http://www.forensic-evidence.com/site/ID/ID00004_8.html
On May 13, 1999, the United States Court of Appeals for the Eleventh Circuit
held that the district court properly admitted handwriting identification
evidence as satisfying the "scientifically reliable" criteria of the Daubert case
in United States v. Paul,....175 F.3d 90.6 (11th Cir. 1999). At the same time,
the reviewing court held that the trial court properly excluded a law
professor's testimony criticizing the reliability of handwriting identification
evidence because he lacked the skill, experience, training, or education in
the field.
The defendant in this extortion prosecution had objected to the testimony of
FBI document examiner Larry Ziegler--who had concluded that the defendant
authored the extortion note--on the ground that handwriting analysis did not
qualify as reliable scientific evidence. Under the Kumho Tire case authority
[See the related article at this Website by clicking on All Expert Evidence
Must Be Proved Reliable, Court Says] the test for reliability must be "a
flexible" one, said the court. After looking at Ziegler's qualifications and
testimony, the court concluded that the expert's testimony was "more
probative than prejudicial" and was therefore properly admitted.
....At the time of trial, Ziegler: (1) was a full time handwriting examiner for
30 years; (2) was a member of four professional handwriting analysis
organizations; (3) established both the Secret Service's and the Naval
Investigative Service's "questioned document" laboratories; (4) lectured and
taught extensively in the field of handwriting analysis; and (5) trained new
"questioned document" examiners for several law enforcement organizations.
Consequently, we hold that Ziegler's expert testimony could assist the jury.
The defense had also sought to present the testimony of law professor Mark
Denbeaux, a frequent "expert witness" critic of handwriting analysis, but the
trial court had granted the government's motion to bar him from testifying
because he was not an expert on handwriting analysis. That decision was
also affirmed. With regard to Denbeaux, the reviewing court said:
The record shows that Denbeaux had no skill, experience, training, or
education in the field of handwriting analysis. The record shows that
Denbeaux has a law degree and that he is a law professor who teaches
evidence. Before 1989, he reviewed the literature in the field of questioned
document examinations, and then coauthored a law review article critical of
forensic document examiners' ability to reach the correct conclusion in
questioned document examinations. . . . His, skill, experience, training and
education as a lawyer did not make him any more qualified to testify as an
expert on handwriting analysis than a lay person who read the same articles.
....During cross-examination, he admitted that he was not a questioned
document examiner, had received no formal training in the field, had never
attended seminars on handwriting analysis, had never worked in a questioned
documents laboratory and was not a member of any professional organization
in the field. . . . Denbeaux's background did not qualify him as an expert, and
his knowledge of the subject matter is so limited that it was not an abuse of
discretion for the district court to exclude his testimony under rule 702.
The article critical of handwriting analysis, cited by the court, can be found
at:
D. Michael Risinger, Mark 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).
An article disputing the critical claims of Risinger, Denbeaux and Saks, and
providing additional insight into the handwriting analysis "world," can be
found at:
Andre A. Moenssens, Handwriting Identification Evidence In The
Post-Daubert World, 66 U.M.K.C. L.Rev.251 (1997).
The court in Paulalso mentioned United States v. Jones, 107 F.3d 1147, 1160
(6th Cir. 1997), wherein the argument that handwriting identification
evidence ought not to be admitted because it could not be shown to be
reliable was also made and rejected. The government's expert there had an
equally lengthy career in questioned document analysis, had testified in over
240 cases and had authored many articles on handwriting comparisons. In
rejecting the argument that the trial court improperly permitted him to testify
as an expert, the court said, "To put it bluntly, the federal government pays
him to analyze documents, the precise task he was called upon to do in the
district court."
June 8, 1999
******************************************************
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 97-9302
________________________________
D.C. Docket No. 1:97-CR-115-1-GET
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SUNONDA G. PAUL,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________________________________
(May 13, 1999)
Before HATCHETT, Chief Judge, HULL, Circuit Judge, and MOORE*, District
Judge.
HATCHETT, Chief Judge:
________________________________
* Honorable William T. Moore, U.S. District Judge for the Southern District of
Georgia, sitting by designation.
Appellant Sunonda Paul appeals the district court's (1) finding that a
government witness was qualified to testify as a handwriting expert, (2)
refusal to admit his handwriting expert's rebuttal testimony and (3) failure to
declare a mistrial due to the prosecutor's improper remarks. We affirm.
I. FACTS
In May 1996, an unidentified person who stated that he was a bank
investigator telephoned Ed Spearman, branch manager of Wachovia National
Bank (Wachovia) at Atlanta, Georgia, and warned him that someone intended
to leave a note at the bank in an attempt to extort money from the bank.
The "investigator" instructed Spearman to follow the directions in the note.
Spearman contacted bank security and the Federal Bureau of Investigation
(FBI), who advised him to contact the agency immediately if he received an
extortion demand. On the following morning, a security camera outside the
entrance to Wachovia Bank videotaped a man, wearing a scarf and
sunglasses, place an envelope under the front door of the bank. Inside the
envelope, addressed to Spearman, was an extortion note that directed
Spearman to deliver $100,000 to the men's restroom of a downtown Atlanta
McDonald's restaurant. The note threatened violence if Spearman did not
follow the instructions and make the payment. Spearman notified bank
security and the FBI.
The investigating agents developed a plan to arrest the extortionist: an FBI
agent, acting as Spearman, would drive Spearman's car to the McDonald's
and place a briefcase in the men's restroom, while surveillance agents would
watch the restroom and arrest the person who took the briefcase.
In executing the plan, FBI Agent Eric Bryant testified that upon his arrival at
the McDonald's, he entered the men's restroom, observed appellant Sunonda
Paul in a restroom stall, left a briefcase and exited the restroom. FBI
surveillance agents testified that they later saw Paul sitting at a table near
the restroom. As Bryant left the McDonald's, surveillance agents observed
Paul enter the restroom again and then attempt to leave the establishment
with the briefcase in his backpack. When confronted, Paul told the agents
that he was in the area to visit a nearby gym and had stopped at the
McDonald's for breakfast. He also told them that he decided to take the
briefcase after he found it in the restroom. Paul, however, was dressed in
casual street clothing and had no gym clothes or athletic equipment in his
possession. The agents arrested him.
II. PROCEDURAL HISTORY
A grand jury indicted Paul on one count of bank extortion, in violation of 18
U.S.C. § 2113(a), and Paul pleaded not guilty. Prior to trial, Paul moved in
limine to exclude FBI document examiner Larry Ziegler's testimony regarding
handwriting analysis. The district court, however, denied Paul's motion at the
pretrial hearing.
The demand note left at Wachovia was the key evidence in determining
whether Paul was the extortionist. Although FBI agents examined the
videotape to determine the identity of the person who delivered the note,
they could not identify the person conclusively. Consequently, the FBI
conducted fingerprint and handwriting analysis tests on the note to establish
the identity of the extortionist. A fingerprint expert concluded that the latent
prints on the note and envelope did not match Paul's fingerprints.
Ziegler, the FBI document examiner, compared the handwriting on the note
and the envelope to Paul's handwriting samples and concluded that Paul was
the author of both. Specifically, Ziegler asked Paul to write the word
restaurant. In the presence of an FBI agent, Paul misspelled the word as
follows: "resturant." In the extortion, note the extortionist misspelled the
word restaurant the same way. Ziegler also asked Paul to write out
"Spearman." Paul spelled it "Sperman," the same way the extortionist had
addressed the envelope.
In June 1997, a jury could not reach a unanimous verdict; therefore, the
court declared a mistrial. On August 6, 1997, at the retrial, the district court
orally granted the government's motion in limine to exclude the testimony of
Mark Denbeaux, a law professor, pursuant to Federal Rule of Evidence 702
because the district court thought his testimony would be confusing to the
jury.(1) The court also denied Paul's renewed motion to exclude Ziegler's
testimony regarding handwriting analysis. The second jury found Paul guilty
of extortion, in violation of 18 U.S.C. § 2113(a), and the district court
sentenced Paul to 63 months imprisonment, with a 3-year term of supervised
release.
III. ISSUES
The issues we discuss are whether: (1) the district court abused its
discretion in qualifying Ziegler as an expert and allowing the government to
present handwriting analysis evidence; (2) the district court abused its
discretion in excluding Denbeaux's rebuttal testimony; and (3) the
prosecutor's closing argument improperly shifted the burden of proof to Paul.
IV. STANDARD OF REVIEW
This court reviews the district court's decision to exclude expert testimony
under Federal Rule of Evidence 702 for abuse of discretion. General Electric
Co. v. Joiner, 522 U.S. 136, 139 (1997); United States v. Gilliard, 133 F.3d
809 (11th Cir. 1998). To the extent that a ruling of the district court turns
on an interpretation of a Federal Rule of Evidence, our review is plenary.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As to
expert testimony, however, we review for abuse of discretion. See General
Electric, 522 U.S. at 139. In reviewing a claim of prosecutorial misconduct,
we assess (1) whether the challenged comments were improper and (2) if so,
whether they prejudiced the defendant's substantial rights. United States v.
Delgado, 56 F. 3d 1357, 1368 (11th Cir. 1995).
V. DISCUSSION
A. Ziegler's Testimony
Paul contends that the district court abused its discretion in admitting
Ziegler's testimony as an expert document examiner because: (1) his
handwriting analysis failed to meet the reliability requirements of Daubert; (2)
Ziegler's testimony did not assist the trier of fact; and (3) Ziegler's testimony
was more prejudicial than probative under Federal Rules of Evidence 403.
1. Admissibility of Handwriting Analysis
Paul argues that Ziegler's testimony is not admissible under the Daubert
guidelines because handwriting analysis does not qualify as reliable scientific
evidence. His argument is without merit.(2) In Daubert, the Supreme Court
held that Federal Rule of Evidence 702 controls decisions regarding the
admissibility of expert testimony.(3) The Supreme Court declared that under
rule 702, when "[f]aced with a proffer of expert scientific testimony . . . the
trial judge must determine at the outset pursuant to Rule 104(a), whether
the expert is proposing to testify to (1) scientific knowledge that (2) will
assist the trier of fact to understand or determine a fact in issue." Daubert,
509 U.S. at 592. The Supreme Court stated that "[t]he inquiry envisioned by
Rule 702 is, we emphasize, a flexible one" and that "Rule 702 . . . assign[s]
to the trial judge the task of ensuring that an expert's testimony both rests
on a reliable foundation and is relevant to the task at hand." Daubert, 509
U.S. at 594, 597. The Court also listed several factors to assist in the
determination of whether evidence is scientifically reliable.(4) See Daubert,
509 U.S. 592-95.
Many circuits were split at the time of trial, however, on whether Daubert
should apply to nonscientific expert testimony. Some held that the
application of Daubert is limited to scientific testimony, while others used
Daubert's guidance to ensure the reliability of all expert testimony presented
at trial. Compare McKendall v. Crown Control Corp., 122 F.3d 803 (9th Cir.
1997) (limiting the application of Daubert to the evaluation of scientific
testimony); with Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir. 1997)
(holding that the application of Daubert is not limited to scientific
knowledge).
Recently, however, in Kumho Tire Company, LTD. v. Carmichael, the Supreme
Court held that Daubert's "gatekeeping" obligation, requiring the trial judge's
inquiry into both the expert's relevance and reliability, applies not only to
testimony based on "scientific" testimony, but to all expert testimony.
Kumho, 119 S. Ct. 1167, 1174 (1999). The Court further noted that rules 702
and 703 give all expert witnesses testimonial leeway unavailable to other
witnesses on the presumption that the expert's opinion "will have a reliable
basis in the knowledge and experience of his discipline." Kumho, 119 S. Ct. at
1174 (citing Daubert, 509 U.S. at 592). Moreover, the Court held that a trial
judge may consider one or more of the specific Daubert factors when doing
so will help determine that expert's reliability. Kumho, 119 S. Ct. at 1175.
But, as the Court stated in Daubert, the test of reliability is a "flexible" one,
and Daubert's list of specific factors neither necessarily nor solely applies to
all experts or in every case. Kumho, 119 S. Ct. at 1175 (citing Daubert, 509
U.S. at 594). Alternatively, Kumho declares that "the law grants a district
court the same broad latitude when it decides how to determine reliability as
it enjoys in respect to its ultimate reliability determination." Kumho, 119 S.
Ct. at 1171 (citing General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)
(stating that courts of appeals are to apply "abuse of discretion" standard
when reviewing district court's reliability determination)).
2. Testimony Assists Trier of Fact
Paul also asserts that Ziegler's testimony was inadmissible because it did not
assist the jury's understanding of the evidence. Properly qualified expert
witnesses may testify regarding their specialized knowledge in a given field if
it "would assist the trier of fact to understand the evidence or to determine
a fact in issue." Fed. R. Evid. 702; see also United States v. Rouco, 765 F.2d
983, 995 (11th Cir. 1985) (arguing that counsel may use an expert if the
expert's testimony can offer something "beyond the understanding and
experience of the average citizen"), cert. denied, 475 U.S. 1124 (1986);
United States v. Burchfield, 719 F.2d 356 (11th Cir. 1983) (explaining that
expert testimony is admissible where it is "the kind that enlightens and
informs lay persons without expertise in a specialized field").
Paul has not challenged on appeal Ziegler's qualifications as an expert on
handwriting analysis. In fact, at the time of the trial, Ziegler: (1) was a full
time handwriting examiner for 30 years; (2) was a member of four
professional handwriting analysis organizations; (3) established both the
Secret Service's and the Naval Investigative Service's "questioned
document" laboratories; (4) lectured and taught extensively in the field of
handwriting analysis; and (5) trained new "questioned document" examiners
for several law enforcement organizations. Consequently, we hold that
Ziegler's expert testimony could assist the jury.
3. Testimony More Probative than Prejudicial
Paul asserts that the district court should have excluded Ziegler's testimony
under Federal Rule of Evidence 403 as prejudicial because he claims the jury
would have believed that Ziegler's analysis was scientific when it was not.(5)
Paul, however, cites no authority excluding testimony from an expert
handwriting examiner on the basis that it sounded scientific, but was not. To
the contrary, the Sixth Circuit in United States v. Jones concluded that the
ability of the jury to perform the same visual comparisons as the expert "cuts
against the danger of undue prejudice from the mystique attached to
'experts.'" 107 F.3d 1147, 1160-61 (6th Cir. 1997). As was true in Jones,
Ziegler specifically identified points of comparison that he recognized
between the writing of the extortion note and the handwriting examples that
Paul provided. The jury was free to conduct its own comparison and reach
its own conclusion regarding the author of the extortion note.
Moreover, Ziegler acknowledged on cross-examination that no licensing board
existed for questioned documents examiners, and the profession is not
subject to standards that quantify or measure the work of individual
examiners. Given Ziegler's admissions, the jury would not have been confused
whether handwriting analysis is scientific or is unassailable. Therefore, this
court cannot conclude that Ziegler's qualifications prejudiced Paul.
Consequently, we hold that the district court did not err in admitting Ziegler's
testimony.
B. Denbeaux's Testimony
Paul argues that the district court abused its discretion in not admitting
Denbeaux's rebuttal testimony. Specifically, Paul contends that if Ziegler's
testimony was admissible under rule 702, then Denbeaux's testimony was
also admissible pursuant to rule 702 because Denbeaux's testimony was
critical for the jury to understand the limitations of Ziegler's testimony.
The government asserts two grounds for excluding Denbeaux's testimony:
(1) Paul cannot show that Denbeaux was an expert on handwriting analysis;
and (2) the court's exclusion of Denbeaux's testimony did not prejudice Paul.
Denbeaux was not qualified to testify as an expert in handwriting analysis
because he: (1) did not possess an acceptable degree of "knowledge"; (2)
would not have assisted the jury; and (3) was not a qualified expert. Fed. R.
Evid. 702. The record reflects that Denbeaux had no skill, experience,
training or education in the field of handwriting analysis. The record shows
that Denbeaux has a law degree and that he is a law professor who teaches
evidence. Before 1989, he reviewed the literature in the field of questioned
document examinations, and then coauthored a law review article critical of
forensic document examiners' ability to reach the correct conclusion in
questioned document examinations. See D. Michael Risinger, Mark 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). His skill, experience, training and education as a lawyer did
not make him any more qualified to testify as an expert on handwriting
analysis than a lay person who read the same articles.
At the time of the trial, Denbeaux had done virtually no further research or
writing on the subject of the reliability of handwriting expertise since the
University of Pennsylvania published his law review article in 1989. During
cross-examination, he admitted that he was not a questioned documents
examiner, had received no formal training in the field, had never attended
seminars on handwriting analysis, had never worked in a questioned
documents laboratory and was not a member of any professional
organizations in the field. Further, because Denbeaux was not an expert on
the limitations of handwriting analysis, the district court's exclusion of his
testimony did not prejudice Paul. Denbeaux's background did not qualify him
as an expert, and his knowledge of the subject matter is so limited that it
was not an abuse of discretion for the district court to exclude his testimony
under rule 702. See Fed. R. Evid. 702.
C. Prosecutorial Misconduct
Paul asserts that the prosecutor's closing argument was improper and
unlawfully shifted the burden of proof. "Prosecutorial misconduct requires a
new trial only if [the court] find[s] the remarks (1) were improper and (2)
prejudiced the defendants' substantive rights." United States v. Delgado, 56
F.3d 1357, 1368 (11th Cir. 1995) (citing United States v. Cole, 755 F.2d 748,
767 (11th Cir. 1985)).
In his closing argument, the prosecutor stated: "Remember[,] the defense
has the resources and has the opportunity to produce evidence themselves,
as you saw the defendant do." Paul's lawyer objected and the court
overruled the objection stating, "He [the government] didn't say you had a
burden as I understood him. He merely said opportunity."
The government's statement did not prejudice Paul's substantive rights in
shifting the burden of proof. The government told the jury that Paul had the
opportunity to produce a handwriting expert to rebut Ziegler's testimony --
not that Paul had any burden to produce a rebuttal expert. Additionally, the
prosecutor, Paul's lawyer and the court repeatedly reminded the jury that
the government bore the burden of proof. Furthermore, the district court's
instruction on the burden of proof cured any prejudice. See Duncan v.
Stynchcombe, 704 F.2d 1213, 1216 (11th Cir. 1983).
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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FOOTNOTES
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1. The district court noted that it had been willing to exclude Denbeaux's
testimony from the first trial, but the court allowed it when the Assistant
United States Attorney who initially tried the case asked that the court
admit the testimony.
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2. Courts have long received handwriting analysis testimony as admissible
evidence. See United States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir.
1997) (handwriting expert's testimony admissible to show that signatures on
numerous documents were defendant's); United States v. Velasquez, 64 F.3d
844, 848-50 (3d Cir. 1995) (handwriting expert witness admissible).
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3. Federal Rule of Evidence 702 provides: "If scientific, technical or other
specialized knowledge will assist the court to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise." Fed. R. Evid. 702.
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4. The Daubert factors include: (1) whether the theory or technique the
expert employs is generally accepted in the scientific community; (2)
whether the theory has been subject to peer review and publication; (3)
whether the theory can and has been tested; and (4) whether the known or
potential rate of error is acceptable. Daubert, 509 U.S. at 592-95.
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5. Federal Rule of Evidence 403 provides: "Although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence." Fed. R. Evid. 403.
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