Presentations from the 2nd International Symposium on the Forensic Examination of Questioned Documents (Part 3; Forensic Science Communications, October 1999)
October 1999 - Volume 1 - Number 3
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 names.
Post-Daubert Considerations in Document Examinations
(continued from Part 2)
P. C. Giannelli, A. J. Weatherhead, and R. W. Weatherhead
Case Western Reserve University
16. Polygraph Evidence
a. United 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.
b. United 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)).
d. United 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.”).
e. United 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).
f. United 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.”
g. United 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 himself.”).
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.”).
i. Computerized scoring. Polyscore (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
a. Williamson v. Reynolds, 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 1558.
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).
b. Connors 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 technology—some 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 Honaker.
c. But see McCarty v. State, 904 P.2d 110, 125 (Okl. Crim. App. 1995) (admitting evidence).
18. Firearms Identification
a. People 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 upheld admissibility.
19. Bitemark Evidence
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).
b. Howard 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 (“Voiceprints”)
a. State 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.”
21. Social Science
a. Hypnosis — Repressed Memories. 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.
b. United 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).
XXII. Federal 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.”).
B. Advisory 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 §§ 1991-1994.”).
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 authentication).
D. Federal 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.”).
E. Statutory 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.”).
F. Initial 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).
G. Judicial Notice. Greenberg 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.”).
H. Ineffective 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.”).
a) Penn 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.
a) United States v. Starzecpyzel (Post-Daubert)
M. Scientific Evidence. United 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.
N. Technical 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.
O. Limitations 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.
Q. Adversary System. Finally, 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
R. United 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).
1. Kumho Tires. This analysis will have to be revisited in light of Kumho. As discussed below, this type of expertise can be tested.
S. United 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. at 846.
1. Kumho Tires supports 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.
T. United 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 testimony—that 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 done—hold 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.
5. Adversary System. “But 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. at 1161.
U. United 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).
V. United 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 methodology—whether 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 the results.
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.” Id.
4. Significantly, they also critique the certification procedure of the American Academy of Forensic Document Examiners, arguing that they are deficient. Id. at 38 n. 94.
AA. John I. Thornton, The 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. Moenssens, Handwriting Identification Evidence In the Post-Daubert World, 66 UMKC 251 (1997).
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.
CC. Risinger, 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 field.
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) (dissenting opinion).