Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Abstract

This article endeavors to improve awareness and enhance the legal and judicial responses to critically flawed evidence from handwriting experts by providing lawyers and trial judges with guidelines for determining when evidence from even presumptively well-qualified handwriting experts is unreliable and should be excluded. Part I discusses the need to replace the foundational tenets that have traditionally been espoused to support the discipline of forensic handwriting analysis with less absolutist statements derived from principles of neuroscience and human motor control theory. Part II provides an overview of the essential requirements for performing reliable forensic handwriting examinations, which lawyers and judges need to know and practitioners should adhere to. Part III seeks to illuminate the impact of cognitive bias on forensic handwriting analysis by discussing the biasing influences that can improperly taint and sway an examiner’s decision-making process and render unreliable his or her opinions and testimony, and by providing an overview of the various methods and techniques available for minimizing, if not eliminating, such adverse influences. Part IV examines the three different types of forensic casework peer review (administrative, technical and verification) and why testimony concerning any type of “review” performed by a non-testifying expert constitutes improper bolstering and/or inadmissible hearsay. Part V discusses the gatekeeping obligation imposed upon trial judges to screen and exclude unreliable evidence proffered by handwriting experts and what lawyers need to do, but all too often fail to do, to facilitate the judge’s role as gatekeeper. Several appellate court decisions are reviewed to illustrate instances of unreliable handwriting identification opinion evidence that escaped recognition and successful challenge at the trial level, as well as one recent district court case in which the proffered testimony of a handwriting expert was properly excluded by the gatekeeper. Finally, Part VI concludes with the author’s thoughts and perspectives on what can and should be done to further enhance the reliability of handwriting identification opinion evidence that is presented in civil and criminal cases, and what is needed to remedy the inequality of resources in criminal cases that effectively deprives defendants and their counsel of the ability to acquire the expertise needed to properly expose flaws and weaknesses in opinion evidence proffered by prosecution experts.