Expert handwriting testimony: is the writing really on the wall?

• Author: Francini, Simone Ling

1. INTRODUCTION

   On April 3, 1936, the state of New Jersey executed Bruno Richard Hauptmann for the kidnapping and murder of Charles A. Lindbergh, Jr., son of aviator Charles Lindbergh. (1) Fours year prior to his execution, Bruno Hauptmann found himself defending his very life in the "trial of the century." (2) A ransom note left on the windowsill of Baby Lindbergh's room and another note that followed the kidnapping sparked huge controversy over the author of the notes. (3) Among the evidence centering the prosecution's case, lay the testimony of the handwriting expert, Albert S. Osborn, who asserted that Bruno Richard Hauptmann wrote the notes as part of his kidnapping scheme. (4) A handwriting expert for the defense testified and contended that Mr. Hauptmann did not write the ransom notes. (5) Whether Bruno Richard Hauptmann wrote the ransom notes remains a controversy today. (6)

   Some authors and advocates argue that our legal system victimized Bruno Hauptmann because of the admission of questionable evidence: expert handwriting testimony. (7) This controversy extends far beyond this infamous case, reaching the academic and judicial forum. (8) Critics of handwriting expertise, mainly argue against the field's reliability and credibility as a science. (9)

   Furthermore, contention between the United States Courts of Appeals and the Federal District Courts evinces inconsistent application of the governing standards for the admission of scientific evidence. (10) With some of the lower federal courts questioning the reliability of expert handwriting testimony, and, therefore, its appropriate admissibility as expert testimony, some of these district courts bar the evidence completely. (11)

   Other districts courts approach the issue of expert handwriting testimony admissibility by separating the testimony into two categories, limiting the expert testimony by denying testimony on authorship. (12) Specifically, these district courts that express concerns over the reliability of any form expert handwriting testimony, are primarily troubled by the lack of evidence supporting the field's validity outside its own community. (13)

   This note will focus on the failure of the United States Court of Appeals to adhere to the admissibility standards set forth by the United States Supreme Court. After detailing the criticisms of expert handwriting testimony in both the academic legal field and the judicial forum, this note advocates for a strict adherence to the Supreme Court standards, which ultimately would bar all forms of expert handwriting testimony until the scientific reliability of this field is adequately established. Additionally, this note addresses the compromised approach of some districts courts as an alternative to a complete bar of expert handwriting testimony.

   Specifically, Part II chronicles the early history of handwriting identification expertise, from its early origins in the French legal system through its development in Anglo-American jurisprudence. (14) This section also explores the admission of expert handwriting evidence under previous standards and the application of the current test as promulgated by the Supreme Court. (15) Part III reviews the current state of the law in the federal courts, highlighting the contention over the reliability of expert handwriting testimony between the United States Court of Appeals and the United State District Courts. (16) Additionally, Part III analyzes the current test by specifically tracing the inconsistencies of its application throughout the circuits of the United States Court of Appeals. (17) These inconsistencies sparked additional criticism from those who oppose admitting expert handwriting testimony. (18) Finally, Part IV advocates for a strict adherence to the current Supreme Court test, contending that expert handwriting evidence on authorship should not fall under the purview of the Federal Rules of Evidence as expert testimony. Rather, this type of evidence should be considered lay testimony until the establishment of the field's reliability. (19)

2. HISTORY OF EXPERT HANDWRITING TESTIMONY

   1. Early Legal Roots of the First Forensic Evidence

      Just as all men do not have the same speech sounds; neither do they have the same handwriting. (20)

      Forgery detection dates back centuries to the reign of the great Greek and Roman philosophers. (21) As far back as Aristotle, scholars have maintained that an individual's unique handwriting could lead to his or her identification. (22) The earliest systems of handwriting analysis date back to seventeenth century France and Italy. (23) By 1737, France incorporated a system of forgery detection into the law through the enactment of the Code de Faux (translated as the Code Concerning Forgeries). (24) Such a formality, however, did not exist in the Anglo-American courts until a century later, when English barristers successfully persuaded the courts to accept the credibility of handwriting expertise. (25) Moreover, handwriting identification expertise became the first type of "forensic expertise" (26) permitted in the Anglo-American courtroom. (27)

      Most American jurisdictions followed the old English practice of barring expert handwriting testimony until the enactment of the Common Law Procedure Act of 1854. (28) In 1836, Massachusetts became the first jurisdiction to recognize and admit the testimony of a handwriting expert in Moody v. Rowell, (29) however, not without doubts as to its reliability. (30) As an interesting caveat, the Supreme Judicial Court in Moody reasoned that admitting such evidence would not be any more harmful than the previous methods employed to determine authorship of questioned documents. (31) These previous methods included using lay witnesses who were familiar with the alleged author's handwriting to authenticate the handwriting in the questioned document. (32) Today, the use of lay testimony is governed by Federal Rules of Evidence 701. (33)

      Eventually, many American jurisdictions followed Massachusetts and started to admit expert handwriting testimony, yet based on the same tenuous explanation articulated in Moody. (34) This set the stage for the controversy surrounding the "science" of handwriting analysis as a reliable tool and its appropriate place in American jurisprudence. (35) Given that the only explanation for the admission of expert handwriting testimony rested on the notion that it was better than using lay witnesses, critics contend that this justification has no place in the courtroom because there is no proof of such an assertion. (36)

      The Court of Appeals of New York in Hoag v. Wright (37) summarized the very crux of the dispute surrounding the admission of handwriting expertise by questioning the reliability of the expert's technique. (38) Acknowledging the dubious value of handwriting expertise, the court explained that "in so many cases where such evidence is received witnesses of equal honesty, intelligence and experience reach conclusions not only diametrically opposite, but always in favor of the party who called them." (39) After Hoag, some courts continued to reject handwriting expertise while others that admitted this evidence remained skeptical. (40) Eventually, expert handwriting testimony gained widespread acceptance in courtrooms, and demands for handwriting experts increased. (41) During the early part of the twentieth century, handwriting analysis manuals emerged, training others in this field while continuing to battle skepticism. (42)

      Handwriting expertise gained great momentum into the field of "science" after the publication of QUESTIONED DOCUMENTS, a collaboration between Albert S. Osborn, known for his expert testimony in the Lindbergh Baby Kidnapping case and John Henry Wigmore, known for his treatise on evidence. (43) Heralded as the quintessential book on handwriting analysis, Osborn and Wigmore effectively launched the field of handwriting expertise out of the realm of "quack science" for the time being.(44) The infamous "Lindbergh baby kidnapping" case, State v. Hauptmann, (45) evidenced Osborn's culminating triumph in the field. (46)

      In Hauptmann, Osborn, an expert witness for the prosecution, testified that Bruno Richard Hauptmann wrote the ransom notes found in connection with the kidnapping of Charles A. Lindbergh, Jr. (47) Subsequently, a jury convicted Hauptmann of kidnapping and murder, arguably due to the testimony of the handwriting expert as asserted by the defense. (48) Proclaimed as an expert in the field of handwriting identification and forgery detection after the Hauptman case, Osborn increased acceptance for the field, while temporarily eradicating some of the skepticism aforementioned in Hoag. (49)

   2. Admitting Handwriting Evidence: Gatekeepers Beware

      As previously discussed, testimony from handwriting experts has a long history in the courtroom, receiving widespread acceptance in both the federal and state court systems. (50) For many years, courts admitted testimony from both lay witnesses and "experts" to identify authors of questioned documents. (51) In Frye v. United States, (52) the Court of Appeals for the District of Columbia stated that expert opinion based on scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the "relevant" scientific community. (53) With regards to handwriting expertise, the particular technique employed by the handwriting expert need only be accepted within the field of handwriting analysis. (54)

      The Frye "general acceptance" standard remained the test for admitting forensic or scientific evidence until the enactment of Federal Rule of Evidence 702, which conflicted with the Frye test. (55) Federal Rule of Evidence 702 allows a qualified witness to testify if it will assist the trier of fact. (56) The key language in the rule "assist the trier of fact" and "qualified as an expert" suggests the need for further exploration into the reliability of...