Handwriting Evidence in Almeciga and Pitts: Ships Passing in the Night?

Almeciga: A Signature Case

Erica Almeciga sued the Center for Investigative Reporting (CIR) for releasing a video on Rosalio Reta, a former member of the Los Zetas Drug Cartel, in which she was interviewed about Rosalio Reta, her “romantic partner at the time.” Almeciga v. Center for Investigative Reporting, Inc., 185 F.Supp.3d 401 (S.D.N.Y. 2016). Her complaint was that the producers breached a promise to conceal her identity, causing her to “develop[] paranoia” and to be “treated for depression and Post Traumatic Stress Disorder.” Id. at 409. In response, CIR “produced a standard release form ... authorizing [it] to use [her] ‘name, likeness, image, voice, biography, interview, performance and/or photographs or films taken of [her] ... in connection with the Project.’” The release, she said, was fabricated—she never saw or signed it—and she obtained an expert report from “a reputed handwriting expert, Wendy Carlson,” id. at 413, that “‘[b]ased on [her] scientific examination’ the signature on the Release was a forgery.” Id. at 414. To conduct that examination, Carlson compared the signature on the release to “numerous purported ‘known’ signatures” given to her by Almeciga’s lawyer. Id. at 414.

The case found its way to the United States District Court for the Southern of New York. Judge Jed. S. Rakoff dismissed the complaint because “New York's Statute of Frauds [requires that] if a contract is not capable of complete performance within one year, it must be in writing to be enforceable.” Id. at 409. The alleged promise to keep Almeciga's identity concealed was oral, not written.

The court also imposed sanctions on Almeciga for “fabricat[ing] the critical allegations in her Amended Complaint.” Id. at 408. Of course, if the handwriting expert’s analysis was correct, Almeciga’s claim that the release was forged was true, and there would have been no “fraud upon the Court.” Id. at 413. Therefore, Judge Rakoff held “a ‘Daubert’ hearing on the admissibility of Carlson's testimony” in conjunction with the evidentiary hearing on CIR's motion for sanctions. Id. at 414. His conclusion was uncompromising:

[T]he Court grants defendant's motion to exclude Carlson's “expert” testimony, finding that handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rule of Evidence 702 and that, in any event, Ms. Carlson's testimony does not meet those standards.

Id. at 407–08.As this sentence indicates, there are two facets to the Almeciga opinion: (1) “that handwriting analysis in general”—meaning “the ‘ACE–V’ methodology ... , an acronym for ‘Analyze, Compare, Evaluate, and Verify’” (id. at 418)—“bears none of the indicia of science and suggests, at best, a form of subjective expertise” (id. at 419); and (2) that the particulars of how the expert examined the signatures not only “flunks Daubert” (id. at 493), but also fell short of the potentially less stringent requirements for nonscientific expertise.

Although one would not expect the defects in the particular case to be at issue in all or even most cases, one would expect the court’s Daubert holding to be a wake-up call. As Judge Rakoff noted, “even if handwriting expertise were always admitted in the past (which it was not), it was not until Daubert that the scientific validity of such expertise was subject to any serious scrutiny.” Id. at 418.

Pitts: “Inapposite and Unpersuasive”

Lee Andrew Pitts allegedly “entered a branch of Chase Bank ... and handed [the manager at a teller window] a withdrawal slip that had written on it: “‘HAND OVER ALL 100, 50, 20 I HAVE A GUN I WILL SHOOT.’” United States v. Pitts, 16-CR-550 (DLI), 2018 WL 1116550 (E.D.N.Y. Feb. 26, 2018). After the manager repeatedly said that she had no money, the would-be robber “fled on foot ... leaving behind the withdrawal slip” with latent fingerprints. A trawl of a fingerprint database — the court does not say which one or how it was conducted — led New York police to arrest Pitts.

At Pitts’s impending trial on charges of entering the bank with the intent to rob it, the government planned to elicit testimony from “Criminalist Patricia Zippo, who is a handwriting examiner and concluded that Defendant ‘probably may have’ written the demand note found at the crime scene.” Pitts moved “to preclude the government from introducing expert opinion testimony as to ... handwriting analysis.” He “relie[d] principally on the [Almeciga] decision” from the other side of the East River.

Chief Judge Dora L. Irizarry dismissed Almeciga as “inapposite and unpersuasive” because of “significant factual differences from the instant case.” Let’s look at each of these differences.

• First, the plaintiff in Almeciga tasked the analyst with determining whether plaintiff’s signature on a contractual release was a forgery. ... Forgery analysis is markedly more difficult than comparing typical signatures and has considerably higher error rates than simpler comparisons. Id. at 422 (citation omitted) (“[W]hile forensic document examiners might have some arguable expertise in distinguishing an authentic signature from a close forgery, they do not appear to have much, if any, facility for associating an author’s natural handwriting with his or her disguised handwriting.”).

It is true that the task in Pitts was not to compare signatures. It was to investigate the similarity between two written sentences as they appear on the robbery note and ... what? Exemplars the defendant was forced to write (and that like the exemplars in Almeciga, might have been disguised versions of normal handwriting)? Or did Zippo receive previously existing exemplars of defendant’s handwriting? What do scientific studies of performance on this sort of handwriting-comparison task show? The Pitts opinion does not even hazard a guess, and it blithely ignores the broad conclusion in Almeciga that

[as to] the third Daubert factor, “[t]here is little known about the error rates of forensic document examiners.” While a handful of studies have been conducted, the results have been mixed and “cannot be said to have ‘established’ the validity of the field to any meaningful degree.” (Citations omitted.)

• Second, the expert performed her initial analysis without any independent knowledge of whether the “known” handwriting samples used for comparison belonged to the plaintiff.

This refers to the fact that in Almeciga, the expert received the exemplars from the lawyer—she did not collect them herself. Her conclusion therefore was conditioned on the assumption that the exemplars really were representative of Almeciga's true signatures. But the need to make this assumption does not pertain to the validty of the ACE-V part of the examination. This difference therefore has no bearing on Almeciga’s conclusion that handwriting determinations have not been scientifically validated.

• Third, the expert conflictingly claimed that her analysis was based on her “experience” as a handwriting analyst, but then claimed in her expert report that her conclusions were based on her “scientific examination” of the handwriting samples.

Certainly, Judge Rakoff was not impressed with the witness, but the conclusion that Judge Rakoff drew from the juxtaposed statements was only that given these and other statements about the high degree of subjectivity in handwriting comparisons, “[i]t therefore behooves the Court to examine more specifically whether the ACE–V method of handwriting analysis, as described by Carlson, meets the common indicia of admissible scientific expertise as set forth in Daubert.” Judge Irizarry evidently was not disposed to conduct a similar inquiry.

• Fourth, the court noted several instances of bias introduced by plaintiff’s counsel. For example, counsel initiated the retention by providing a conclusion that “[t]he questioned document was a Release that Defendant CIR forged.” (Citations omitted.)

Was the witness in Pitts insulated from expectation bias? The opinion does not describe any precautions taken to avoid potentially biasing ionformation. What did Patricia Zippo know when she received the handwritten note? Was she given equivalent sets of exemplars from several writers and not expecting only one to be the writer? That seems doubtful.

• Fifth, the expert contradicted herself in numerous respects, including by stating that her conclusions were verified when they were not, and claiming both that the signature on the questioned document was “‘made to resemble’ plaintiff’s” and also that the signatures were “‘very different.’”

Like many of the other differences, this one does not bear on Judge Rakoff’s conclusion that the “amorphous, subjective approach” of ACE-V “flunks Daubert.” Almeciga simply used Carlson's contradictory statements and  the other as-applied factors to reject the argument that even if the handwriting examination was inadmissible as scientific evidence, it might be admissible as expertise that “is not scientific in nature.”

The Significant Difference

In sum, the Pitts opinion does not grapple with the Daubert issue of scientific validity. Instead of surveying the scientific literature to ascertain whether handwriting examiners’ claims of expertise have been validated (which boils down to studies of how accurate examiners are at the kind of comparisons performed in the case), the court reasons that the process must be accurate because handwriting examiners’ opinions are commonly admitted in court and “wholesale exclusion of handwriting analysis ... is not the majority view in this Circuit.”

Both the Almeciga and Pitts courts were “free to consider how well handwriting analysis fares under Daubert and whether ... testimony is admissible, either as “science” or otherwise.” Almeciga, 185 F.Supp.3d at 418. The most significant difference between the two opinions is that one judge took a hard look at what is actually known about handwriting expertise (or at least tried to), while the other did not.