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By Andre A. Moenssens
Douglas Stripp Professor of Law
UMKC School of Law

The following is an abstract of a talk given at the Second Annual Symposium on the Forensic Examination of Questioned Documents at Albany, N.Y., on June 18, 1999. An earlier version of this abstract also appears in the October, 1999 issue of Forensic Science Communications, a peer-reviewed quarterly journal published on the Internet by FBI Laboratory personnel.
(See: http://www.fbi.gov/programs/lab/fsc/current/index.htm)

Introduction

Daubert versus Merrell Dow Pharmaceuticals has been referred to as the villain; as the dragon that needs to be slain. But there is no need to be afraid of Daubert. The case is not going to result in the court excluding handwriting identification evidence, if you know what to prepare for when facing a Daubert hearing.

What is a Daubert hearing? It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

Today, preparing for a Daubert hearing presents less of a problem for questioned document examiners than it will pose in the near future for other branches of the forensic sciences such as firearms and toolmark examination, hairs and fibers comparisons, bitemark identifications, and other forensic disciplines. The advantage of having been first to endure the brunt of Daubert challenges also means you are ahead of the other forensic science disciplines, and you already are doing the kinds of things to overcome Daubert challenges that other disciplines only are beginning to think about.

Actually, of the trilogy of cases, Daubert, Joiner, and Kumho Tire, discussed at this symposium, Kumho Tire is perhaps even more important than Daubert because of two central points in that decision.
 

-  It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

- The Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the kind of reliability the Supreme Court said was needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to handwriting identification or to many other forensic sciences where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree of confidence.

Having said that, and as a matter of additional security and comfort to us, I believe that, today, the questioned document profession can meet the most stringent of Daubert requirements.
 

The Criticism of Professors Saks, Risinger, and Denbeaux

You are familiar with the comments that were made in the 1989 law review article. Despite all of the current and past research, the law professors-authors of the article are continuing to criticize forensic document examination dealing with handwriting comparisons for not having done the kind of research that they feel to be necessary to supply the larger legal community with empirical data on the validity of handwriting analyses. When they said so, in 1989, there was perhaps considerable truth to that. Not much published empirical research was readily available at that time. However, even in 1989, and assuming we ignore all the mistakes and errors of fact in the article, the criticism still was grossly unfair, because nothing in then-existing legal requirements established that such research be available for opinions on handwriting identifications to be admissible.

Not only had ample court precedent over nearly a century held that such opinion evidence was admissible, but there were statutes in several states and in the federal system authorizing or mandating admission. (e.g., Rule 901 of the Federal Rules of Evidence). It was, therefore, unfair to ridicule a profession for not having done what the law had not required it to do.

What is more, prior to Daubert, admissibility of expert opinions was covered largely by the Frye test of general acceptance, and there is no question that handwriting identification testimony had been accepted universally by the forensic science communities globally . Questioned document examination evidence was clearly among what was called "scientific evidence" at a time when the Supreme Court, in Daubert, had not yet redefined the word "science" in such a way that its definition could only be applied to Newtonian physics. Earlier Supreme Court opinions, as had the opinions of every court of appeals and every state supreme court, had referred to all kinds of expert opinion testimony as "scientific" evidence even though, after 1993, ninety percent of those disciplines could not meet the Daubert Court's test for what constitutes scientific knowledge.

Although it was unfair of Saks and company to criticize the questioned document profession for not having published the kind of basic research that no law required it to supply, it is even more unfair, today, for them to keep criticizing the discipline now that the research that they said should be done has been published and is continuing to be done with ever-increasing intensity and frequency.

Dr. Saks and co-critics might well have been lauded as heroes for spurring the forensic document examination profession into supplying the necessary data that has since been published had they taken a more professional approach in alerting us to what they perceived to be the missing information and offered to aid and advise the profession. They chose, instead, to proceed as vengeful advocates in a vendetta war that they decided to wage against the prosecution and crime laboratories generally, and document examiners in particular.

As I pointed out in my law review article rebutting their premises and their research, the critics' overview of the profession was not only incomplete, often inaccurate, and their conclusion frequently based upon non sequiturs, but whatever deficiencies in document research they said they had discovered were expressed in a sarcastic manner, in demeaning and depreciating language, and in a nonprofessional manner that debased them more than it did the profession. They heaped further insult upon injury in comparing handwriting identification to tea-leaf reading and witchcraft. The tone of their critique was not the language of the disinterested scientist seeking to alert a professional community to deficiencies in their publication and research record so as to spur on the kind of research it would be desirable to have. Instead, from their premise that the skill of handwriting examiners who compare documents of questioned and known origin to determine common authorship lacked empirical justification, the critics want us and the courts to leap to an unwarranted next step; that such skill could not possibly exist.

Once having taken that position in print and as advocates in litigation, the critics now must feel compelled to continue to criticize handwriting identification as a profession despite the consistent results of past and ongoing research showing the fallacy of their arguments.

That is why the critics have forever lost the respect and the trust of decent, competent forensic scientists around the world. Although Dr. Saks is a social scientist, his co-authors have no credentials in that endeavor. In their attacks upon handwriting identification, all are advocates rather than scientists. Their perjorations are, and continue to be, advocacy rather than an objective and dispassionate legitimate critique.
 

The Daubert Factors and How Document Examination Can Meet Them Today

Daubert, as Professor Gianelli explained, required that certain factors be satisfied if evidence is to be classified as scientific knowledge in the Newtonian sense. There must be some of the following:
 

- proof of testing of the basic underlying hypothesis upon which the technique rests,
- peer review and publications,
- a known or potential error rate,
- the existence of an accepted methodology, and
- general acceptance of a technique in the forensic community.

The Daubert Court said that the inquiry was to be a flexible one. Nevertheless, the careful examiner, when asked to be an expert witness, should be prepared to answer questions relating to each one of the above factors and how they apply to the field of handwriting comparisons. Despite the Court's admonition that its requirements were only guide posts, rather than a checklist to be satisfied, lawyers and judges, being the cautious creatures that they are, will seek to explore whether all of the Daubert factors can be satisfied. Therefore, it is important for document examiners to be prepared to give a reasoned answer if asked about the Supreme Court criteria on the witness stand.
 

Testability

Does the forensic document examiner's skill of comparing handwritings for the purpose of determining authorship exist? Yes! What is the proof of it? Dr. Kam's continuing studies as well as those by Galbraith and other studies currently going on throughout the profession constitute proof that is constantly reinforcing the premises long before adopted by forensic document examiners. Bob Muehlberger's work on standards is an extension of all of that ongoing research. Every questioned document examiners' meeting that is held today continues to explore the concept of testability. Additional proof supporting the premises of handwriting individuality and the skill of qualified examiners is being acquired monthly by ongoing research conducted worldwide. Computer adaptations to handwriting examinations continue to be explored. There is perhaps more research occurring in handwriting comparisons than in any other branch of the forensic sciences. The combination of all of these studies provides a good factual basis for the judge's and the jury's verification of the expert's abilities and opinions.

When the subject of testing and validity comes up, it should also be pointed out that no research has ever surfaced that denies the existence of the skill of competent handwriting examiners or that proves that such skill does not exist! In other words, the only critical publications are the Risinger-Denbeaux-Saks articles, which do not deny explicitly the existence of the skill, but state only that they have not been convinced the skills exists. Their disbelieve does not constitute proof of the non-existence of the skill of handwriting examiners. Thee are no studies showing that the skill of competent forensic document examiners in identifying authors of handwritings does not exist.

The critics have it backwards. Handwriting identification has been accepted as valid for so long and has been meeting the legal standards for admissibility that existed since time immemorial, that it should no longer have to justify its existence as a profession. It should be the critics' job to assert and establish invalidity. That is not done simply by writing a law review article that basically says: We believe you are dealing in witchcraft because what we have found does not convince us there is anything to it. This is an important distinction to draw.

Having said that, and recognizing that the criticism has had an effect upon some courts, document examiners are able, today, to supply proof of the underlying premises of handwriting identification. It can be done in a scientifically responsible and respectable way through the research already accomplished and by the research that is ongoing. Every verification endeavor that the profession engages in continues to expand its collective knowledge and confirms its underlying premises. In doing so, the forensic document examiners are accumulating a gigantic body of knowledge. It is one that surpasses, in volume, that available in other forensic disciplines.
 

Peer Review and Publications

The profession of questioned document examination possesses a voluminous technical and scientific literature. There exists, today, a vibrant exchange of information on the techniques of examining handwritings. These findings are published in peer-reviewed journals. There has never been an article published in that same peer-reviewed literature by a scientist or by a serious researcher who denies the existence of the principle of individuality of handwriting or the skill of a competent examiner to determine authorship of disputed documents. Again, the article of Risinger et al. may purport to be a critique on the validity of certain questioned document examinations, but this critique was not made in the peer-reviewed literature. None of the critics' publications contained proof of invalidity.

Offering criticism on a proposition does not establish that proposition's invalidity. For all their contortions and adversarial testimony, the critics have never shown that the skill of document examiners does not exist. All they have done is argue (as opposed to prove), perhaps effectively but in a venomous and destructive (as opposed to constructive) manner, their disbeliefs.

Known or Potential Error Rate

It is very difficult to measure the probativeness of a particular examination because it deals with a unique event that cannot be statistically duplicated. Handwriting comparisons are not like DNA analyses where the four variables that constitute base pairs on the genetic chain are clearly defined by the laws of physics and microbiology. In DNA analysis, the results of a particular examination can be quantified. None of the forensic science disciplines that deal with comparisons based on unique occurrences, or clinical judgments, can establish the degree of confidence statistically with respect to an individual result. Fingerprint identification cannot state that a given identification has an x-degree of probability of accuracy. Yet, we accept fingerprint comparisons as positive proof of identity. Firearms and toolmark determinations cannot be quantified statistically when it comes to comparing striations on bullets that may change ever so slightly with each successive use of the weapon that was used. Certainly, opinions of pathologists offering time-of-death testimony or causal-connection opinions in a particular medical examination cannot be stated with a statistically validated degree of probability.

The Daubert decision, however, does not require such proof of mathematical precision in expert opinions. Other than a mere mention of error rates, known or potential, in the Daubert opinion, there is no requirement in the law that opinion testimony of experts is admissible only if they are able to state their opinions with a quantifiable degree of certainty. That is why experts are permitted to express opinions to a reasonable degree of medical certainty, to a reasonable degree of scientific certainty, and to a reasonable degree of professional certainty.

What is more, earlier this year, the Supreme Court in the Kumho Tire case specifically recognized that not all of the Daubert factors must be applied to all expert testimony - only those that can be fairly applied to a particular discipline or field.

Having said all that, and conceding that a particular conclusion cannot be quantified, I believe that the known or potential error rate factor in handwriting identifications generally can be affirmatively satisfied by the research that is ongoing, and that is already available as a result of the Kam experiments. Other speakers this week talked about further research, now in the planning stage, that seeks to validate statistically every one of the nine levels of document examiner opinions that the ASTM standard provides.

This kind of research should permit questioned document examiners to satisfy the most rigorous scientific demands. If, however, a particular court is not satisfied that the available studies supply the necessary error rates, a very credible and highly persuasive argument can be made that the known or potential error rate factor of Daubert simply is not applicable to forensic document examination evidence or to most other forensic evidence. In fact, among nearly all of the crime laboratory techniques, only in DNA cases (and perhaps in instrumental drug analyses) are such error rates clearly and definitively available.
 

Accepted Protocol or Methodology

I believe that you will not have any difficulty in supply the necessary information to convince a judge the "protocol-and-methodology" Daubert factor is amply met in the case of handwriting identification testimony. The methodologies have been tested over many years; you are familiar with them; you have explained them many times; they are written down in the literature and are widely followed in those cases to which they may be applicable.

Handwriting identification methodologies follow the scientific method in the sense that an examination does not commence with a preconceived notion as to what the outcome is likely to be. Instead, such examinations commence from an essentially neutral viewpoint, in which a document examiner states, if he or she were required to articulate the thinking process followed, "I do not know which one of several authors of known standards authored the questioned writing; I do not know whether the known exemplars also contain the writing of the author of a questioned document."

It is with that initial assumption of neutrality that differences in writings are examined to determine whether the differences are significant enough to indicate nonidentity or insignificant enough so that they do not preclude identity. The methodology that evaluates and compares relevant versus irrelevant differences on the issue of common authorship is a legitimate exercise of an expert's skill in examining handwritings. It is simply the determination of the range of natural variation of a person's writings executed at different times - the intrawriter differences - as distinguished from the interwriter differences.
 

General Acceptance

Handwriting identification skills have been generally recognized by the profession, by the entire forensic science community, and by the courts for many decades. Not much further needs to be said on that issue.

All of the document examiners in this room are aware of everything I have said, so far. But judges and juries may not know these facts. You may have to convince them of the information we have shared. That is what we are addressing next.
 

How to Prepare for a Daubert Hearing

- The expert must at all times be the consummate professional witness, as well as an articulate advocate for the profession.

A forensic scientist testifying in court to a conclusion in an individual case is not an advocate, but a witness who presents factual information and offers a professional opinion based upon that factual information. When it comes to establishing the worth of the profession as a whole, however, effective advocacy of its reliability, methodology, research, and degree of confidence is essential.

How is that done? We will not dwell, here, on the witness' background, experience, and professional credentials. It is a given for all of you present today. You all have a long and respectable professional life in forensic document examination. That is why you were invited to attend this symposium.

However, lengthy experience may sometimes induce complacency in a person. Some of you have been cross-examined by very skilled lawyers, and you may feel that no lawyer has gotten the better of you, yet. Most lawyers cannot get the better of you when questioning about highly technical areas, and the skilled litigator will often avoid trying to argue the merits of a particular examination. Instead, such an advocate may attack other aspects of your profession, the ones we have been exploring before, or perhaps trying to expose some gaps in your memory by going over some of the basics you may have long forgotten.

Expect to be challenged on every aspect of your work and your profession. That means that, from time to time, you should refresh your memory on the basic tenets of handwriting comparison techniques as described in the worthy treatises, so that you can respond intelligently and understandably to questions that relate to these very basic facets of handwriting examinations.

Also be sure to articulate professional concepts in a way lay persons (like the judge and the lawyers) can understand. You know how to discuss technical matters with your colleagues at professional consultations or meetings, but can you also explain what it is that you are doing to lay people, who may be skeptical? Can you explain these matters in a way that will convince the jury it should credit your opinion?

Among professionals, you know the lingo; you know the basics and do not feel you have to go over them again at meetings such as these. But when you are in court, you are not among your peers: Your job is to let lay persons know what handwriting comparison is all about and how it is done. The part about being a good and credible expert witness is one about which many examiners received little training. Whatever in-house training may have been received may not have conveyed the trial lawyer's perspective of what makes a good expert witness.

Therefore, when preparing for court, go over the basics again from time to time. I repeat: Expect to be challenged on everything. Today, that also includes things that are outside your own professional competence, but that relate to your field. You should also stay current on the pertinent case law that has been handed down, not only in your own jurisdiction, but also elsewhere.

You must, of course, also be current on the relevant research that has already happened and that which is still ongoing. The mark of being engaged in a science is that constant research is being done to expand the collective knowledge about the profession.

To do this, many resources are available to you. There are various home pages on the Internet, among them the American Society of Questioned Document Examiners (ASQDE) home page; there is the American Board of Forensic Document Examiners (ABFDE) Resource Kit (once it is updated). Also be familiar with and read the professional literature. If you are employed in a public agency, I know that you are going to be required to be familiar with your own agency's publications, but that is not enough to be a professional. You must also be familiar with the broad literature in your profession. There is a lot of it, I know, but you should at least be familiar with the Journal of Forensic Sciences, and the one highly specialized journal, the new Journal of the American Society of Questioned Document Examiners.

Having studied and followed the literature in forensic sciences for nearly half a century, I was most impressed with the professionalism of the ASQDE's new publication. Its very existence and the breadth and scope of its content gives the profession a tremendous boost.

If you have a case that has a fairly unusual twist to it, you should be able to quote, or point to, or give references to specific studies or articles in the literature that deal with a narrow issue you may have addressed in the examination about which you are testifying.
 

- Maintain a close interaction with the attorney on whose side you will be testifying during a Daubert hearing.

If you are on the government side, many of the Assistant United States Attorneys (AUSA) are skilled lawyers, but they are also overworked and may not have dealt with handwriting analysis issues in connection with Daubert.

Chances are that you will know far more about what to expect at a Daubert hearing than an AUSA will. So you will also have to be prepared to educate the AUSA on the critical points that you need to cover, and that includes not only what Daubertrequires, but how you can prove all of these factors mentioned in the Daubert opinion - the matter discussed earlier on testability, peer review and publications, known or potential error rates, accepted methodologies, and general acceptance.

Most of you have examples of proper and competent direct examinations that you can give to the prosecutor or to the proponent-lawyer who will present your testimony. A little diplomacy in the way you do this might be helpful. Many lawyers, like some experts, have overinflated egos and do not like to be told how to do their job. So, use some tact in suggesting what approach they should take when they represent your testimony in the courtroom.

Some attorneys are willing to spend a lot of time in getting ready for the handwriting evidence phase of the trial; others are less likely to want to devote much time to it. You have to be able to impress upon them the dangers to their case if a challenge is made at the last minute, and they are not prepared to rebut it. Even if no motion in limine for a Daubert hearing has been made prior to trial, you should also alert your attorney to the possibility that it may literally be sprung on you at trial. Assuming that you, as the expert, are thoroughly prepared for such a challenge, your testimony will still be in trouble if your lawyer does not know what questions to ask.
 

- If an expert critic is going to appear:

You might suggest, when you know a professional critic will testify for the other side, that the attorney on your side of the litigation move in limine to exclude the critic's testimony on the basis that he or she is not qualified to testify as an expert.

You have ammunition already in the literature, my article critiquing the critics, among others, and now there is also an important precedent in the 11th Circuit Court of Appeals.

Last month, a decision was handed down in the 11th Circuit in the case of United States v. Paul. Document examiner, Larry Ziegler testified for the government in this extortion prosecution that the defendant authored the extortion note. Professor Denbeaux wanted to testify for the defense as an expert critic of handwriting analysis, but because of a very good pretrial preparation by the AUSA and a close cooperation with Mr. Ziegler, Denbeaux was kept off the stand as unqualified to testify as an expert.

It is important you are informed about such cases. You can see a reference to this case on this website: under the heading Handwriting Evidence Meets Reliability Criteria. This approach can also be used to seek to exclude graphoanalysts seeking to testify on the identification of disputed writings.

If you cannot keep the critic off the stand - and some courts may be reluctant to bar a critic from testifying from fear that if they do so, they might be reversed on due process grounds for denying a defendant the right to present a defense - then be prepared in a different way.

Obtain, read, and research transcripts of prior testimony given by these experts.
Make sure that you know exactly what the critic's positions are, and convey accurate information on this point to the attorney who be will cross-examining the critic.
Know the manner in which their writings and prior testimony have been critiqued, too.
Be familiar with the cases in which they testified, what the issues directly in point were, and what the outcomes have been.
Be also familiar with the public statements they have made in other cases, so that the critic can be effectively impeached if he now makes a contradictory statement. For instance, it is well-known in the profession that, in one case, Professor Denbeaux had testified that he had absolutely no experience with or knowledge of typewriting comparisons. Yet, in a case currently pending, I am told that he professes to testify as a critic of typewriting identification.

-  Know who the judge is.

Some judges may be familiar with your testimony in earlier cases. By contrast, some may never have had the occasion to hear the foundations of handwriting examination methodologies explained. Such a judge may be willing to listen with more attention to fallacious, but nevertheless logically-sounding arguments of a law professor-critic. Such judges will require a high caliber of testimony in order to lay the proper foundation to admit handwriting identification opinions. Know whether the judge previous ruled in handwriting evidence cases. Does he or she lean toward one side of the other?

- Conclusion

Expert opinion testimony is, and will remain, one of the most powerful forms of evidence in the courtroom. In order for it to be effective, it must be carefully documented, and expressed with precision, but without overstatement, in as neutral and objective a way as the adversary system permits.