Friday, November 15, 2013
Federal Rule of Evidence 702 provides that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court laid out several nonexhuastive factors that a court may consider in assessing the reliability of evidence: (1) whether the technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operations; and (5) “general acceptance” within the relevant scientific community. In United States v. Johnsted (Download Johnsted Opinion), the United States District Court for the Western District of Wisconsin addressed the admissibility of expert testimony and an expert report by a handwriting expert. So, how did the court rule?Facts
In Johnsted, B.D. and his wife received handwritten communications by mail containing threats to injure them. United States Postal Service handwriting analyst Gale Bolsover thereafter compared the communications with handwriting exemplars written by Gerald Johnsted and prepared an expert report in which she concluded that Johnsted wrote the subject communications. Defense counsel thereafter moved to exclude the report and any proffered expert testimony by Bolsover
Factor One: Testing
According to the court, while the prosecution presented evidence of studies showing that handwriting is unique,
the government does not dispute the troubling lack of evidence testing or supporting the second fundamental premise of handwriting analysis. Even more ￼ troubling is an apparent lack of double blind studies demonstrating the ability of certified experts to distinguish between individual‟s handwriting or identify forgeries to any reliable degree of certainty. This lack of testing has serious repercussions on a practical level: because the entire premise of interpersonal individuality and intrapersonal variations of handwriting remains untested in reliable, double blind studies, the task of distinguishing a minor intrapersonal variation from a significant interpersonal difference -- which is necessary for making an identification or exclusion -- cannot be said to rest on scientifically valid principles. The lack of testing also calls into question the reliability of analysts' highly discretionary decisions as to whether some aspect of a questioned writing constitutes a difference or merely a variation; without any proof indicating that the distinction between the two is valid, those decisions do not appear based on a reliable methodology. With its underlying principles at best half-tested, handwriting analysis itself would appear to rest on a shaky foundation.
Factor Two: Peer Review and Publication
The court next found that
peer review and publication on the specific practice of hand printing analysis (another of the Daubert factors) is limited. While Bolsover pointed out numerous peer-reviewed journals that address forensic document examination, she conceded the discipline of forensic document examination comprises more than just hand printing analysis....A mere list of journals does not convince the court that the specific techniques at issue in this case have been peer reviewed, particularly given the relative dearth of studies addressing hand printing. The government also argues that every examiner's work is reviewed by another examiner and that additional peer review is built into the lab accreditation process..., but the court is not persuaded that this fact adds to the reliability of the analysis here, since those examiners and accreditors would presumably apply the same standards of handwriting analysis that Bolsover applies, none of which have been adequately tested, at least in the hand printing context.
Factor Three: Rate of Error
Under the third factor, the court agreed
with the government that a 0% error rate is unnecessary for purposes of demonstrating reliability....As already discussed above, however, the testing that has been performed as regards to hand printing analysis has yielded ambiguous results at best.
Factor Four: Controlling Standards
According to the court,
While the government appears to be technically correct that standards exist controlling the technique's operations..., that fact does not tend to establish reliability without some evidence that those standards are actually appropriate in the hand printing context. The standards at issue are also extremely discretionary, which likewise tends to undermine the reliability of the techniques used in handwriting analysis. As the government indicates, some flexibility in standards may be required to adapt to the different variables that may arise from case to case, meaning that a “numeric baseline” may not be appropriate..., but the standards governing handwriting analysis appear almost entirely discretionary. Bolsover indicated that analysts must rely on their individual training and experience to differentiate between an intrapersonal variation and an interpersonal difference in handwriting....Though SWGDOC provides guidelines for nine separate conclusions an analyst can draw, Bolsover conceded that analysts must rely entirely on their experiences and individual training to determine when a case warrants a particular conclusion....By itself, a lack of more clearly-defined standards may not warrant exclusion, but the standards governing handwriting analysis only minimally “control the technique's operation.”
Interestingly, the court did not address the fifth factor: the general acceptance of handwriting analysis in the relevant scientific community. Of course, the court was not required to analyze this factor, but it did find two other factors to be relevant in its analysis:
1. Here, the court finds the lack of reliable blind testing worth emphasizing.
2. In addition, the government failed to provide indicia of reliability as regards Bolsover‟s testimony in this specific matter
(Hat tip to Stephen Meyer for the link)