UNITED STATES of America, Plaintiff
v.
Masao Fujii, Defendant
No. 00CR17
United States District Court, N.D.
Illinois, Eastern Division
September 25, 2000
152 F.Supp.2d 939 (N.D.Ill. 2000)
Andrea Paula Taylor, Federal Defender
Program, Chicago, IL, Kaaren M. Plant, Chicago, IL, Linda Amdur,
Chicago, IL, Ellen R Domph, Chicago, IL, for Masao Fujii (1) aka Yasuo
Tamura,
defendant.
Ricardo Meza, United States Attorney's
Office, Chicago, IL, for U.S. Attorneys.
RULING ON DEFENDANT'S MOTION TO
EXCLUDE THE TESTIMONY OF THE
GOVERNMENT'S HANDWRITING EXPERT
GOTTSCHALL, District Judge.
Defendant Fujii has moved in limine to
exclude the testimony of the government's handwriting expert, Karen
Ann Cox. The government proposes to call Ms. Cox to identify the
defendant as the writer of certain handprinted immigration forms
submitted at John F. Kennedy International Airport in New York in
December 1999 in connection with the attempted
fraudulent entry of two Chinese nationals; the court has previously
ruled that the December 1999 smuggling evidence, if otherwise
admissible, can be offered under Rule 404(b). On July 17, 2000,
the court held a Daubert hearing to determine if Ms. Cox may
testify as an expert in this case. Having heard the evidence and
reviewed the submissions of the parties, the court concludes that, at
least in the peculiar circumstances of this case, Ms. Cox's testimony
is inadmissible under the standards of Daubert.
In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993), the Supreme Court held that when a party proffers expert
scientific testimony, the trial judge must determine, as a condition
to the admission of the testimony, "whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue." Id. at 592,
113 S.Ct. 2786. "This entails," the Court continued, "a preliminary
assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue." Id.
at 592-93, 113 S.Ct. 2786. In making this assessment, the Court
pointed out, there are a number of pertinent considerations including
whether the technique or methodology at issue has been or can be
tested, whether it has been subject to peer review and publication,
what is the technique's or methodology's known or potential rate of
error and whether the technique has been generally accepted in the
relevant community. Id. at 593-94, 113 S.Ct. 2786. Later, in
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999), the Court made clear that the trial court's
gatekeeper function under Daubert extends to the testimony of
engineers and others who are not scientists. The test for determining
the admissibility of a given expertise, the Court emphasized, is
flexible, and the district court has "the same broad latitude when it
decides how to determine reliability as it enjoys in respect to
its ultimate reliability determination." Id. at 1171.
Since the Daubert decision, a
number of courts have scrutinized the field of handwriting analysis
under its standards with differing results. Prior to Kumho, the
Sixth Circuit affirmed a district court decision allowing handwriting
identification testimony, relying largely on Evidence Rule 901.
United States v. Jones, 107 F.3d 1147, 1158-60 (6th Cir. 1997).
Since Kumho, a number of district courts have excluded expert
opinions on handwriting identification, while sometimes permitting
handwriting experts to testify about handwriting itself to assist the
jury in making its own determination. See United States v.
Rutherford, 104 F. Supp.2d 1190 (D.Neb. 2000); United States v.
Santillan, 1999 WL 1201765 (N.D.Cal. 1999); United States v.
Hines, 55 F. Supp.2d 62 (D.Mass. 1999). But see United
States v. Paul, 175 F.3d 906, 910-11 (11th Cir.), cert. denied,
528 U.S. 1023, 120 S.Ct. 535, 145 L.Ed.2d 415 (1999).
Handwriting analysis does not stand up
well under the Daubert standards. Despite its long history of
use and acceptance, validation studies supporting its reliability are
few, and the few that exist have been criticized for methodological
flaws. (Tr. 57-61.) Further, as discussed in Hines, supra at
68, there has been no peer review by an unbiased and financially
disinterested community of practitioners and academics; the acceptance
of handwriting identification expertise has largely been driven by
handwriting experts. It potential rate of error is almost entirely
unknown. In the study relied on by the government's expert, the Kam
study, a sample of 105 forensic document examiners and 41 laypeople
were tested; 38% of the laypeople made an incorrect match while only
6.5% of the experts made an incorrect match. (Tr. 11-12) But according
to the evidence presented to this court, there are few if any other
studies in existence that tend to validate the reliability of
handwriting analysis. The defense expert in this case testified to
studies that have undermined some of handwriting analysis' key
principles, such as its principle that no two people write exactly
alike. (Tr. 54-55. See also tr.67-68, 70.) Of course, on the
fourth test, general acceptance, handwriting analysis scores high.
This court need not weigh in on this
question, however, for whether handwriting analysis per se
meets the Daubert standards, its application to this case poses
more significant problems. The questioned writing in this case was
handprinting. Typical handwriting analysis involves cursive writing,
and the record is devoid of evidence that there is even a recognized
field of expertise in the identification of handprinting. While Ms.
Cox testified that many of the documents she examines at the INS
involve handprinting, and while she testified that in her prior
employment with ATF, she was tested in identifying handprinting,
"erred," studied, was retested and passed, the court has no idea
whether there is a recognized and accepted expertise in identifying
handprinted documents, let alone whether Ms. Cox is an expert in this
putative field. Michael Saks, who testified for the defense, testified
that he was aware of only one study of the reliability of handprinting
identification, and in that study, only 13% of the handwriting experts
tested got the right answer; 45% identified the wrong person. (Tr.
63.)
The reliability of handprinting
identification, however, is only part of the problem. The government
has offered no evidence that Ms. Cox's expertise extends to making an
identification of handprinting when the handprinter[s] in question are
native Japanese writers. Neither the government's expert, Ms. Cox, nor
the defendant's witness, Mr. Saks, is aware of any studies attempting
to validate handprinting (or even handwriting) identification of the
writings of foreign-trained writers. (Tr. 31-32, 66.) Following the
hearing, the defense submitted the affidavit of Mark Litwicki,
Director of Loyola University's English as a Second Language program.
Mr. Litwicki avers that he has had extensive experience examining the
handwriting styles of foreign students, including Japanese students,
as he has taught many Japanese students in this country. He further
avers that he spent two years teaching English to Japanese students in
Japan and is "especially familiar with the manner in which
Japanese-trained writers make the characters of the English alphabet."
Mr. Litwicki avers that the Japanese language requires its students to
spend a great deal of time learning to write several thousand Japanese
characters, that uniformity of characters is "an important and valued
principle of Japanese handwriting," that Japanese students "spend many
years attempting to maximize the uniformity of their writing" and that
"Japanese-trained writers also tend to write English characters in a
very uniform manner." Mr. Litwicki concludes, "In my opinion, it would
be very difficult for an individual not familiar with the English
handwriting of Japanese writers to identify the subtle dissimilarities
in the handwriting of individual writers."
Ms. Cox testified that there are four
principles she uses in conducting handwriting analyses: that no two
people write exactly alike, that no one person writes exactly the same
way when repeating, that there is a certain skill level in an
individual's writing that that individual cannot surpass and that
there are habits and peculiarities in one person's writing that are
repeated. (Tr. 17.) It is this last principle that raises a troubling
problem in dealing with a native Japanese writer. Does Ms. Cox have
any expertise which would allow her to distinguish between unique
characteristics of an individual Japanese handprinter and
characteristics that might be common to many or all native Japanese
handprinters? In an analysis that depends entirely on what is similar
between writing specimens and what is different, it would seem to this
court essential that an expert have some ability to screen out
characteristics which might appear eccentric to the writer, compared
to native English printers, but which might in fact be characteristics
of most or all native Japanese writers, schooled in English printing
in Japan, in printing English. There is no evidence in the record that
Ms. Cox has such expertise or has even considered the problem Mr.
Litwicki has pointed out.
Considering the questions about
handwriting analysis generally under Daubert, the lack of any
evidence that the identification of handprinting is an expertise that
meets the Daubert standards and the questions that have been
raised — which the government has not attempted to answer — about its
expert's ability to opine reliably on handprinting identification in
dealing with native Japanese writers taught English printing in Japan,
the court grants the defendant's motion.
