dog, who is the witness, and his testimony falls within the category of opinion testimony. I am confident that the jury, given proper instructions, would be able to afford such evidence its due weight.
The question of the admissibility of bloodhound evidence in the final analysis turns on whether it is reliable. The opponents are correct in their assertions that there are many variables involved in this type of evidence. Bloodhound evidence depends on such factors, for example, as atmospheric conditions, the time lapse between the commission of the crime and the tracking, the number of people who were in a particular area at the time of the commission of the crime, and perhaps even how the dog may feel or behave on a particular day. Certainly, the bloodhound is not infallible. However, these
factors go to the weight of the evidence, not its competence. Indeed, in almost every case where expert opinion is offered, there are some variables which may affect the ultimate conclusion of the expert. For example, expert testimony by a physician, an every day occurrence in the courts, is influenced by numerous factors and variables which may affect the ultimate conclusion. Surely no one would argue that medicine is such an exact science so as to make the expert's opinion infallible. The standard for the admissibility of expert testimony is not whether it is unassailable and totally reliable, but whether it has a substantial degree of reliability and would be "an aid to the court or jury in determining the question in issue." State v. Cavallo, 88 N.J. 508, 517 (1982). It is the court's function to determine whether the scientific theory upon which an opinion will be based is accepted and reliable and whether the opinion would be useful to the jury. "In order to introduce scientific evidence, the proponent must demonstrate that the expert's technique has sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth." [Emphasis supplied]. State v. Conway, 193 N.J. Super. 133, 169-170 (App.Div.1984); Cavallo, supra, 88 N.J. at 517; State v. Hurd, 86 N.J. 525, 536 (1981); State v. Cary, 49 N.J. 343, 352 (1967).
It is a matter of common knowledge, of which courts may take notice, that dogs of some varieties, such as bloodhounds, foxhounds and bird dogs, are remarkable for the acuteness of their sense of smell, which enables them to follow a trail upon which they are laid, even though this trail be crossed by others. Copley v. State, 153 Tenn. 189, 281 S.W. 460 (1926).*fn2 A per se exclusion of bloodhound evidence is unreasonable.
While it reflects a legitimate concern for the reliability of dog-tracking evidence, the majority rule of admitting the evidence, once a "proper foundation" has been established, adequately safeguards against that ...