The Defendant, *, pursuant to Federal Rule of Evidence 702, requests that this court enter an order excluding the Government's handwriting expert. The facts of this case are as follows:

1. The defendant was indicted on November 22, 1996 in a one count indictment charging violations of 18 U.S.C. §1708. A superseding indictment charging violations of 18 U.S.C. §§§ 371, 1029(a)(2) and 1708 was filed on February 27, 1997.

2. Pre-Trial Discovery Orders were entered following the defendant's arraignment on both the indictments.

3. As part of its discovery obligation, the Government provided the defendant with a report purporting to contain a comparison analysis of the defendant's handwriting. The report merely suggests which items in the examiners opinion were written by the defendant and which were not. There is nothing in the report to suggest how the analysis was done or whether there was any reliability analysis done.

4. The Government intends to use this report and expert testimony regarding handwriting analysis in an effort to prove its case.

5. The bare bones analysis of the handwriting expert's opinion does not meet the standards set forth in Federal Rule of Evidence 702 and as such should be excluded.

Pursuant to Rule 104 of the Federal Rules of Evidence, a district court shall determine preliminary questions regarding the admissibility of evidence. Rule 702 specifically governs the admission of expert testimony, and provides that "if 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." Federal Rule of Evidence 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court made clear that the critical concerns of Rule 702 are the evidentiary reliability and relevancy of the scientific evidence. Daubert, 509 U.S. at 592, 113 S.Ct. at 2795. The Daubert Court established a two-pronged test which requires a district court to determine "whether the expert is proposing to testify to 1) scientific knowledge that 2) will assist the trier of fact to understand or determine a fact in issue." prior to admitting the evidence. Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The district court's determination "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be properly applied to the facts in issue" Id.

Under the reliability prong of this analysis, a court should assess whether the reasoning or methodology underlying the expert's theory or technique utilizes valid scientific methods and procedures without deciding upon the correctness of the experts conclusions. Joiner v. General Electric Company, 78 F.3d 524, 530 (11th Cir. 1996). The Daubert Court offered several non-exclusive factors to guide federal courts in evaluating whether the particular scientific testimony is reliable. Such factors include: 1) whether the expert's theory or technique has been or can be tested; 2) whether the theory or technique on which the expert's opinion is based has been subjected to peer review or publication: 3) whether the particular scientific technique has a known or potential rate of error and what standards exist to control the technique's operation; and 4) whether the technique is generally accepted in the scientific community. Daubert, 509 at 593-94, 113 S.Ct. at 2796-97. These factors are not exhaustive or applicable to every case but serve as the basis for assessing the reliability of the expert's opinion. Joiner, 78 F.3d at 530.

Secondly, the district court must determine whether the expert opinion is relevant, in that it sufficiently relates to the facts in issue so that it will assist the trier of fact in resolving the factual disputes. Daubert, 509 U.S. at 591, 113 S.Ct. at 2795-96; Joiner, 78 F.3d at 530. In this regard, Rule 702 requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Daubert, 509 U.S at 592, 113 S.Ct. at 2796.

There has been some question as to whether the Daubert standards would apply only to scientific expert testimony or whether it can be expanded technical or specialized knowledge. See, Iacobelli Construction Inc. v. County of Munroe, 32 F.3d 19 (2nd Cir. 1994); Tamarin V. Adam Caterers, Inc., 13 F.3d 51 (C.A. 1993). However, when considering the issue of handwriting analysis the Third Circuit determined that it would use the Daubert standard to evaluate the admission of the testimony. See, United States v. Velasquez, 64 F.3d 844 (3rd Cir. 1995). Thus, this court should follow the lead of the Third Circuit and hold a hearing to determine whether the Government expert's testimony on the analysis of the handwriting at issue in this case is admissible under the Daubert standard. ⁽¹⁾

The Eleventh Circuit interpreted Daubert in the Joiner opinion. ⁽²⁾ The Court found that in analyzing the admissibility of an expert's opinion the district court plays the role of gatekeeper. Joiner, 78 F.3d at 530. The district court is required to assure that an expert's opinions are based on relevant scientific methods, processes and data and not on mere speculation and the court must then make a determination that the methods, processes and opinions apply to the facts at issue. Id. The Circuit Court has also found that Daubert applies not only to the opinions of the expert but also to the admission of the results of any specialized technical equipment used in the case. United State v. Lee, 25 F.3d 997, 998-999 (11th Cir. 1994). The Eleventh Circuit encourages the district court to make specific fact findings concerning the application of Rule 702 and Daubert to assist in appellate review. Lee, 25 F.3d at 999.

In evaluating the opinion of the Government's handwriting expert, under the first prong of Daubert, the district court must identify the basis of the expert's opinion and ascertain whether the methods, procedures and information used by the expert to reach his or her conclusion was scientifically reliable. Joiner, 78 F.3d at 530-531. This requires the district court to examine such factors as the expert's background, what literature was examined, the expert's familiarity with the facts of the case, what studies were conducted by the expert and what the scientific reliability of those studies was. Joiner, 78 F.3d at 530-533. Thus far no discovery or evidence has been received which would show that a person can learn to expertly compare exemplars with questioned writings. Neither has there been any evidence to show that such an experts conclusion is sufficiently accurate and reflects such a low rate of error that it can be useful rather than misleading to the fact finder. The handwriting analysis in this case is especially troublesome because not only is it inherently not scientifically reliable it was also done specifically for this litigation. In addition, the opinions offered by the expert are conclusory.

With regards to the second prong of the analysis, the district court is required to determine whether the testimony would assist the jury by examining whether the reasoning and methodology which underlies the testimony can be applied to the facts which are at issue. Joiner, 78 F.3d at 533. Because the reasoning and the methodology underlying the handwriting analysis in this case is inherently flawed, the expert's opinion cannot be applied to the facts at issue. Thus, the testimony would not be beneficial to the jury and as such should be excluded from this case.

There is a real question regarding the scientific reliability of handwriting analysis especially where an expert purports to link a defendant to the evidence by virtue of comparison evidence. If this court is going to allow the Government's expert to testify, it must first establish that the expert is able to do what he claims and that the techniques used by the experts are scientifically reliable. That is that the methods used have been empirically tested, subjected to peer review, that the error rate has been tested and also that the methods used by the expert are generally accepted in the scientific community. In addition, the Government must show that the experts opinion is relevant to assist the trier of fact. The Government will be unable to show that their handwriting expert's opinion and analysis will be able to meet these standards and thus, the testimony should be excluded.

WHEREFORE, the defendant requests that this court exclude the testimony of

the Government's handwriting expert under Federal Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Respectfully submitted,

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1. In United States v. Gates, 20 F.3d 1550 (11th Cir. 1994), the Eleventh Circuit remanded the case asking the district court to reexamine the admissibility of expert testimony on eye witness testimony and whether a photo array show to witnesses was suggestive under the Daubert standard. This seems to suggest that the Eleventh Circuit is going to insure that expert testimony be examined under the Daubert principles

2. On remand from the Supreme Court, the 9th Circuit Court of Appeals rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 43 F.3d 1311 (9th Cir. 1995), interpreting the Supreme Court's ruling. The Ninth Circuit considered three significant factors for determining whether the experts testimony was admissible. The first consideration is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying." Daubert, 43 F.3d at 1316. Second if the expert is not testifying based upon research conducted independent of the litigation, "the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on scientifically valid principles" Id. at 1318. The court suggested that this could be accomplished by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication. Id. Where the expert's proffered testimony is not based upon research conducted independent of litigation and has not been subjected to peer review, courts may consider the testimony of other experts. Id.