U.S. v. Prime, CR01-0310L.

• Decision Date: 20 September 2002
• Docket Number: No. CR01-0310L.,CR01-0310L.
• Citation: 220 F.Supp.2d 1203
• Parties: UNITED STATES of America, Plaintiff, v. Michael S. PRIME, Defendant.
• Court: U.S. District Court — Western District of Washington

220 F.Supp.2d 1203

UNITED STATES of America, Plaintiff, v.Michael S. PRIME, Defendant.

No. CR01-0310L.

United States District Court, W.D. Washington at Seattle.

September 20, 2002.

Jay Warren Stansell, Federal Public Defenders Office, Seattle, WA, Lee A. Covell, Seattle, WA, for Michael Stefan Prime.

James T. Chou, U.S. Atty's Office, Seattle, WA, for U.S.

ORDER REGARDING DEFENDANT'S MOTION IN LIMINE

LASNIK, District Judge.

On October 9, 2001, Michael S. Prime("Prime") moved in limine to exclude expert testimony on handwriting identification at his trial or, in the alternative, for a hearing to determine the admissibility of such evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993)andKumho Tire v. Carmichael,526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238(1999).Prime's motion brought into issue the testimony of Kathleen Storer("Storer"), a forensic document examiner ("FDE" or "examiner") working for the United States Secret Service in Washington, D.C. Storer was to testify for the government that, in her opinion, Prime's handwriting appeared on counterfeit money orders and other documents.In its response to Prime's motion, the United States insisted that expert testimony regarding handwriting analysis met the Daubert test and that no hearing was necessary.The Court held a Daubert hearing on March 18, 2002, and issued an order denying Prime's motion on April 3, 2002.(Dkt.# 121.)This ruling provides the reasoning behind the Court's conclusion that Storer's testimony was properly included at trial.

I.THE APPLICABLE STANDARD

Until the Supreme Court issued its opinion in Daubert, the trial courts determined the admissibility of scientific evidence by applying the "general acceptance" test.Daubert,509 U.S. at 585, 113 S.Ct. 2786.Under the "general acceptance" test, first articulated by the Court of Appeals of the District of Columbia in Frye v. United States,293 F. 1013, 54 App.D.C. 46(1923), expert opinion "based on a scientific technique [was] inadmissible unless the technique [was]`generally acceptable' as reliable in the relevant scientific community."Daubert,509 U.S. at 584, 113 S.Ct. 2786.In Daubert,the Supreme Court held that this "rigid" requirement had been superceded by Rule 702 of the Federal Rules of Evidence.Id. at 588, 113 S.Ct. 2786.At the time, Rule 702 provided that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."Id.(quotingFed.R.Evid. 702).

In Daubert,the Supreme Court created a gatekeeping role for trial judges as to the admissibility of scientific expert testimony.The Supreme Court envisioned that trial courts would conduct a factor-based analysis when determining whether the testimony was reliable: (1)"whether [the theory or technique] can be (and has been) tested"(2)"whether the theory or technique has been subjected to peer review and publication"(3)"the known or potential rate of error"(4)"the existence and maintenance of standards controlling the technique's operation" and, finally, (5)"`general acceptance' can yet have a bearing on the inquiry."Daubert,509 U.S. at 593-94, 113 S.Ct. 2786.However, the opinion noted that the factors did not comprise "a definitive checklist or test."Id. at 593, 113 S.Ct. 2786."The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission."Id. at 594-95, 113 S.Ct. 2786(footnote omitted).¹

Subsequently, in Kumho Tire,the Supreme Court expanded this gatekeeper function to all expert testimony — i.e. not just that based on science.Kumho Tire,526 U.S. at 147, 119 S.Ct. 1167.The Kumho Tire opinion acknowledged that trial judges would now have to apply the Daubert analysis in the context of experience-based expert testimony.Seeid. at 151, 119 S.Ct. 1167.Perhaps anticipating the problems that would follow if any particular Daubert factor was rigidly applied, the Supreme Court re-emphasized the flexibility that was inherent in the analysis: "[W]e can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence.Too much depends upon the particular circumstances of the particular case at issue."Id. at 150, 119 S.Ct. 1167.For instance, the reliability of engineering testimony could be gauged based on merit of its scientific foundations; however, "[i]n other cases, the relevant reliability concerns may focus upon personal knowledge or experience."Id. at 150, 119 S.Ct. 1167.It made sense therefore to ask different questions of engineering versus perfume experts:

In certain cases, it will be appropriate for the trial judge to ask, for example, how often an engineering expert's experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community.Likewise, it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.

Id. at 151, 119 S.Ct. 1167.A flexible approach does not, however, imply a lax one.Even if testimony is based "upon professional studies or personal experience,"trial courts are to ensure that the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."Id. at 152, 119 S.Ct. 1167.

In Kumho Tire,the Supreme Court also clarified that the application of Daubert by trial courts was to be case- and fact-specific.There, the issue was the admissibility of the testimony of a tire failure expert, Dennis Carlson Jr.

[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.Nor does anyone deny that, as a general matter, tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire. ...[T]he question before the trial court was specific, not general.The trial court had to decide whether this particular expert had sufficient specialized knowledge to assist the jurors "in deciding the particular issues in the case."

Id. at 156, 119 S.Ct. 1167(internal citations omitted).The Supreme Court concluded that the district court's decision to exclude Carlson's testimony after finding that it satisfied none of the Daubert factors"or any other set of reasonable reliability criteria" was within its "lawful discretion."Id. at 158, 119 S.Ct. 1167(emphasis in original).

Finally, in Kumho Tire,the Supreme Court reaffirmed that trial courts enjoy a certain amount of latitude in their admissibility decisions: A trial court's decision on whether or not to include expert testimony was to be reviewed under the abuse of discretion standard.Seeid. at 152, 119 S.Ct. 1167(citingGeneral Electric Co. v. Joiner,522 U.S. 136, 138-139, 118 S.Ct. 512, 139 L.Ed.2d 508(1997)).Trial courts have the same broad discretion "in deciding how to test an expert's reliability" and "whether or not[an] expert's relevant testimony is reliable."Kumho Tire,526 U.S. at 152, 119 S.Ct. 1167(emphasis in original).

II.STORER'S ANALYSIS

According to Storer, the premises underlying handwriting examination and identification are that (1)"No two writers share the same combination of handwriting characteristics" and (2)"Each writer has a range of variation centered within his/her basic writing habits."A proper examination requires sufficient samples of comparable "questioned" and "known" handwriting that are naturally executed.If adequate samples are available, an examiner conducts a side-by-side comparison, including a visual and a microscopic study.The comparison made is of several handwriting features such as style, smoothness, size relationships, slant, spacing, curvature, angularity, punctuation, etc.Similarities and differences in various features have varying levels of significance, and the latter influence the conclusion that is drawn.After the examination, an opinion is expressed on a nine-point scale: "[i]dentification", "[s]trong probability [of identification]", "[p]robable", "[i]ndications", "[n]o conclusion", "[i]ndications did not", "[p]robably did not", "[s]trong probability did not" and "[e]limination."In the Secret Service, a second examiner conducts an independent examination without knowledge of the conclusion of the first.

In the case before the Court, the questioned documents comprised 76 exhibits such as envelopes, postal forms, money orders, post-it notes, express mail labels and postal box applications.The "known" handwriting came from three suspects in the case: 114 pages from David Hiestand("Hiestand"), 14 pages from Jeff Hardy("Hardy") and 112 pages from Prime.In Storer's opinion, Hiestand wrote portions of eight documents, Hardy wrote portions of one of the questioned documents and Prime wrote portions of 45 documents.These opinions ranked the highest in the nine-point scale (i.e.identification).As to portions of 14 questioned documents, Storer opined that Prime was the "probable" writer.As to portions of two exhibits, Storer rendered an "indications" opinion, i.e., that there were "few features which are of significance for handwriting comparison purposes. ..."As to 38 signatures, Storer rendered a "could not be determined" opinion and the remainder of the material had "no evidence of significance"...