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[Ramsey Legal Cases] Wolf vs Ramsey Civil Case 1:00-CV-1187-JEC
Carnes Order March 31, 2003 (Page 41 thru 50)

Pages 01-10
Pages 11-20
Ransom Note
Pages 21-30
Pages 31-40
Pages 41-50
Pages 51-60
Summary Judgment
Libel Claim
Pages 61-70
Lou Smit
Intruder Theory
Pages 71-80
Intruder Theory
Doberson/Stun Gun
Pages 81-93
Carnes Order
Page 1-93


SMF - Statement of Material Fact
PSMF - Plaintiff's Statement of Material Fact
PSDMF - Plaintiff's Statement Disputing Material Fact
Dep - Deposition
Def's - Defendants/Defense

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36. ) There are common terms used within the field. For example, the unidentified writing is generally referred to as the "questioned document." (SMF 214; PSMF 214. ) Writings prepared by a person in the past in the normal course of business are referred to in the field as "historical writings" or "course of-business" writings. (SMF 215; PSMF 215.) In contrast, writings prepared on request for the purpose of comparison are referred to as "request exemplars." (SMF 216; PSMF 216.) Ideally, a handwriting expert should consult the original unidentified writing, not a copy, to increase the reliability of his or her assessment. (SMF 218-219; PSMF 218-219.) The most reliable method of forensic document examination occurs when an examiner compares both historical writings and request exemplars to the questioned document. (SMF 217; PSMF 1 217.)

The recognized method for forensic document analysis occurs in several important steps. First, the expert determines whether a questioned document contains a sufficient amount of writing and enough individual characteristics to permit identification. After determining that the questioned document is identifiable, the expert examines the submitted handwriting specimens in the same manner. If both the questioned document and the specimens contain sufficient identifiable characteristics, then the expert compares those characteristics often through the use of a chart. (SMF 230-232; PSMF 230-232.) For example, the slant of the writing,

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the shapes of the letters, the letter connections, the height of the letters, the spacing between letters, the spacing between words, the "I" dots and "t" crosses are aspects of handwriting that can be used for comparison. Next, the expert weighs the evidence, considering both the similarities and the differences of handwriting, and determines whether or not there is a match. (SMF 232; PSMF 232.) Ignoring differences between characteristics is a frequent cause of error in handwriting identification. (SMF 233; PSMF 233.) Similarly, dismissing differences as merely the product of intentional disguise is another common mistake made in the analysis. (SMF 235; PSMF 235.) In addition, an examiner should not know the identity of the comparators and should consult more than one comparator to increase the reliability of his or her analysis. (SMF 256-57 & 268-72; PSMF 256-57 & 268-72.)

In addition to a recognized methodology, there are some accepted standards that should be employed when engaging in handwriting analysis. One standard is that the genuineness of the historical writing or request exemplar must be verified; that is, the forensic document examiner should ensure the purported author is the true and historical writing is indeed the author. (SMF 223; PSMF 223.) In addition, any differences between the questioned document and the comparison writings are generally considered to be more significant than are similarities, when

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attempting to determine whether someone is the author of a questioned document. (SMF 224; PSMF 224.) The reason that similarity, by itself, is not dispositive is because most people are taught handwriting as children from the same or similar "notebook styles" and, therefore, many people will share common handwriting characteristics called "class characteristics." (Defs. ' Mot. In Limine [68] at 4; Albert S. Osborn, QUESTIONED DOCUMENTS 226 (2nd Ed. Patterson Smith, 1973) , attach. to Defs.' Evid. In Supp., Vol. I, at Tab 16.) The existence of even one consistent fundamental difference between writings, however, has historically been viewed as a legitimate basis for concluding that two writings were not produced by the same person.23 (SMF 225; PSMF 225.) Finally, it is generally accepted that consistent characteristics present over the course of a long writing should be viewed as genuine characteristics of the author's handwriting, and not the product of an attempt to disguise. (SMF 237; PSMF 237. )

Based on the above undisputed information, the Court concludes, as a general proposition, that forensic document examiners, who are equipped with the proper background qualification and who employ the accepted methodology in their


23 Plaintiff contends, however, that modern handwriting analysis literature also views significant similarities as strong evidence that, in some instances, can outweigh an unexplainable difference between the writings. (PSMF 225.)

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analysis, can serve to assist the trier of fact, in some regards, through providing reliable testimony about similarities or differences, or both, between a questioned writing and comparative exemplars.24 Such a holding is consistent with the precedent established by the Eleventh Circuit in U.S. v. Paul, 175 F.3d 906 (11th Cir. 1999) . In Paul, the Eleventh Circuit held that a forensic handwriting expert can, in some instances, assist the "jury or trier of fact to understand the evidence or to determine a fact in issue" Id. at 911. In Paul, the expert was deemed qualified to provide reliable testimony based on his thirty years of experience in the field and application of widely accepted methods of analysis. Likewise, this Court concludes that when a forensic handwriting expert possesses the proper qualifications and when he or she employs reliable methodology, the testimony can qualify as "specialized knowledge" that can be admitted pursuant to Federal Rule of Evidence 702. See also United States v. Jolivet, 224 F.3d 902, 906 (8th Cir. 2000) (affirming the district court's admission of forensic document expert testimony and


24 Rule 702' s requirement that evidence "assist the trier of fact in reaching its conclusion" goes primarily to relevance; an assessment of reliability is an additional component of the judge's gatekeeper function. Daubert, 509 U.S. at 591-92. "Simply put, expert testimony that does not relate to any issue in the case is not relevant, and thus, not helpful. Reliability, on the other hand, is an assessment of whether the expert's reasoning or methodology is valid and warrants the relaxation of the common law first-hand knowledge requirement for witnesses." United States v. Lewis, 220 F.Supp.2d 548, 552 (S.D. W.Va. 2002).

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finding such opinion reliable because the expert was well qualified in handwriting analysis and his testimony "may be properly characterized as offering the jury knowledge beyond their own and enhancing their understanding of the evidence before them. ") . Accord United States v. Jones, 107 F.3d 1147, 1160-61 ( 6th Cir.), cert. denied, 521 U.S. 1127 (1997).

c. Background and Qualifications of Plaintiff's Experts

Although the Court has concluded that a proper expert may assist a jury in a comparison of handwriting between a known and an unknown piece of writing, that conclusion does not mean that a person can be deemed as an expert in forensic document examination merely by announcing himself as such. Indeed, defendants assert that plaintiff's experts, in particular Ms. Wong, lack the necessary credentials to qualify as experts. (Defs.' Br. In Supp. Of Mot. In Limine [68 ] at 5-7; Reply Br. In Supp. Of Mot. In Limine [90] at 2.) For the reasons discussed below, the Court agrees with defendants that Wong is not qualified to provide expert testimony. The Court, however, finds that Epstein is qualified to present certain expert testimony in this case.

Mr. Epstein is a forensic document examiner who served as the past president of the American Society of Questioned Document Examiners, is a registered member of the ABFDE, and has authored several authoritative texts in the field. (PSDMF [88] , 1; Epstein Aff. 12-15.) He has a Bachelor of Science in Criminal

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Justice from the University of Nebraska, a Masters of Forensic Science from Antioch School of Law, successfully completed a two year resident training program in the forensic science of Questioned Document Examination at the U.S. Army Crime Laboratory in Fort Gordon, Georgia, and has trained with the Post Office Identification Laboratory. (Id. . 2.) Plaintiff notes that Mr. Epstein has "appeared in 200 cases over a thirty year period, having examined thousands of documents... [, has] established questioned document laboratories for not only the U.S. government, but for those of Eastern Europe and the Philippines as well, while teaching hundreds of government document examiners their professions." (Pl.'s Br. In Opp. To Defs.' Mot. In Limine (87] at 8. ) In addition, Epstein has taught Forensic Document Examination at the George Washington Graduate School of Forensic Sciences, the Federal Law Enforcement Training Center, and in programs offered to the United States Army Criminal Investigators. (Epstein Aff. ,. 6-7.) The Court concludes that Mr. Epstein's background constitutes sufficient qualifications to allow him to testify in the field of forensic documents' examination. See, e.g., United States v. Paul, 175 F.3d at 911 (finding handwriting expert with fourteen years of experience should be admissible); United States v. Velasquez, 64 F.3d 844, 846 (3rd Cir. 1999) (finding same); Unites States v. Gricco, 2002 WL 746037, *2 (E.D. Pa. April 26,

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2002) (finding forensic document analyst with similar extensive qualifications to be qualified as an expert) .

In stark contrast to Epstein, Wong has never taken a certification exam, completed an accreditation course in document examination, been an apprentice to an ABFDE certified document examiner, or worked in a crime lab. (Wong Dep. at 87-112.) She does, however, claim nearly ten years of experience in the field. (PI.'s Br. In Opp. To Defs.' Mot. In Limine [87] at 9.) She, however, is not a member of the ABFDE, the sole recognized organization for accreditation of qualified forensic document examiners. Although she is the former vice president of the National Association of Document Examiners ("NADE"), (PSDMF' 2), defendants note that this organization does not meet ABFDE certification requirements, has no permanent office and has no membership requirements other than the payment of a fee. (Defs. ' Mot. In Limine [68] at 6.) Wong, herself, admits that NADE does not require specialized training or experience forits certification. (Wong Dep. at 87-89.) Finally, even Epstein, plaintiff's other expert, testified that Wong is not qualified to render 'opinions in this case. (Epstein Dep. at 32-33.) Accordingly, the Court concludes Ms. Wong is not qualified to provide reliable handwriting analysis in this case. Therefore, the Court GRANTS defendants' motion in limine to exclude the

Page 48

testimony of Ms. Wong and the Court does not consider Ms. Wong's testimony in its analysis of defendants' summary judgment motion.

D. The Reliability of Epstein's Proffered Testimony.

Although the Court has concluded, as a general matter, that Epstein is qualified to testify as a forensic documents examiner, it must still determine the parameters of his expertise with regard to the opinions he seeks to offer. Specifically, Epstein claims that he can state, with absolute certainty, that Mrs. Ramsey is the author of the Ransom Note. The Court, as gatekeeper, must therefore examine the methodology that he puts forward in support of such a categorical conclusion. First, Epstein states that he used the standard methodology of forensic document examiners when assessing the Ransom Note and Mrs. Ramsey's writing samples. (Epstein Aff. 25.) He initially determined that he had a sufficient amount of handwriting by Mrs. Ramsey to allow an examination. (Id. , 26.) He then proceeded to examine the submitted materials for similarities and dissimilarities. . (Id.) After conducting the examination, he then determined that the original writing and the exemplars matched to a "one hundred percentU degree of certainty. (Id. 26, 31.) Finally, he consulted other forensic document analysts who approved of his methodology and result. (Id. , 32.)

Defendants move to exclude the testimony of Epstein because they assert that the methodology he employed does not meet the

Page 49

accepted standards of handwriting analysts. In particular, defendants argue that Epstein's opinions are not reliable because he did not consult the original Ransom Note, original handwriting exemplars of Mrs. Ramsey, nor original course-of-business writings of Mrs. Ramsey. (Defs.' Mot. In Limine (68 at 8.) Epstein acknowledges the importance of consulting original documents in an article he coauthored, appearing in the 1971 edition of Identification News, a publication of the International Association for Identification. (SMF 220; PSMF 220.) In this text, Epstein writes that:

All investigative agencies should be aware of the limitations that are imposed upon the Questioned Document Examiner by the submission of copies (Xerox, Photo, or Thermofax) in place of the original. By having to use the copies, the examiner is being deprived of one of the most important elements of scientific examination, the study of line quality of the writing. Those breaks, pressure areas, and even spacing, can often be attributed to the mechanical method of reproduction and not to the actual writing itself. A qualified conclusion based on examination of only copies is not rare. ATTEMPT TO OBTAIN THE ORIGINALS WHENEVER POSSIBLE.

(SMF 129; Hans M. Gideon & Gideon Epstein, "The Obtaining of Proper Handwriting Exemplars and Standards," emphasis in original, Ex. A to Jordan Aff., Tab. 23. ) The parties also agree that mechanical copying may distort the writings or eliminate subtleties, such as pen lifts, hesitations, pressure or feathering. " (SMF 222; PSM 222 . ) Notwithstanding his previous warnings about the use of copies. Epstein testified in

Page 50

this case that copies produced today are 'of a higher quality than those generated at the time the article was produced and, therefore, some of the concerns expressed in the article have been mitigated. He still agreed, however, that it is optimum to review the original. (PSMF 219.)

It is undisputed that a number of subtle and critical handprinting features observable on examination of the original Ransom Note cannot be observed from an examination of a machine copy of the Ransom Note. (SMF 245; PSMF 245.) Plaintiff's experts, however, were not afforded the opportunity to consult the original Ransom Note, original exemplars, or the course-of business writings of Mrs. Ramsey. Defendants refused to provide original exemplars, despite plaintiff's discovery requests. 25 (PI.' s Br. In Opp. To Defs.' Mot. In Limine [87] at 20.) The Court concludes that any reliability concerns stemming from Epstein's failure to consult the originals should go to the weight of his testimony, but should not bar its admission, completely. To hold otherwise could create a perverse incentive for individuals not to allow an opponent access to original documents, in order to render those expert's opinion inadmissible.

In short, the Court is satisfied as to Epstein's ability to testify concerning perceived similarities and differences in Mrs.


25 At the same time, plaintiff never sought a motion to compel such production. (See Defe.' Br. In Supp. Of Mot. In Limine [90] at 11 n.7.)

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