MARIA E. STRATTON
Federal Public Defender
CARLTON F. GUNN
Deputy Federal Public Defender
Suite 1503, United States Courthouse
312 North Spring Street
Los Angeles, California 90012-4758
Telephone (213) 894-7730
Attorneys for Defendant
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
xxxxxxxxxxxxx,
Defendant.
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NO. CR 97-648-KMW
NOTICE OF MOTION; MOTION FOR FURTHER DISCLOSURE OF EXPERT TESTIMONY REQUIRED BY FEDERAL RULE OF CRIMINAL PROCEDURE 16; MEMORANDUM OF POINTS AND AUTHORITIES
COMES NOW defendant, xxxxxxxxxx, through his counsel, Deputy Federal Public Defender Carlton F. Gunn and Deputy Federal Public Defender Evan Jenness, and moves this Honorable Court for an order requiring the government to provide further disclosure regarding the testimony of the handwriting expert which it has indicated it intends to call at trial in this matter.
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This motion is made pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure and is based upon the attached memorandum of points and authorities, all files and records in this case, and such further argument and evidence as may be presented to the Court regarding this motion.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
CARLTON F. GUNN
Deputy Federal Public Defender
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Despite numerous requests by the defense, the government has still not provided the full discovery required by Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure, at least as to the handwriting expert it intends to call. While the government has provided discovery regarding the handwriting expert's opinions and qualifications, it has not provided discovery regarding the reasons and bases for the expert's opinions.
The initial discovery which the government provided consisted of two reports by the expert. The first report indicated that the expert had compared eleven different questioned documents to handwriting exemplars provided by each of the defendants. The report also set forth several conclusions regarding the authors of the questioned documents, including the following: "There are slight indications xxxxxxx may be the author of [several specified] questioned exhibits; however, the evidence is far from a conclusive finding." Ex. A, at 4 (emphasis in original).
The second report focused on the same eleven questioned documents and additional known handwriting the government provided to the expert. See Ex. B. In the second report, the handwriting expert added the conclusion that the handwriting exemplars provided by xxxxxxxxxx were "not free and naturally written." Ex. B, at 3, 4 (emphasis in original).
Neither report gave the reasons for the expert's opinions. Mr. xxxx therefore requested a summary of the reasons for the expert's opinions. Defense counsel initially made this request in a memorandum dated February 18, 1998, see Ex. C, and reiterated the request in a memorandum dated March 3, 1998, see
Ex. D.
The government responded to these memoranda by providing general information about how handwriting experts reach their conclusions. It provided a document entitled, "Standard Terminology for Expressing Conclusions of Forensic Documents," which defined "indications" as meaning "a body of writing has few features which are of significance for handwriting comparison purposes, but those features are in agreement with another body of writing." Ex. E, at 3. It also provided a document entitled, "Basis for Handwriting Identification," which (1) described the various factors a handwriting expert generally considers in attempting to make an identification and (2) noted that "[t]he expert must also consider whether both writings are freely and naturally written or show telltale signs of disguise or other forms of distortion." Ex. E, at 4. The government's response provided no information about the "few features" which were in agreement in the present case or why the expert concluded the handwriting exemplars in the present case were not "freely and naturally written."
Defense counsel responded to this last memorandum by making a request for this case-specific information. See Ex. F. The government responded by refusing to make any further disclosure. See Ex. G.
II.
ARGUMENT
THE GOVERNMENT SHOULD BE REQUIRED TO SUMMARIZE WHAT
FEATURES IN THE KNOWN HANDWRITING AND THE QUESTIONED
DOCUMENTS ARE IN AGREEMENT AND WHAT FEATURES LED ITS
EXPERT TO CONCLUDE THAT THE HANDWRITING EXEMPLARS
ARE NOT FREELY AND NATURALLY WRITTEN.
Subsection (a)(1)(E) was added to Rule 16 in 1993. It requires the government to provide to the defendant "a written summary of [expert] testimony" which "describe[s] the witnesses' opinions, the bases and the reasons for those opinions and the witnesses' qualifications." Fed. R. Crim. Pro. 16(a)(1)(E) (emphasis added).
The purpose of requiring disclosure of both the opinion and the reasons for it is explained in the advisory committee note for the amendment.
Third, and perhaps most important, the requesting party is to be provided with a summary of the bases of the expert's opinion. . . . Without regard to whether a party would be entitled to the bases for expert testimony under other provisions of Rule 16, the amendment requires a summary of the bases relied upon by the experts. That should cover not only written and oral reports, tests, reports, and investigations, but any information that might be recognized as a legitimate basis for an opinion under Federal Rule of Evidence 703, including opinions of other experts.
Fed. R. Crim. Pro. 16 advisory committee's note (1993 amendment) (emphasis added).
The Advisory Committee appears to have envisioned very broad discovery. A law review article cited with approval speaks of the need for "[e]xtensive discovery" and notes that "the argument for pretrial discovery in this context is powerful and the arguments against discovery are virtually nonexistent." Paul C. Gianelli, Criminal Discovery, Scientific Evidence, And DNA, 44 Vand. L. Rev. 791, 799-800 (1991), cited with approval in Fed. R. Crim. Pro. 16 advisory committee's note (1993 amendment). The article also recognizes:
Mere notice that an expert will testify, while critical to trial preparation, is insufficient. The opposing party needs to know both the substance of the expected testimony and the qualifications of the proposed expert. The current discovery rules on scientific reports provide for neither of these necessities. The typical laboratory report contains only a bare conclusion. It is not unusual for the report merely to "summarize[ ] the results of an unidentified test conducted by an anonymous technician."
Gianelli, supra, at 803 (quoting United States v. Bentley, 875 F.2d 1114, 1123 (5th Cir. 1989) (Williams, C.J., dissenting)). It is apparent that Rule 16(a)(1)(E) was intended to cure this problem as well.
While case law is sparse, there are two cases which illustrate the sort of discovery which is either insufficient or barely sufficient. In United States v. Basinger, 60 F.3d 1400 (9th Cir. 1995), the court, while finding it nonprejudicial, assumed that there was a discovery violation even where the defendant had been "fully informed about the relevant evidence seized from the shed that formed the basis for [the expert's] testimony." Id. at 1407. (1) In United States v. Jackson, 51 F.3d 646 (7th Cir. 1995), the court found that the government's summary of its expert's testimony had satisfied the rule because the government had indicated that the opinions would be based in part on the defendant's use of beepers, firearms, walkie-talkies and wire transfers. Id. at 651. The court described this as the "minimum notice" which "barely" satisfied the requirements of Rule 16(a)(1)(E). The court also added the following comment:
The government supplying anything less in the future will risk running afoul of the rule. Although the rule was not violated here, in light of the somewhat amorphous parameters of the drug courier profile, in future cases we strongly encourage the government to offer more specific descriptions of the opinions of the witnesses, foundations for their testimony, and their qualifications.
Id. (emphasis added).
A description of the reasons for the particular conclusions opinions in this case should be required here. The general material which is provided makes it clear that the conclusion of "indications" means there are a "few features" which match. Supra p.4 (quoting Ex. E, at 3). Those "few features" should be identified. The general material also suggests that a conclusion of "disguise" is based on an opinion that the handwriting exemplars are not "free and naturally written." Supra p.4 (quoting Ex. E, at 4). The ways in which the handwriting is not "free and naturally written" should be identified.
Admittedly, this goes beyond what the typical handwriting report discloses. Requiring disclosure beyond the typical report was the intent of Rule 16(a)(1)(E), however. The law review article which the advisory committee note cites speaks critically of "[t]ypical laboratory report [which] contains only a bare conclusion," supra p.7, and the note itself describes the summary of the reasons and basis for the opinion as "perhaps most important," supra p.5.
III.
CONCLUSION
The government should be ordered to provide a summary of the reasons for the particular opinions here, not just a general description of the sorts of factors that handwriting experts rely on. This should include (1) the features which the handwriting expert believes are in agreement in the known handwriting and the questioned documents and (2) the features or other characteristics which lead the expert to conclude that the handwriting exemplars provided by Mr. xxxxxxxxxx are not "free and naturally written." Without such a summary defense counsel will be required to prepare for cross-examination with one hand tied behind his back.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
CARLTON F. GUNN
Deputy Federal Public Defender
C:\wwwfpd\expert2.wpd
1. That Basinger is properly read as a case where the government had failed to provide sufficient discovery is illustrated by later cases which cite Basinger as such a case. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997); United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996).