The Handwriting on the Wall: The State of Handwriting Expert Testimony in Tennessee
© Bob E. Lype, 1998
Published in the Tennessee Bar Journal, Vol. 34, No. 5, September/October, 1998.
Handwriting expert testimony has been admitted in courts throughout the United States for well over a century and a half, 1 and in Tennessee handwriting experts were specifically permitted to testify by statute from 1889 until 1991.2 When the "Frye test"3 was the accepted standard for admitting expert testimony, handwriting experts easily met the "general acceptance" standard. However, a number of recent events have raised new questions about the role of handwriting experts and the admissibility of their testimony, both nationwide and in Tennessee. Whereas it was once generally accepted that a lawyer faced with a questionable signature or handwritten document could simply "get a handwriting expert" to resolve the issue, today if a lawyer's case turns upon the genuineness or authenticity of handwriting, that lawyer must do substantially more homework regarding handwriting experts. If a handwriting expert becomes involved in the case, the lawyer should be prepared to defend (or attack, depending upon the perspective) handwriting expertise.
The Recent Developments
The profession of handwriting experts, sometimes also known as forensic document examiners or questioned document examiners, has been under a full-scale attack nationwide in recent years, and the attack is making its way into Tennessee courts. The attack began with a scathing law review article published in 1989 in which the authors concluded that (1) there was insufficient testing of the proficiency and methodology of handwriting experts to establish the reliability of their expert testimony, and (2) the research and data that existed at the time tended to show that handwriting experts were not nearly as accurate or proficient as they claimed to be.4 Shortly thereafter, the Supreme Court overruled the general acceptance standard of the "Frye test" when the Daubert decision appeared in 1993.5 The Daubert decision is sometimes viewed as the Supreme Court's answer to the proliferation of "junk science" testimony in the courts, and it imposed upon the federal district courts a gatekeeper role in assessing the reliability and methodology of scientific expert testimony. The federal courts are split as to whether Daubert applies to nonscientific expert testimony (i.e., testimony based upon "technical or other specialized knowledge," rather than science, as contemplated by Rule 702).6 While the Supreme Court clarified the Daubert standard in late 1997, it did not address the application of Daubert criteria to non-scientific expert testimony.7
Following the Daubert decision, some of the authors of the 1989 law review article were called to testify as expert "critics" of the reliability of handwriting expertise, in an attempt to disqualify professional handwriting experts. While this tactic met with only limited success, it became increasingly popular. Perhaps the pinnacle for the "expert critics" of handwriting examiners occurred in 1995, when the Third Circuit reversed a criminal conviction because the district court failed to permit one of the law review authors to testify as an "expert critic" of handwriting analysis.8 Since then, the "expert critics" have been offered in numerous cases around the country, and there is a growing body of case law on the federal district court level addressing their contentions and the admissibility of handwriting expert testimony.
The Tennessee Supreme Court gave us the McDaniel decision in late 1997,9 declining to specifically adopt the Daubert standard for the admissibility of expert testimony under the Tennessee Rules of Evidence, but nonetheless imposing a similar gatekeeping role upon Tennessee trial judges in assessing the underlying reliability of scientific expert testimony.10 As in the federal courts, there remains a question as to whether the McDaniel standard applies to non-scientific testimony based upon "technical or other specialized knowledge," but the Tennessee Supreme Court did note that in deciding whether expert testimony will "substantially assist the trier of fact" for purposes of Tenn. R. Evid. Rule 702, the trial court must necessarily make a determination as to the validity or reliability of the evidence. This statement would arguably be true regardless of whether the evidence is scientific or based upon "technical or other specialized knowledge."
Is Document Examination a Science?
Document examiners frequently refer to themselves as "forensic scientists." On a larger scale, some would question whether any of the "forensic sciences," such as fingerprint identification, firearms or bite mark identification, or even forensic pathology, are "true sciences." As the courts decide whether Daubert and McDaniel apply to nonscientific expert testimony, this may become a more important concern. Can handwriting expertise be held to scientific standards?
From the lawyer's perspective, it makes little practical difference whether a handwriting expert is permitted to testify under the scientific or the "technical or other specialized knowledge" arm of Rule 702. This may affect how the lawyer is permitted to refer to the expert's testimony in argument, or whether the expert may qualify his opinion "within a reasonable degree of scientific certainty." It may also lead to a special jury instruction from the court.11 While this distinction involves more than mere semantics, and it is no doubt important to the handwriting experts, the lawyer's first concern is whether the expert will be permitted to testify before the jury.
While handwriting experts have offered mixed answers to the question of whether their expertise is "scientific," there is a trend in the courts to find that they are qualified because of "technical or other specialized knowledge." In U.S. v. Starzecpyzel,12 the district court in New York gave an extended discussion of this question. The court heard testimony from one of the co-authors of the 1989 law review article13 criticizing the reliability of the anticipated expert testimony, but it permitted the handwriting expert to testify after analogizing the expert's work to the non-scientific work of a harbor pilot who has repeatedly navigated a particular waterway.14 This same conclusion was reached more recently by the Sixth Circuit in U.S. v. Jones.15 In that case, the court noted that no other courts have found expert handwriting analysis inadmissible under the Federal Rules of Evidence. In deciding that the handwriting expert was qualified, the court noted that scientific principles relate to aspects of handwriting analysis, but the expertise is not truly scientific.
The question of whether handwriting expertise is scientific may become more or less significant as the courts decide whether the Daubert and McDaniel criteria apply to non-scientific expert evidence. The present trend seems to favor admitting the testimony as non-scientific, but the "expert critics" are continuing their attacks on the field.
The primary thrust of the attack on handwriting expertise concerns reliability. The critics claim there has not been sufficient testing of the capabilities of document examiners, and that the data available shows they have a surprisingly poor accuracy rate. It is generally conceded that the 1989 law review article correctly pointed out the dearth of reliable test data in the field, but there is a great disagreement over the interpretation of the data that exists.
While there have been sporadic tests and studies of document examiner proficiency through the years,16 the central debate is over the meaning of two groups of tests – five tests mailed out by the Forensic Sciences Foundation (FSF) in the 1970s and '80s, and a group of related, controlled tests performed by Dr. Moshe Kam in the 1990s. The critics of handwriting expertise claim that the FSF tests demonstrate extremely poor accuracy rates by document examiners, concluding (and sometimes testifying) that they establish at best a 57 percent correct, 43 percent incorrect "batting average" for the group. On the other hand, proponents of handwriting expertise are quick to point out serious deficiencies in the methodology, participation rates and reliability of the FSF tests, which lacked control groups and were mailed out to anyone who ordered them.17 Proponents of handwriting expertise point to three recent studies by Dr. Kam,18 which they claim demonstrate that handwriting experts possess skills far superior to laypersons. Dr. Kam's controlled tests compared the abilities of document examiners and laypersons in correctly matching various sets of handwriting. Critics of Dr. Kam's studies challenge his interpretation of the test data and the make-up of his tests. They claim that the non-professional test-takers were not motivated to perform, that the tests were too easy, and that the proper interpretation of the test data is that laypersons did just as well as professionals.
The critics of handwriting expertise also complain that the field lacks standards, discipline, and a true methodology. They argue that handwriting experts do not quantify their findings with any numerical analysis of similarities or differences in compared writings, and there is no uniformity in procedure, nor even terminology. The critics also complain that the recognized bodies certifying document examiners are akin to a fraternity, and there is no meaningful testing in the certification process.
Proponents of handwriting expertise, on the other hand, claim that they do follow a recognized methodology and protocol. They also note that there is a recognized certification board for document examiners,19 and that board-certified examiners have completed an extensive two-year training program and a vigorous certification process, complete with written and oral board examinations. Finally, the handwriting experts point out that not all fields of expertise are subject to numerical standards. Unlike fingerprint analysis, there is no "magic number" of similarities or differences which will permit a handwriting identification. The handwriting experts note that, while fingerprints are static and essentially unchanging, free and natural handwriting will change according to a variety of influences.
These disagreements have led to several recent cases where Dr. Kam and one of the co-authors of the 1989 law review article have given extensive expert testimony, either in connection with a motion in limine, a Daubert hearing, or (recently in Tennessee) a McDaniel hearing.20 These hearings are typically filled with complicated and confusing statistical interpretations, as well as attacks on the credibility of the opposing experts, so they are "battles of the experts" in the truest sense. Until there are binding decisions from higher courts, it appears that these battles will continue, as the critics of handwriting expertise show no signs of lessening their attacks.
The Role of "Expert Critics"
One aspect of the current debate that is sometimes overlooked is the proper role of an "expert critic" of a particular field. In order to give opinions regarding the reliability and deficiencies of handwriting expertise, or any other field, the critic must first be qualified as an expert himself. How does one qualify as an "expert critic?" This remains unclear and will no doubt lead to further litigation. With regard to the co-authors of the 1989 law review article, none of them has been trained or tested in the principles of forensic document analysis. They are academic professors, and their knowledge of the field is through self-directed self-study, including research of the legal history of handwriting experts and the published studies of proficiency tests, together with anecdotal discussions with handwriting experts. Two of the co-authors have no training in statistical analysis or research methods,21 yet they have been permitted to testify regarding interpretations of the reliability and meaning of various proficiency tests.
While it is clear that there must be some inquiry into the reliability of expert testimony under Daubert and McDaniel, the question remains how one becomes qualified as an "expert critic" of any field. While this is presently at issue in the arena of handwriting expertise, it will likely become an issue in other fields as well. Some of the "expert critics" have hinted that they will soon turn their scrutiny upon other forensic sciences.
The testimony of handwriting experts has been generally accepted for decades. As a result, their testimony has been highly influential in criminal convictions and acquittals, as well as civil cases upholding or rejecting wills and deeds. The courts that have considered the recent attacks on the admissibility of handwriting expert testimony seem to favor admission of the testimony as "technical or other specialized knowledge." These courts are no doubt influenced by the long history of general acceptance of handwriting expert testimony as reliable, which the document examiners claim is bolstered by the recent test data compiled by Dr. Kam.
The current battles spring from noble intentions, asking the courts to scrutinize the abilities of handwriting experts before they are given the weighty mantle of "expert witness" before a jury. Now that the cards are being placed on the table, there is a tremendous controversy over how to interpret all of the data. Until higher courts ultimately resolve this question, lawyers in Tennessee and elsewhere must take a closer look at the role of handwriting experts, and if necessary, must join the battle.22
1. See, e.g, United States v. Samperyac, 27 F. Cas. 932 (Ark. 1831) (register of land office gave sworn testimony concerning the genuineness of signatures on documents), Bank of Miskihgum v. Carpenter's Administrators, 7 Ohio 21 (1835) (two witnesses testified about handwriting characteristics and gave opinions about genuineness); Hicks v. Pearson, 19 Ohio 426 (1850) (same). See also Robinson v. Mandell, 70 F.Cas. 1027, 4 A.L.R. 625 (C.C.D. Mass. 1868), the rather infamous "Howland Will Case," wherein a Harvard professor discussed the astronomical statistical probabilities that a person might write his signature exactly the same way twice.
2. Tenn. Code Ann. S24-7-108 (repealed, 1991); originally Acts 1889, ch. 22; Shan. S5560; Code 1932, S9731; T.C.A. [original edition] S24-708.
3. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
4. D. Michael Risinger, Mark P. 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). Two of the authors also recently published a follow-up article: see, D. Michael Risinger and Michael J. Saks, "Science and Nonscience in the Courts: Daubert Meets Handwriting Identification Expertise," 82 Iowa L. Rev. 21 (1996).
5. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993).
6. See, e.g., United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997) (holding that Daubert applies only to scientific testimony); Compton v. Subaru of America, 82 F.3d 1513 (10th Cir.), cert. denied, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996); but cf. Cummins v. Lyle Industries, 93 F.3d 362 (7th Cir. 1996) (holding that some of the Daubert factors apply in evaluating nonscientific, technical testimony); Pestel v. Vermeer Mfg. Co., 64 F.3d 382 (8th Cir. 1995).
7. General Electric Co. v. Joiner, U.S., 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). In Joiner, the Supreme Court addressed the appropriate standard of appellate review for a trial court's ruling on the admissibility of expert testimony. The court noted that an expert's "conclusions and methodology are not entirely distinct from one another," and that "nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert." 118 S.Ct. at 519.
8. United States v. Velasquez, 64 F.3d 844 (3d Cir. 1995). The Court of Appeals remanded the case for a new trial. It has subsequently come to light that the Court of Appeals was under several misconceptions regarding the qualifications of the "expert critic," Professor Mark Denbeaux, as reflected in the text of the opinion. For example, the court erroneously noted that he had spent four years as a statistical social scientist, that he had been named an American Bar Association Fellow for his research related to the creation of a testing mechanism to certify handwriting analysts and validate the accuracy of their identifications, and that his 1989 law review article was a "peer reviewed" work. Subsequent testimony has shown that these statements are erroneous.
9. McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn. 1997).
10. See D. Paine, "The New McDaniel Test for Expert Opinions," Tennessee Bar Journal, Vol. 34, No. 1 (January/February 1998).
11. See, e.g., United States v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995), which includes a proposed jury instruction as Appendix 1.
13. Michael J. Saks, professor of law and psychology at the University of Iowa.
14. This analogy is criticized in the Iowa Law Review article referenced in note 4, supra.
15. 107 F.3d 1147 (6th Cir.), cert. denied, 117 S.Ct. 2527 (1997).
16. For example, a limited study was undertaken in 1939, with the results published in F. Inbau, "Lay Witness Identification of Handwriting," 34 U. Ill. L. Rev. 433 (1939).
17. Even Professor Saks, the co-author of the 1989 law review article who is most qualified to discuss research methodology, has stated regarding the FSF tests that "participation rates and response rates are not high enough to provide data that can be relied upon to be representative." See M. Saks, "Prevalence and Impact of Ethical Problems in Forensic Science," The Journal of Forensic Sciences, Vol. 34, No. 3 (1989).
18. M. Kam, et al., "Proficiency of Professional Document Examiners in Writer Identification," The Journal of Forensic Sciences, Vol. 39, No. 1 (1994); M. Kam, et al., "Writer Identification by Professional Document Examiners," The Journal of Forensic Sciences, Vol. 42 (1997), and M. Kam, et al., "The Effect of Monetary Incentives on Document Examination by Nonprofessionals," accepted for publication in The Journal of Forensic Sciences in September 1998. Dr. Kam is a Professor of Electrical and Computer Engineering at Drexel University in Philadelphia, Pennsylvania, and he is a recognized expert in signal processing and pattern recognition.
19. The American Board of Forensic Document Examiners (ABFDE), which is sponsored by the American Society of Questioned Document Examiners (ASQDE, or the "Society") and the American Academy of Forensic Sciences (AAFS, or the "Academy").
20. Professor Denbeaux is the most frequent witness.
21. Professor Saks holds a Ph.D. and has experience as a social scientist. He has authored books on social psychology and applied social research.
22. For further information the reader may wish to consult the following: A. Moenssens, "Handwriting Identification Evidence in the Post-Daubert World – Identifying the Genuine Article and the Genuine Legal Issue: Broader Standards Needed for 'Scientific Knowledge,' " 66 U.M.K.C.L. Rev. 251 (1997); O. Galbraith, et al., "The Principle of the 'Drunkard's Search' as a Proxy for Scientific Analysis: The Misuse of Handwriting Test Data in Law Journal Article," International Journal of Forensic Document Examiners, Vol. 1, No. 1 (1995); M. Hansen, "Handwriting Analysis Under Fire," ABA Journal, Vol. 83 (May 1997); F. Shiver, "The Expert Critic," unpublished paper presented at the Annual Conference of the American Society of Questioned Document Examiners, Phoenix, Ariz. (August 1997). The American Board of Forensic Document Examiners offers a "resource kit," which can be ordered from the group's web site at http://www.asqde.org/abfdefm1.htm. Finally, for trial preparation the author recommends a review of 27 Am. Jur. Proof of Facts 3d "Forensic Identification of Handwriting."