Monday, May 31, 2010
Leave It To The Experts: Supreme Court Of Kentucky Waffles Over Whether Nonexperts Can Authenticate Handwriting Based Upon Familiarity Acquired For Purposes Of Litigation
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(2) Nonexpert testimony on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.
The way I see it, the language of Rule 901(b)(2) makes it clear that a party cannot authenticate a writing based upon nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity acquired for the purposes of litigation. According to the recent opinion of the Supreme Court of Kentucky in Roach v. Commonwealth, 2010 WL 2016851 (Ky. 2010), however, this is not so clear.
In Roach, Caryn Renee Roach was convicted of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and being a second-degree persistent felony offender. The case arose when the family of 90-year-old Eba Wilson suspected that several checks written on her account had been forged. Police eventually suspected that it was Roach, Wilson's caretaker, who had forged Wilson's signatures on the checks.
At trial, Eba's son Wendell testified that the signatures on several of the subject checks did not appear to be Eba's. Lead detective Robert Duvall also testified that based upon his investigation into the case and Eba's signature, it appeared unlikely that several of the checks were signed by Eba.
After she was convicted, Roach appealed, claiming, inter alia, that Duvall's testimony was improperly received under Kentucky Rule of Evidence 901(b)(2) because Duvall was not qualified as an expert witness and he only gained familiarity with Eba's handwriting for the purposes of litigation. Based upon Wendell's testimony, the Supreme Court of Kentucky found that any error with the admission of Duvall's testimony was harmless. In an accompanying footnote, however, the court noted,
Without reaching the issue ourselves, we note that some other courts do not permit lay witness testimony concerning the authenticity of signatures where the witness only became familiar with the subject's handwriting in anticipation of litigation. See, e.g., Bell v. State, 910 So.2d 640, 644 (Miss.Ct.App.2005) (holding that authentication of handwriting by lay witness is only permitted under Mississippi rules of evidence if lay witness's familiarity with handwriting is “based upon familiarity not acquired for purposes of the litigation.”) (internal quotation marks omitted). We also note KRE 901 offers “[b]y way of illustration only, and not by way of limitation” an example of a proper means of authentication of a handwritten document by “[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.” KRE 901(b)(2). We neither adopt nor reject Roach's reading of this example of proper authentication of a document as clearly providing that lay witness testimony on handwriting is necessarily prohibited if the familiarity with the handwriting was acquired for purposes of litigation because we conclude that any error in the instant case was harmless.
Now, I certainly see the Supreme Court of Kentucky's point. Kentucky Rule of Evidence 901(b) states that each of its subsections are merely illustrations of types of testimony which automatically qualify as proper authentication under Rule 901(a). Therefore, just because Rule 901(b)(2) does not include nonexpert opinion testimony by a witness who only gained familiarity with handwriting for purposes of litigation does not mean that such testimony automatically fails Rule 901(a). I would argue, however, that the words of exclusion in Rule 901(b)(2) make clear that it was not intended that such testimony qualifies as proper authentication under Rule 901(a). And, indeed, the Advisory Committee's Note to the federal counterpart, to Kentucky Rule of Evidence 901(b)(2) provides that "[t]estimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows."