United States v. Saelee

Brief Fact Summary.

The defendant, Chan Ian Saelee (the “defendant”), was indicted on three counts of violating the federal drug laws.

Synopsis of Rule of Law.

The testimony of the handwriting expert does not satisfy either Federal Rules of Evidence (“F.R.E.”) Rule 701 or 702.

Facts.

The defendant was indicted on three counts of violating the federal drug laws. The third count alleged that the defendant imported opium from Thailand in violation of 21 U.S.C. Section:Section: 952 and 960(b)(3). The opium was concealed in Butterfinger candy bars that were express mailed from the United States. A forensic document analyst with the United States Postal Inspection Service National Forensic Laboratory compared “hand printing exemplars provided by defendant with the hand printing on the address labels on the packages in question.” The expert concluded that the defendant was the writer of one of the writings and probably the writer of the other. The government sought to have the expert testify to his conclusions at trial and the defendant filed a motion to exclude all of such testimony.
Accordingly, the court scheduled a Daubert hearing and ordered the parties to submit supplemental briefs. The government, in its supplemental brief, proposed that its expert would only testify about the similarities and differences between the known writings and questioned documents, and not about his ultimate conclusions as to whether the defendant was the author of the documents. The government argued that F.R.E. Rule 701, which govern the admissibility of lay opinion testimony, allows for the admission of comparison evidence. The defendant after initially consenting to this line of testimony, argued that the only way this testimony would be admissible is under F.R.E. Rule 702, which governs the admissibility of expert testimony. As such, the defendant argued that a Daubert hearing would have to be held. The court agreed, and a Daubert hearing was held. At the hearing, the government argued that is expert’s testimony was admissible under F.R.E. Rule 901, which concerns the
authentication and identification of evidence. After the hearing, the District Court held that the hand printing comparison evidence would be excluded at trial.

Issue.

“[W]hether the forensic document analyst’s testimony about the similarities and differences between the known documents and the questioned documents was admissible under either Rule 701 or 702[?]”

Held.

No to both F.R.E. Rule 701 and 702. F.R.E. Rule 701 concerns the admissibility of opinion testimony by lay witnesses. The court observed that F.R.E. Rule 701 was amended in 2000 to “expressly limit lay opinion testimony to that which is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The purpose of the amendment was to “eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in law witness clothing.” The court then observed that is exactly what the government was attempting to do in this case. Further, that the government’s expert “is not a lay person who proposes to offer testimony based on sensory impression.” Instead, “he makes reference to handwriting principles and scientific examinations.” The expert would have testified that he was a trained forensic document analyst. Accordingly, any testimony he would offer would have to be an
alyzed under F.R.E. Rule 702.
F.R.E. Rule 702 governs the admissibility of expert testimony. The court observed that F.R.E. Rule 702 was amended in 2000 in response to Daubert. Daubert assigned the trial judges a gatekeeping function of excluding unreliable scientific expert witness testimony. This rule was extended to all expert testimony in Kumho. The court in Daubert compiled a non-exclusive list of factors for courts to consider when determining whether expert evidence is reliable. The factors include: “(1) whether the expert’s theory or technique can be or has been tested; (2) whether the expert’s theory or technique has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) general acceptance in the scientific community.” The court observed that all the above five factors were applicable to this case.

The Government bears the burden on the issue of whether an expert’s proffered testimony is sufficiently reliable to be admissible. The court here concluded that the handwriting expert’s testimony is not sufficiently reliable be admissible under F.R.E. Rule 702. First, there has been an overall lack of empirical testing about these theories and techniques. Along the same lines, there has been a “lack of empirical evidence on the proficiency of document examiners” and “little empirical testing done on the basic theories upon which the field is based.” Further, “there has never been any empirical research done on the theory of probability on which handwriting analysis is based.”

Additionally, not much is known about the error rates of forensic document examiners. Further, there is no evidence whether “hand printing has individual characteristics that can be compared.” Also, this theory suffers from the “lack of controlling standards.” Finally, there is not a “general acceptance of the theories and techniques involved in the field of handwriting analysis among the closed universe of forensic document examiners.”

The court recognized that it had gone further than most courts in disallowing in its entirety the expert’s testimony. The court stated that the government failed to satisfy F.R.E. Rule 702(2) standards that the expert’s testimony would be “the product of reliable principles and methods.”

Moreover, contrary to the government’s argument, nothing in F.R.E. Rule 901 requires a different result. F.R.E. Rule 901 concerns authentication and identification of documents. The Advisory Committee Notes applying to F.R.E. Rule 901(b)(3) specifically refer to comparison testimony for handwriting specimens, and states that the standard in the rule also applies to handwriting specimens. The government argued that F.R.E. Rule 901(b)(3) allows for the admissibility of comparison evidence by forensic document analysts, and if such testimony would not be allowed, the rule would be rendered superfluous. The court concluded that F.R.E. Rule 901(b)(3) would not me rendered meaningless because the rule does not entirely deal with handwriting analysis. Additionally, F.R.E. Rule 901(b)(3) must be read together with F.R.E. Rule 702, and prior to F.R.E. Rule 901(b)(3) being applied, the testimony at issue must satisfy the F.R.E. Rule 702 requirements.

Discussion.

This case offers an interesting comparison about the admissibility of expert testimony and lay person opinion testimony under the F.R.E.