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November/December 2008
Feature

2008 ASTM International Advantage Award Third Place

Standards for Questioned Document Examination

Preparing Document Examiners for the Judicial System of the 21st Century

This paper shows how standards created for the discipline of forensic document examination have aided analysts in day-to-day case work and in the courtroom. The examination of questioned documents has been practiced since the creation of handwriting itself and courtrooms in the United States have utilized this genre of forensic science for over a century.

A 1993 court ruling, Daubert v. Merrell Dow Pharmaceuticals Inc.,1 created five nonexclusive factors intended to be a checklist to aid trial judges in determining whether or not an examiner’s scientific methods were reliable. Intended to simplify the process of admitting an expert witness, the five factors were soon used as a method to disqualify forensic experts via a courtroom procedure known by many in the legal field as a Daubert challenge. One of the five factors, and one often mentioned by judges, is “the existence and maintenance of standards controlling the technique’s operation.” ASTM International Committee E30 on Forensic Sciences and the standards created by its members2 have been paramount in helping forensic document examiners address these challenges and keep a valuable and necessary forensic discipline in the courtroom.

Brief History of Handwriting Examination in U.S. Litigation

Carried over from the British judicial system, document examination has always been allowed in U.S. courtrooms. In the early 20th century two events helped further establish the examination of documents as an important resource in litigation. The first was a 1913 U.S. statute3 that allowed for the admittance of known handwriting exemplars into court for comparison purposes. And the second was the 1923 ruling in Frye v. United States,4 which stated that, to be admitted for testimony, a scientific principle should have gained general acceptance in the particular field in which it belongs. The Frye rule or Frye standard, as it would casually become known, set precedence for expert opinion testimony for 52 years and is still the benchmark for many federal, state and municipal courts in the United States today. Court rulings like these and high profile trials solidified the importance of questioned document examination as a necessary forensic discipline. Some trials of note include the 1924 murder of Bobby Franks,5 the 1932 kidnapping of Charles Augustus Lindbergh Jr.,6 and the 1956 kidnapping of one-month-old Peter Weinberger.

Brief History of E30 and E30.02

Committee E30 on Forensic Sciences was established in 1970 and at that time contained only a handful of members. The early meetings were formal in structure but relaxed in attitude, with examiners discussing important issues, tossing ideas around and deciding which methods should one day become standards. The first standard produced by E30 was E444, Guide for Scope of Work of Forensic Document Examiners, which was approved in 1972.
Since those early days E30 has grown to include six subcommittees:

  • E30.01 on Criminalistics,
  • E30.02 on Questioned Documents,
  • E30.05 on Engineering,
  • E30.11 on Interdisciplinary Forensic Science Standards,
  • E30.12 on Digital and Multimedia Evidence, and
  • E30.92 on Terminology.

Currently the questioned document subcommittee has 231 members and 18 active standards under its designation.

Although initially created to establish solid methodologies, promote best practices and advance the questioned document field, the ASTM standards became even more important when the scientific reliability of document examination was put to task by a few critics and changes in the admissibility of expert witness testimony.

First, the critics.

The Critics

In 1989, a Pennsylvania law review article7 written by three law professors raised serious doubts concerning the reliability of questioned document examination. Although uneducated in forensic science and having no formal training, the critics raised intelligent issues in their assessment and asked questions never before addressed by document examiners in the field. To summarize, the critics claimed the validity of questioned document examination had never been tested, no validity studies existed in academic literature and the law had never required the document field to prove its expertise. The critics cited four studies from the 1980s,8-11 one from the 1970s12 and another from the 1930s.13

Although none of the studies were designed for the purpose of validation and were rife with defects and flaws, as admitted by the critics themselves, they remained the crux of evidence for the critics. Most document examiners paid little attention to the 1989 article. Since the authors had no forensic science training, very little practical, and no technical knowledge in the field, they were not considered a threat nor taken seriously. By itself it can never be known whether or not the law review article would have made an impact on the questioned documents field, but a landmark court ruling four years later would stir up the entire forensic litigation world, and forensic document examination would be one of the first to experience the new challenge.

The Daubert Challenge

A more liberal view on allowing expert testimony came about when the Federal Rules of Evidence were enacted in 1975.14 The rules related to expert witness testimony and gave the court more discretion than provided in the past in determining if an expert will be allowed to testify and if his/her testimony will aid in the fact–finding in the case. The question now was which standard would be adhered to, the Frye rule or the more open and less conservative Federal Rules of Evidence. The answer came slightly less than two decades later with a ruling in a 1993 case for Daubert v. Merrell Dow Pharmaceuticals Inc.15 In that ruling the judge was now assigned the duty of gatekeeper tasked with the role of excluding any scientific discipline not worthy of courtroom testimony. The ruling added four factors, non-exhaustive, for judges to consider when assessing the admissibility of scientific evidence in addition to Frye’s general acceptance. The four factors are:

  • Whether a theory or technique can be, or has been, tested;
  • Whether the theory or technique has been subjected to peer review and publication;
  • Whether there is a known or potential rate of error; and
  • Whether there are standards controlling the technique’s operation.

These new factors were meant to give judges more leeway when deciding to allow expert witness testimony but, in an odd reversal, were used to created a more rigid testing ground instead. Daubert now became a test of each forensic science technique previously used and accepted for more than 50 years in American courtrooms.

Two more cases would expand on the framework initiated by Daubert: U.S. v. Starzecpyzel16 in 1995 and Kumho Tire Co. v. Carmichael17 in 1999. To summarize, the Starzecpyzel case stated that the Daubert factors did not pertain to questioned documents because the examination of documents is based on technical, and not scientific, knowledge, likening the profession to “harbor pilots” in a backhanded reprimand regarding the inability to meet the Daubert factors in this first challenge. In Kumho, the verbiage of Federal Rule 702 was initiated so that expert witness testimony included scientific, technical or other specialized knowledge.

No trained document examiner would state their practices or methodologies were not sound or that their ability to distinguish handwriting unreliable. However, at that time, the empirical research was minimal and many practices based on anecdotal experiences. Error rates were not established and only a few standards existed. This lack of preparedness and the unwillingness of some attorneys to take Daubert challenges seriously led to early disappointing courtroom decisions. Using Daubert as a weapon, a common defense strategy became attempting to limit or exclude many areas of expert testimony.

Some Early Losses

The first successful attempt to limit a document examiner's testimony came in U.S. v. Timothy James McVeigh18 in 1997. In McVeigh, the court determined that the document examiner would not be allowed to testify to an opinion but instead could merely point out similarities and differences. Due to this ruling, the prosecution decided not to call its handwriting expert, but the significance of the decision to limit an examiner’s testimony was lost on no one.** The pseudo-success in this case launched a litany of Daubert challenges wherein the defense attempted to exclude questioned document testimony from trial or hinder the document expert from giving his or her opinion. Other disappointing rulings for the forensic document field include U.S. v. Kent Rutherford19 and U.S. v. Chan Ian Saelee.20

In Rutherford, the document examiner was allowed to point out similarities and differences found in the evidence but could not testify to an opinion. In Saelee, the court excluded the document examiner from testifying altogether, stating “the government has failed to meet its burden of establishing that the proffered expert testimony in this case is admissible under Rule 702.” These exclusions were a wake-up call to the document community and helped ignite needed research that would prove most beneficial and would promote better organization and materials for attorneys involved in these challenges. Of the greatest benefit was the need to standardize all methodologies and examination practices used in the questioned document field.

Getting the Ball Rolling

The questioned document field made huge strides in research and publication to thwart Daubert challenges in the courtroom. Unfortunately, after the completion of E444, Committee E30 lay dormant for approximately 17 years, and no new guides were drafted until its reactivation in 1989. At the time of the McVeigh trial in 1997, Subcommittee E30.02 had five standards under its jurisdiction. They were the previously mentioned E444 as well as E1422, Guide for Test Methods for Forensic Writing Ink Comparison; E1658, Terminology for Expressing Conclusions of Forensic Document Examiners; E1732, Terminology Relating to Forensic Science; and E1789, Guide for Writing Ink Identification.

In order to defend the field, more standards needed to be drafted. Because drafting a standard is an arduous task, the process of writing the necessary standards was a slow one. Around 1997, the U.S. Federal Bureau of Investigation created an organization called the Technical Working Group for Document Examination, or TWGDOC. This group was made up of members from various laboratories, and its purpose was to speed up the drafting of questioned document standards. A few years later the technical working group would change to the scientific working group, or SWGDOC. Today, nearly all of Subcommittee E30.02’s standards are based on guidelines written by SWGDOC.

ASTM Standards Help Make a Difference in the Courtroom

No document examiner will enter a Daubert challenge without a list of the relevant ASTM standards. Many examiners take a list of the standards with them every time they testify.

Since the early defeats, questioned document examiners have rallied together and compiled a string of victories in the Daubert challenge arena, and the ASTM standards were a big contributor to those victories. There is no doubt that the standards have made a huge impact on courtroom rulings. Below is a list of decisions, transcripts and government responses where ASTM was invoked:

Appellate Court Decisions

1. U.S. v. Chris Rutland and Barbara Grams (3rd Cir., 2004), Crim. No. 02-494(DRD).

2. U.S. v. Prime, 02-30375 (9th Cir. 2004), D.C. No. CR-01-00310-RSL.

3. District Court decisions (Daubert exclusion denied)

4. U.S. v. Hanner (3rd Cir June 2007) HW, Pr Pro, TW

5. U.S. v. Stephen Yagman (9th Cir May 2007).

6. U.S. v. Weiss (10th Cir, April 2007), Criminal Case No. 05cr00179LTB

7. U.S. v. Ferguson (6th Cir, Aug 2004), Case No. 3:03cr019.

8. U.S. v. Pirchesky (11th Cir, Aug 2004) Case No. 01-608-CR-SEITZ.

9. US v. Jeffrey H. Feingold (9th Cir, April 2004), CR 02-0976-PHX-SMM.

10. U.S. v. William E. Lecroy Jr. (11th Cir, January 2004), Criminal Indictment No. 2:02-CR-038).

11. U.S. v. Janet Thornton, 10th Cir., Wichita, KS (Jan. 2003).

12. U.S. v. Gricco, 2002 WL 746037 (3rd Cir. 2002).

13. U.S. v. Broten (2nd Cir. 2002), NY, Case No. 01-CR-411 (DNH).

14. U.S. v. Lindsey, U.S. District (9th Circ. 2002), CR No. 00-00482DAE.

15. U.S. v. Terry Kirby (11th Cir., 2001),1:01-CR-642, U.S. District Court, Georgia. Judge filed report on 5/10/02. Decision based in part on U.S. v. Gricco.

State Court Decision

1. State of Nevada v. Warren, Tracy Morrell (2004) County No. 02F15712X, Metro No. 020828-0764, Daubert hearing.

District Court Decisions (conclusion excluded)

1. US v. Hidalgo, Phoenix, AZ, US Dist., CR-01-1011-PHX-FJM (2002).
These cases alone are a huge testament to the impact the ASTM has had on the questioned document field. But the standards have done more than just aid in litigation.

ASTM Standards Help Make a Difference Outside of the Courtroom

The American Board of Forensic Document Examiners is the premier certifying body in the field of questioned document examination. Formed in 1977 as a vehicle to help identify qualified forensic document examiners, the ABFDE has over 120 members and diplomates from all of the federal crime laboratories to include the U.S. Secret Service, the Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, the Internal Revenue Service, the U.S. Postal Inspection Service, the Bureau of Alcohol, Tobacco and Firearms and the U.S. Army Criminal Investigation Crime Laboratory.

The ABFDE also has diplomates from the private document examination sector along with state and municipal crime laboratories as well. As the premier certifying body, the ABFDE is vested in serving the public interest and maintaining a high level of quality. To maintain this level of quality, the ABFDE voluntarily sought to attain accreditation through the Forensic Specialties Accreditation Board Inc., and the publication of ASTM standards made this process possible. Formed in 2000, FSAB was created to assess how various certifying boards were granting certification. A primary objective of FSAB includes “monitoring the quality and consistency of credentialing of forensic specialists by the various forensic boards.”

To obtain FSAB accreditation, a certifying body must submit an extensive application. The application contains a list of criteria that must be met before accreditation is granted. One requirement in Section 5.3.3 concerns training and reads:

“For forensic specialties where the required knowledge and competency is predominantly experience-based, this must be primarily gained through a formal training program that involves extensive peer-based review. Note: A formal training program is one that has a pre-defined list of training topics and is conducted by one or more individuals with expertise in those areas. The nature of the training program, dates training occurred and the name of the individual who trained, should be available. For training that occurred many years ago for which such records are not available, there should be a list of the training that did occur and which is considered equivalent, even if it did not occur over a contiguous time period. The training should be verifiable. Correspondence and conference attendance are not recognized as primary training in the forensic specialties. For skill-based training, the identity and qualifications of the trainer should be documented.”

Fortunately, ASTM standard E2388, Guide for Minimum Training Requirements for Forensic Document Examiners, addresses this requirement. This may be one section in a long list of criteria, but if it were not for E2388, accreditation would not have been possible.

In Conclusion

The legal world is a dynamic and ever-altering one with forensic science seated in the middle of it all. The changes described above challenged the field of questioned document examination in a way that had never happened before. Through hard work and unity, document examiners drudged through the hard times and persevered. The victories, however, could not have been accomplished without help from ASTM International’s standards development process. Having standards to consolidate procedures and merge methodologies is a great tool to solidify the reliability of a forensic discipline.

The 18 published standards drafted by Subcommittee E30.02 give credence to the questioned document field and supply defensive ammunition for attacks in court. Whether an ink analysis or a handwriting examination, document examiners can feel confident when confronting a Daubert challenge, knowing that one of the Daubert factors, “whether there are standards controlling the technique’s operation,” is not a factor at all.

The author wishes to thank the following people:

Mary Fitzgerald, Bill Riordan, Karen Runyon, Kirsten Singer, Kathleen Storer and Peter Tytel.

References

1. Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S. Ct. 2786 (1993)

2. For referenced ASTM International standards, visit the ASTM Web site, www.astm.org.

3. U.S. Statute of 1913, Chapter 79

4. Frye v. U.S., 293 F 1013 (D.C. Cir. 1923)

5. Illinois v. Nathan Leopold and Richard Loeb

6. The State of New Jersey v. Bruno Richard Hauptman

7. University of Pennsylvania Law Review, “Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification “Expertise”, D. Michael Risinger, Mark P. Denbeaux & Michael J. Saks. 1989.

8. Collaborative Testing Services Inc., Crime Laboratory Testing Program, Rep. No. 84-7, Questioned Document Analysis (1984)

9. Collaborative Testing Services Inc., Crime Laboratory Testing Program, Rep. No. 85-8, Questioned Document Analysis (1985)

10. Collaborative Testing Services Inc., Crime Laboratory Testing Program, Rep. No. 86-5, Questioned Document Analysis (1986)

11. Collaborative Testing Services Inc., Crime Laboratory Testing Program, Rep. No. 87-5, Questioned Document Analysis (1987)

12. J. Peterson, E. Fabricant & K. Field, Crime Laboratory Proficiency Testing Research Program: Final Report 181-83, 194, 236-37 (1978)

13. Inbau, Lay Witness Identification of Handwriting, 34 Ill. L. Rev. 433 (1939)

14. FRE 702-706

15. Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S. Ct. 2786 (1993)

16. U.S. v. Starzecpyzel, 880 F.Supp 1027 (S.D.N.Y. 1995)

17. Kumho Tire Co. v. Carmichael (97-1709) 526 U.S. 137 (1999)

18. U.S. v. Timothy McVeigh, No. 96-CR-68

19. U.S. v. Rutherford, (8th Cir. 2000), 8:99CR120, U.S. Dist Ct, 8th Cir.

20. U.S. v. Saelee, (9th Cir. 2001), NO. A01-0084 CR (HRH)

Rigo Vargas is a forensic document analyst with the U.S. Department of Treasury, Internal Revenue Service, in Chicago, Ill. He has worked in the field of document examination for 10 years. His duties include the examination of handwriting, indented writing, inks, paper fibers, typed documents, faxed documents, printed documents, etc., and he testifies in court as an expert witness. Vargas is the chairman of Subcommittee E30.02.

Correction

**A previous version of this section contained an error. The original paragraph read:

The first successful attempt to have a document examiner excluded from testifying came in U.S. v. Timothy James McVeigh18 in 1997. In McVeigh, the court determined that the document examiner would not be allowed to testify because the field of questioned documents had not been empirically tested for validity. During trial, the prosecution decided not to use the handwriting evidence, but the decision to exclude an examiner was lost on no one. The pseudo-success in this case launched a litany of Daubert challenges wherein the defense attempted to exclude questioned document testimony from trial or hinder the document expert from giving his or her opinion. Other disappointing rulings for the forensic document field include U.S. v. Kent Rutherford19 and U.S. v. Chan Ian Saelee.20

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