On May 13, 1999, the United States Court of Appeals for the Eleventh Circuit held that the district court properly admitted handwriting identification evidence as satisfying the "scientifically reliable" criteria of the Daubert case in United States v. Paul,....175 F.3d 90.6 (11th Cir. 1999). At the same time, the reviewing court held that the trial court properly excluded a law professor's testimony criticizing the reliability of handwriting identification evidence because he lacked the skill, experience, training, or education in the field.
The defendant in this extortion prosecution had objected to the testimony of FBI document examiner Larry Ziegler--who had concluded that the defendant authored the extortion note--on the ground that handwriting analysis did not qualify as reliable scientific evidence. Under the Kumho Tire case authority [See the related article at this Website by clicking on All Expert Evidence Must Be Proved Reliable, Court Says] the test for reliability must be "a flexible" one, said the court. After looking at Ziegler's qualifications and testimony, the court concluded that the expert's testimony was "more probative than prejudicial" and was therefore properly admitted.
| ....At the time of trial, Ziegler: (1) was a full time handwriting examiner for 30 years; (2) was a member of four professional handwriting analysis organizations; (3) established both the Secret Service's and the Naval Investigative Service's "questioned document" laboratories; (4) lectured and taught extensively in the field of handwriting analysis; and (5) trained new "questioned document" examiners for several law enforcement organizations. Consequently, we hold that Ziegler's expert testimony could assist the jury. |
The defense had also sought to present the testimony of law professor Mark Denbeaux, a frequent "expert witness" critic of handwriting analysis, but the trial court had granted the government's motion to bar him from testifying because he was not an expert on handwriting analysis. That decision was also affirmed. With regard to Denbeaux, the reviewing court said:
| The record shows that Denbeaux had no skill, experience, training, or education in the field of handwriting analysis. The record shows that Denbeaux has a law degree and that he is a law professor who teaches evidence. Before 1989, he reviewed the literature in the field of questioned document examinations, and then coauthored a law review article critical of forensic document examiners' ability to reach the correct conclusion in questioned document examinations. . . . His, skill, experience, training and education as a lawyer did not make him any more qualified to testify as an expert on handwriting analysis than a lay person who read the same articles.
....During cross-examination, he admitted that he was not a questioned document examiner, had received no formal training in the field, had never attended seminars on handwriting analysis, had never worked in a questioned documents laboratory and was not a member of any professional organization in the field. . . . Denbeaux's background did not qualify him as an expert, and his knowledge of the subject matter is so limited that it was not an abuse of discretion for the district court to exclude his testimony under rule 702. |
The article critical of handwriting analysis, cited by the court, can be found at:
D. Michael Risinger, Mark Denbeaux and Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise, 137 U.Pa. L.Rev. 731 (1989).
An article disputing the critical claims of Risinger, Denbeaux and Saks, and providing additional insight into the handwriting analysis "world," can be found at:
Andre A. Moenssens, Handwriting Identification Evidence In The Post-Daubert World, 66 U.M.K.C. L.Rev.251 (1997).
The court in Paulalso mentioned United States v. Jones, 107 F.3d 1147, 1160 (6th Cir. 1997), wherein the argument that handwriting identification evidence ought not to be admitted because it could not be shown to be reliable was also made and rejected. The government's expert there had an equally lengthy career in questioned document analysis, had testified in over 240 cases and had authored many articles on handwriting comparisons. In rejecting the argument that the trial court improperly permitted him to testify as an expert, the court said, "To put it bluntly, the federal government pays him to analyze documents, the precise task he was called upon to do in the district court."
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