In drug conspiracy prosecution, admitting DEA informant’s lay opinion that handwriting was the defendant’s, based on the informant’s testimony that he was familiar with the defendant’s writing because of their long association, in United States v. Apperson, 441 F.3d 1162 (10th Cir. March 28, 2006) (Nos. 03-3368, 03-3369)
FRE 901(b) provides an illustration of authentication of handwritten material under the standard set by FRE 901(a). Subsection (a) requires authentication by evidence “sufficient to support a finding” that the writing is indeed what its proponent claims it to be. Subsection (b)(2) indicates this might be shown with nonexpert opinion testimony regarding the “genuineness” of the handwriting, “based upon” the lay witness’s “familiarity not acquired for purposes of the litigation.” FRE 901(b)(2).
How FRE 901(b)(2) operates was demonstrated by a Tenth Circuit case released several years ago. In the case, the defendant Pickard was tried and convicted on drug charges involving LSD production and distribution. The defendant had been turned in by a DEA informant. The informant provided information on the defendant’s set up for manufacturing and for distributing drugs. During the trial, the court allowed the informant “to provide testimony identifying” the defendant’s handwriting. The defendant challenged the lay opinion identification, claiming no exemplar was presented to the informant “for comparison purposes and [that the informant] failed to provide any foundation which would qualify him to provide an opinion identifying [defendant] Pickard’s handwriting.” Apperson, 441 F.3d at 1200.
The defendant was convicted and sentenced to life imprisonment. In his appeal of the verdict the defendant contended that the trial court erred in admitting the handwriting based on the authentication made by the DEA informant. The circuit affirmed the trial court’s admission of the lay opinion handwriting identification by the DEA informant. The circuit noted that the trial court had considered the defendant’s objections to the informant’s handwriting identification under both FRE 701 (requiring personal knowledge for lay opinion testimony) and 901(b)(2). The trial court found that a sufficient foundation had been laid for the introduction of the testimony. Apperson, 441 F.3d at 1200 (citing United States v. Scott, 270 F.3d 30, 48-9 (1st Cir. 2001) (IRS agent “became familiar with [defendant] Scott’s handwriting over the course of several years, and he did so not for the purpose of testifying, but instead for the purpose of solving a crime. Scott was perfectly entitled to argue to the jury that [the agent]‘s interest in securing a conviction colored [his] perception of Scott’s handwriting.”), cert. denied, 535 U.S. 1007 (2002))
In rejecting the challenge to the trial court’s admission of the informant’s lay opinion on the handwriting, the circuit noted:
“We conclude there was no abuse of discretion on the part of the district court in allowing Skinner to testify as to the source of the handwriting. Federal Rule of Evidence 901(a) states that ‘[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ In turn, Federal Rule of Evidence 901(b) provides several ‘examples of authentication or identification conforming with the requirements of this rule….’ Included among those examples is the following: ‘Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.’ Fed.R.Evid. 901(b)(2). Here, [informant] Skinner testified that, based upon his long-standing association with Pickard, he was familiar with his handwriting. That testimony, standing alone, was sufficient under Rule 901 to have authenticated the subsequent handwriting examples that Skinner was asked to identify.”
Apperson, 441 F.3d at 1200-01.
In Apperson, the Tenth Circuit noted that the defendant sought to exclude the handwriting identification on the basis of either FRE 701 or FRE 901(b). Some courts have indicated that in addition to satisfying the requirement of sufficient familiarity under FRE 901(b)(2), a witness’ opinion on handwriting identification must also satisfy the FRE 701 lay opinion requirements. See, e.g., Hall v. United Ins. Co. of America, 367 F.3d 1255, 1259 (11th Cir. 2004) (“[T]estimony purporting to satisfy the specific requirements of Rule 901(b)(2) must also satisfy the general requirements in Rule 701.”); United States v. Scott, 270 F.3d 30, 48-50 (1st Cir. 2001) (“Rule 701’s requirement that lay opinion testimony be helpful to the jury would be best read in light of the limits Rule 901(b)(2) places on lay opinion testimony regarding handwriting.”), cert. denied, 535 U.S. 1007 (2002) .
Comments
Post new comment