Tuesday, March 30, 2021

Sounds-like-Science is sufficiently sciencey to satisfy Daubert.

United States v. Foust, ___F.3d ___, 2021 WL 786975, (10th Cir. 2021) (Daubert-handwriting) Mr. Foust allegedly faked some invoices and got himself some wire fraud convictions, as well as convictions for money laundering and aggravated identity theft. The evidence mostly centered on some invoices for work the company had not done, specifically on the issue of whether Mr. Foust signed them or wrote them. (The summary was unclear, it seems like some were computer generated and Mr. Foust didn’t get convictions for those, but some were handwritten and he did get convicted on those.) Mr. Foust challenged both the underlying “science” of graphology and that the underlying data (examples of Mr. Foust’s writing) was unreliable. The court says, “[H[andwriting comparison is not a traditional science, and the Daubert factors do not always correspond perfectly.” It is subjective experience based science. Testing of handwriting comparison “mostly falls short of the rigors demanded by the ideals of science,” but it is “tested” in court cases and criminal investigations (yes, seriously, that’s what they said). Because this pseudo-science has a long history, that weighs in favor of admission. The Court also noted that the expert has received training from “forensic organizations and federal agencies” and that this weighs in favor of admission. The Court does recognize that handwriting analysis has been criticized but doesn’t think the lower court abused its discretion in admitting the testimony. The expert explained he preferred his writing examples to be from within a year or two of the writing to be examined. The examples the expert used were 2.5 months and 8 months outside of 2 years. But, this goes to weight, not admissibility.