Brief Bank # B-968 (Re: F 2.80 n28 [Challenge To Expert Handwriting Comparison].)
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Date of Brief: August, 2003.
NOTE: The text of the footnotes appears at the end of the document.
THE JUDGE ERRONEOUSLY DENIED A KELLY HEARING
Under People v. Kelly (1976) 17 Cal.3d 24 a new or novel scientific technique must be excluded unless t has gained general acceptance in the relevant scientific community. In the present case, the trial judge precluded the defense from mounting a Kelly challenge to the prosecution handprinting expert because handprinting comparison is neither a scientific nor a new or novel technique. (RTH 4106-13; 5463; 5468-70.) This ruling was error.
B. A Kelly Hearing Should Have Been Held As To Handprinting Comparison
1. The Kelly 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, supra, 17 Cal. 3d at 30; People v. Dellinger (1984) 163 Cal. App. 3d 284, 292-296 [applying Kelly to anthropomorphic dummy experiments].) Hence, in California, the standard for the admission of expert testimony based upon a scientific or technical analysis is called the “Kelly” test.” [Footnote 1]
Under the Kelly formulation, the task for determining whether a given type of analysis was reliable was “assigned . . . to the members of the scientific community.” [Footnote 2] (People v. Leahy (1994) 8 Cal. 4th 587, 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 (1982) 31 Cal. 3d 18, 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 at 293 [no corroborative testimony that the technique was accepted within the scientific community].)
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.)
As one California court put it: “The core of the [Kelly] 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.) Hence, under Kelly the judge does not actually determine reliability but simply conducts a “nose count” of the experts in the field. (See People v. Bolden (2002) 29 Cal.4th 515, 546; People v. Leahy, supra, 8 Cal.4th at 602; see also United States v. Hines (D. Mass. 1999) 55 F.Supp.2d 62, 66.)
The Kelly formulation has been called “conservative” by this Court. (People v. Leahy, supra, 8 Cal. 4th at 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 Kelly 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, this Court in Leahy court decided that it was better to exercise “considerable judicial caution in the acceptance of evidence” than to adopt a less rigorous standard of admission. (Id.)
The Kelly 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 Pharmaceuticals, 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. v. Carmichael (1999) 526 U.S. 137 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 maintenance 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. 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 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. Further, since the Daubert/Kumho test is more liberal in favor of admissibility, any evidence that cannot satisfy Daubert also cannot satisfy Kelly, a fortiori.[Footnote 3]
2. Handprinting Comparison Is An Unproven Scientific Technique To Which Kelly Should Be Applicable
Kelly 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] rule (were) clear, the definition of ‘new scientific technique’ (was) not.” (People v. Stoll (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, voice prints, identification by human bite marks, and microscopic analysis of gunshot residue.” (In Re Amber B. (1987) 191 Cal. App. 3d 682, 686.)
This 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: “[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 recognize and relay to the jury.” (People v. Leahy, supra, 8 Cal. 4th at 606.) “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 4] Such a determination carries the “aura of certainty” that science provides and certainly would be viewed by the jury as “scientific.” Indeed, a 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 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).) Handprinting analysis is just the type of analysis that is subject to the Kelly formulation. Thus, 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 a jury.” (United States v. Fleishman (9th Cir. 1982) 684 F.2d 1329, 1337.) [Footnote 5]
“In determining whether a scientific technique is ‘new’ for Kelly purposes, long-standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians.” (People v. Leahy, supra, 8 Cal. 4th at 605.) 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 (it’s) admissibility . . . it seems appropriate that we deem the technique ‘new’ or ‘novel’ for purposes of Kelly.” (Id.)
Handprinting analysis is precisely the kind of technique the Court in Leahy 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 courts that have found it necessary to place limits on the proffered testimony of a handwriting expert (United States v. Van Wyk (D. N.J. 2000) 83 F. Supp. 2d 515; United States v. Santillan (N.D. Cal. Dec. 3, 1999) 1999 U.S. Dist. LEXIS 21611, 1999 WL 1201765; United States v. Hines (D. Mass. 1999) 55 F.Supp.2d 62 and United States v. McVeigh (D. Colo. 1997) 106 F.3d 325)”]; 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.” 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” and “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, supra, 1999 U.S. Dist. LEXIS 21611, 1999 WL 1201765 at 4; see also, United States v. Hines, supra, 55 F.Supp.2d at 67 [“The Court is plainly inviting a reexamination even of ‘generally accepted’ venerable, technical fields”]; but see United States v. Paul (11th Cir. 1999) 175 F.3d 906, 910-11; United States v. Jones (6th Cir. 1997) 107 F.3d 1147, 1160-61.)
This Court is in agreement with this forward-looking approach. 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 that controlling effect 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 that the test has since been invalidated]; People v. Smith (1989) 215 Cal.App.3d 19, 25 [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 an 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 reexamination as “new” under the Kelly 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.”
3. The Prosecution Failed To Empirically Prove The Basic Premise Underlying Handprinting Comparison Testimony
The underlying premise of testimony which identifies handwriting as belonging to one individual is that the handwriting of that individual is so unique that all other writing can be distinguished from it. “Handwriting analysis proposes a theory that each person’s handwriting is unique, and involves a method by which a trained expert can identify each writing’s author.” (United States v. Lewis (S.D. W. Va. 2002) 220 F.Supp.2d 548, 553; see also United States v. Hidalgo (D.C. Ariz. 2002) 229 F.Supp.2d 961, 967.) Absent empirical proof of such uniqueness, any opinion – whether expert or lay – is not sufficiently reliable to be admissible. Hence, even if an expert may point out similarities or differences between the writings, any opinion as to the ultimate issue of who wrote the questioned document should be excluded. “The role of the handwriting expert is primarily to draw the jury’s attention to similarities between a known exemplar and a contested sample.” (United States v. Crisp (4th Cir. 2003) 324 F.3d 261, slip opn. at 26; see also United v. States v. Hines (D. Mass. 1999) 55 F.Supp.2d 62.) [Footnote 6]
4. The Scientific Community Has Not Validated Handprinting Comparison As A Reliable Technique
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 7] 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.” (Michael J. Saks, Science and Nonscience in the Courts: Daubert Meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21, 27 (1996) [hereinafter Risinger & Saks, Science & Nonscience].) “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 748.)
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 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, 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 nonexperts took the test under different incentive structures which would be expected to yield more false positives for the nonexperts . . .” (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 nonexpert 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. Many of 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.) (But see United States v. Paul, supra, 175 F.3d 906, 910-11.) 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 are 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 of a 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.” In United States v. Santillan, supra, 1999 U.S. Dist. LEXIS 21611, *14, 1999 WL 1201765 at 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 sum, critics and supporters alike agree that there is no consensus in the scientific community concerning the reliability of handwriting analysis. Hence, the trial judge erred in precluding the defense from making a Kelly challenge to the prosecution’s handwriting comparison expert.
C. Even If A Kelly Hearing Was Not Necessary For Handwriting Comparison, A Hearing Was Required As To Handprinting Comparison
Even if Judge Smith correctly ruled that handwriting was sufficiently well accepted to satisfy Kelly, the present case involved handprinting not handwriting.
Handprinting has received far less attention and acknowledgment than handwriting. For example, the prosecution’s expert testified that the overwhelming majority of the cases in which he had testified involved handwriting not handprinting. [Footnote 8] Moreover, the prosecution’s expert acknowledged that there is no catalog of printed letters which can be used for comparison and analysis of handprinting. (RTH 8211.)
While the prosecution’s expert testified that there are some articles which address handprinting, he didn’t specify any. (RTH 8210.) Nor has the proficiency testing of handprinting been prolific. When he testified for the defense in United States v. Fujii (N.D. Ill. 2000) 152 F.Supp.2d 939, Michael Saks “was aware of only one” proficiency test involving handprinting. [Footnote 9] (Id. at 941.)
In sum, in the present case, as in Fujii, the record left the court with “no idea whether there is a recognized and accepted expertise in identifying handprinted documents. . . .” (Fujii, 152 F. Supp.2d at 941.)
D. Kelly Should Not Be Limited To Expert Opinions Regarding Matters That Are Both “New” and “Scientific”
It was demonstrated above that the expert handprinting opinion testimony is novel, scientific evidence as defined by People v. Leahy, supra, 8 Cal.4th 587. However, even if the technique didn’t meet the Leahy requirements, it still should be reviewed under Kelly. [Footnote 10] Merely because a scientific procedure is old or well established does not mean that it is reliable. (See generally Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579.) To the contrary, the older the procedure the more likely that its scientific underpinnings may have been proven false by modern science. Indeed, many of the oldest and most established techniques have recently been challenged as unreliable. [Footnote 11] Accordingly, to the extent that Kelly acts as the reliability gatekeeper in California (see People v. Bolden (2002) 29 Cal.4th 515, 544), it violates the federal constitution to allow an “old” scientific technique into evidence without determining that it satisfies Kelly. [Footnote 12]
Similarly, the fact that an expert opinion is not scientific does not assure its reliability. (See e.g., Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137.)
In the present case, there was a very real issue as to whether handprinting comparison could have satisfied Kelly. Despite longstanding recognition that handwriting comparison is as a field upon which testimony could be given, the defense experts and the proficiency studies proffered by the defense suggested that handwriting comparison could fall short of the general acceptance required by Kelly. Indeed, Judge Jones actually ruled that the handprinting opinion should be excluded under Kelly. (See RTK 613.)
Accordingly, handprinting comparison opinion evidence should not have been admitted into evidence without a Kelly reliability determination.
E. Even If Prong One of Kelly Is Not Applicable to Handprinting Comparison, Prong Three Should Be Applicable
Under Kelly, even in cases where general acceptance of the technique has been proven (Kelly, Prong 1) the prosecution must still demonstrate that scientifically correct procedures or methods were used in the case at bar. (Kelly, Prong 3.) [Footnote 13] Prong 3 requires the proponent of expert testimony to demonstrate that correct scientific procedures were used in the particular case. (People v. Kelly, supra, 17 Cal.3d at 30; see also People v. Leahy, supra, 8 Cal.4th at 595.)
In the present case, Kelly Prong 3 was not satisfied and, therefore, the expert testimony on handprinting comparison should have been excluded. Judge Smith found that the investigating authorities negligently failed to follow their own procedures for processing and preserving the note. (RTH 25443.) As a result the handprinting comparison methodology was suspect since the comparison had to be made from a photograph rather than the original note. (See § 2.5.7, pp. 438-43 below, incorporated herein.)
Moreover, special additional procedures should be followed with respect to written documents. They “should be placed in a protective covering to guard against accidental tears, folds, pen marks, finger marks, or smudges.” (Williard, When and How to Use an Examiner of Disputed Documents, 29 Practical Lawyer 27, 29 (Vol. 2) (1983).)
Accordingly, prong three of Kelly was not satisfied and the handprinting comparison testimony should have been excluded for this reason as well.
F. The Failure To Hold A Kelly Hearing Violated The Federal Constitution
The ruling denying such a Kelly hearing violated the federal constitution because it allowed the jury to consider unreliable expert opinion simply because that opinion was based on a technique which did not meet the new and scientific requirements of Kelly. The Due Process Clause of the Fourteenth Amendment and the heightened reliability requirements of the Eighth Amendment forbid juror consideration of unreliable evidence in a capital case regardless of whether or not the evidence is based on a new or scientific technique. (See Beck v. Alabama (1980) 447 U.S. 625, 627-46; see also Kyles v. Whitley (1995) 514 U.S. 419, 422; Burger v. Kemp (1987) 483 U.S. 776, 785; Gilmore v. Taylor (1993) 508 U.S. 333, 342; White v. Illinois (1992) 502 U.S. 346, 363-64; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.)
Moreover, the ruling also violated the federal constitution because the expert’s testimony constituted highly prejudicial evidence in a closely balanced case. The state and federal Due Process Clauses protect a party from inflammatory and prejudicial matters that affect the fundamental fairness of the proceedings. (Payne v. Tennessee (1991) 501 U.S. 808, 825; Dawson v. Delaware (1992) 503 U.S. 159, 166-68; Chambers v. Florida (1940) 309 U.S. 227, 236-237; Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284, 286; Walker v. Engle (6th Cir. 1983) 703 F.2d 959, 968; People v. Jones (1996) 13 Cal.4th 535, 585; People v. Olivas (1976) 17 Cal.3d 236, 250; People v. Sam (1969) 71 Cal.2d 194, 206.)
Further, denial of a Kelly hearing precluded the defense from impeaching the prosecution testimony based on its lack of acceptance in the scientific community. Hence, Doe’s constitutional rights to present a defense, due process, confrontation and compulsory process were violated. The United States Supreme Court has again and again noted the “fundamental” or “essential” character of a defendant’s right both to present a defense, (Crane v. Kentucky (1986) 476 U.S. 683, 687; California v. Trombetta (1984) 467 U.S. 479, 485; Webb v. Texas (1972) 409 U.S. 95, 98; Washington v. Texas (1967) 388 U.S. 14, 19), and present witnesses as a part of that defense. (Taylor v. Illinois (1988) 484 U.S. 400, 408; Rock v. Arkansas (1987) 483 U.S. 44, 55; Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302; Webb, supra, 409 U.S. at 98; Washington, supra, 388 U.S. at 19.) The Court has variously stated that an accused’s right to a defense and a right to present witnesses emanate from the Sixth Amendment (Taylor, supra, 484 U.S. at 409; United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867) the Due Process Clause of the Fourteenth Amendment (Rock, supra, 483 U.S. at 51; Trombetta, supra, 467 U.S. at 485; Chambers, supra, 410 U.S. at 294; Webb, supra, 409 U.S. at 97; In re Oliver (1948) 333 U.S. 257), or both. (Crane, supra, 476 U.S. at 690; Strickland v. Washington (1984) 466 U.S. 668, 684-85; Washington, supra, 388 U.S. at 17-18.)
Finally, because Doe was arbitrarily denied his state created right to a Kelly determination of reliability, the error violated his right to due process under the Fourteenth Amendment to the United States Constitution. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; see also People v. Sutton (1993) 19 Cal.App.4th 795, 804; Hernandez v. Ylst (9th Cir. 1991) 930 F.2d 714, 716.)
G. Judge Smith Was Bound By Judge Jones’s Ruling Excluding The Expert Handprinting Opinion
When the defense sought to relitigate Judge Jones’s previous denial of their discovery motion, Judge Smith ruled that she was bound to adopt the previous ruling under Code of Civil Procedure § 170 in the absence of good cause to change the ruling.
H. Admission Of The Handprinting Comparison Evidence Was Prejudicial
Precluding a Kelly hearing as to the prosecution handprinting comparison testimony as to the note was especially damaging to Doe for two reasons.
First, the expert opinion that Doe authored the note to a “reasonable certainty” was likely to have an undue influence on the jurors. “Lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials.” (People v. Kelly, supra, 17 Cal.3d at 31.) Thus, “[t]he expert opinion testimony created a significant danger that the jurors would conclude erroneously that they were not the best qualified to assess the [evidence], that they should second guess their own judgment, and that they should defer to the Government’s experts.” (United States v. Hanna (9th Cir. 2002) 293 F.3d 1080, 1087.) [Footnote 14]
Second, the expert testimony conveyed, as a given truth, the essential assumption that all handprinting is unique and individualistic. In other words, the prosecution’s expert’s opinion, to a “reasonable certainty” that Doe authored the note assumed, that the 13 block printed letters and seven numbers on the note were so unique that the author could be determined to the “reasonably certain” exclusion of all other persons. [Footnote 15] Because the defense was not permitted to challenge this essential premise, the jurors were free to fully rely on this premise, as did Judge Smith (RTH 25439-40), to conclude that Doe must have authored the note based on their perceived similarities between the note and Doe’s printing.
Hence, the error was substantial, and because the Roe case was closely balanced (see § 2.3.1(I)(2), pp. 209-11 above, incorporated herein) the error was prejudicial under the state harmless-error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) “‘In a close case . . . any error of a substantial nature may require a reversal and any doubt as to its prejudicial character should be resolved in favor of the appellant.’ [Citation].” (People v. Von Villas (1992) 11 Cal.App.4th 175, 249.) Therefore, the judgment should be reversed under the Watson standard.
Moreover, because the error violated Doe’s federal constitutional rights, the judgment should be reversed unless the prosecution demonstrates beyond a reasonable doubt that there is no reasonable possibility the error could have affected the proceedings. (Chapman v. California (1967) 386 U.S. 18, 23-24; see also In re Rodriguez (1987) 119 Cal.App.3d 457, 469-70 [Chapman standard applied to combined impact of state and federal constitutional errors]; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [same].) Given the closeness of the evidence and the substantial impact of the error, the prosecution cannot meet this burden. Therefore, the judgment should be reversed under the federal harmless-error standard.
Finally, even if the error was not prejudicial as to guilt, it was prejudicial, individually and cumulatively, as to penalty, under both the state and federal standards of prejudice because it undermined the mitigating theory of lingering doubt. The penalty trial was closely balanced [Footnote 16] and the error was substantial. Certainly, erroneously allowing the jury to utilize the note to find Doe guilty of the Roe murders, thereby undermining lingering doubt as to Doe’s guilt, was a “substantial error.” Therefore, the prosecution cannot meet its Chapman burden of proving beyond a reasonable doubt that the error was harmless as to the defense mitigating theory of lingering doubt. (See Volume 6, § 6.5.1(D), pp. 1551-52, incorporated herein [substantial error at penalty is prejudicial under Chapman].) Further, even if that error were viewed solely as an error of state law, reversal would be required, for there is at least “a reasonable (i.e., realistic) possibility” that but for that substantial error, the jury, giving due weight to the lingering doubt they likely would have otherwise harbored, would not have rendered a death verdict. (People v. Brown (1988) 46 Cal.3d 432, 448.)
I. Alternatively The Matter Should Be Remanded For A Hearing Before A Different Judge On Doe’s Challenge To The Handwriting Comparison Testimony
As demonstrated above, the trial court’s improper admission of “expert” handwriting comparison testimony without having permitted a Kelly challenge to that testimony prejudiced Doe at both phases of trial and requires reversal of Doe’s convictions and sentence of death. Alternatively, if the Court believes it possible to remedy the trial court’s error by permitting a post-trial Kelly hearing, the matter may be remanded for a new hearing on the motion at which the burden is properly imposed upon the prosecution. (See People v. Leahy, supra, 8 Cal.4th at 610-11 [remand as proper remedy for erroneous in limine hearing on admissibility of expert testimony].)
Such a remand should be to a different judge. Having already determined and ruled that Doe should be executed, it would be virtually impossible for Judge Smith to remain totally impartial no matter how “objective and disciplined [she] may be. . . .” (People v. Kaanehe (1977) 19 Cal.3d 1, 15.) Therefore, if the matter is remanded, it should be heard by a different judge. (See Rose v. Superior Court (2000) 81 Cal.App.4th 564, 576; People v. Stanley (1984) 161 Cal.App.3d 144, 156; United States v. Mikaelian (9th Cir. 1999) 168 F.3d 380, 387-88; United States v. Clark (2nd Cir. 1973) 475 F.2d 240, 251.)
Footnote 1: Prior to the advent of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 which overruled Frye v. United States (D.C. Cir. 1923) 293 F. 1013 the standard was called the Kelly/Frye test. (People v. Leahy (1994) 8 Cal.4th 587, 593.)
Footnote 2: The terms “analysis,” “procedure,” “method,” or “technique” are used interchangeably throughout the cases and literature. The courts have applied such terms to any kind of testimony based upon an experts “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. (1987) 191 Cal. App. 3d 682, 686.)
Footnote 3: In People v. Leahy, supra, 8 Cal.4th at 594, this Court concluded that Daubert affords no compelling reason for abandoning Kelly in favor of the more “flexible” approach outlined in Daubert. The Court “deemed the more cautious Frye formulation preferable to simply submitting the matter to the trial court’s discretion for decision in each case.” (Id. at 595.) Elsewhere in the opinion, the Court refers to Frye’s “austere standard” and its “essentially conservative nature.” (Id. at 595, 603.) Since the Court explicitly held that Kelly is more cautious, conservative, and austere than Daubert, it follows that a technique that cannot pass muster under Daubert certainly must fail the more stringent Kelly test. Moreover, in applying Kelly, the court in Leahy relied on many of the indicia of scientific reliability found determinative in Daubert. (See Id. at 609 [to be qualified as a Kelly expert on an HGN test, witness must have “some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical surveys, and a host of other relevant factors].) The Daubert reliability factors are therefore highly relevant to the Kelly standard. Even aside from Kelly, these factors are relevant because “the reliability and thus the relevance of scientific evidence is determined . . . under the requirement of Evidence Code section 350, that ‘[n]o evidence is admissible except relevant evidence.” (Id., at 598.) In other words, even apart from Kelly, scientifically unreliable evidence is irrelevant and hence inadmissible. (See also § 2.5.5(B), pp. 411-13, below, incorporated herein.)
Footnote 4: “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 than 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 Courts: Daubert Meets Handwriting Identification Expertise, Michael Risinger and Michael Saks, 82 Iowa L. Rev. 21, 35 (1996).)
Footnote 5: 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 nonscientific fields . . . that are based on observations, not traditional science”].)
Footnote 6: A number of cases which have addressed the issue “distinguish between a questioned document examiner’s testimony comparing the [document] with the exemplars and identifying similarities and differences, and testimony concerning the document examiner’s inferences of authorship based on those similarities.” (Faigman, et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, (West 2002), § 28-1.4.3, p. 423; see e.g., United States v. Crisp, supra; United States v. Hines, supra.)
Footnote 7: 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 8: The prosecution’s expert said that five out of six cases involve handwriting. (RTH 8209-10.)
Footnote 9: In that study only 13% of the handwriting experts tested got the right answer; 45% identified the wrong person. (Fuji, supra, at 941.)
Footnote 10: Judge Smith refused the defense request for a Kelly hearing on the reliability of handprinting comparison opinion testimony because such testimony way now a new or novel scientific subject matter. (RTH 8160-61.)
Footnote 11: See e.g., United States v. Plaza (E.D. Pa. 2002) 179 F.Supp.2d 492 [excluding, in part, expert testimony comparing fingerprints]; Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 Southern California Law Review 605 (2002); James E. Starrs, Judicial Control Over Scientific Supermen: Fingerprint Experts and Others Who Exceed The Bounds, (1999) 35 Crim. L. Bull. 234, 243-246 [describing two cases in England in which misidentifications were made despite the fact that the British examiners insist on 16 points for an identification and triple check fingerprint identifications]; Steele, All We Want You To Do Is Confirm What We Already Know”: A Daubert Challenge to Firearms Identifications, 38 Crim L. Bull. 1 (July/August 2002); Benjamin Bachrach, Ballistics Identification: How Sure Are We That A Match Is A Match?, AFTE Conference 2000 [“The subjective nature of current ballistic identification criteria poses a serious problem for the use of ballistic evidence evaluations in court. Perhaps the most compelling evidence of the need for a quantifiable methodology for firearms identification comes from the Daubert decision”].
Footnote 12: Of course, if the technique has already passed Kelly muster, then Kelly need not be satisfied again unless new evidence has come to light. (See People v. Bolden, supra, 29 Cal.4th at 547.)
Footnote 13: See Volume 4, § 4.3, pp. 1124-45, incorporated herein for additional discussion of Kelly, Prong 3.)
Footnote 14: This risk is present even if the evidence is within bounds of the jury’s ordinary experience. “Expert testimony on a subject that is well within the bounds of a jury’s ordinary experience generally has little probative value. On the other hand, the risk of unfair prejudice is real. By appearing to put the expert’s stamp of approval on the government’s theory, such testimony might unduly influence the jury’s own assessment of the inference that is being urged.” (United States v. Gonzalez-Maldonado (1st Cir. 1997) 115 F.3d 9, 17-18.)
Footnote 15: The jury instructions improperly legitimized the prosecution’s expert’s status as an “expert” by describing him as an “expert.” (See § 2.9.6, pp. 572-75 below, incorporated herein.)
Footnote 16: See Volume 7, § 7.5.1(J)(3)(a), pp. 1619-22, incorporated herein [close balance at penalty demonstrated by near-deadlock, length of deliberations, request for readback of testimony, request for re-instruction, etc.]