By William D. Slicker, Esq.
People’s opinions on subjects change over time based on new information.
During the 1800’s, phrenology was an accepted means of determining someone’s mental characteristics. However, that theory is no longer accepted as true. Courts now do not allow phrenology analysis into evidence. U.S. v. Pawning, 758 F. 2d 1224 footnote 18 (3d Cir. 1985).
Likewise, at one time, lie detectors were thought to be good measures of truth telling. However, it was found that they could be tricked. Today, Florida courts do not allow lie detector results into evidence. Kaminski v. State, 63 So. 2d 339 (Fla. 1952); Sullivan v. State, 303 So. 2d 632 (Fla. 1974).
Prior to the issuance of Daubert v. Merrell Dao Pharmaceuticals, Inc., 509 US 529 (1993) and Kumbo Tire Company Limited v. Carmichael, 526 U.S. 293 U.S. 293 (D.C. Cir. 1923). The Frye test only applied to new or novel theories. Therefore, the Florida courts upheld the ability of an expert witness to testify on the issue of forgery. Redmond v. State, 731 So. 2d 77 (Fla. 2d DCA 1999); Clark v. State, 114 So. 2d 197 (Fla. 1st DCA 1939).
The Florida Supreme Court has recognized that since Daubert and Kumbo, some federal courts have affirmed the use of handwriting experts while some have not. The Florida Supreme Court has not decided the issue of handwriting analysis post Daubert. Spann v. State, 857 So. 2d 845 (Fla. 2003).
There have been some federal district courts that have held that the testimony of a handwriting analyst does not meet the criteria of Daubert and Kumbo and should be excluded. Almerciga v. Center for Investigative Reporting, Inc. 185 F. Supp 3d 401 (S.D.N.Y. 2016); U.S. v. Lewis, 220 F. Supp 2d 548 (S.D. W. Va. 2002); U.S. v. Saelee, 162 F. Supp 2d 1097 (D. Alaska 2001); U.S. v. Fujii, 152 F. Supp. 2d 939 (N.D. Ill. 2000).
Several other federal district cases have held that the testimony of a handwriting analyst should be limited to testimony on particular similarities and dissimilarities between documents, but the handwriting analyst may not testify on the ultimate issue as to whether a particular document was authored by a particular person. U.S. v. Oskowitz, 294 F. Supp 2d 379 (E.D.N.Y. 2003); Barnett v. American Heritage Life Insurance, Case 06-2171 (W.D. Tenn 2007); U.S. v. Hidalgo, 229 F. Supp. 2d 961 (D. Ariz. 2002); U.S. v. Rutherford, 104 F. Supp 2d 1190 (D. Neb 2000); U.S. v. Santillan, 1999 WL 1201765 at *4 (N.D. Cal. 1999) U.S. v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) U.S. v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995).
However, there now seems to be a consensus among the federal circuit courts that the admissibility of the testimony of a handwriting expert is flexible with the court giving consideration to Daubert factors; and that if admitted, such testimony may still be challenged; and that the trial court may instruct the jury that it is not required to accept the expert opinion, but is free to make its own visual comparison and give whatever weight to the expert testimony as the jury thinks it deserves. U.S. v. Foust, 989 F. 3d 842 (10th Cir. 2021); U.S. v. Prime, 431 F. 3d 1147 (9th Cir. 2005); U.S. v. Crisp, 324 F. 3d 261 (4th Cir. 2003); U.S. v. Mooney, 315 F. 3d 54 (1st Cir. 2002), U.S. v. Jolivet, 224 F. 3d 902 (8th Cir. 2000); U.S. v. Paul, 175 F. 3d 906 (11th Cir. 1999); U.S. v. Jones, 107 F. 3d 1174 (6th Cir. 1997).
So it seems that while the testimony of a handwriting expert is not as authoritative as it once was, in most courts it is still probably admissible, subject to cross-examination challenges. In most courts, such testimony has not dropped into the phrenology or lie detector level of unreliability that mandates exclusion.
