Saturday, April 17, 2004

9th Circuit Upholds Handwriting Analysis

In a criminal prosecution for wire fraud and various counterfeiting offenses, the Ninth Circuit has published an opinion in which handwriting analysis is held to satisfy the reliability standards imposed by Daubert. See United States v. Prime, No. 02-30375 (9th Cir. Apr. 16, 2004) (Trott, Paez, & Berzon, JJ.). The panel walked the technique through all the Daubert "factors":

Testing. "The government and [its expert] provided the court with ample support for the proposition that an individual's handwriting is so rarely identical that expert handwriting analysis can reliably gauge the likelihood that the same individual wrote two samples. The most significant support came from Professor Sargur N. Srihari of the Center of Excellence for Document Analysis and Recognition at the State University of New York at Buffalo, who testified that the result of his published research was that 'handwriting is individualistic.'"

Peer review and publication. "The [district] court cited to numerous journals where articles in this area subject handwriting analysis to peer review by not only handwriting experts, but others in the forensic science community."

Rate of error. "[S]tudies demonstrated that expert handwriting analysts tend to be quite accurate at the specific task [the expert] was asked to perform -- determining whether the author of a known writing sample is also the author of a questioned writing sample. When the two samples were in fact written by the same person, professional handwriting analysts correctly arrived at that conclusion 87% of the time. On the other hand when the samples were written by different people, handwriting analysts erroneously associated them no more than 6.5% of the time."

Standards. "The [district] court recognized that although this area has not been completely standardized, it is moving in the right direction. The Secret Service laboratory where [the prosecution's expert] works has maintained its accreditation with the American Society of Crime Laboratory Directors since 1998, based on an external proficiency test. Furthermore, the standard nine-point scale used to express the degree to which the examiner believes the handwriting samples match was established under the auspices of the American Society for Testing and Materials ('ASTM'). The [district] court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court."

General acceptance. "The district court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service."
In concluding that the handwriting analysis testimony was properly admitted, the panel noted the consistency of that result with decisions upholding such testimony in all six circuits to have addressed the issue previously.
Fed. R. Evid. 702: 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.