Professor Peter Tillers
Cardozo School of Law
A. Admissibility of Handwriting Expert
The primary question posed by the defendant's
motion to prohibit the testimony of forensic document analyst John W. Cawley, III was whether his handwriting identification evidence
was sufficiently reliable to be admissible pursuant to Rule 702 and
Daubert. See Fed. R. Evid.
702; Daubert, 509 U.S. at 579.
The Government argued that the court was not
required to apply Daubert to handwriting
identification analysis and that, in any event, Mr. Cawley's testimony was reliable.
The court first notes that Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. As the Supreme Court
explained in Daubert and Kumho
Tire, under Rule 702, the district judge must ensure that the expert's
testimony is both relevant and reliable before it may be admitted, regardless
of whether the testimony is scientific or based on technical or other specialized
knowledge. SeeKumho, 526 U.S. at 147; Daubert 509 U.S. at 589.
When the expert's testimony's "factual basis, data, principles, methods,
or their application are called sufficiently into question, ... the trial
judge must determine whether the testimony has 'a reliable basis in
the knowledge and experience of the relevant discipline.'" Kumho,
526 U.S. at 14 (emphasis added) (quoting Daubert, 509 U.S. at 592).
In performing this gate-keeping responsibility, the Supreme Court has articulated
four factors the court may consider:
(1) Whether a theory or technique can be or has been tested;
(2) Whether it has been subjected to peer review and publication;
(3) Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and
(4) Whether the theory or technique enjoys general acceptance within a relevant scientific community.
526 U.S. at
149-50(citing Daubert, 509 U.S. at 592-94) (internal quotations marks
and alterations omitted). These various factors are not an exhaustive list
of all possible ways to assess reliability, nor must all of the factors be
applied in every case. 526 U.S. at 150. Depending on the facts of the case
and the type of testimony being challenged, it may very well be unreasonable
to apply all of these factors. Id. at 151. Accordingly, the trial judge
is given discretion in determining how and in what manner to make reliability
determinations pursuant to Daubert.
Where, however, the Daubert factors are reasonable
measures of the testimony's reliability, the Supreme Court has instructed
that the trial judge should consider them. Id. at 152. While district
courts have considerable leeway in determining how to assess reliability,
they do not have the discretion to simply abandon their gate-keeping function
by foregoing a reliability analysis. Id. at 158-59.
(Scalia, J., concurring). Significantly, "in
a particular case the failure to apply one or another of [the Daubert
factors] may be unreasonable, and hence an abuse of discretion."
This court is not persuaded by the Government's argument that the court need
not apply the Daubert factors. For support,
the Government cites several cases where circuit panels have affirmed a district court's admission of a handwriting expert. See, e.g.,
United States v. Jolivet, 224 F.3d 902, 905-06 (8th Cir. 2000) (affirming
under plain error review the district judge's decision to admit handwriting
expert's testimony without applying Daubert factors); United States
v. Paul, 175 F.3d 906, 910-11 (11th Cir. 1999) (concluding summarily that
Daubert factors do not necessarily apply to admission of handwriting
expert, but failing to address any alternative measures of reliability); United
States v. Velasquez, 33 V.I. 265, 64 F.3d 844, 849-50 (3d Cir. 1995) (cautioning
against strict application of the reliability requirement and finding that
the ultimate touchstone is helpfulness to the trier
of fact).
While these cases all emphasize the district judge's discretion in choosing
how to assess the expert's reliability and the "flexibility" afforded
the court under Daubert and Kumho,
they do not provide any rationale for declining to apply the Daubert factors. These courts simply downplay their
rejection of the Daubert factors by minimizing
the importance of reliability. The rationale given in these cases is that
reliability in the handwriting identification context is a less significant
concern due to the fact that the jury is able to see for itself whether the
writings are similar. See, e.g., Paul,
175 F.3d at 911; United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir. 1997) (citing
United State v. Buck, 1987 U.S. Dist. LEXIS 9913, No. 84 Cr. 220-CSH,
1987 WL 19300, at *3 (S.D.N.Y. Oct. 28, 1987)).
The Supreme Court's mandate in Daubert,
however, runs contrary to this rationale. There, the Court explained that
Rule 702's requirement that evidence "assist the trier
of fact in reaching its conclusion" goes primarily to relevance; an assessment
of reliability is an additional component of the judge's gatekeeper
function. Daubert, 509 U.S. at 591-92. Simply put, expert testimony
that does not relate to any issue in the case is not relevant, and thus, not
helpful. Reliability, on the other hand, is an assessment of whether the expert's
reasoning or methodology is valid and warrants the relaxation of the common
law first-hand knowledge requirement for witnesses. See id. at 592.
Here, the court finds that all of the Daubert
factors reasonably apply to handwriting analysis and thus are helpful to the
court in assessing the reliability of Mr. Cawley's
testimony. As a branch of forensic science, handwriting analysis has many
characteristics that are resonant with the traditional concept of
"science." See Reference Manual on Scientific Evidence,
Federal Judicial Center 69 (2000) (noting that "science" embodies the
vast array of knowledge about the mysteries of our world, including the
technologies which have transformed our lives). Handwriting analysis proposes a
theory that each person's handwriting is unique, and involves a method by which
a trained expert can identify each writing's author.
The sufficiency of that theory and method can be tested through the basic
factors set forth in Daubert
For instance, because the results in handwriting analysis are based on identification,
there must be a corresponding probability of error. See D. Michael
Risinger & Michael J. Saks, Science
and Nonscience in the Courts: Daubert
meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21, 36
(1996). In other words, it is possible to calculate the number of times a
handwriting expert correctly identifies the author of a handwriting sample.
This number can then be used by courts as an indicative error rate. Other
qualities of handwriting analysis, such as the theory that penmanship characteristics
are separable from each other, and that there is a base rate of penmanship
characteristics in a population of potential authors, are also capable
of measurement. Id. at 36-37.
Yet despite the relative ease with which such measurements could be made,
the Government did not offer any evidence of reliable testing and error rates,
or of any of the other Daubert factors through
Mr. Cawley's testimony. The Government had the burden
of establishing by a preponderance of the evidence that Mr. Cawley's
expert testimony was sufficiently reliable to be admissible under Rule 702.
See Maryland Cas.
Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). The
court found that the Government did not meet its
burden.