Handwriting Expert Testimony Satisfied Five Daubert Reliability Factors

Case demonstrates acceptance of handwriting expert testimony and application of Daubert factors to assess the reliability of expert testimony, in United States v. Prime, 431 F.3d 1147 (9th Cir. 2005)

How does expert handwriting testimony satisfy each of the Daubert factors for expert testimony? A Ninth Circuit case demonstrates how this standard was satisfied.

Defendant Prime and three co-conspirators engaged in a fraud scheme by selling pirated computer software and items that did not exist on the internet and purchasing items with counterfeit money orders. They also stole credit card numbers from some of the purchasers of software. At trial, the government planned to call a forensic document examiner with the Secret Service who testified that defendant Prime was the author of “as many as thirty-eight incriminating exhibits, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications.” Prime, 431 F.3d at 1151.

The handwriting expert compared known samples of the defendant’s handwriting with questioned documents, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications. In reviewing 112 pages of writing known to be the defendant’s, she identified the defendant’s handwriting on 45 of 76 documents. After the defendant moved in limine to exclude the handwriting expert testimony, the trial court held a Daubert hearing to consider the reliability of the proposed testimony. After the Daubert hearing, the trial court denied defendant’s motion to exclude the expert’s opinion identifying the defendant’s handwriting on the documents. The trial court concluded that the forensic document examination testimony was reliable. See United States v. Prime, 220 F.Supp.2d 1203 (W.D.Wash. 2002)

On appeal, the Ninth Circuit affirmed the admission of the handwriting expert’s testimony and rejected the defendant’s claim that the testimony was unreliable under Daubert. The circuit considered the five non-exclusive Daubert factors to ensure reliability and relevance of the proffered expert evidence. The five factors include:

  1. whether a method can or has been tested;
  2. the known or potential rate of error;
  3. whether the methods have been subjected to peer review;
  4. whether there are standards controlling the technique’s operation; and
  5. the general acceptance of the method within the relevant community.

Prime, 431 F.3d at 1152 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993)). The circuit’s consideration of these five factors illustrates their application with regard to a handwriting expert:

“1. Whether the theory or technique can be or has been tested
“Handwriting analysis is performed by comparing a known sample of handwriting to the document in question to determine if they were written by the same person. The government and [handwriting expert] Storer provided the court with ample support for the proposition that an individual’s handwriting is so rarely identical that expert handwriting analysis can reliably gauge the likelihood that the same individual wrote two samples. The most significant support came from Professor Sargur N. Srihari of the Center of Excellence for Document Analysis and Recognition at the State University of New York at Buffalo, who testified that the result of his published research was that ‘handwriting is individualistic.’ With respect to this case in particular, the court noted that Storer’s training credentials in the Secret Service as well as her certification by the American Board of Forensic Document Examiners were ‘impeccable.’ The court also believed that Storer’s analysis in this case was reliable given the ‘extensive’ 112 pages containing Prime’s known handwriting.

“2. Whether the technique has been subject to peer review and publication
“The court cited to numerous journals where articles in this area subject handwriting analysis to peer review by not only handwriting experts, but others in the forensic science community. Additionally, the Kam study which evaluated the reliability of the technique employed by [expert] Storer of using known writing samples to determine who drafted a document of unknown authorship, was both published and subjected to peer review. The court also noted that the Secret Service has instituted a system of internal peer review whereby each document reviewed is subject to a second, independent examination.

“3. The known or potential rate of error
“In concluding that the type of handwriting analysis Storer was asked to perform had an acceptable rate of error, the court relied on studies conducted by Professor Moshe Kam of the Electrical and Computer Engineering Department at Drexel University. Professor Kam’s studies demonstrated that expert handwriting analysts tend to be quite accurate at the specific task Storer was asked to perform – determining whether the author of a known writing sample is also the author of a questioned writing sample. When the two samples were in fact written by the same person, professional handwriting analysts correctly arrived at that conclusion 87% of the time. On the other hand when the samples were written by different people, handwriting analysts erroneously associated them no more than 6.5% of the time. While Kam’s study demonstrates some degree of error, handwriting analysis need not be flawless in order to be admissible. Rather, the Court had in mind a flexible inquiry focused ‘‘solely on principles and methodology, not on the conclusions that they generate.’ Daubert, 509 U.S. at 595, 113 S.Ct. 2786. As long as the process is generally reliable, any potential error can be brought to the attention of the jury through cross-examination and the testimony of other experts.

“4. The existence and maintenance of standards controlling the technique’s Operation
“The court recognized that although this area has not been completely standardized, it is moving in the right direction. The Secret Service laboratory where Storer works has maintained its accreditation with the American Society of Crime Laboratory Directors since 1998, based on an external proficiency test. Furthermore, the standard nine-point scale used to express the degree to which the examiner believes the handwriting samples match was established under the auspices of the American Society for Testing and Materials (‘ASTM’). The court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court.

“5. General acceptance
“The court recognized the broad acceptance of handwriting analysis and specifically its use by such law enforcement agencies as the CIA, FBI, and the United States Postal Inspection Service. Given the comprehensive inquiry into Storer’s proffered testimony, we cannot say that the district court abused its discretion in admitting the expert handwriting analysis testimony. The district court’s thorough and careful application of the Daubert factors was consistent with all six circuits that have addressed the admissibility of handwriting expert testimony, and determined that it can satisfy the reliability threshold. See United States v. Crisp, 324 F.3d 261, 269–70 (4th Cir. 2003); United States v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002); United States v. Jolivet, 224 F.3d 902, 906 (8th Cir. 2000); United States v. Paul, 175 F.3d 906, 911 (11th Cir. 1999); United States v. Jones, 107 F.3d 1147, 1161 (6th Cir. 1997); United States v. Velasquez, 64 F.3d 844, 850–52 (3d Cir. 1995).”

Prime, 431 F.3d at 1153-54 (other citations omitted).

Based on the consideration of the five non-exclusive factors, the introduction of the handwriting expert testimony was affirmed. The Prime case is useful not just for its conclusion concerning the admissibility of handwriting expert testimony but also to show how the five Daubert factors were applied.

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