|
|
by Thomas W. Vastrick
INTRODUCTION
The Spring, 2004 issue of Business Litigation Report contained an article titled, "Is Your Handwriting Expert's Testimony Admissible?" This article contained excellent information concerning the importance of carefully reviewing the professional training and background of those presenting themselves as Forensic Document Examiners. Specifically recognizing board certification by the American Board of Forensic Document Examiners is particularly important and well emphasized by Mr. Mendes in the article. As an ABFDE board certified Forensic Document Examiner with over 26 years of experience, I would like to address, in detail, the issue of admitting testimony regarding similarities and differences in handwriting but not permitting the testimony of any conclusions reached.
ARGUMENT – HANDWRITING EXAMINATIONS ARE SUBJECTIVE
Occasionally, an argument has been made that because there is a subjective aspect to forensic document examination, the whole system is somehow unreliable. Virtually all expert testimony is ultimately "subjective." Were it not subjective, it would not be "opinion testimony." Summarily rejecting subjective opinion as unreliable would be incorrect under Rule 702, and would amount to wholesale rejection of virtually all of the expert opinions which that rule embraces in addition to the extinction of all applied science to the legal profession (which is all science). This is the quintessential type of opinion evidence for which Rule 702 is designed. To say that an expert cannot express a subjective opinion which rests on his or her expertise and training would be to write Rule 702 out of the Tennessee Rules of Evidence. To the contrary, the rule provides that an expert may testify "in the form of an opinion or otherwise," recognizing that an expert's subjective view based on training superior to that of the jurors may be helpful to the jury in the performance of its task. The very word "opinion" insinuates a subjective aspect to any methodology. The Advisory Committee note to the adoption of Federal Rules of Evidence Rule 702 explicitly authorized such opinion testimony:
It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts.
If experts were limited only to providing testimony regarding which there is totally objective empirical proof, there would be no need for expert opinions at all. By the same notion, if the reliability of an expert's opinion rested on his or her demonstrable accuracy, without any reference to his or her subjective judgment, there could never be a case in which competing experts were allowed to opine. This is not the law.
ARGUMENT – THE OPINION DOES NOT SUBSTANTIALLY ASSIST THE TRIER OF FACT
One important foundation of testimony within the rules of evidence, and specifically Rule 702, states that any proffered testimony must substantially assist the trier of fact. Separate and independent empirical studies have been conducted to test this very premise. Validated practical problems were presented to trained forensic document examiners and to untrained subjects with comparable levels of education. These independent studies conducted both in the United States and overseas, provided clear conclusions. Dr. Moshe Kam, Dr. Bryan Found, and Jodi Sita, through their studies, have shown that untrained individuals, such as those who would be on a jury, are exponentially more likely (six times) to arrive at inaccurate conclusions than a qualified forensic document examiner when reviewing and studying the same documents. Clearly, forensic document examiners can, through their training and expertise, substantially assist the trier of fact.
This conclusion also makes practical sense. One who is untrained in the discipline of forensic document examination often believes that there are a certain number of "points" or similarities that will result in an identification – much the same way as there are a certain number of "points" in a fingerprint that are required for an identification. Unfortunately what applies to fingerprint comparisons does not apply to handwriting comparisons. An excellent attempt to copy a signature will provide a large number of "points" of similarity and very few differences. A qualified forensic document examiner will recognize the key elements of an attempt to simulate a signature and be able to conclude correctly. An untrained individual counting the similarities versus the differences will reach a different result. Should a forensic document examiner only be permitted to list the similarities and differences, and not the ultimate opinion, the examiner ends up propagating this inaccurate method of reaching a conclusion. As such, their testimony becomes inherently more prejudicial than probative.
ARGUMENT – HANDWRITING EXAMINATION IS NOT RELIABLE
Dr. Sargur N. Srihari conducted validation studies with regard to the basis of handwriting examination – that no two people write exactly alike. The results of his published, peer-reviewed study was that sufficient uniqueness exists in the amount of handwriting used as a basis for comparison to statistically conclude that handwriting is unique to an individual. The statistical confidence level is practically 100%.
In addition to the Srihari study, numerous other empirical studies indicated the same result. In one study, a survey of 91 forensic document examiners with a total of 1,490 man-years of experience examining the handwriting of over one million people provided not one instance in which two different people were found to have the same combination of handwriting characteristics. In addition the Forensic Information System for Handwriting (FISH) is a handwriting classification system utilized by the U.S. Secret Service and the Bundeskriminalamt in Germany. This system has catalogued the handwriting of approximately one hundred thousand individuals. There are no instances in which two different people were found to have the same combination of handwriting characteristics.
The aforementioned studies by Kam, Found, and Sita illustrated that trained forensic document examiners had a success rate ranging from 93.5% to 97% under the worst of circumstances which included examinations outside their laboratory without their usual equipment. As such, these figures can be accepted as the lowest end of the reliability scale.
A key aspect of reliability is reproducibility of results. In a published empirical study conducted many years ago, one author concluded that forensic document examiners provide conflicting testimony in approximately .01% of their court appearances. It should be noted that this figure does not take into account the qualifications, or lack of same, of the opposing expert.
There is a basic reason for this level of reproducibility and reliability. The standardized scientific methodologies used by forensic document examiners require an objective approach which follows established and tested procedures. The methodologies utilized have been codified through the work of the Scientific Working Group – Forensic Document Examinations and through the American Standards and Testing Materials which is recognized for standardization by the entire scientific community.
COURT DECISIONS TO POINT
In Tennessee, there have been two challenges to the admissibility of forensic document examination. One of these challenges was heard by the Tennessee Court of Appeals. The criminal court case was State v. Maxwell, heard in Shelby County Criminal Court Division 9 in 2003 (I do not have the legal citation). The court ruled that forensic document examination and the opinions of the ABFDE certified examiner were admissible.
In civil matters the challenge to forensic document examination came in Estate of John Acuff v. Brenda Olinger (Marion Co. Chancery Court No. 6064, 1998). In his decision, Chancellor Jeffrey Stewart ruled that the evidence proffered by the plaintiff's handwriting experts, including their opinions, were admissible. In the subsequent appeal of this decision the Tennessee Court of Appeals ruled that the trial judge did not abuse his discretion. (M1999-0068-COA-R3-CV, 2001 [TN])
There have been no cases in Tennessee in which a forensic document examiner has been limited to providing testimony only to similarities and differences and not to the ultimate opinion based on the comparative examination.
In Taylor v. Abernathy the North Carolina Court of Appeals ruled that not allowing a document examiner to testify to his opinion but only to similarities and differences was reversible error. This is the only appeals court decision that has taken up this specific issue.
Federal Court of Appeals decisions upholding forensic document examination as a reliable source of information that would assist the trier of fact include, but are not limited to; U.S. v. Velasquez; U.S. v. Ruth; U.S. v. Rosario; U.S. v. Jones; U.S. v. Ruteria; U.S. v. Battle; U.S. v. Jolivet; and U.S. v. Elmore. There are no Federal Court of Appeals decisions to the contrary.
SUMMARY
There have been cases numbering into the thousands in which forensic document examiners have testified since Daubert and Kumho. Only a very few have involved admissibility challenges most of which were entirely unsuccessful. In many cases, document evidence has been admitted through stipulation of qualifications. Forensic document examiners testify regularly across the country. This witness alone has testified approximately 60 times since 1999 and has been admitted through stipulation of qualifications or with no challenge of qualifications in the vast majority of these cases and no successful challenges of qualifications in any cases.
There is significant and adequate scientific validation studies in support of the basis of handwriting examination that handwriting is unique to individuals and that ABFDE board certified forensic document examiners can substantially assist the trier of fact in matters of authorship through their ultimate opinions.
Thomas W. Vastrick is a board certified forensic document examiner with offices in Memphis, TN and Orlando, FL. Mr. Vastrick is certified by the American Board of Forensic Document Examiners and has served on their Board of Directors (1987-1995) and as Secretary (1991-1995). He is a member of the American Society of Questioned Document Examiners, the Questioned Document Section of the American Academy of Forensic Sciences, and the Southeastern Association of Forensic Document Examiners. Mr. Vastrick has had numerous original research papers published and teaches forensic document examination and forensic science on the undergraduate and postgraduate level. |
|
|
