Commonwealth v. Glyman, No. 02-499 (Mass. Super 12/15/2003)
| Decision Date | 15 December 2003 |
| Docket Number | No. 02-499,No. 02-500,02-499,02-500 |
| Parties | COMMONWEALTH v. JAMES GLYMAN and KARIN PARHAM |
| Court | Massachusetts Superior Court |
The defendants are charged with offenses arising from alleged falsification of a will. The Commonwealth has indicated an intention to offer expert testimony at trial on the subject of handwriting comparison. The defendants seek to exclude such testimony on the ground that its reliability is not sufficiently established to meet the test of Commonwealth v. Lanigan, 419 Mass. 15 (1994), based on Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (1993), as expanded in Canavan's Case, 432 Mass. 304 (2000), based on Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999). For the reasons that will be explained, the defendants' motion will be denied.
The initial question raised by this motion is whether an evidentiary hearing is required or warranted. The Court concludes that it is not. The Court has before it the report of the proposed expert witness, John Breslin, of the New York Forensic Laboratory of the United States Postal Inspection Service, along with an affidavit of Mr. Breslin; an affidavit of Professor Moshe Kam, expressing the view that research establishes the reliability of expert handwriting comparison; and an affidavit of Professor Michael J. Saks, expressing the contrary view. Professors Kam and Saks appear to be among the leading sources on opposing sides of this issue in the reported cases; all of the decisions the parties have cited in which courts have taken evidence recount their testimony and/or cite their publications. Their affidavits set forth their views at length, and include their responses to each other's views, with which they appear to be familiar. These materials provide ample basis for the Court to decide the issue. The defendants have identified nothing that an evidentiary hearing would add.
Massachusetts, like other jurisdictions, has long admitted handwriting comparison by a qualified expert. See e.g. Commonwealth v. O'Connell, 438 Mass. 658, 662 (2003); Preston v. Peck, 271 Mass. 159, 163 (1930); Richardson v. Newcomb, 38 Mass. 315, 317 (1838). That practice has continued since Daubert and Kumho; Massachusetts Courts have considered the reliability of such testimony to be so firmly established as to obviate any need for preliminary screening. See Commonwealth v. O'Connell, 438 Mass. at 662; Commonwealth v. Murphy, 59 Mass. App. Ct. 571, 576 (2003). In Murphy, the Appeals Court concluded that "as the courts in Massachusetts have long accepted as reliable expert testimony about the authorship of handwriting, a Lanigan hearing was not necessary even had one properly been requested." Id. at 576. The Court cited Commonwealth v. Frangipane, 433 Mass. 527, 538 (2001), in which the Supreme Judicial Court observed that a Lanigan hearing is unnecessary "where qualified expert testimony has been accepted as reliable in the past in Massachusetts Appellate cases."
Federal Courts, like Massachusetts, have long admitted expert testimony on handwriting comparison. See, e.g., United States v. Swan, 396 F. 2d 883, 885 (2d Cir.), cert. denied, 393 U. S. 923 (1968); Ryan v. United States, 384 F. 2d 379, 380 (1st Cir. 1967); United States v. Acosta, 369 F. 2d 41, 42 (4th Cir. 1966), cert. denied 386 U. S. 921 (1967); Fuston v. United States, 22 F. 2d 66 (9th Cir. 1927); Neall v. United States, 118 F. 699 (9th Cir. 1902); United States v. Chamberlain, 25 F. 394 (D. N. Y. 1874). That practice has continued since Daubert, with a series of federal appellate decisions upholding admission of such testimony in the face of Daubert challenges. See United States v. Crisp, 324 F. 3d 261, 270-271(4th Cir. 2003); United States v. Mooney, 315 F. 3d 54, 62-63 (1st Cir. 2002); United States v. Jolivet, 224 F. 3d 902, 905-906 (8th Cir. 2000); United States v. Paul, 175 F. 3d 906, 909-911 (11th Cir. 1999); United States v. Jones, 107 F. 3d 1147, 1156-60 (6th Cir. 1997); United States v. Velasquez, 64 F. 3d 844, 848-850 (3d Cir. 1995).
These decisions rely on two principal points. First, the import of Daubert was not to compel "wholesale exclusion of a long-accepted form of expert evidence." United States v. Crisp, 324 F. 3d at 268. Rather, Daubert provides a framework for courts "to entertain new and less conventional forms of expertise," admitting what is reliable, even if not yet generally accepted, among such new fields, but screening out the unreliable. Id. Second, handwriting comparison, unlike some other areas of expert evidence, is accessible to jurors; they are familiar with the subject matter from everyday experience, and are capable of understanding and evaluating expert testimony on it through their own observation. For that reason, there is little risk of "undue prejudice from the mystique attached to experts." United States v. Paul, 175 F. 3d at 911.
Despite this widespread appellate authority approving admission of expert testimony on handwriting comparison, post-Daubert, two federal district courts have excluded it, largely on the strength of Professor Saks's testimony. See United States v. Saelee, 162 F. Supp. 2d 1097 (D. Alaska, 2001) (involving hand printing); andUnited States v. Lewis, 220 F. Supp. 2d 548, 550-554 (S.D.W.Va. 2003). A third district court adopted the analysis of those two to exclude the evidence. See United States v. Brewer, 2002 U.S. Dist. LEXIS 6689 (E.D.Ill.).
Two other federal district court decisions, on which Professor Saks relies extensively, admitted expert testimony as to handwriting comparison, but imposed certain limitations on the opinions to be expressed. See United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) ()1; United States v. Starzecpyzel, 880 F. Supp. 1027, 1040-1047 (S.D.N.Y. 1995) ().2
Among the reasons recognized in both of these decisions for admitting the testimony, as in the appellate decisions referred to supra, is the familiarity of handwriting comparison to jurors, enabling them to understand and evaluate expert testimony on the subject. See United States v. Hines, 55 F. Supp. 2d at 69-70; United States v. Starzecpyzel, 880 F. Supp. at 1044. Indeed, the Supreme Judicial Court has held that, although expert testimony is helpful, jurors are competent to perform handwriting comparison themselves, without expert testimony. See Commonwealth v. O'Connell, 438 Mass. at 662-663. Unlike other types of expert testimony, which jurors often must evaluate based largely on pure credibility determinations, jurors themselves can see the points of comparison on which a handwriting analyst relies. An expert may point out similarities and differences that untrained jurors would otherwise miss, and may explain their significance in light of the expert's training and experience, but the actual comparison falls ultimately to the jurors themselves. See United States v. Hines, 55 F. Supp. 2d at 69-70; United States v. Starzecpyzel, 880 F. Supp. at 1044.
The overwhelming weight of authority, both before and since Daubert, as well as sound reason, thus favors admission of expert testimony on handwriting comparison. That is not necessarily the end of the inquiry for all time; historical practice could be proved wrong by empirical research. See Commonwealth v. Murphy, 59 Mass. App. Ct. at 576, n. 6 (). But historical practice does establish something in the nature of a rebuttable presumption of reliability, sparing courts and parties from the burden of de novo consideration every time evidence is offered of a type that has long been accepted. See id. at 576; Canavan's Case, 432 Mass. at 317 (Greaney, J., concurring).
The defendants here attempt to challenge the historical practice by the affidavit of Professor Saks.3 The Court has examined that affidavit, along with the contrary affidavits offered by the Commonwealth.4 Professor Saks's opinion, although expressed at considerable length, amounts in substance to three principal points: (1) no empirical research establishes the propositions, widely touted by handwriting examiners, that each individual's handwriting is unique and that no individual writes exactly the same way twice;5 (2) little or no research that Professor Saks considers methodologically sound establishes that handwriting examiners as a group are proficient at making accurate identification; and (3) the research that exists indicates that examiners sometimes disagree with each other, that they sometimes are unable to reach conclusions, and that results of proficiency tests vary widely depending on a number of factors, including the nature of the problems presented and the circumstances of the tests administered.6 7
Professor Saks's objections do not establish that "science in the particular field [has] advance[d] to a point where expert testimony, generally accepted as reliable in the past, would no longer be so considered." Commonwealth v. Murphy, 59 Mass. App. Ct. at 576, n. 6. His first proposition, that research does not establish uniqueness of handwriting, may be of academic interest, but has little bearing...
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