Cases Involving the Reliability of Handwriting Identification Expertise Since the Decision in Daubert

Abstract

This piece seeks to collect and separately describe and analyze every explicit decision by an American court on the reliability of handwriting identification expertise from the decision in Daubert in 1993 to March of 2008. It serves as an appendix to my article Goodbye to All That, or, A Fool's Errand, By One of the Fools: How I Stopped Worrying About Court Responses to Handwriting Identification (and Forensic Science in General) and Learned to Love Misinterpretations of Kumho Tire v. Carmichael (separately published at 43 Tulsa L. Rev. 477). As to each of the 68 cases treated, I have identified the judges and experts involved, and given a detailed analysis both of the facts of the case and the quality of the factual and legal analysis involved in the court's opinion.

Some explanations of methodology and criteria of inclusion are in order. In compiling this piece, I have excluded all cases where there was no reliability challenge of any sort, and all cases where document examiners were rejected merely because they failed to possess sufficient training or experience according to whatever standards that particular court applied that day, but would have, by implication, allowed a better credentialed expert to testify. (There is, of course, no official standard for that criterion in any jurisdiction, so far as I know.) It should also be understood that the cases listed here are by no means all of the cases since 1993 in which handwriting identification testimony by putative experts has been proffered or accepted. A search of the Westlaw Allcases database using an appropriate search string will reveal a couple of thousand cases where claimed handwriting identification expertise has played a role and no reliability challenge has been made, and that is just cases which generated opinions that showed up on Westlaw. Most use of such expertise likely goes unremarked upon, or occurs in cases that never generate written opinions. In the vast majority of the reported cases involving such experts, the testimony is merely noted as part of a recitation of facts. These cases include substantial numbers of civil cases, often involving challenged signatures on wills or deeds, or insurance and other contract cases, but not uncommonly involving more complex issues. The volume should not be surprising. Estimates of the number of persons who offer such testimony in court, at least on occasion, ranges up to 5000 or more, with some hundreds who do so regularly. The range of credentials and experience exhibited by these witnesses is also startling, and it is likely that most of the testimony that occurs in American courtrooms is by persons whose training and experience would be looked down upon by the establishment accrediting body, the American Board of Forensic Document Examiners (ABFDE). Because the reasons to believe that various applications of claimed handwriting identification expertise are sufficiently reliable for the purposes of the criminal law (or not) depends in large part on the amount and quality of empirical research that has or has not been done on those issues, and because the evaluation of judicial performance can only be done in light of that research and the courts' treatment of it (including whether it is dealt with in the opinion under discussion or not), it is necessary to the purpose of this piece to set out a summary of the currently available research on these matters, which is done in Part II, before the individual cases are analyzed.

Keywords: Evidence, criminal evidence, expert evidence, scientific evidence, Daubert, Kumho Tire, legal process

JEL Classification: K14, K41