October 1999 Volume 1 Number
Presentations at the
2nd International Symposium on the
Forensic Examination of Questioned Documents
Albany, New York
June 14 18, 1999
The following abstracts
of the presentations are ordered alphabetically by authors' last
in Document Examinations
(continued from Part 2)
P. C. Giannelli,
A. J. Weatherhead, and R. W. Weatherhead
Case Western Reserve
16. Polygraph Evidence
States v. Posado,
57 F.3d 428, 429 (5th Cir. 1995) (defendant's offered results
in suppression hearing). "[T]he rationale underlying this
circuit's per se rule against admitting polygraph evidence did
not survive Daubert. ..."). Id. at 434 "[W]e
do not now hold that polygraph examinations are scientifically
valid or that they will always assist the trier of fact ....
We merely remove the obstacle of the per se rule against admissibility,
which was based on antiquated concepts about the technical ability
of the polygraph and legal precepts that have been expressly
overruled by the Supreme Court."
Rule 403 factors. First, prosecution was not notified
or offered opportunity to participate in polygraph exam. Second,
evidence was not offered before a jury but rather a judge.
States v. Cordoba,
104 F.3d 225, 227-28 (9th Cir. 1997) (noting that its former
per se rule of exclusion is inconsistent with Daubert).
c. Two other circuits had embraced this
position prior to Daubert; the Seventh Circuit had long
abandoned the per se rule. United States v. Pulido,
69 F.3d 192, 205 (7th Cir. 1995) ("Our decisions acknowledge
the considerable scientific and legal debate over polygraph testing
and recognize that a trial court deciding whether to admit polygraph
evidence must engage in a delicate balancing of many factors
including probative value, prejudicial effect, confusion of the
issues, misleading the jury, and undue delay.'") (quoting
United States v. Olson, 978 F.2d 1472, 1480 (7th Cir.
1992), cert. denied, 507 U.S. 997 (1993)).
States v. Piccinonna,
885 F.2d 1529 (11th Cir. 1989). See also Barker v. Jackson Nat'l
Life Ins. Co., 896 F. Supp. 1159, 1161 (N.D. Fla. 1995) ("Surprisingly,
in the six years since Piccinonna, the Eleventh Circuit
appears not to have had opportunity to elaborate on the decision,
other than to decide that it was not to be applied retroactively.").
States v. Kwong,
69 F.3d 663, 668-69 (2d Cir. 1995) ("the legal Pandora's
box' which the Fifth Circuit opened in United States v. Posado
... is not yet agape in this Circuit."; "The record
before us simply does not provide the proper opportunity to explore
the validity of polygraph evidence under Rule 702."), cert.
denied, 517 U.S. 1115 (1996).
States v. Galbreth,
908 F. Supp. 877, 895 (D.N.M. 1995): "In conclusion, having
determined that Dr. Raskin's testimony is based on scientific
knowledge' that will assist the trier of fact' the Court
finds that such testimony is sufficiently reliable and relevant
to be admissible under Fed. R. Evid. 702."
States v. Crumby,
895 F. Supp. 1354, 1363-64 (D. Ariz. 1995):
"A polygrapher is an expert in determining credibility.
If a party can lay the proper foundation to qualify such a witness,
then the requirements of Rule 608(a) will be met. The polygrapher
will not testify that he knows of the subject's reputation for
honesty, but that as an expert in determining credibility, with
respect to this case, the subject has demonstrated a character
for truthfulness. ... [Although] the polygraph evidence's primary
purpose is to show credibility, ... it also is evidence that
shows Defendant was willing to take a polygraph, and in fact,
passed the examination."
h. State cases have not been influenced by this
development; several have reaffirmed the rule of categorical
inadmissibility. People v. Gard, 632 N.E.2d 1026, 1032
(Ill. 1994) ("[T]he use of polygraph evidence ... is no
less repugnant and no less an affront to the integrity of the
judicial process when the examination has been given to a witness
... than it is when the examination has been given to the defendant
Daubert jurisdictions. State v. Porter,
698 A.2d 739 (Conn. 1997) (adopting Daubert and excluding
polygraph results under Rule 403), cert. denied, 118 S.Ct.
1384 (1998); State v. Beard, 461 S.E.2d 486, 493 (W. Va.
1995) ("[W]e remain convinced that the reliability of such
examinations is still suspect and not generally accepted
within the relevant scientific community. Therefore, any speculation
that our position in Frazier regarding polygraph admissibility
is in question due to the Daubert/Wilt rulings is put
to rest today.").
(Applied Physics Laboratory, Johns Hopkins University). Dale
E. Olsen et al., Computerized Polygraph Scoring System,
42 J. Forensic Sci. 61, 61 (1997).
j. Literature. Giannelli, Polygraph Evidence:
Post-Daubert, 49 Hastings L.J. 895 (1998).
17. Hair Comparisons
904 F. Supp. 1529, 1554 (E.D. Okl. 1995), a federal habeas corpus
case, an expert testified that hair samples were "microscopically
consistent." However, the "expert did not explain which
of the approximately' 25 characteristics were consistent,
any standards for determining whether the samples were consistent,
how may persons could be expected to share this same combination
of characteristics, or how he arrived at his conclusions."
Moreover, "[t]his court has been unsuccessful in its attempts
to locate any indication that expert hair comparison testimony
meets any of the requirements of Daubert." Id. at
The court further observed:
"Although the hair expert may have followed procedures accepted
in the community of hair experts, the human hair comparison results
in this case were, nonetheless, scientifically unreliable."
Id. at 1558. Finally, the prosecutor exacerbated the problem
by stated in closing argument, "[T]here's a match."
The state court also misinterpreted the evidence, writing that
the "[h]air evidence placed [Petitioner] at the decedent's
apartment." The "prosecutor's mischaracterization
of the hair evidence misled the jury ...." Id. at 1557.
Reversed on other grounds. Williamson v. Ward, 110 F.3d
1508, 1522-23 (10th Cir. 1997) (due process, not Daubert,
standard applies in habeas proceedings).
et al., Convicted by Juries, Exonerated by Science: Case Studies
in the Use of DNA Evidence to Establish Innocence After Trial 58 (1996) (discussing the exoneration
of 28 convicts through the use of DNA technologysome of
whom had been sentenced to death.) In several of these prosecutions
hair analysis was used to obtain the conviction. In one case,
the expert testified that the crime scene hair sample "was
unlikely to match anyone" other than the defendant, Edward
c. But see
McCarty v. State,
904 P.2d 110, 125 (Okl. Crim. App. 1995) (admitting evidence).
v. Hawkins, 10
Cal.4th 920, 897 P.2d 574, 42 Cal. Rpt. 2d 636 (Cal. 1995), cert.
denied, 517 U.S. 1193 (1996), the defendant challenged the
scientific basis of firearms identification evidence. The experts
"conceded that ballistics identification is not an exact
science. Rather, ballistics experts develop proficiency by microscopically
observing a large number of bullets known to have been fired
from the same gun, and from different guns, so that they acquire
knowledge of when the similarities of the bullets' striations
are sufficient to establish that the bullets were discharged
from the same firearm." Id. at 650.
In rebuttal, the defense
introduced two articles by Alfred Biasotti that called for reforming
firearms identifications by developing a statistical data base.
One expert "conceded that ballistics identification was
to some extent more of a skill than a science, an intuition informed
by extensive experience." 42 Cal. Rpt. 2d at 650. The Court
a. "As of March, 1992, there
[have] been one hundred and ninety-three reported cases where
human bite mark evidence has been introduced or noted in appeal....
Furthermore, bite mark evidence has been accepted as admissible
in thirty-five states." Weigler, Bite Mark Evidence:
Forensic Odontology and the Law, 2 Health Matrix: J.L.-Med.
303 (1992). See 1 Giannelli and Imwinkelried, Scientific Evidence
ch. 13 (2d ed. 1993).
v. State, 697
So. 2d 415 (Miss. 1997). Dr. Michael West made a "positive
match" of a bitemark on the victim and the defendant's teeth.
"Dr. West testified that the science of dentistry recognized
that teeth are unique, and that bite marks can be identified
back to the perpetrator or biter.' Dr. West also stated that
bite-mark evidence is similar to fingerprint identification."
Id. at 428. The Mississippi Supreme Court reversed, noting:
While few courts have refused
to allow some form of bite-mark comparison evidence, numerous
scholarly authorities have criticized the reliability of this
method of identifying a suspect.
There is little consensus
in the scientific community on the number of points which must
match before any positive identification can be announced.
Suffice it to say that testimony concerning bite marks in soft,
living flesh has not been scientifically accredited at this time.
Id. at 429.
20. Sound Spectrography
v. Coon, 974
P.2d 386 (Alaska 1999) (voice exemplars left on answering machine,
charged with making terroristic telephone calls). "The scientific
literature cited by the APDA permits a conclusion that there
is significant disagreement among experts in the field of voice
spectrographic analysis regarding the reliability of the technique.
As the State notes, no scientific literature was submitted to
the trial court for review, but Cain testified about several
articles and studies addressing voice spectrographic analysis,
and conceded that the reliability of the technique was disputed
among members of the relevant scientific community."
Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995) (no memory
for 20 years; then, after hypnotic-therapy alleged victim accused
aunt and uncle of sexual abuse when alleged victim was 4 and
7 years), cert. denied, 517 U.S. 1229 (1996). "We
do not believe that Daubert is directly applicable to
the issue here because Daubert concerns the admissibility
of data derived from scientific techniques or expert opinions."
"Even though Daubert does not provide direct guidance,
our decision today is informed by the principles underlying the
Supreme Court's holding. First, by loosening the strictures on
scientific evidence set by Frye, Daubert reinforces
the idea that there should be a presumption of admissibility."
Id. at 610.
Case of first impression:
"the admissibility of testimony about memories of childhood
sexual abuse that are recalled for the first time in adulthood
following the use of hypnosis as part of psychotherapy."
Id. at 600.
States v. Powers,
59 F.3d 1460 (4th Cir. 1995), cert. denied, 516 U.S. 1077
(1996). Court ruled that the penile plethysmograph as a method
to measure sexual arousal failed the Daubert test. "First,
the Government proffered evidence that the scientific literature
addressing penile plethysmography does not regard the test as
a valid diagnostic tool because, although useful for treatment
of sex offenders, it has no accepted standards in the scientific
community. Second, the Government also introduced evidence before
the judge that a vast majority of incest offenders who do not
admit their guilt, such as Powers, show a normal reaction to
the test." Id. at 1471. See also State v. Spencer,
119 N.C. App. 662, 667-68, 459 S.E.2d 812, 815-16 (1995) (rejecting
defense expert's claim that device is 95 percent accurate; court's
review of professional literature shows penile plethysmograph
is not a reliable indicator of sexual deviancy), rev. denied,
341 N.C. 655 (1995). The court also excluded evidence that the
defendant did not fit the profile of a fixated pedophile, on
the grounds that the evidence was irrelevant; the defendant was
charged with statutory rape of his daughter (incest abuse) and
not with being a pedophile. Id. at 1472. Nevertheless, courts
continue to uphold the use of the device as a condition of parole.
Walrath v. Getty, 71 F.3d 679 (7th Cir. 1995).
c. False Confessions. United States v. Hall, 93
F.3d 1337, 1345 (7th Cir. 1996). Seventh Circuit ruled that the
trial court erred when it excluded expert testimony on false
confessions: "This ruling overlooked the utility of valid
social science. Even though the jury may have had beliefs about
the subject, the question is whether those beliefs were correct.
Properly conducted social science research often shows that commonly
held beliefs are in error. Dr. Ofshe's testimony, assuming its
scientific validity, would have let the jury know that a phenomenon
known as false confessions exists, how to recognize it, and how
to decide whether it fits the facts of the case being tried."
United States v. Shay, 57 F.3d 126 (1st Cir. 1995). First
Circuit reversed the trial court's exclusion of psychiatric testimony
that the defendant's inculpatory statements were caused by pseudologia
fantastica, a mental disorder that makes the person a pathological
liar who makes false statements without regard to their consequences.
Bixler v. State, 568 N.W.2d 880 (Minn. App. 1997)
(expert testimony on the accused's susceptibility to coercion
to explain his confession was admissible), cert. denied,
119 S.Ct. 620 (1998). But see Beltran v. State, 700 So.2d
132 (Fla. App. 1997) (expert testimony on false confessions irrelevant
where defense did not allege that the confession was false).
d. Entrapment. State v. Shuck, 953 S.W.2d
662 (Tenn. 1997). Tennessee Supreme Court ruled that a neuropsychologist's
testimony concerning a defendant's acute susceptibility to inducement
in support of an entrapment defense was admissible. See also
United States v. Newman, 849 F.2d 156, 165 (5th Cir. 1988);
United States v. McLernon, 746 F.2d 1098, 1115 (6th Cir.
1984) ("expert testimony concerning a defendant's predisposition
may be invaluable in an entrapment case"); United States
v. Benveniste, 564 F.2d 335, 339 (9th Cir. 1977); United
States v. Hill, 655 F.2d 512, 516 (3d Cir. 1981) ("Testimony
by an expert concerning a defendant's susceptibility to influence
may be relevant to an entrapment defense"), cert. denied,
464 U.S. 1039 (1984).
e. Duress. State v. VanNatta, 149 Ore.
App. 587, 945 P.2d 1062 (1997). Oregon court of appeals ruled
that expert testimony of the defendant's submissive personality
in support of a duress defense was inadmissible because a defendant's
individual personality was not the relevant issue.
f. Syndrome. Giannelli, Rape Trauma Syndrome,
33 Crim. L. Bull. 270 (1997).
Rules of Evidence (1975)
A. Fed. R.
Evid. 901 recognized
that a document could be authenticated by an expert. Fed. R.
Evid. 901(b)(3)("Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.").
Committee Note. The
drafters explicitly mentioned handwriting comparison by the "testimony
of expert witnesses." Fed. R. Evid. 901(b)(3) advisory committee's
note ("The history of common law restrictions upon the technique
of proving or disproving the genuineness of a disputed specimen
of handwriting through comparison with a genuine specimen, by
either the testimony of expert witnesses or direct viewing by
the triers themselves, is detailed in 7 Wigmore §§
C. Jury and
Lay Witnesses. Moreover,
the Rules permitted authentication by the trier of fact, typically
the jury, and by lay testimony. Fed. R. Evid. 901(b)(2) ("Nonexpert
opinion as to the genuineness of handwriting, based upon familiarity
not acquired for purposes of the litigation" may used for
Code contained a
comparable provision, 28 U.S.C. § 1731 ("The admitted
or proved handwriting of any person shall be admissible, for
purposes of comparison, to determine genuineness of other handwriting
attributed to such person.").
Argument. The enactment
of Rule 901 might be considered a type of legislative notice,
which obviates the need to establish a Daubert foundation.
But see Rudolf and Widenhouse, Daubert Redux: Oklahoma City
Bomb Case, 21 Champion 24, 25 (May 1997) ("However,
as Mike Tigar quickly pointed out, matters of fact, such as what
constitutes an expert' under Rule 901(b)(3), can never
be the subject of legislation. That determination, under Rule
702, must be made pursuant to Daubert.").
Federal Rules Cases:
United States v. Herrera, 832 F.2d 833, 837 (4th Cir.
1987) ("An expert opinion regarding handwriting need not
be based upon absolute certainty in order to be admissible.");
United States v. Hardrich, 707 F.2d 992, 994 (8th Cir.)
(expert testified defendant did sign, might have signed, did
not sign, and "probably signed" certain endorsements),
cert. denied, 464 U.S. 991 (1983); United States v.
Fleishman, 684 F.2d 1329, 1337 (9th Cir.) ("It
is undisputed that handwriting analysis is a science. ... Absolute
certainty of result is not required."), cert. denied,
459 U.S. 1044 (1982).
Gallery, Inc. v. Bauman, 817 F.Supp. 167, 172 n. 5 (D.D.C.
1993) ("It can be judicially noted that handwriting, like
fingerprints, are subject to established objective tests, expert
opinions about which are admissible."), aff'd, 36
F.3d 127 (D.C. Cir. 1994). Fed. R. Evid. 201(b)("A judicially
noticed fact must be one not subject to reasonable dispute in
that it is . . . (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.").
Assistance of Counsel
under 6th Amendment. Handwriting comparison was so well-accepted
that the failure to consult a handwriting expert was deemed to
constitute ineffective assistance of counsel in one case. United
States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993).
I. Qualifications. United States v. Bourgeois,
950 F.2d 980, 986 (5th Cir. 1992), upholding a trial court's
exclusion of the testimony of an "expert" who was not
a member of the American Board of Forensic Document Examiners,
who practiced graphotherapy in addition to handwriting comparison,
and who acquired a master's degree in graphoanalysis and a Ph.D.
in metaphysics and religion by correspondence. The court did
not question the scientific status of questioned document examinations,
only the qualifications of the expert.
J. Other examples. State v. Livanos, 725 P.2d
505, 507 (Ariz. App. 1986) ("[H]e had never testified in
a superior court in Arizona, that the last time he had testified
in a superior court was in Indiana in 1969, that he belonged
to an organization called World Association of Document Examiners,
... whose admissions procedures were very informal, but that
he was not certified by the American Board of Forensic Document
Examiners."); Carroll v. State, 634 S.W.2d 99, 102
(Ark. 1982) ("He had taken a correspondence course from
the International Graphoanalysis Society of Chicago, which had
certified him. ... In his twelve years of alleged experience
in questioned document work' he had testified as an expert
only once, in Clinton, Iowa, and had worked with' law enforcement
officers in two Arkansas counties, but the cases did not come
to trial. ... He was not a member of the Academy of Forensic
Science."); Gaves v. State, 547 N.E.2d 881, 882 (Ind.
Ct. App. 1989) ("The witness testified she was a graphoanalyst,
a graduate of the International Graphoanalysis School in Chicago,
a member of the International Graphoanalysis Society and the
World Association of Document Examiners, and had previously testified
as an expert on four occasions."); People v. Tidwell,
706 P.2d 438, 439 (Colo. App. 1985) (excluding graphanalysis
not certified by American Board of Document Examiners); Hooten
v. Mississippi, 492 So. 2d 948, 958 (Miss. 1986) (dissenting
opinion) ("If this witness has indeed testified over 300
times as an expert on discovering spurious handwriting
as she claimed, it is an astonishing indictment on the gullibility
of lawyers and judges.").
Law Review Article.
D. Michael Risinger, Mark P. Denbeaux and Michael J. Saks, Exorcism
of Ignorance as a Proxy for Rational Knowledge: The Lessons of
Handwriting Identification "Expertise," 137 U.
Pa. L. Rev. 731, 738 (1989).
K. "Our literature search for
empirical evaluation of handwriting identification turned up
one primitive and flawed validity study from nearly 50 years
ago, one 1973 paper that raises the issue of consistency among
examiners but that presents only uncontrolled impressionistic
and anecdotal information not qualifying as data in any rigorous
sense, and a summary of one study in a 1978 government report.
Beyond this, nothing." (citations omitted).
L. A review of five handwriting comparison
proficiency tests showed that at best "[d]ocument examiners
were correct 57% of the time and incorrect 43% of the time."
Id. at 748.
States v. Starzecpyzel (Post-Daubert)
States v. Starzecpyzel, 880 F. Supp. 1027, 1038 (S.D.N.Y.
1995), a federal district court concluded that "the testimony
at the Daubert hearing firmly established that forensic
document examination, despite the existence of a certification
program, professional journals and other trappings of science,
cannot, after Daubert, be regarded as scientific
... knowledge.'" In addition, "while scientific principles
may relate to aspects of handwriting analysis, they have
little or nothing to do with the day-to-day tasks performed by
[Forensic Document Examiners] ... [T]his attenuated relationship
does not transform the FDE into a scientist." Id. at 1041.
Evidence. The court
ruled that Daubert applied only to expert testimony that
is "scientific" within the meaning of Federal Rule
702. But Rule 702 also permits the admission of expert testimony
based on "technical" or "other specialized knowledge,"
and in the court's view, Daubert did not apply to nonscientific
experts falling within these categories. The court went on to
hold, however, that the Rule 702 requirements limiting expert
testimony to that which assists the trier of fact and is proffered
by a qualified expert must nevertheless be satisfied: "[T]his
court concludes that adequate guidance can be found within Rule
702 to conduct a meaningful inquiry into the reliability of the
expertise claimed by FDEs." Id. at 1043.
on Testimony. After
the court found the testimony to be sufficiently reliable, it
considered the risk of unfair prejudice. Because of FDE's use
of terms such as "laboratory" and references to authorities
with titles that may contain the words "science" or
"scientific," there was a risk that jurors may bestow
upon FDE's the aura of the infallibility of science. Moreover,
use of nine-level scale of probability to express an opinion
regarding genuineness appeared, in the court's view, to be misleadingly
precise. "Such [overly fine] distinctions are certainly
improper in forensic document examination, where it is conceded
that conclusions are drawn, in large part, on subjective criteria."
Id. at 1048.
P. Jury instruction stating that "FDEs offer practical,
rather than scientific expertise." Id. at 1049. The court
attached a draft jury instruction to the end of the opinion.
Id. at 1050-51.
the defense is entitled "to attack the reliability of forensic
document examination, ... to attack the expertise of each testifying
FDE, [and] to introduce the testimony of their own FDE."
Id. at 1050.
a) Other Cases
States v. Ruth,
42 M.J. 730, 732 (Army Ct. App. 1995) ("Based on our own
reading of Daubert and the logic of the Starzecpyzel
opinion, we agree that handwriting analysis evidence is best
treated under Mil.R.Evid. 702 as technical, and other specialized
knowledge.' Thus, we also agree that such evidence need not meet
the validity factors of Daubert before it can be admitted
into evidence under Mil.R.Evid. 702."), aff'd on other
grounds, 46 M.J. 1 (C.A.A.F. 1997) (appointment of defense
expert (Denbeaux) denied).
Tires. This analysis
will have to be revisited in light of Kumho. As discussed
below, this type of expertise can be tested.
States v. Velasquez,
64 F.3d 844, 848 (3d Cir. 1995) (trial court "erred as a
matter of law in denying the defense the opportunity to criticize
the standards employed in that field of expertise." The
expert (Denbeaux) would have testified that "handwriting
analysis is not a valid field of scientific expertise because
it lacks standards to guide experts in weighing the match or
non-match of particular handwriting characteristics." Id.
this approach, at least to the extent that an expert may challenge
an entire field. The Supreme Court noted that "the presence
of Daubert's general acceptance factor" does not
"show that an expert's testimony is reliable where the discipline
itself lacks reliability, as, for example, do theories grounded
in any so-called generally accepted principles of astrology or
necromancy." Id. at 1175.
States v. Jones,
107 F.3d 1147, 1160 (6th Cir. 1997) ("In short, expert handwriting
analysis is a field of expertise under the Federal Rules of Evidence.
This decision, however, does not guarantee the reliability or
admissibility of this type of testimony in a particular case."),
cert. denied, 117 S.Ct. 2527 (1997).
1. "If that [Daubert]
framework were to be extended to outside the scientific realm,
many types of relevant and reliable expert testimonythat
derived substantially from practical experience would be excluded.
Such a result truly would turn Daubert, a case intended
to relax the admissibility requirements for expert scientific
evidence, on its head." Id. at 1158.
2. "[The defendant] is, therefore,
asking us to do what no other court that we have found has donehold
that expert handwriting analysis is inadmissible under the Federal
Rules of Evidence." Id. at 1159.
3. Qualifications: "To train for his job, he completed
a two year in-residence course in questioned documents with the
United States Army Criminal Investigation Laboratory, completed
both the FBI and U.S. Secret Service courses in questioned documents,
and received additional training at the CIA training laboratory,
the Bureau of Printing and Engraving, the Rochester Institute
of Technology, the Royal Canadian Mounted Police Laboratory,
the Georgia Bureau of Investigation Laboratory, and the Immigration
and Naturalization Service headquarters. ... He estimated that,
throughout his employment, he had conducted 'well over a million
comparative examinations. In addition, he has published numerous
articles in the field and testified approximately 240 times in
various courts. To put it bluntly, the federal government pays
him to analyze documents, the precise task he was called upon
to do in the district court." Id. at 1160 (citations omitted).
4. Jury Presentation. The expert "outlined the procedure
that he uses when comparing a questioned signature with a known
one. He then focused on enlargements of the signatures at issue
in this case and described to the jury, in some detail, how he
reached his ultimate conclusions. His testimony enabled the jury
to observe firsthand the parts of the various signatures on which
he focused." Id. at 1160.
we wish to emphasize that just because the threshold for admissibility
under Rule 702 has been crossed, a party is not prevented from
challenging the reliability of the admitted evidence." Id.
States v. McVeigh:
11 BNA Criminal Practice Manual 88 (No. 5, Feb. 26, 1997) (no
"basis in science" for the opinion that someone has
written a particular document nor an "agreed standards for
the terminology" and no witness may testify as to conclusions
or opinions about who is the author of any particular document).
Rudolf and Widenhouse, Daubert Redux: Oklahoma City
Bomb Case, Champion 24 (May 1997); Hansen, 83 A.B.A. J. 76
(May 1997) (handwriting and Oklahoma City Bomb trial).
States v. Rosario,
118 F.3d 160, 168 (3d Cir. 1997), a Secret Service expert testified
that the defendant had "probably" forged a United States
Treasury check; however, in dissent, Judge Nygaard stated: "I
believe that the evidence adduced by the government at trial
falls far below the horizon of certainty we require in criminal
prosecutions and is not sufficient to convict Rosario beyond
a reasonable doubt. Handwriting analysis is at best an inexact
science, and at worst mere speculation itself. See, e.g., D.
Michael Risinger et al., ... . As such, I do not believe
that wholly ambiguous testimony from a handwriting expert'
... can satisfy the government's burden of proof."
W. Kam et al., Proficiency of Professional
Document Examiners in Writer Identification, 39 J. Forensic
Sci. 5 (1994), compared abilities of professional document examiners
(seven FBI examiners) and a control group of ten graduate students
in engineering and business.
1. "Surprisingly, there are only
a few studies that examine the reliability of writer screening
by document examiners. ..." Id. at 5.
2. "In our tests, the professional
document examiners performed significantly better than members
of the control group. ... Although these modest sample sizes
may limit the significance of the computed probabilities, the
differences in performance between the two groups are striking.
These differences indicated that handwriting identification expertise
exists, and that the generally negative conclusions of Risinger
and his co-workers ... may have been premature. Our conjecture
is that the negative impressions obtained by Risinger et al.
stem from the fact that the tests that they have examined were
not based on well designed, consistent, and controlled experiments."
Id. at 6.
3. "If there is a conclusion
that can be drawn from the comprehensive literature search performed
by Risinger et al. (and from the more recent FSF study , it
is that good tests for determining the existence or nonexistence
of handwriting expertise need to be devised and that there is
a lamentable lack of empirical evidence about the subject in
the forensic literature. This study is a modest step in addressing
this deficiency." Id. at 7.
X. Kam et al., Writer Identification by Professional
Document Examiners, 42 J. Forensic Sci. 778 (1997). Proficiency
tests for more than 100 examiners (1/6 to 1/3 of all examiners),
41 non-experts, and 8 trainees.
1. "[D]iscussion ... has been
characterized by acute lack of empirical evidence on the proficiency
of document examiners." Id. at 778.
2. "The group of professionals
incorrectly matched 6.5% of the documents in the unknown
packages with documents in the database packages. The
group of nonprofessionals made this mistake for 38.3% of the
documents in the unknown packages." Id. at 779.
3. "Unlike the professional examiners,
the nonprofessionals tended to grossly over-associate. They erroneously
matched' many documents that were created by different
writers, mismatching almost six times as many unknown
documents to database documents as the professionals did
(38.3% versus 6.5% of the documents). The results of our test
lay to rest the debate over whether or not professional document
examiners possess writer-identification skills absent in the
general population. They do." Id. at 778.
Y. Kam et al., Effects of Monetary Incentives
on Performance of Nonprofessionals in Document-Examination Proficiency
Tests, 43 J. Forensic Science 1000 (1998). The study concerned
a question of methodologywhether his earlier study had
been skewed because nonprofessionals did not have the same incentives
to perform as did the professional examiners, an issue raised
by critics. This study disproved this thesis; monetary incentives
to the nonprofessionals appeared to make little difference on
1. Legal Literature
Z. D. Michael
Risinger and Michael J. Saks,
Science and Nonscience in the Courts: Daubert Meets Handwriting
Identification Expertise, 82 Iowa L. Rev. 21 (1996).
1. In their article, the authors concede
that "a skill probably exists in some people for certain
tasks, but probably involves a large amount of inherent talent."
Id. at 63.
2. However, they argue that the extant
research does not permit a court to identify all the subtasks
in which the skill can be exercised dependably. Id. at 64.
3. Further, they add a caveat: "[T]here
is reason to believe that, like eyewitness identification, handwriting
identification is strongly influenced by context cuing. In other
words, the presentation of extraneous information to the examiner
which indicates the answer desired and reasons beyond handwriting
for its being the correct conclusion may affect the document
examiner's conclusion. [T]he founding fathers of the area were
more sensible. ... Hagan, Ames, and Osborn all took strong positions
that it was the professional duty of the examiner to insist that
such information not be presented and to take steps to step up
modes of consultation to insure against such contamination."
4. Significantly, they also critique
the certification procedure of the American Academy of Forensic
Document Examiners, arguing that they are deficient. Id. at 38
AA. John I.
General Assumptions and Rationale of Forensic Identification,
in 2 David Faigman et al., Modern Scientific Evidence
1, 33 (1997) ("Arguments that the identification of handwriting
is a science are weak, to the point of being indefensible. ...
It does not follow, however, that because handwriting identification
is not a science that it is devoid of validity. Handwriting identification
conducted by a skilled practitioner may possess a high degree
of validity. The fact that something is more of an art than a
science does not automatically render it disreputable ... The
challenge, of course, is to demonstrate with systematic empirical
data (e.g., proficiency tests) that one does reach correct results
and therefore is a skilled practitioner. There is no other way
to distinguish the skilled from the incompetent.").
BB. Andre A.
Identification Evidence In the Post-Daubert World, 66 UMKC
1. First, Professor Moenssens acknowledged
that many self-styled document examiners are unqualified ("Others,
by contrast, call themselves handwriting analysts or even forensic
document examiners without the benefit of adequate training in
the scientific comparison of documents." Id. at 328) and
some certification programs are a sham. ("A few of these
Boards require nothing more than sending a check in to receive
certification.'" Id. at 252.).
2. He identified a group of experts
that he believed were qualified: those affiliated with the Society
of Questioned Document Examiners, the International Association
of Identification, the American Board of Forensic Document Examiners,
and those who practice document examination following the same
methodology used in some of the regional groups of these same
organizations. Id. at 257.
3. He also criticized the Daubert
decision's "overly narrow" definition of scientific
knowledge, indicating that forensic science should be classified
as a science. In any event, he asserted that under any label
"true" experts could render reliable opinions concerning
handwriting authorship. Finally, he emphasized that Kam's research
had resolve any dispute, noting that this research "laid
to rest, for all objective reviewers, the debate over whether
professional document examiners can reliably identify authors
of handwriting and possess a skill that is absent in the general
population." Id. at 314.
Denbeaux and Saks,
Brave New "Post-Daubert World"A Reply to Professor
Moenssens, 29 Seton Hall L. Rev. 405 (1998). Not surprisingly,
they were not in full agreement with Moenssens's analysis. Indeed,
they disagreed with just about everything he wrote. Although
they agree that Kam's work is "the beginning of real knowledge,"
they note that one study by itself is never sufficient, and they
point out limitations of Kam's studies.
DD. Few courts have excluded handwriting
comparison testimony, although the conditions under which it
is admitted has changed; it will be considered "technical"
rather than "scientific" evidence.
EE. One beneficial fallout of this
dispute has been the allocation of funds for research in this
FF. Moreover, the distinction between
qualified examiners and graphologists has probably been accepted.
No longer will a dissenting judge have to write: "If this
witness has indeed testified over 300 times as an expert
on discovering spurious handwriting as she claimed, it is an
astonishing indictment on the gullibility of lawyers and judges."
Hooten v. Mississippi, 492 So. 2d 948, 958 (Miss. 1986)
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FORENSIC SCIENCE COMMUNICATIONS OCTOBER 1999 VOLUME
1 NUMBER 3