Second Circuit Approves Handwriting Testimony on Plain Error Review

From the summary decision in United States v. Adeyi, No. 05-1722 (2d Cir. Feb. 7, 2006) (Calabresi, Straub, & Wesley, JJ.):

The government's handwriting expert testified to his belief that, based on the handwriting in [defendant's] address book, two of the handwritten slips of paper found in the heroin packages appeared to be authored by [defendant]. Our circuit has not authoritatively decided whether a handwriting expert may offer his opinion as to the authorship of a handwriting sample, based on a comparison with a known sample. We have held, however, that "for an error to be plain, it must, at a minimum, be clear under current law. . . . A reviewing court typically will not find such error where the operative legal question is unsettled." United States v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (internal quotation marks omitted). Because expert opinion as to handwriting authorship is not clearly inadmissible in this circuit, we cannot say the district court committed plain error.

From the footnote to that paragraph:

Although we do not now decide on the admissibility of such evidence, we note that those circuits that have considered the question are unanimous that a properly admitted handwriting expert may, if the factors enumerated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), are satisfied, offer an opinion as to the authorship of a disputed document. See, e.g., United States v. Prime, 431 F.3d 1147, 1151-54 (9th Cir. 2005); United States v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003); United States v. Mooney, 315 F.3d 54, 61-63 (1st Cir. 2002); United States v. Jolivet, 224 F.3d 902, 905-06 (8th Cir. 2000); United States v. Paul, 175 F.3d 906, 909-12 (11th Cir. 1999). But see United States v. Oskowitz, 294 F. Supp. 2d 379, 384 (E.D.N.Y. 2003) (citing to district court cases that have excluded handwriting expert testimony offering an opinion as to authorship).