Tulsa Law Review Volume 43 Issue 2 Daubert, Innocence, and the Future of Forensic Science Winter 2007 Cases Involving the Reliability of Handwriting Identification Expertise Since the Decision in Daubert Michael D. Risinger Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Michael D. Risinger, Cases Involving the Reliability of Handwriting Identification Expertise Since the Decision in Daubert, 43 Tulsa L. Rev. 477 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol43/iss2/11 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Risinger: Cases Involving the Reliability of Handwriting Identification Exp APPENDIX CASES INVOLVING THE RELIABILITY OF HANDWRITING IDENTIFICATION EXPERTISE SINCE THE DECISION IN DAUBERT D. Michael Risinger* I. INTRODUCTION This appendix seeks to collect and separately describe and analyze every explicit decision by an American court on the reliability of handwriting identification expertise since the decision in Daubert v. Merrell Dow Pharmaceuticals,Inc. 1 Some prefatory explanations of methodology and criteria of inclusion are in order. First, it should be understood that the cases listed here are by no means all of the cases since 1993 in which handwriting identification testimony by putative experts has been proffered or accepted. A search of the Westlaw "Allcases" database using an appropriate search string2 will reveal a couple of thousand cases where claimed handwriting identification expertise has played a role,3 and that is just cases which generated opinions that showed up on * John J. Gibbons Professor of Law, Seton Hall University School of Law. 1. 509 U.S. 579 (1993). As the text will make clear, what I mean by a case dealing with the reliability of expertise is one where there is some claim raised that the expertise either is globally unreliable, or is unreliable in the circumstances of the case, regardless of the qualifications of the expert involved. Some cases in the Appendix may not strictly meet this criterion, but they have been included for the sake of completeness because they involve reliability issues sufficiently that, in my judgment, it is better to include than to exclude them. The one case arguably meeting this criterion that has been omitted is State v. Loza, 641 N.E. 2d 1082 (Ohio 1994). In that case, Loza was convicted of the murder of four members of his girlfriend's family. The evidence against him was truly overwhelming independent of the rather peripheral testimony by a handwriting expert tying him to letters he had written admitting guilt to his mother and girlfriend, which he had given to the authorities to mail. He never disputed writing the letters at trial, and his lawyer did not object to the testimony of the document examiner, Stephen Green (testimony which was an exercise in extreme lily gilding in any event). On appeal, the court noted that appellate counsel "contests the admissibility" of Green's testimony, but gave no indication of the ground on which it was contested. Id. at 1101. (Thus Loza is not clearly a reliability decision within the meaning of this Appendix.) The court found no plain error, noting that handwriting identification testimony by experts had been admissible in Ohio since the 1887 case of Bell v. Brewster, 10 N.E. 678 (Ohio 1887). Though this case was decided after Daubert, there is no indication that Daubert or anything like it entered into the court's approach to the case at all. 2. 1 have refined my search string over the years. The main one I currently use is: "Starzecpyzel 'Document Examiner' Handwriting /4 Expert Identification &* DA(Aft 1992)" supplemented by "Handwriting /2 analy! & Daubert." 3. A search of the Westlaw AllCases database using the main search string in note 2 supra, done on Published by TU Law Digital Commons, 2007 1 TULSA LA W REVIEW [Vol. 43:477 Tulsa Law Review, Vol. 43 [2007], Iss. 2, Art. 11 Westlaw. Most use of such expertise likely goes unremarked upon, or occurs in cases that never generate written opinions. In the vast majority of the reported cases involving such experts, the testimony is merely noted as part of a recitation of facts. 4 These cases include substantial numbers of civil cases, often involving challenged signatures on wills or deeds, or insurance and other contract cases, but not uncommonly involving more complex issues. 5 The volume should not be surprising. Estimates of the number of persons who offer such testimony in court, at least on occasion, ranges up to 5,000 or more, with some hundreds who do so regularly. 6 The range of credentials and experience exhibited by these witnesses is also startling, 7 and it is likely that most of the February 24, 2008, pulled in 2,119 items since the date Daubert was decided (June 28, 1993). 4. Examination of 100 cases from mid-2003 on, generated by the main search string in note 2 supra, revealed that nearly 70% were such "testimony noted" cases, and this was at a time when awareness of potential weaknesses of handwriting identification expertise showed up most often in opinions. In addition, there were 5 or 6% "ringers" (cases the search string turned up but which did not involve handwriting at all). About 10% were criminal cases that involved post-conviction complaints that the defense attorney had failed to employ a handwriting expert. Even at that time only about 5% involved reliability challenges. The rest involved complaints about the qualifications of the individual witness, or other issues. I should note that I have not limited myself to judicial decisions found in Westlaw, but where the criteria for inclusion are otherwise met, I have included slip opinions that have been sent to me, or that I have found on the Web, which do not appear in Westlaw. I would also like to note that my confidence in the virtual completeness of this collection is reinforced by the discovery on the Web of a collection of cases by Marcel Matley, copyright 2004, entitled Selected Handwriting Case Law Since Daubert Showing Complete Defeat for Foes of QDE (www.jjhandwriting.com/papers/caselaw.pdf, last viewed Feb. 26, 2008). Mr. Matley is a well-known non- Osbomian document examiner. I do not agree with many of his characterizations of the cases he has collected. (For instance, he makes much more out of cases where handwriting testimony is merely noted in passing than I think is appropriate. He sees wise courts embracing obviously reliable testimony, where I see oblivious courts and lawyers thoughtlessly following habit.) However, our differing views help insure completeness when combined, and I found two cases on his list (U.S. v. Gonzales, 90 F.3d 1363 (8th Cir. 1996) (case 4 infra) and U.S. v. Sanders, 59 Fed. Appx. 765 (6th Cir. 2003) (unpublished) (case 32 infra)) that I had missed because of the obscurity of their comments on issues of reliability. 5. See e.g. Est. of Acuff v. O'Linger, 56 S.W.2d 527 (Tenn. App. 2001) (case 53 infra); Taylor v. Abernethy, 620 S.E.2d 242 (N.C. App. 2005) (case 54 infra). It is perhaps appropriate to say here that I have reviewed the great bulk of the 2,119 cases personally. Though the search string has changed marginally over time, my working habit since the mid to late 1990s has been to search the Westlaw AllCases database every year or two, print out the itemized results, then click through the cases one at a time, reading enough to identify any reliability challenge or other interesting handwriting issue, and then reading at least the facts for each such case, which I summarized on the printout sheet, then went on to the next case. Many cases took less than 15 seconds, since it was clear that the testimony of the expert was just part of the summary of the evidence. Many took far longer. There may be the very occasional case I missed (see supra note 4) but I am confident that the collection is for all practical purposes complete. 6. See Andre Moenssens, Handwriting Identification Evidence in the Post-Daubert World, 66 UMKC L. Rev. 251, 265 n. 43 (1998). 7. Id. at 332-41 (appendix collecting and describing dozens of handwriting identification organizations and "credentialing" bodies). Nothing in these footnotes should be construed as any general endorsement of most of the positions espoused by Professor Moenssens in this article, which is in general a rather mean- spirited attack upon me and my sometime co-authors Mark P. Denbeaux and Michael J. Saks. Indeed, the Moennsens article should be read in conjunction with our reply, D. Michael Risinger, Mark P. Denbeaux & Michael J. Saks, Brave New "Post-Daubert World"-A Reply to Professor Moenssens, 29 Seton Hall L. Rev. 405 (1998). That said, Professor Moenssens did a service by documenting the effulgence of handwriting identification organizations whose membership is taken to lend credibility to expert curricula vitae. In response to this overgrowth of credentialing organizations for document examiners and other forensic specialties, the American Academy of Forensic Sciences (AAFS), in conjunction with the National Institute of Justice (NIJ) (the research arm of the Justice Department) and the National Forensic Science Technology Center (NFSTC) (a subsidiary of the NIJ) launched an effort to set up a certifying body for forensic science credentialing boards to play the role performed by the American Board of Medical Specialties for medical specialty certification.