Motion Bank # M-3018 (Re: 2.80 n28 [Challenge To Expert Handwriting Comparison].)
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Date of Motion: June 25, 2001.
JEFF BROWN
Public Defender
MICHAEL BURT
Deputy Public Defender
555 Seventh Street, Second Floor
San Francisco, California 94103
(415) 553-9650
Attorneys for Defendant
JOHN DOE
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
JOHN DOE
Defendant.
___________________________________ /
NOTICE OF OPPOSITION AND OPPOSITION TO MOTION TO ADMIT EVIDENCE OF HANDWRITING COMPARISON AND REQUEST FOR A HEARING PURSUANT TO PEOPLE V. KELLY (1976) 17 CAL. 3D 24, OR, IN THE ALTERNATIVE, RENEWED MOTION TO DISMISS FOR UNREASONABLE AND PREJUDICIAL PRETRIAL DELAY
TO TERENCE HALLINAN, DISTRICT ATTORNEY FOR THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, TO ASSISTANT DISTRICT ATTORNEY ELLIOT BECKELMAN AND TO THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE that on June 256, 2001 at 10:00 a.m. in Department 24 of the above-entitled court, the defendant herein will move for an order excluding from evidence the People’s handwriting comparison evidence, and will and hereby does request a hearing pursuant to People v. Kelly (1976) 17 Cal. 3d on the grounds that the People’s handwriting evidence is inadmissible under Kelly, under Evidence Code Sections 350, 352, and 801(a), and under Penal Code Sections 1054 et. sec. In the alternative, defendant will and hereby does renew his motion to dismiss because of prejudicial pretrial delay.
This Motion is based on this Notice, the attached memorandum of points and authorities, the exhibits to be provided under separate cover, and any oral and documentary evidence and argument as may be produced at the hearing on said motion.
DATED: June 25, 2001
Respectfully submitted,
Michael N. Burt
Deputy Public Defender
STATEMENT OF FACTS
In this case, the prosecution began investigating Ms. L’s murder October 29, 1987. According to it’s own evidence at trial, by August 13, 1988, the police in Mammouth County had arrested Ms. W in possession of the victim’s automobile, and DMV documents in her possession at the time connected Sam Zanka (aka JOHN DOE) to the ownership of the vehicle. Shortly after this arrest, the DEA came into possession of Bank of America records containing documents on several safety deposit boxes associated with Sam Zanka and Ms. W, including a rental agreement and safety deposit slip allegedly signed by Sam Zanka in San Francisco on August 4, 1987 and October 26, 1987.
In November 1988, Inspector Ken Moses came into possession of one of the safe deposit rental agreements, as well as Mr. Doe’s fingerprints (RT 1727, 1754). No attempt was made at that time to associate Mr. Doe with the safe deposit box, although Mr. Moses represented to the jury, in direct contradiction to his testimony at the Jones motion, that he was so interested in solving this case that he kept a copy of the file on his desk. The evidence at the Jones hearing also indicated that Inspectors McCoy and Falzon were in contact with the DEA about this case as early as October 30, 1987 (RT 1709). The government was thus on constructive notice as early as August 1988 of the importance of demonstrating Sam Zanka’s presence in San Francisco on and before October 26, 1987.
However, there is more. As Lieutenant Bastak testified on April 27, 2000, as early as September 23, 1998, Mr. Doe provided him with a detailed statement in which he claimed that “everyone went to Mexico four to six days before the murder.” (RT 2701). On November 12, 1998, witness Mr. C informed Inspector Gordon in a videotaped statement that Mr. Doe was with him in Mexico at and before the commission of the crime in this case. (RT 1867). Beginning in June 1999, the defense presented the testimony of Mr. D and Mr. C at defendant’s preliminary hearing. These witnesses put the government on clear notice that the defendant was claiming he was in Mexico at, and well before, the commission of the crime in this case. Further, on January 7, 2000, the People were present at the conditional examination of Mr. L when he specifically testified that he received notice of his wife’s death on October 30, 1987, and that Mr. Doe had been at his house until two days before the call. (Conditional Examination of Mr. L, January 7, 1987, at pp. 14, 26). Indeed, following this testimony, sometime in January 2000, the prosecution finally woke up and requested the DEA’s file on Mr. Doe, which had been in that agency’s position since 1988. (RT 1563, 1874)
On March 23, 2000, Inspector Gordon specifically acknowledged that in January 2000 he was aware of the Bank of America records in the D.E.A. file. He stated on direct examination as follows:
Q. Now, going back to the contents of the DEA file, the DEA file included details about the defendant opening up safety deposit boxes at certain times and dates in San Francisco, correct?
A. I believe I’m aware of one or two. (RT 1576)
On cross examination on the same date he was specifically asked what efforts he had made to use the D.E.A. file to pinpoint Mr. Doe’s whereabouts at the time of the crime. His testimony revealed an incredibly laxidassical attitude toward the investigation of this case:
Q. Inspector, when you got this DEA file, I imagine at some point you took a real close look at it to see if there was any indication of where Mr. Doe was around the time of this killing; isn’t that true?
A. Well, we read it over. I can’t say that I studied this file. It was very extensive.
Q. Right.
A. But, you know, we tried to determine where he was at certain points. (RT 1582)
It appears, however, that he did not try very hard and that not even the prosecutor bothered to look closely at the bank records. Inspector Gordon testified on March 23, 2000 as follows:
Q. Did you try to do any follow-up investigation on the bank account, or did you already have that from the DEA file?
A. There was some follow-up by the DEA on his bank accounts. I didn’t do any personal follow-up on it.
Q. And the bank account information in the DEA file is sketchy, isn’t it?
A. Yes.
Q. Doesn’t cover the time period of October of 1987, does it?
A. You know, I don’t recall.
Q. Well, would you recall if there were checks or bank statements indicating checks written from San Francisco in October of 1987? Would that have been something that sort of would leap out at you?
A. Probably.
Q. You have no recollection of that in this case, right?
A. No.
Mr. Farrell: well, he doesn’t have any recollection. You’re not saying there isn’t a check?
Mr. Burt: No, I’m saying he has no recollection of seeing bank statements from October of ’87.
The Witness: that’s correct.
Mr. Farrell: I don’t want to mislead anyone. There is a November 19, 1987 check. (RT 1591)
On April 3, 2000, Inspector Gordon revealed that he had not even looked at the file close enough to notice that Mr. Doe had an entry in his notebook listing Jack Stiff (Mr. C) as having the same phone number as that listed for Ms. L at 966 Brussels Street:
Q. Okay. And is this the first time you noticed that connection, are you saying, that in that phone book was a number to 966 Brussels?
A. Now is the first — like I say, I really didn’t compare this with what we had. I just looked through it briefly. (RT 1876)
Even more incredibly, he did not even notice that there were records allegedly indicating Mr. Doe’s presence in San Francisco in October, 1987:
Mr. Burt: Q. Do you recall seeing any records from the DEA file relating to the time period October of 1987?
A. No. (RT 1879)
On June 6, 2001, the prosecutor presented a declaration to the Court in which he claimed that Ms. W was a material witness because she could place defendant in San Francisco at about the time of the murder. When the defense claimed that discovery material did not support this assertion, the prosecutor responded that ” Mr. Gordon, Inspector Gordon gave defense counsel the entire D.E.A packet. And in fact, the receipt for October 26th, ’87, that I made reference to (in the declaration), is on page 1835 of Sam Zanca’s (file).” (RT 8778). The defense then argued that the prosecution did not need Ms. W because it could use the bank records to prove Mr. Doe’s presence in San Francisco. (Id.). The Court rejected this argument and found that Ms. W’s testimony would be “greatly material.”. (RT 8781)
On March 23, 2001, the Court sustained Ms. W’s claim of marital privilege, leaving the bank records as the sole method by which the prosecutor could establish the allegedly critical fact that Mr. Doe was in San Francisco on October 26, 1987. (RT 9222). At no point before or since that date was the defense provided with any pretrial discovery indicating that the prosecutor intended to rely on a handwriting expert to establish Mr. Doe’s authorship of the bank records.
Based on the foregoing, on May 29, 2001, the defense in its opening statement to the jury commented that the prosecution was not going to be able to produce a handwriting expert. (RT 10615).
On June 1, 2001, fearing that the prosecutor had in fact received oral notification that a handwriting comparison was negative, the defense moved under Brady v. Maryland for the disclosure of any exculpatory handwriting reports. (RT 10903-04). The Court granted the motion, commenting that “in fact in my mind, I was thinking about why nothing had been done in terms of a handwriting examination.” (RT 10905). The exchange ended as follows:
The Court: Because, again, I say, that was in the back of my mind for sometime when I first — since I discovered the existence of such a document.
Mr. Beckelman: it’s clear.
The Court: oh, and again I say if there was an examination, I will look upon it — the court might take drastic action. That, to me, is very important and in clear violation of the duty of the prosecuting attorney. (Id.)
Two full weeks after this exchange, on June 15, 2001, the prosecutor announced in open court that it had just received the report of handwriting expert Susan Morton. The report, provided to the defense on the same date, does not indicate when Ms. Morton was first asked to do her examination. Nor does the report contain the basis for Ms. Morton’s speculative opinion that Mr. Doe “very probably” wrote the questioned bank documents. The report does state , however, that “(t)he quality of the copies available for examination is somewhat poor; some of the features that must be considered in a complete handwriting comparison have not been reproduced.” (Motion to Admit, Exhibit B). She concludes : “For this reason, it is not possible to reach more conclusive findings.” (Id.).
In the face of this procedural history, the prosecutor now makes the incredible assertion that the first notice he received of the need to authenticate the safety deposit documents was in the defense’s opening statement. In what follows, the defense will conclusively rebut this argument and will show that the government’s gross negligence in waiting until mid-trial to investigate an obviously crucial aspect of its proof has prejudiced the defense to the point where the only appropriate remedy is exclusion of the proffered evidence or dismissal of the charges. Further the defense will demonstrate that for a variety of other reasons, the government’s handwriting testimony is inadmissible even in the absence of the obvious abuse of the discovery process which occurred in this case.
LAW AND ARGUMENT
I
THE PROSECUTION’S UNJUSTIFIABLE DELAY IN NOTIFYING THE DEFENSE OF THE NAME AND REPORT OF A CRUCIAL EXPERT WITNESS REQUIRES THE COURT TO DISMISS THIS CASE OR, AT THE VERY LEAST, TO EXCLUDE THE TESTIMONY OF THE WITNESS
The California statutory discovery scheme, adopted by initiative in 1990, requires that the prosecution “shall” disclose specified information to the defense, as set out in section 1054.1, including, among other things, the names and addresses of witnesses which the prosecution intends to call at trial, as well as “any reports or statements of experts.” (1054.1, subd. (a).). These disclosures “shall” be made at least 30 days prior to trial unless good cause is shown why a disclosure should be denied, restricted or deferred. Penal code Section 1054.7.
Violation of the California statute requires the imposition of sanctions pursuant to section 1054.5. “An attorney who flagrantly violates the act and the court’s orders… takes a calculated risk that severe sanctions during trial may be imposed.” Sandeffer v. Superior Court (1993) 18 Cal. App. 4th 672, 678. Section 1054.5 provides in relevant part:
Upon a showing that a party has not complied with Section 1054.1… and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure…. The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.
“The purpose of section 1054 et seq. is to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial…. Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of critical facts, to promote the People’s interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony.” People v. Jackson (1993) 14 Cal App 4th 1197, 1201.
In Jackson, the Court upheld the exclusion of a defense exculpatory witness as an appropriate sanction for the defense’s violation of the discovery statute. This result was reached despite the fact that the defense, unlike the prosecution, has a fundamental constitutional right to present a defense under the Sixth and Fourteenth Amendments to the United States Constitution.
The Court in Jackson gave short shrift to the defense’s argument that lesser sanctions would remedy the discovery violation under Section 1054.5:
The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. (§§ 1054.5, subd. (c).) Although alternative sanctions are available, in some instances they would perpetuate “prejudice to the State and … harm to the adversary process.” (Taylor v. Illinois (1988) 484 U.S. 400, 413 [98 L.Ed.2d 798, 813, 108 S.Ct. 646].) If an omission is willful in hope of obtaining a tactical advantage, the court may exclude the witness’s testimony. (Id. at p. 415 [98 L.Ed.2d at pp. 814-815].) It is not unreasonable to suspect testimony from “a defense witness who is not identified until after the 11th hour has passed.” (Id. at p. 414 [98 L.Ed.2d at pp. 813-814].) Here, because the testimony was allegedly exculpatory, the trial court refused to believe defense counsel did not seriously consider calling the witness until moments before he did. Even if withholding the identity of the witness were not willful, lesser sanctions would not have been adequate. Immediate disclosure or contempt of counsel would have been insufficient, because the People would not have had a meaningful opportunity to rebut or impeach the statement. Similarly, a continuance would have been inadequate, because the declarant’s whereabouts were unknown and thus her unavailability precluded the People from cross- examining her. The People would have been unduly prejudiced by admitting the testimony without an opportunity for cross-examination, and the integrity of the adversary process would have been compromised as parties with little to lose would be encouraged to not comply with pretrial discovery rules. The court did not abuse its discretion in precluding the testimony. (Id. at 1203.)
In a subsequent case, People v. Edwards (1993) 17 Cal App 4th 1248 the Court gave greater weight to the defense’s federal constitutional right to present a defense. The Court held that as to defense violations of the discovery statute, “preclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony in Taylor.” Id at 1263.
The court in Edwards also set forth the factors which the trial court must consider in determining whether preclusion of testimony is an appropriate sanction for the defense’s violation of the discovery statute: “Under federal law, the factors to be considered in determining the appropriate remedy for discovery violations include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of prosecutorial surprise or prejudice, and (4) whether the violation was willful.” Id at 1264.
In contrast to Jackson and Edwards, cases involving the prosecutor’s violation of the discovery statute focus less on the willfulness of the violation and more on the special obligation of the prosecutor to seek the truth and on the effect of the nondisclosure on the defendant’s right to a fair trial. In People v. Brophy (1992) 5 Cal App 4th 932, 937 the Court concluded that “(d)ismissal is proper as a sanction for refusing to comply with a discovery order when the effect of such refusal is to deny defendant’s right to due process. (People v. Broome (1988) 201 Cal.App.3d 1479, 1497 [247 Cal.Rptr. 854]; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 786 [144 Cal.Rptr. 418].)).” In one of the cases cited by the Court, Dell M. v. Superior Court, supra., the Court used the following strong language in sanctioning the dismissal of a criminal action as a remedy for the government’s discovery violation:
The rule declaring that criminal defendants have the right, upon a proper showing, to discover the type of information sought here has been established by the Supreme Court…. The wisdom of the rule is not for this court to second guess at this point in the law’s development. It is binding upon us, upon the trial courts of this state and upon law enforcement agencies. To allow law enforcement agencies to resist as a matter of policy lawful discovery orders with which they have the power to comply would foster extreme disrespect for the law, a situation the judiciary cannot permit to happen. Id at 786
The Court in Dell M. v. Superior Court continued:
The first tool available to the court to enforce its disclosure orders is, of course, the contempt power. If, however, the custodian of police department records chooses to suffer the consequences of a contempt citation rather than disclose their contents, the remedy provides scant comfort to a criminal defendant who ultimately may be forced to choose between his right to compel discovery (Pitchess v. Superior Court, supra) and his right to a speedy trial (6th Amendment, U.S.Const.; art. I, s 13, Cal.Const.; Pen.Code, s 1382.) We therefore hold that if the trial court declines to exercise its contempt powers, or if the exercise of those powers proves ineffective to bring about sufficient compliance with a discovery order made after a claim of privilege (Evid.Code, s 1040) has been overruled, the charges to which the material sought to be discovered pertains must be dismissed.
The dilemma confronted by the defendant in Dell M called for severe sanctions because it was brought about by the conduct of the government. By contrast, in People v. Kowalski (1987) 196 Cal App 3d 174 the defense, over the defendant’s objection, sought a continuance of defendant’s preliminary hearing in order to hire a handwriting expert to meet the prosecution’s handwriting own expert, who was disclosed in a timely manner. In these narrow circumstances, the appellate court held that the defendant’s constitutional right to effective assistance of counsel trumped the defendant’s statutory right to a speedy preliminary examination. However, the Court grounded its decision on certain facts clearly not present in this case: “Nothing in the record suggests (defense counsel) was being “lazy or indifferent.” Rather he was “pursuing his client’s best interests in a competent manner.” Nor is this a case in which the prosecution was attempting to stall. The People were ready to proceed at all times.” Id. at 181. See also, People v. Tillett (2001) __Cal. App. 4th __, 2001 WL6384 (“The instruction [CALJIC 2.28] was an appropriate one for the situation and sufficiently sanctioned the prosecution for its careless, artless and unprofessional handling of a matter which might have been highly important, but in this case, was merely cumulative to other evidence.”)
In People v. Garcia (1993) 17 Cal. App. 4th 1169, defendant entered into a stipulated partial reversal with respect to the sentence, but subsequently petitioned for habeas corpus relief on the grounds that, at the time of negotiating the stipulated partial reversal, the prosecution had withheld exculpatory evidence as to the credibility of the prosecution’s expert witness. A referee appointed by the Court of Appeal found that there was no evidence of bad faith conduct by the prosecution, but that there was evidence the prosecution had actual knowledge at the time of the negotiations that the witness was no longer available to testify as an accident reconstruction expert due to errors in his speed calculations in unrelated cases. In reversing the defendant’s conviction because of the discovery violation, the court stressed “the importance of the special obligations of prosecutors to promote justice and the ascertainment of truth in our court system.” Id. at 1181. “The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal.” Id.
The Court in Garcia also stressed the central importance of revealing discovery relating to expert witnesses: “Notwithstanding the Attorney General’s effort in this proceeding to minimize the importance of Mason’s trial testimony, we note expert witnesses often have a significant impact on juries. ‘[J]uries tend to give considerable weight to ‘ scientific’ evidence when presented by ‘experts’ with impressive credentials. ‘… ‘[S]cientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury ….’ ” Id. at 1181.
A recent out-of state opinion reaches the same result as Garcia in a case involving the prosecutor’s midtrial disclosure of an opinion of a handwriting expert. See, State v. Karl (Ohio App. 2001) 2001 WL 576140. It is significant that in Karl the court reversed the conviction even though the prosecutor had provided the report of the handwriting expert prior to trial. The prosecutor had not, however, provided disclosure of one aspect of the expert’s opinion. In reversing, the court explained:
Appellant’s first contention is that the state deprived him of a fair trial by failing to disclose the result of the analysis of the handwriting expert who testified that the “o” in the signature on the power of attorney was consistent with the handwriting of Ms. Karl. In response to a discovery request, the state disclosed the report of this expert. Regarding the power of attorney, the report merely stated that the signature did not appear to be the natural signature of Ms. DeCianno. The expert report opined that other items, such as some checks bearing the signature of Ms. DeCianno, were actually signed by Ms. Karl but did not contain an opinion that there were consistencies between the signature on the power of attorney and the handwriting of Ms. Karl. Appellant preserved this argument for appeal in his objection to the expert’s testimony about the consistency. (Tr. 234).
The state’s only response to appellant’s complaint is that defense counsel opened the door to the line of questioning on redirect. As such, the state implicitly concedes that the opinion regarding the consistency should have been disclosed in discovery. Moreover, Crim.R. 16(B)(1)(d) requires the state to disclose the results or reports of scientific tests made in connection with the case that are known or by due diligence may become known to the prosecutor. In reading the questioning on redirect, it is apparent that the prosecutor knew that the expert had found a consistency in the terminal strokes of Ms. Karl’s signature and the signature on the power of attorney. Hence, the state should not have introduced this surprise opinion which is the result of a handwriting analysis without previously disclosing this opinion to the defense. The importance of the disclosure is revealed upon realizing that appellant was relying on the state’s own expert to put reasonable doubt in the minds of the jurors as to whether Ms. Karl’s power of attorney was forged. Had appellant been aware that the expert actually found consistencies, he may have called his own expert. Furthermore, a handwriting expert must opine with a reasonable degree of scientific certainty, and whether this occurred regarding the consistency characterized by the expert as non-major is questionable. See State v. Loza (1994), 71 Ohio St.3d 61, 77.As for the state’s contention that defense counsel opened the door to the line of questioning, we find this argument to be flawed. Counsel’s mention of a blunt end stroke in connection with his questioning of the expert on the clues that a writing is a forgery did not open the door to the state’s questioning on minor consistencies between two signatures. Furthermore, we do not see how defense counsel can open a door to an expert opinion based on a test when that opinion was never disclosed to him.
In this case, the prosecution began investigating Ms. L’s murder October 29, 1987. According to it’s own evidence at trial, by August 1988, the police in Mammouth County had arrested Ms. W in possession of the victim’s automobile, and DMV documents in her possession at the time connected Sam Zanka (aka JOHN DOE) to the ownership of the vehicle. Shortly after this arrest, the DEA came into possession of Bank of America records containing documents on several safety deposit boxes associated with Sam Zanka and Ms. W, including a rental agreement and safety deposit slip allegedly signed by Sam Zanka in San Francisco on August 4, 1987 and October 26, 1987.
In November 1988, Inspector Ken Moses came into possession of one of the safe deposit rental agreements, as well as Mr. Doe’s fingerprints (RT 1727, 1754). No attempt was made at that time to associate Mr. Doe with the safe deposit box, although Mr. Moses represented to the jury, in direct contradiction to his testimony at the Jones motion, that he was so interested in solving this case that he kept a copy of the file on his desk. The evidence at the Jones hearing also indicated that Inspectors McCoy and Falzon were in contact with the DEA about this case as early as October 30, 1987 (RT 1709). The government was thus on constructive notice as early as August 1988 of the importance of demonstrating Sam Zanka’s presence in San Francisco on and before October 26, 1987.
However, there is more. As Lieutenant Bastak testified on April 27, 2000, as early as September 23, 1998, Mr. Doe provided him with a detailed statement in which he claimed that “everyone went to Mexico four to six days before the murder.” (RT 2701). On November 12, 1998, witness Mr. C informed Inspector Gordon in a videotaped statement that Mr. Doe was with him in Mexico at and before the commission of the crime in this case. (RT 1867). In this statement, Mr. C specifically claimed that Mr. Doe had been in Mexico until “a day or two” before Mr. L was informed of his wife’s death on October 30, 1987. Beginning in June 1999, the defense presented the testimony of Mr. D Lowery and Mr. C at defendant’s preliminary hearing. These witnesses put the government on clear notice that the defendant was claiming he was in Mexico at, and well before, the commission of the crime in this case. Further, on January 7, 2000, the People were present at the conditional examination of Mr. L when he specifically testified that he received notice of his wife’s death on October 30, 1987, and that Mr. Doe had been at his house until two days before the call. (Conditional Examination of Mr. L, January 7, 1987, at pp. 14, 26). Indeed, following this testimony, sometime in January 2000, the prosecution finally woke up and requested the DEA’s file on Mr. Doe, which had been in that agency’s position since 1988. (RT 1563, 1874)
On March 23, 2000, Inspector Gordon specifically acknowledged that in January 2000 he was aware of the Bank of America records in the D.E.A. file. He stated on direct examination as follows:
Q. Now, going back to the contents of the DEA file, the DEA file included details about the defendant opening up safety deposit boxes at certain times and dates in San Francisco, correct?
A. I believe I’m aware of one or two. (RT 1576)
On cross examination on the same date he was specifically asked what efforts he had made to use the D.E.A. file to pinpoint Mr. Doe’s whereabouts at the time of the crime. His testimony revealed an incredibly lackadaisical attitude toward the investigation of this case:
Q. Inspector, when you got this DEA file, I imagine at some point you took a real close look at it to see if there was any indication of where Mr. Doe was around the time of this killing; isn’t that true?
A. Well, we read it over. I can’t say that I studied this file. It was very extensive.
Q. Right.
A. But, you know, we tried to determine where he was at certain points. (RT 1582)
It appears, however, that he did not try very hard and that not even the prosecutor bothered to look closely at the bank records. Inspector Gordon testified on March 23, 2000 as follows:
Q. Did you try to do any follow-up investigation on the bank account, or did you already have that from the DEA file?
A. There was some follow-up by the DEA on his bank accounts. I didn’t do any personal follow-up on it.
Q. And the bank account information in the DEA file is sketchy, isn’t it?
A. Yes.
Q. Doesn’t cover the time period of October of 1987, does it?
A. You know, I don’t recall.
Q. Well, would you recall if there were checks or bank statements indicating checks written from San Francisco in October of 1987? Would that have been something that sort of would leap out at you?
A. Probably.
Q. You have no recollection of that in this case, right?
A. No.
Mr. Farrell: well, he doesn’t have any recollection. You’re not saying there isn’t a check?
Mr. Burt: No, I’m saying he has no recollection of seeing bank statements from October of ’87.
The Witness: that’s correct.
Mr. Farrell: I don’t want to mislead anyone. There is a November 19, 1987 check. (RT 1591)
On April 3, 2000, Inspector Gordon revealed that he had not even looked at the file close enough to notice that Mr. Doe had an entry in his notebook listing Jack Stiff (Mr. C) as having the same phone number as that listed for Ms. L at 966 Brussels Street:
Q. Okay. And is this the first time you noticed that connection, are you saying, that in that phone book was a number to 966 Brussels?
A. Now is the first — like I say, I really didn’t compare this with what we had. I just looked through it briefly. (RT 1876)
Even more incredibly, he did not even notice that there were records allegedly indicating Mr. Doe’s presence in San Francisco in October, 1987:
Mr. Burt: Q. Do you recall seeing any records from the DEA file relating to the time period October of 1987?
A. No. (RT 1879)
On June 6, 2001, the prosecutor presented a declaration to the Court in which he claimed that Ms. W was a material witness because she could place defendant in San Francisco at about the time of the murder. When the defense claimed that discovery material did not support this assertion, the prosecutor responded that ” Mr. Gordon, Inspector Gordon gave defense counsel the entire D.E.A packet. And in fact, the receipt for October 26th, ’87, that I made reference to (in the declaration), is on page 1835 of Sam Zanca’s (file).” (RT 8778). The defense then argued that the prosecution did not need Ms. W because it could use the bank records to prove Mr. Doe’s presence in San Francisco. (Id.). The Court rejected this argument and found that Ms. W’s testimony would be “greatly material.”. (RT 8781)
On March 23, 2001, the Court sustained Ms. W’s claim of marital privilege, leaving the bank records as the sole method by which the prosecutor could establish the allegedly critical fact that Mr. Doe was in San Francisco on October 26, 1987. (RT 9222). At no point before or since that date was the defense provided with any pretrial discovery indicating that the prosecutor intended to rely on a handwriting expert to establish mr. Doe’s authorship of the bank records.
Based on the foregoing, on May 29, 2001, the defense in its opening statement to the jury commented that the prosecution was not going to be able to produce a handwriting expert. (RT 10615).
On June 1, 2001, fearing that the prosecutor had in fact received oral notification that a handwriting comparison was negative, the defense moved under Brady v. Maryland for the disclosure of any exculpatory handwriting reports. (RT 10903-04). The Court granted the motion, commenting that “in fact in my mind, I was thinking about why nothing had been done in terms of a handwriting examination.” (RT 10905). The exchange ended as follows:
The Court: Because, again, I say, that was in the back of my mind for sometime when I first — since I discovered the existence of such a document.
Mr. Beckelman: it’s clear.
The Court: oh, and again I say if there was an examination, I will look upon it — the court might take drastic action. That, to me, is very important and in clear violation of the duty of the prosecuting attorney. (Id.)
Two full weeks after this exchange, on June 15, 2001, the prosecutor announced in open court that it had just received the report of handwriting expert Susan Morton. The report, provided to the defense on the same date, does not indicate when Ms. Morton was first asked to do her examination. Nor does the report contain the basis for Ms. Morton’s speculative opinion that Mr. Doe “very probably” wrote the questioned bank notes. The report does state , however, that “(t)he quality of the copies available for examination is somewhat poor; some of the features that must be considered in a complete handwriting comparison have not been reproduced.” (Motion to Admit, Exhibit B). She concludes : “For this reason, it is not possible to reach more conclusive findings.” (Id.).
In the face of this procedural history, the prosecutor now makes the incredible assertion that the first notice he received of the need to authenticate the safety deposit documents was in the defense’s opening statement. It is true that in the opening statement, the defense told the jury that no expert testimony would be forthcoming as to the identity of the person who rented and used the safe deposit box.(RT 10615). However, in making that statement and in implementing its overall defense stategy, the defense was reasonably and justifiably relying upon the prosecutor’s failure to provide any pretrial disclosure of such evidence in compliance with the dictates of Penal Code Sections 1054.1 and 1054.7.
In a move reminiscent of Kafke’s The Trial, the prosecutor now wishes to twist the defense’s reasonable reliance upon the rules of discovery into an excuse for its gross incompetence prior to trial. The defense’s opening statement of May 29, 2001, we are told, must be discredited in the eyes of the jury through the newly disclosed testimony of a handwriting expert whose report was not disclosed until June 15, 2001 because the defense had the audacity to plan its defense strategy and implement it in opening statement based on an expectation that the prosecutor had complied with the rules of discovery. Even more incredibly, the prosecutor seeks to justify his violation of the rules with the pompous and extremely ironic closing statement in his brief that “this is still a court of law where the trier of facts is charged with the search for the truth.” (Motion to Admit at p. 8). Yet it was to further the search for truth and to prevent trial by ambush that the proponents of Proposition 115 (mainly prosecutors) enacted a discovery law which must be complied with if the search for truth and Mr. Doe’s constitutional right to due process and a fair trial are to be protected.
It is significant that when the shoe is on the other foot, courts have not hesitated in declaring that handwriting analysis testimony is not newly discovered when the party had available prior to trial the questioned documents at issue. See e.g., Chacko v. United States (S.D. N.Y. 2000) 2000 WL 1808662 (“[Defendant] moved to set aside the verdict based on a handwriting analysis of documents the Government provided to him before trial. He claimed that the recently obtained handwriting analysis was ‘newly discovered evidence.’ On December 17, 1997, this Court denied this motion in an oral ruling. The Court… held that the handwriting analysis was not newly discovered evidence because the underlying documents had been produced prior to trial and could have been analyzed then.”). The result should be no different in this case.
In sum, Mr. Doe was entitled to rely upon the statutory discovery scheme in framing his defense. The prosecutor’s belated attempt to interject a handwriting expert into the case at the eleventh hour has already succeeded in its goal of prejudicing the defense, because the defense has spent many precious trial preparation hours responding to the prosecution’s motion. The prosecution’s delay in this matter is inexcusable and such abuse of the discovery process should not be rewarded with coveted prize of being able to contradict the defense’s opening statement with a new expert. Indeed, the prosecutor’s belated reliance on a handwriting expert who has been forced to rely upon copies because of the interim destruction of original bank records only underscores the prejudice which Mr. Doe continues to suffer as a result of the prosecution’s inexcusable delay in investigating and prosecuting this case. For this reason, this case should be dismissed, but at the very least Ms. Morton should under no circumstances be permitted to testify.
II
HANDWRITING COMPARISON TESTIMONY IS INADMISSIBLE UNDER PEOPLE V. KELLY (1996) 17 Cal. 3d 24
A. Introduction: The Kelly/Frye Formulation
It has long been the rule in California that expert testimony based upon scientific or technical analysis is not admissible at trial unless the proponent of the expert testimony can establish: (1) the reliability of the analysis or method used; (2) that the expert witness is properly qualified as an expert in the use of that method; and (3) that the correct method was used in the particular case. People v. Kelly (1976) 17 Cal. 3d 24, 30; People v. Dellinger (1984) 163 Cal. App. 3d 284, 292-296: applying Kelly to anthropomorphic dummy experiments. The test for determining the underlying reliability of a method or technique was described in the “germinal case” of Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014. “The Frye rule is deeply ingrained in the law of this state.” People v. Shirley (1982) 31 Cal. 3d 18, 51. Hence, in California, the standard for the admission of expert testimony based upon a scientific or technical analysis has long been called the “Kelly/Frye formulation.” People v. Leahy (1994) 8 Cal. 4th 587, 593.
Under the Kelly/Frye formulation, the task for determining whether a given type of analysis was reliable was “assigned…to the members of the scientific community.” [Footnote 1] People v. Leahy, supra, 8 Cal. 4th at 594 quoting People v. Kelly, supra, 17 Cal. 3d at 30. A method is deemed reliable if it has “gained general acceptance” in the scientific community. Id. See also People v. Shirley, supra, 31 Cal. 3d at 54: “It is the proponent of such testimony, of course, who has the burden…of demonstrating by means of qualified and disinterested experts that the new technique is generally accepted as reliable in the relevant scientific community”; People v. Dellinger, supra, 163 Cal. App. 3d 293: “and there was no corroborative testimony that this technique was accepted within the scientific community.” In Frye the court described the standard in the following terms:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Huntingdon v. Crowley (1966) 64 Cal. 2d 647, 653 quoting Frye v. United States, supra, 293 F. at 1014.
“The Frye test was perfectly suited to the court’s competence. The judge did not have to be a scientist.” United States v. Hines (D. Mass. 1999) 55 F. Supp. 2d 62, 66. Instead, the judge “only had, in effect, to count the ‘scientific’ votes; determine what the majority accepted.” Id. See also People v. Leahy, supra, 8 Cal. 4th at 602: criticism of Frye because it requires “a ‘nose count’ of scientists rather than allowing the judge or jury to directly confront the reliability of the evidence.” Or, as one California court put it: “The core of the Kelly/Frye rule is that the admissibility of new scientific evidence is not dependent on the evaluation of the technique or process by judges, but rather on a finding that a clear majority of the relevant scientific community accepts the technique as reliable. People v. Joehnk (1995) 35 Cal. App. 4th 1488, 1501.
The Kelly/Frye formulation has been called “conservative” by the California Supreme Court. People v. Leahy, supra, 8 Cal. 4th at 601-602. By that the court meant that some techniques will remain inadmissible until the court is “reasonably certain that the pertinent scientific community no longer views them as experimental or of dubious validity.” Id. As a result, the court noted, “some criticism has been directed at the Frye standard, primarily on the ground that the test is too conservative, often resulting in the prevention of the admission of relevant evidence.” Id. at 602. Nevertheless, the Leahy court decided that it was better to exercise “considerable judicial caution in the acceptance of evidence” then to adopt a less rigorous standard of admission. Id.
The Kelly/Frye formulation differs to a degree from the standard now applied by federal courts although the “general acceptance” standard of Frye is still considered. In Daubert v. Merrell Dow Parmaceuticals, Inc. (1993) 509 U.S. 579, the Supreme Court recognized that the Frye standard had been used by the federal courts for over 70 years. However, the Supreme Court ruled in Daubert that a more liberal standard of admissibility had been adopted by the federal courts in 1975 when the Federal Rules of Evidence became effective. See People v. Leahy, supra, 8 Cal. 4th at 596: the “rigid” Frye standard was at odds “with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to ‘opinion’ testimony.” In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) the Supreme Court indicated that the admissibility of expert testimony from technical fields is governed by the same criteria as the admission of scientific expert testimony.
Under Daubert the court must look to five factors, none of which alone controls, to determine the admissibility of expert testimony. Among the factors which the federal court must consider in determining the admissibility of expert testimony is whether the method or analysis at issue in the expert’s testimony has been subject to peer review and publication, the error rate for the analysis or method, the existence and matinence of standards and controls, and the degree to which the analysis or method has been accepted in the scientific community. Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 509 U.S. at 579. While it is now one factor among several, it is clear that the federal courts still consider the “general acceptance test” of Frye in determining admissibility of expert testimony. See United States v. Hines, supra, 55 F. Supp. 2d at 65: Frye standard “still important.” Thus, while federal law is not be determinative, it may still guide the courts in California concerning the general acceptance within the scientific community of any particular method or technique that is the subject of expert testimony.
B. Handwriting Analysis As “A New Scientific Technique”
Kelly itself addressed the admissibility of expert testimony based upon the application of “a new scientific technique.” People v. Kelly, supra, 17 Cal. 3d at 30. Kelly made no attempt to explain what qualified as a “new” technique. Kelly made no attempt to explain what technique was or was not “a new scientific technique.” Therefore, for many years, “[w]hile the standards imposed by the Kelly/Frye rule (were) clear, the definition of ‘new scientific technique’ (was) not.” People v. Stroll (1989) 49 Cal. 3d 1136, 1155. At most it could be said: “The test is usually applied to novel devices or processes involving the manipulation of physical evidence, such as lie detectors, experimental systems of blood typing, voiceprints, identification by human bite marks, and microscopic analysis of gunshot residue.” In Re Amber B, supra, 191 Cal. App. 3d 682, 687. The California Supreme Court clarified these issues in Leahy. The court determined that a technique was “scientific” if in name and description it supposedly provides some “definitive truth.” The court stated: “According to Stroll, a technique or procedure may be deemed ‘scientific’ for purposes of Kelly/Frye if ‘the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognized and relay to the jury.” People v. Leahy, supra, 8 Cal. 4th at 606 quoting People v. Stroll, supra, 49 Cal. 3d at 1156. “Handwriting analysis” in both name and description is exactly the kind of technique that purports to provide some “truth” that “the expert need only recognize and report to the jury.” The “handwriting expert” claims that through his or her analysis the true author of a particular document can be determined. [Footnote 2] Such a determination carries the “aura of certainty” that science provides and certainly be viewed by the jury as “scientific.” Indeed, the leading hornbook on this area of the law, Scientific Evidence in Criminal Cases, Moenssens, Moses, and Inbau, 1973 Ed., describes handwriting analysis as the “scientific examination of questioned documents” to determine, in part, “whether some specimen of handwriting or typewriting has been made by a suspected individual.” Id., at pp. 410, 411. More recent discussions of handwriting analysis still described it as “a respectable forensic science discipline.” Handwriting Identification Evidence in the Post-Daubert World, Andre Moenssens, U.M.K.C. Law Rev. Vol. 66, 251, 310 (1997). Thus, there can be no question that handwriting analysis is just the type of analysis that is subject to the Kelly/Frye formulation. In a case decided long before Daubert, the Ninth Circuit ruled that handwriting analysis was subject to the Frye standard. The Ninth Circuit noted simply: “It is undisputed that handwriting analysis is a science in which expert testimony assists the jury.” United States v. Fleishman (9th Cir. 1982) 684 F.2d 1329, 1337.
“In determining whether a scientific technique is ‘new’ for Kelly purposes, long-standing use by police officers seems less significant a factor that repeated use, study, testing and confirmation by scientists or trained technicians.” People v. Leahy, supra, 8 Cal. 4th at 605-606. In Leahy the court held that the determination whether a technique was “new” turned not on its history of use in the scientific community but whether it was “settled in law.” Id. at 606. The court held that if the technique was “repeatedly challenged in court” and had “a recent history of legal challenges to (its) admissibility…it seems appropriate that we deem the technique ‘new’ or ‘novel’ for purposes of Kelly.” Id.
Handwriting analysis is precisely the kind of technique the Leahy court deemed “new” or “novel.” It has an extensive “recent history of legal challenges” to its admissibility. Indeed, the current trend is to bar the admission of exactly the kind of handwriting analysis that is at issue here. See e.g. United States v. Rutherford (D. Neb. 2000) 104 F. Supp.2d 1190, 1193: “As such, the Court finds it prudent to join an ever-growing number of federal district court that have found it necessary to place limits on the proffered testimony of a handwriting expert. United States v. Van Wyk, 83 F. Supp. 2d 515 (D. N.J. 2000); United States v. Santillan, 1999 W.L. 1201765 (N.D. Cal. 1999); United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. McVeigh, 1997 WL 47724 (D. Colo. 1997).” See also United States v. Starzecpyzel (S.D.N.Y. 1995) 880 F. Supp. 1027, 1036: “Were the court to apply Daubert to the proffered FDE (forensic document examiner) testimony, it would have to be excluded.” [Footnote 3] Each of these federal courts which examined the admissibility of handwriting analysis did so despite the fact that the federal standard under Daubert, like the Kelly/Frye formulation, was about ‘new fields’…’new methodology…” United States v. Hines, supra, 55 F. Supp. 2d at 66 fn. 11.
As these cases illustrate, the fact that an allegedly scientific procedure has been accepted by courts in the past does not insulate that procedure from challenge based on advances in scientific thinking. Northern California Federal District Court Judge Lowell Jensen put the matter bluntly: “The government is correct in their assertion that pre-Daubert/Kumho/Ninth Circuit precedent supports the admissibility of (handwriting) testimony; however, the world has changed. The Court believes that… a past history of admissibility does not relieve this Court of the responsibility of now conducting Daubert/Kumho analysis as to this proffered expert testimony.” United States v. Santillan (N.D. Cal. 1999) __F.Supp. __,1999 WL 1201765 at p. 4. See also, United States v. Hines (D. Mass. 1999) 55 F.Supp. 62, 67 (“The Court is plainly inviting a reexamination even of ‘generally accepted’ venerable, technical fields.”).
Our Supreme Court is in agreement with this forward-looking approach. Most recently, in People v. Soto, (1999) 21 Cal. 4th 512, 540-541 n. 31 , the Court emphasized that “in a context of rapidly changing technology, every effort should be made to base (decision) on the very latest scientific opinions…” See also, People v. Allen (1999) 72 Cal. App. 4th 1093, 1101(“The issue is not when a new scientific technique is validated, but whether it is or is not valid; that is why the results generated by a scientific test once considered valid can be challenged by evidence the test has since been invalidated.”); People v. Smith (1989) 215 Cal.App.3d 19, 25 [263 Cal.Rptr. 678] [in determining whether a particular technique is generally accepted “defendant is not foreclosed from showing new information which may question the continuing reliability of the test in question or to show a change in the consensus within the scientific community concerning the scientific technique”].)
The above cases amply demonstrate that in the last two years there has been a literal explosion of legal challenges to the admissibility of handwriting analysis. Leahy expressly opened the door for such challenges in California when it held that even well-established procedures would be subject to re-examination as “new” under the Kelly-Frye formulation if the general acceptance of those well-established procedures became open to question. That is exactly what has happened to handwriting analysis. As will be demonstrated below, when the scientific community recently examined the reliability of handwriting analysis it found “serious problems.”
C. The Scientific Community Has Determined That Handwriting Analysis Is Not Reliable
Prior to the Civil War, almost no American jurisdiction permitted the testimony of handwriting experts. Exorcism of Ignorance as a Proxy For Rational Knowledge; The Lessons of Handwriting Identification “Expertise”, Risinger, Denbeaux, and Saks, U. of Penn. L. Rev. Vol 137, 731, 762 (1989), hereafter just Risinger. That largely changed when Albert Osborn set out “to become a founding father of ‘scientific’ handwriting identification in the United States.” Id. at 765. In 1910, Osborn published the book “Questioned Documents.” John H. Wigmore, “the 800 pound gorilla of American evidence law,” wrote the introduction to Osborn’s handwriting analysis book. Id., at 768. Over the next thirty years, Osborn and Wigmore together “brought ‘scientific’ handwriting identification from a phenomenon barely tolerated by courts to a recognized source of useful and dependable information…” Id., at 769. [Footnote 4] Osborn and Wigmore obtained the “ultimate triumph of this vision” when Osborn testified in the Lindbergh baby kidnapping case in 1935. His testimony was key to the conviction of Bruno Hauptman in that case. “For nearly sixty years after the affirmance of State v. Hauptman, no reported opinion rejected handwriting expertise nor displayed much skepticism towards it.” Science and Nonscience in the Courts: Daubert Meets Handwriting Identification Expertise, supra, 82 Iowa L. Rev. at 27. “The validity of handwriting analysis has been assumed in Wigmore’s treatises, and virtually, every standard evidence treatise since that point.” United States v. Hines, supra, 55 F. Supp. 2d at 68, fn. 14. However, as Risinger and his colleagues found, Osborn and Wigmore advocated the acceptance of handwriting analysis “despite the absence of a shred of empirical evidence of anyone’s ability to do what Osborn claimed he and others of his trainees and followers could do.” Risinger, p. 769.
Writing in 1989, Risinger set out to determine if the scientific community had found handwriting analysis reliable. He wrote:
Our literature search for empirical evaluation of handwriting identification turned up one primitive and flawed validity study from nearly 50 years ago, one 1973 paper that raises the issue of consistency among examiners but that presents only uncontrolled impressionistic and anecdotal information not qualifying as data in any rigorous sense, and a summary of one study in a 1978 government report. Beyond this, nothing. Risinger, p. 738.
Risinger concluded: “If handwriting expertise were offered for the first time today with this published record as its foundation, courts would almost certainly reject it.” Id., at 740.
When Risinger looked at the individual studies that had been done to date, he found that, in fact, handwriting experts were not reliable. In 1939, Fred Inbau, one of the authors of Scientific Evidence in Criminal Cases cited above, conducted a test which “failed to produce any meaningful difference between document examiners and others” such as a layperson. In any event, the “methodological defects in the study prevent it from being used as a basis to draw virtually any conclusion.” Risinger, p. 741. See also Brave New “Post-Daubert World” – A Reply to Professor Moenessens, Risinger, Denbeaux and Saks, 29 Seton Hall L. Rev. 405, 416 (1998): “Everyone concedes that the 1939 Inbau study was so flawed that it provided no meaningful data on expert’s abilities, or their marginal advantage over lay persons, which was our original conclusion.” The Forensic Science Foundation conducted a number of studies in 1975, 1984, 1985, 1986 and 1987 which were never published. When all five test results were combined, Risinger found that a “rather generous reading of the data would be that in 45% of the reports forensic document examiners reached the correct finding, in 36% they erred partially or completely, and in 19% they were unable to draw a conclusion.” Risinger, p. 747. When the data from the 1975 test was omitted because that test was considered “unrealistically easy,” Risinger found that “the examiners were correct 36% of the time, incorrect 42%, and unable to reach a conclusion 22% of the time. Id., at p. 748. Additionally, Risinger noted that “from the viewpoint of the law each of these studies suffers from a major omission: the absence of a control or comparison group of lay test-takers.” Id. at p. 750. Thus, Risinger concluded: “For now, the kindest statement we can make is that no available evidence demonstrates the existence of handwriting identification expertise.” Id., at p. 751.
Largely in response to Risinger’s 1989 Exorcism article, a new study was conducted and the results reported in Writer Identification by Professional Document Examiners, Kam, Fielding, and Conn, 42 J. Forensic Science 778 (1997). The Kam Study, as it became know, claimed that its test results “lay to rest the debate over whether or not professional document examiners possess writer-identification skills absent in the general public. They do.” Id., at p. 785. The Kam Study claimed that the professional document examiners tested in that study had an error rate of 6.5% while a group of nonprofessionals had an error rate of 38.3%. Id., at 779.
The Kam Study, however, was found to be deeply flawed and roundly criticized. In Science and Nonscience In the Courts: Daubert Meets Handwriting Identification Expertise, supra, 82 Iowa L. Rev. at pp. 60-62, hereafter just Risinger and Saks, numerous flaws in the methodology used by Kam were identified. In a later article, Brave New “Post-Daubert World, Michael Saks, 29 Seton Hall L. Rev. 405, 419-424 (1998), hereafter just Saks, additional flaws were identified. For instance, Saks found that the Kam Study was based upon a “sorting test of a type encountered rarely, if at all, in actual practice.” Id. at 423. Additionally, Saks noted that “the experts and non-experts took the test under different incentive structures which would be expected to yield more false positives for the non-experts…” Id., at 426. Finally, Saks noted that perhaps the most serious problem with the Kam Study was “the possibility that some of the document examiners, but not the non-expert participants, had helpful information about the test in advance of its administration.” Id., at 428. Thus Saks concluded that the Kam Study “had several serious flaws, which leave open questions as to its actual meaning, and third, even if taken at face value, the study does not mean what (it) seems to claim…” Id. at 420.
The courts have also panned the Kam Study. “While Kam has conducted several interesting and important tests, purporting to validate handwriting analysis, they are not without criticism. They cannot be said to have ‘established’ the validity of the field to any meaningful degree.” United States v. Hines, supra, 55 F. Supp. 2d at 68-69. See also United States v. Santillan, supra, 1999 WL 1201765: “Because of this lack of data and structural flaws, peer review of this study and its usefulness in evaluating the reliability of handwriting experts is of limited value.” In United States v. Rutherford, supra, 104 F. Supp. 2d at 1193, Moshe Kam testified at a hearing. After reviewing “the four Kam studies submitted by the government,” the court concluded “that handwriting analysis testimony on unique identification lacks both the validity and reliability of other forensic evidence, such a fingerprint identification or DNA evidence.”
Writing in the Summer of 2000, Michael Saks was able to still say: “There are no meaningful, and accepted validity studies in the field” of handwriting analysis. Banishing Ispe Dixit: The Impact of Kumho Tire on Forensic Identification Science, Michael Saks, 57 Wash. & Lee L. Rev. 879, 899 (2000). Even those who support it have recognized that handwriting analysis is “[l]acking a meaningful body of data from controlled experiments…” Writer Identification by Professional Document Examiners, supra, at p. 778. The courts which have addressed the issue have reached the same conclusion.
In United States v. Jones, supra, 107 F.3d at 1157, the Sixth Circuit noted that “academicians and forensic document examiners alike have recognized the lack of empirical evidence in the field of handwriting analysis.” In United States v. Starzecpyzel, supra, 880 F. Supp. at 1038 the court was more blunt. It stated: “The government, on the other hand, produced no evidence of mainstream scientific support for forensic document examination.” (Emphasis in original.) In United States v. Hines, supra, 55 F. Supp. 2d at 69 the court stated:
There is no data that suggests that handwriting analysts can say, like DNA experts, that this person is “the” author of the document. There is no meaningful, and accepted validity studies in the field…There is no academic field known as handwriting analysis. This is a “field” that has little efficacy outside the courtroom. There are no peer reviews of it.
In United States v. Rutherford, supra, 104 F. Supp. 2d at 1193, where Moshe Kam testified in person, the court held “that handwriting analysis testimony on unique identification lacks both the validity and reliability of other forensic evidence, such as fingerprint identification or DNA evidence.” Finally, in United States v. Santillan, supra, 1999WL at p. 5, the District Court for the Northern District of California, which had also reviewed the Kam Study, stated: “Nothing has been presented to the Court that the opinion of a handwriting “expert” as to the unique identity of the author of the questioned handwriting is a valid or reliable expert opinion. No tests or studies or the accuracy of such an opinion have as yet been conducted.” See also, People v. Scheid (1997) 16 Cal 4th 1, 7 (“The prosecution’s handwriting expert opined that defendant wrote the directions, but on cross-examination, he acknowledged that he could not attribute the diagram to anyone.”)
In short, critics and supports alike agree that there is no consensus in the scientific community concerning the reliability of handwriting analysis. What testing has been done by the scientific community suggests that handwriting experts are no more reliable than lay persons. Every court which has addressed the issue since Kumho Tire has found expert handwriting analysis unreliable and not admissible. There can be little doubt, therefore, that handwriting analysis does not meet the Kelly/Frye formulation for admissibility.
D. Conclusion
Because handwriting analysis does not meet the Kelly/Frye standard of admissibility, the prosecution’s “questioned document examiner” should not be permitted to testify as an expert at trial. Such testimony is not admissible. Should it be admitted over Mr. Doe’s objection, he would be denied due process and a fair trial.
III
HANDWRITING COMPARISON TESTIMONY BASED SOLELY UPON COPIES
IS INADMISSIBLE IN CALIFORNIA
In his motion to admit Ms. Morton’s opinion, the prosecutor quotes some, but not all, of the proposed opinion by Ms. Morton. Her report in fact first speculates that JOHN DOE “very probably” wrote the “Sam Zanka” signature on the safe deposit box entry ticket and the box rental agreement. But then she immediately adds that “(t)he quality of the copies available for examination is somewhat poor; some of the features that must be considered in a complete handwriting comparison have not been reproduced.” (Motion to Admit, Exhibit B). She concludes : “For this reason, it is not possible to reach more conclusive findings.” (Id.).
The question of whether copies can be used as the basis for an expert handwriting comparison was answered many years ago by the California Supreme Court. See, Spottiswood v. Weir (1885) 66 Cal. 525. The Spottiswood case is cited in the Law Revision Commentary to Evidence section 1418, which the prosecutor here erroneously claims mandates admission of Ms. Morton’s testimony.(See infra.). Although the prosecutor has cited California Supreme Court case from the early 1900s and cases from virtually every federal jurisdiction in the United States, he curiously omits any reference to the one case which definitively answers the question posed by this case, namely, whether a handwriting expert can use copies as the basis of a comparison.
In Spottiswood, the Court held as follows:
It is quite clear that the press copy of the letter was inadmissible, until the non-production of the original was properly accounted for. But further than this, an expert witness was given specimens of Chambers’ handwriting, and was permitted to compare them with the press copy of the letter alleged to have been written by him to Mrs. Weir, and to give his opinion as to the genuineness of the original of the copy. This was not permissible under any rule with which we are acquainted. It is essential that the document whose genuineness is sought to be proved should itself be produced. When the disputed writing is produced, evidence resulting from a comparison of it with other proved or admitted writings is not regarded as evidence of the most satisfactory character, and by some courts is entirely excluded. It would be adding vastly to the danger of such evidence, to permit evidence to be given from a comparison of genuine writings with a press copy of the writing whose genuineness is disputed. Indeed, in this very case the expert, on cross-examination, testified that “it would be very dangerous to decide on a press copy, for sure.” Id. at 529
Spottiswood remains the law in California to this day. The opinion has also been followed in other states and attempts to distinguish the case have been rebuffed. For example, in Geer v. Missouri & Mining Co. (1896) 34 SW 1099, 134 Mo. 85, the Missouri Supreme Court refused to distinguish Spottiswood o the grounds of technological advancement:
It is well-settled law in this state that writings can only be used as standards with which to compare a disputed handwriting when no collateral issue can be raised in respect to their genuineness. They are generally allowed only when admitted to be genuine, or when their genuineness is established in the cause. Rose v. Bank, 91 Mo. 402, 3 S. W. 876; Randolph v. Loughlin, 48 N. Y. 456. Ordinarily the original itself is used, and it has been held that copies, either by tracing, or produced by a press or machine, however correct they may be, cannot be used as standards. Com. v. Eastman, 1 Cush. 189; Spottiswood v. Weir, 66 Cal. 529, 6 Pac. 381; Cohen v. Teller, 93 Pa. St. 128. But it is said that the original affidavit was on file in the interior department at Washington, and could not be produced at the trial, and the art of photography and lithographing is so perfect that a photolithographic copy of the writing is an exact representation of the original, and should be admitted, from the necessity of the case. It is unquestioned that a very close imitation of an object can be obtained by photography, but it is not a fact, of which judicial knowledge may be taken, that “all the appearances of a written document are capable of such exact reproduction that the copy will fully represent the original.” Maclean v. Scripps, 52 Mich. 219, 17 N. W. 815, and 18 N. W. 209. Without determining whether such a copy, the original of which would be admissible as a standard, and could not be produced, could be substituted, we are satisfied it could not be done unless preliminary proof was first made that the copy was exact and accurate in all respects. There was no such proof, as preliminary to the introduction of this copy. The officer merely certifies that the copy is of the same size, and “is a true and literal exemplification of the original.” This certificate might have been made to a written copy as well as to this one. The perfection of a photograph depends upon many circumstances and conditions, such as skill of the operator, the correctness of the lenses, “the purity of the chemicals, the accuracy of the focusing, the angle at which the original to be copied was inclined to the sensitive plate,” etc. Taylor Will Case, 10 Abb. Prac. (N. S.) 300. The slightest defect or imperfection in the photography or lithographing would destroy the sufficiency of the copy as a standard for the comparison. Opinions are often formed on the slightest strokes of the pen, or the most delicate shading of the letters. “The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the hazard of errors or differences in copying, though it be done by howsoever a scientific process. Besides, as before said, there is no proof of the manner and exactness of the photographic method used.” Hynes v. McDermott, 82 N. Y. 51. The court did not err in excluding the copies as standards of comparison.
The Spottiswood rationale remains current even among handwriting professionals. Reviewing the scientific literature on the topic, Professors Imwinkelreid and Giannilli state in their treatise 2 Scientific Evidence (3rd ed. 1999), p. 193: “Originals rather than phostats or photographs of original writings are needed. A copy may omit some of the identifying characteristics of the person’s handwriting style, such as indications of pen pressure, hesitation points, and other minute pen movements.”
A leading expert in the field, Ronald Morris, a former Secret Service Document Examiner, writes in his recent book Forensic Handwriting Identification: Fundamental Concepts and Principles (2000 ed.), p. 204: ” In handwriting and hand printing identification cases, the FDE wants only original documents for complete examination purposes. Copies of documents, as a general rule, do not provide an accurate reproduction of all the features of a writing, and may even contain trash marks or other defects, the presence of which could be misinterpreted.”
In this very case, Susn Morton admits that “(t)he quality of the copies available for examination is somewhat poor; some of the features that must be considered in a complete handwriting comparison have not been reproduced.” (Motion to Admit, Exhibit B). She concludes : “For this reason, it is not possible to reach more conclusive findings.” (Id.). Therefore, under the direct authority of Spottiswood, or as a prong three violation of Kelly, the handwriting comparison testimony must be excluded.
IV
THE SPECULATIVE TESTIMONY OF THE HANDWRITING EXPERT IN THIS CASE IS INADMISSIBLE UNDER EVIDENCE CODE SECTIONS 352 AND 801(A)
Evidence Code Section 801 (a) provides that expert opinion testimony must be “(r)elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”. Evidence Code Section 352 provides that any evidence, including expert testimony, should be excluded if its probative value is substantially outweighed by its prejudicial effect.
With respect to the opinions of so-called handwriting experts, it was specifically held in Estate of Nielson (1980) 105 Cal. App 3rd 796, 801 that
Furthermore, the handwriting on the will may speak for itself. Where the issue is the questioned authorship of a will, the trier of fact can determine the issue by comparison of the questioned writing with “genuine” or admitted handwriting of the testator without the aid of the oral testimony of any witness. Evid.Code, s 1417; Estate of Johnson, 200 Cal. 299, 304, 252 P. 1049; Castor v. Bernstein, 2 Cal.App. 703, 706, 84 P. 244.) Thus, no handwriting expert or testimony was necessary. The court the trier of fact had the testator’s admitted handwriting before it in the proffered will. It was authorized by law to determine the authenticity of the “questioned handwriting by comparison” with the conceded handwriting of the testator.
This same reasoning has been applied in a criminal case. See, Ernst v. Municipal Court (1980) 104 Cal App 3rd 710, 719 (“It takes no handwriting expert to conclude that the signature on the promise to appear is the same as defendant’s signature on the written waiver of jury and right to personal presence during trial. The trial court had all of these facts properly before it.”).
In United States v. Santillian, supra, the precise issue, as here, was whether Susan Morton should be allowed to express an opinion that the defendant authored certain questioned documents. In ruling that such testimony was inadmissible, Judge Lowell Jensen placed primary emphasis on the unhelpfulness of the expert’s unscientific opinion as compared to it potential for unfair prejudice:
In some instances, the Federal Rules of Evidence permit the introduction of lay opinion testimony. See Fed.R.Evid. Article VII Rule 701. The subject matter of handwriting is such an instance. Lay opinion on the question of identification of the author of handwriting is permitted under Rule 701 of the Federal Rules of Evidence and jurors are allowed to decide authorship by their own comparisons of “known” and “unknown” handwriting exhibits. Given this state of the law, the Court should look with special care at the issue of whether or not proffered expert opinion will “assist the trier of fact” within the requirements of Rule 702 of the Federal Rules of Evidence. The Court is satisfied that testimony of a handwriting “expert” as to the specific mechanics and characteristics of handwriting will add to the general knowledge of lay persons and assist them to make comparisons of different examples of handwriting. However, the Court questions whether adding the essentially subjective opinion of another person as to how the jury should answer the question of fact before them is not the type of assistance contemplated by the rule. Moreover, such testimony, when it is buttressed by the fact that it comes from an “expert,” would appear to be more prejudicial and misleading than probative in the Court’s consideration of the application of Rule 403 of the Federal Rules of Evidence.
The Court agrees with the approaches of the district courts in Hines and McVeigh. The Court further agrees that the reasons set forth by defendant in challenging the admissibility of the testimony are both correct and persuasive. Nothing has been presented to the Court that the opinion of a handwriting “expert” as to the unique identity of the author of the questioned handwriting is a valid or reliable expert opinion. No tests or studies of the accuracy of such an opinion have as yet been conducted. It is noteworthy that the only support put forth for its position by the government is the Kam report, and it appears to the Court that this report is both flawed and does not bear directly on the question of whether a specific opinion as to the identity of an author is or is not reliable. It is apparent to the Court that handwriting opinion testimony on unique identification does not have the validity and reliability of fingerprints or DNA evidence. It may involve different levels of skill but it is at best simply a subjective opinion which falls within Rule 403 and without Rule 702.
1999 W.L. 1201765 (N.D. Cal. 1999) at 5.
This reasoning is especially persuasive in this case, as the prosecutor here has chosen to employ the same expert who was excluded in Santillian. Moreover, as indicated in that opinion, a number of other courts have excluded the ultimate conclusion of a handwriting expert on the ground that it is not of assistance to the jury. See, United States v. Van Wyk, 83 F. Supp. 2d 515 (D. N.J. 2000); United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. McVeigh, 1997 WL 47724 (D. Colo. 1997). Indeed, in an early California Supreme Court case cited by the prosecutor in his brief, the Court held in People v. Storke (1900) 128 Cal. 486, 487 as follows:
We think the court erred in striking out the evidence in question. In a case involving a comparison of different writings, the ordinary individual can frequently arrive at a conclusion quite as correct as that of the opinion of the most skilled expert in handwriting, particularly where, as in this case, this expert testified that there was no resemblance or similarity. Such is the rule of law, not only in this state, but in others. (Code Civ. Proc., sec. 1944.) As said in Garvin v. State, 52 Miss. 207: “Jurors may use their eyes as well as their ears.” (See, also, Gaunt v. State, 50 N. J. L. 490; Vinton v. Peck, 14 Mich. 287; Dietz v. Fourth Nat. Bank, 69 Mich. 287; Rose v. Springfield Bank, 91 Mo. 399; 60 Am. Rep. 258; Wagoner v. Ruply, 69 Tex. 700; Brobston v. Cahill, 64 Ill. 356.)
The jury, therefore, should have been permitted to pass upon the question of the resemblance or similarity of Gutierrez’s writings with the disputed writings, and form their own conclusion in reference to such similarity or resemblance. As it was, this expert witness was substituted for the jury in passing upon this question of fact under consideration. By a personal inspection the jury might have formed a different opinion from that of the expert.
V.
THE EXPERT’S PROFFERED OPINION THAT MR. DOE “VERY PROBABLY” WROTE THE SIGNATURE ON THE SAFE DEPOSIT BOX DOCUMENTS IS INADMISSIBLE SPECULATION UNDER EVIDENCE CODE SECTIONS 350, 352, and 801
As indicated above, in his motion to admit Ms. Morton’s opinion, the prosecutor quotes some, but not all, of the proposed opinion by Ms. Morton. Her report in fact first speculates that JOHN DOE “very probably” wrote the “Sam Zanka” signature on the safe deposit box entry ticket and the box rental agreement, but then she immediately adds that “(t)he quality of the copies available for examination is somewhat poor; some of the features that must be considered in a complete handwriting comparison have not been reproduced.” (Motion to Admit, Exhibit B). She concludes : “For this reason, it is not possible to reach more conclusive findings.” (Id.). By her own admission, therefore, she is not in a position to reach conclusive findings. Instead, she must resort to the speculative language that Mr. Doe “very probably” authored the questioned documents.
The precise question of whether such speculation is admissible in a criminal case was addressed in United States v. Rutherford (D. Neb. 2000) 104 F. Supp. 2d 1190. In that case, the document examiner proposed to testify that an original questioned document was “very probably” authored by the defendant. The government sought to justify the use of this language by pointing out that the “very probably” language had been endorsed by the document examiner’s trade association, the American Board of Forensic Document Examiners. The Court was not persuaded that endorsement by an obviously interested group should change the rules prohibiting the introduction of speculative opinions:
Furthermore, while the evidence adduced at the Daubert/Kumho hearing established that FDE Rauscher meets the minimum requirements under Rule 702 to qualify as a nonscientific expert witness, there was no evidence adduced to support the nine-level scale of probabilities adopted by the American Board of Forensic Document Examiners for conclusions as to handwriting identification (Tr. at 34-35). Cf. United States v. Starzecpyzel, 880 F.Supp. 1027, 1048 (S.D.N.Y.1995).
Other court’s have reached the same conclusion. State v. Karl (Ohio App. 2001) 2001 WL 576140. (“Furthermore, a handwriting expert must opine with a reasonable degree of scientific certainty.”) The prohibition of expert opinion expressed in terms of probability is fully consonant with California law. Thus in Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal. App. 4th 1480, 1487, the court was dismissive of the plaintiff’s expert opinion as to causation even though the expert had a PhD:
“Second, Dr. Reddy did not express his opinion with any reasonable degree of medical certainty . He merely hypothesizes that because he knows of no other probable cause for her symptoms, he “feels” that the leak of some unspecified gas is “probably” the culprit for the increase in the severity of her respiratory problems. Such speculation is insufficient to rebut the definitive testimony of PG&E’s experts that exposure to methane gas could not have caused appellant’s symptoms.
In light of the tentative nature of Ms. Morton’s opinion, expressed in vague terms of “very probably”, the probative value of her testimony is nonexistent. Furthermore, whatever slight probative value there is to such speculative testimony is clearly outweighed by the danger that the jury will place undue reliance on such speculation. It is also outweighed by the unfairness of requiring the defense to engage in the time consuming act of defending against such speculation when it was sprung upon the defense after it had already committed itself to an alibi trial strategy that depended on the absence of scientific evidence that Mr. Doe was in San Francisco at and after the time of the alleged murder. Under Evidence Code sections 350, 352, and 801, and in order to protect Mr. Doe federal and state constitutional right to a fair trial, the speculative testimony of Susan Morton should be excluded.
VI
EVIDENCE CODE SECTION 1418 DOES NOT ROB THIS COURT OF DISCRETION TO EXCLUDE UNRELIABLE AND EXTREMELY PREJUDICIAL EVIDENCE THAT DOES NOTRAISE TO THE LEVEL OF GENERALLY ACCEPTED EXPERT TESTIMONY
Evidence Code Section 1418 provides in part that “(t)he genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.” (Emphasis added).
This section does not purport to override Evidence Section 801, which provides that if a witness is testifying as an expert, his testimony in the form of an opinion “is limited to such an opinion as is…based on matter (including his special knowledge, skill, experience, training and education)…that is of a type that reasonably may be relied upon by an expert in forming an opinion…” Nor does it purport to override Sections 350 or 352, or the substantial body of case law requiring that any scientific or expert testimony pass muster under People v. Kelly (1996) 17 Cal. 3d Nevertheless, the prosecutor boldly asserts without reference to the language of Section 1418 or any case construing it that “(t)his statute recognizes the generally accepted and approved forensic use of handwriting comparison evidence.” Presumably, this assertion is also meant to cover comparison of copies, although for obvious reasons the prosecutor cannot bring himself to make such a patently absurd statement. In effect, the prosecutor is arguing that the use of the words “may be proved” in Section 1418 really means that such evidence “must be allowed” no matter how unscientific or prejudicial the method of comparison may be. The prosecutors argument is simply unpersuasive and would rob this court of any discretion to exclude on any ground any “expert” handwriting comparison, no matter how unscientific or prejudicial the comparison might be.
It is significant that the Federal Rules of Evidence contain a provision identical to section 1418, yet this provision has not prevented a growing number of courts from excluding handwriting comparison testimony under Sections 403 or 702 . See, Federal Rules of Evidence Section 901(b)(3). [Footnote 5] As explained in Wright and Miller, Federal Practice and Procedure (2000 ed.) Section 7108:
Rule 901(b)(3) assumes that either the trier of fact, an expert witness, or both may be capable of making the comparison between the specimen and the item of evidence in question. But the provision does not state that they are always both capable of making this comparison. Accordingly, the trial court may refuse to permit a jury to make this comparison where, in light of the complexity or esoteric nature of the matters to be compared, the jury cannot reasonably be expected to reach a reliable conclusion. In such a case, the court may conclude under Rule 901(a) that the evidence is insufficient to permit a reasonable juror to conclude that the item of evidence in question is authentic….
Just as the court may determine that the trier of fact is incapable of making a comparison, it may also conclude that experts are incapable of this task. Rule 702, not Rule 901, governs the admissibility of expert opinion testimony. Accordingly, a court may conclude that expert opinion testimony comparing a specimen with another item of evidence is inadmissible under Rule 702 for various reasons, including the witness is not qualified to testify as an expert, the opinion would not assist the trier of fact, the witness lacks a proper basis for its opinion, or the opinion would not qualify as valid scientific evidence.
This same reasoning applies here. Evidence Code Section 1418 does not mandate admission of any testimony that is barred by other rules of evidence or discovery. As indicated above, those rules mandate exclusion of the handwriting comparison testimony bin this case.
CONCLUSION
For all of the foregoing reasons, the government’s handwriting comparison testimony should be precluded. In the alternative, the defense renews its motion to dismiss for prejudicial pretrial delay.
Dated: June 25, 2001
Respectfully submitted,
Michael N. Burt
Deputy Public Defender
FOOTNOTES:
Footnote 1: The terms “analysis,” “procedure,” “method,” or “technique” are used interchangeably throughout the cases and literature. The court have applied such terms to any kind of testimony based upon an experts “manipulation of physical evidence, such a lie detectors, experimental systems of blood typing, voiceprints, identification by human bite marks, and microscopic analysis of gunshot residue.” In Re Amber B. (1987) 191 Cal. App. 3d 682, 686.
Footnote 2: “Handwriting identification experts believe they can examine a specimen of adult handwriting and determine whether the author of that specimen is the same person or a different person that the author of any other example of handwriting, if both specimens are of sufficient quantity and not separated by years or the intervention of degenerative disease.” Science and Nonscience in the Court: Daubert Meets Handwriting Identification Expertise, Michael Risinger and Michael Saks, 82 Iowa L. Rev. 21, 35 (1996).
Footnote 3: Several federal courts prior to 1999 held that the Daubert standard did not apply to handwriting analysis because it was a “technical” not a “scientific” technique. See e.g. United States v. Jones (6th Cir. 1997) 107 F.3d 1147. These cases were overruled by Kumho Tire Co. v. Carmichael, supra, 526 U.S. 137 in 1999 when the Supreme Court ruled that Daubert applied to both scientific and technical fields of expert testimony. See e.g. United States v. Hines, supra, 55 F. Supp. 2d at 66: “Kumho extended Daubert to non-scientific fields…that are based on observations, not traditional science.”
Footnote 4: See also Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science, Michael Saks, Hastings L.J., Vol. 49, 1069, 1096 (1998): “Together, Osborn and Wigmore conducted a quarter century public relations campaign on behalf of ‘scientific’ handwriting identification expertise as practiced by Osborn and described in his book.”
Footnote 5: Evidence Code Section 901 provides in part:
(a) General provision. The 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.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
