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19 Apr,2022

Chapter 8

Handwriting Comparison

Comparison of handwriting samples, or questioned document examination as its practitioners call it, was an early form of identification and is one of the oldest types of forensic evidence. It broadly involves the comparison of documents and printing and writing to identify persons who are the source of the writing, to reveal alterations, or to identify the source of typewritten marks.1 This chapter focuses primarily on handwriting analysis. The science is based on "the asserted ability to determine the authorship vel non of a piece of handwriting by examining the way in which the letters are inscribed, shaped and joined, and comparing it to exemplars of a putative author's concededly authentic handwriting."2 Handwriting examiners claim that no two people write alike and that no one person writes the same way twice.3 They argue, therefore, that no two writings are ever identical.4 Although it was offered in courts even before the twentieth century, it was not widely accepted as scientific evidence until it became part of the cornerstone of the prosecution case in State v. Hauptmann, the Lindbergh kidnapping case.5

In America, the handwriting analysis system was developed and promoted by Albert S. Osborne in the early 1900s and it has remained virtually unchanged since.6 After the Hauptmann case, it appears to have been almost unanimously accepted as reliable and admissible.7 As with several other such routinely accepted types of forensic scientific evidence, Daubert has led scientists and the courts to reexamine questions of the reliability and admissibility of handwriting comparison expert testimony.

Shelton, Donald E.. Forensic Science Evidence : Can the Law Keep Up with Science, LFB Scholarly Publishing LLC, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/ashford-ebooks/detail.action?docID=1057854.Created from ashford-ebooks on 2022-04-18 17:40:46.

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100 Forensic Science Evidence

Questioned Document Principles and Procedures

Handwriting analysis involves the comparison of a questioned item with an item of known origin. Certain requirements must be met before a handwriting comparison can be made.8 The writing must be of the same type (e.g., handwritten or hand printed) and the text must be of a comparable sort (e.g., similar letter and word combinations). Special situations involve forgery, which is an attempt to imitate another's writing, and disguise, which is an attempt to change writing style to prevent identification. The bases for comparison are the features or attributes that are common to both samples. The characteristics of the writings are also identified as class characteristics (the style that the writer was taught), individual characteristics (the writer’s personal style), and other gross or subtle characteristics. The attributes used for comparison of handwriting are twenty one so-called discriminating elements.9 The comparison is based on the principal that, although individuals have variations within their own writing, no two persons write the same way. The analysis compares variability among writers and variability within a single person's writing, as shown in the samples. Determining that two samples were written by the same person means concluding that the degree of variability is more consistent with individual writing variations than with variations between two different persons.

Beyond these basic principles there is no dispute and no claim that there is an identified or accepted system for analyzing handwriting, and that the analysis and conclusions are subjective evaluations made by handwriting examiners.10 The emphasis, therefore, has been on training and testing persons to be considered handwriting experts. The American Society for Testing and Materials (ASTM) has developed a number of standards.11 The American Board of Forensic Document Examiners is a trade organization that provides for certification.12 Although that organization requires an undergraduate degree in some field, there is no formal educational or training requirement otherwise, and most handwriting analysts are trained in forensic laboratories.

D. Michael Risinger summed up the contentions of the handwriting analysts as follows:

Handwriting identification experts believe they can examine a specimen of adult handwriting and determine whether the

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Handwriting Comparison 101

author of that specimen is the same person as or a different person than the author of any other example of handwriting, as long as both specimens are of sufficient quality and not separated by years or the intervention of degenerative disease. They further believe that they can accomplish this result with great accuracy, and that they can do it much better than an average literate person attempting the same task. They believe they can obtain these accurate findings as the result of applying an analytical methodology to the examination of handwriting, according to certain principles which are reflected in the questioned documents literature. They believe that this literature explains how to examine handwriting for identifying characteristics, and that by applying the lessons taught by this literature in connection with their experiences in various training exercises and in real world problems, they learn to identify handwriting dependably.13

Risinger and others disagree and express significant scientific concerns with handwriting analysis testimony.

Scientific Concerns with Handwriting Analysis Testimony

The basic principles of handwriting analysis are generally accepted as plausible scientific hypotheses. However, scientists point out that this plausibility is based on intuition rather than scientifically established evidence. They point out that these conclusions are accepted as axiomatic by handwriting examiners when they have never been thoroughly tested using scientific methods.14 Determining whether each person's handwriting is truly unique would necessitate a study of a large number of randomly chosen persons and the categorization and measurement of the multitude of possible variations.15 There are no standardized measurements and there is not even a public record of handwriting samples which can be scientifically used to develop such measurements or to test the basic underlying theories of handwriting analysis.16 No formal empirical testing has been completed.17 The scant studies which have been undertaken do not provide statistical support for uniqueness.18

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102 Forensic Science Evidence

Criticism of the claimed expertise of handwriting examiners is more intense and has been the subject of heated debate among scholars and scientists. In 1989, D. Michael Risinger and two other law professors published the results of their literature search which asserted that there was no reliable study that established that document examiners can accurately identify or exclude authorship by handwriting comparison.19 The conclusion was hotly disputed by handwriting examiner organizations, but no contrary study was found.20

The Forensic Sciences Foundation designed and administered handwriting examiner proficiency tests for government crime laboratories. The original tests were criticized as non-scientific because they were administered only to a select group of volunteer laboratories and did not use original documents.21 The 1975 tests resulted in 89% of the laboratories correctly identifying the writer of a specimen letter.22 The proficiency tests were again undertaken in 1984 and 74% of the responding 23 volunteer laboratories reached the correct result.23 Tests in 1985, 1986 and 1987 revealed correct identification in only 41%, 13%, and 52%, respectively, of the responses.24 The examiner organization disputes the interpretation of these results.25 Two subsequent Forensic Sciences Foundation tests were administered in 1987 and 1989. Risinger interpreted the unpublished 1987 test results as showing that 94% to 97% of the "easy" identifications were correctly made by the respondents, while only 41% of the "harder" identifications were correctly made.26 Risinger interpreted the unpublished 1989 results as showing that 41% of respondents made false positive identifications.27

In 1994, the FBI sponsored handwriting examiner proficiency studies, which were conducted by Professor Moshe Kam and his colleagues. The first study was designed to test whether a small group of FBI document examiners could more correctly identify handwriting authors than a group of college students with no handwriting training. The results showed overwhelmingly good results by the trained examiners "indicating that handwriting identification expertise exists."28 Subsequently, Kam and his colleagues designed a proficiency test and administered it to professional examiners, trainees, and laypersons. The results were only published in the aggregate but Kam claimed that the results "lay to rest the debate over whether or not the professional document examiners possess writer-identification skills absent in the general population,"29 However, the study still showed

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Handwriting Comparison 103

that the professional erroneously declared an identification in 6.5% of the cases.30 There were significant criticisms of the study31 and a further study was conducted by Kam and colleagues in 1998 to explain the effect that monetary incentives may have had on the test results.32 One final Kam study was undertaken which most closely approximated a typical identification task and compared results between professional examiners and laypersons. The reported results indicated that trained examiners performed significantly better in identifying the genuiness of signatures than laypersons and that the error rates exhibited by the professionals were much smaller than those of the laypersons.33

A study examining proficiency in determining the genuiness of signatures was conducted in 2002 and found that professional examiners were wrong in 3.4% of the cases.34 Perhaps the most significant scientific advancement in handwriting analysis legitimacy comes from a recent study funded by the Department of Justice. Professor Sargar Srihari and his colleagues collected handwriting samples from 1568 persons and analyzed them using computer algorithms to extract common features.35 They concluded that the computer was able to distinguish writers with a high degree of confidence.36 This scientific method may lead to a much more definitive scientific basis for the expertise claimed in handwriting analysis.

The NAS report found value in handwriting comparison testimony but recommended further scientific study:

The scientific basis for handwriting comparisons needs to be strengthened. Recent studies have increased our understanding of the individuality and consistency of handwriting and computer studies and suggest that there may be a scientific basis for handwriting comparison, at least in the absence of intentional obfuscation or forgery. Although there has been only limited research to quantify the reliability and replicability of the practices used by trained document examiners, the committee agrees that there may be some value in handwriting analysis.37

Handwriting Analysis under Daubert

Daubert started a reevaluation of handwriting testimony which led to even more inquiries after Kumho. Some courts are no longer so sure

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104 Forensic Science Evidence

about the admissibility of handwriting analysis evidence. In the pre-Kumho case of United States v. Starzecpyzel38 the court held an extensive Daubert hearing on the reliability of handwriting comparison evidence. After a detailed analysis, the judge rejected the claim that handwriting analysis has a scientific basis and stated that “Were the Court to apply Daubert to the proffered FDE [forensic document examiner] testimony, it would have to be excluded. This conclusion derives from a straightforward analysis of the suggested Daubert factors — testability and known error rate, peer review and publication, and general acceptance."39 However, the judge went on to hold that "while scientific principles may relate to aspects of handwriting analysis, they have little or nothing to do with the day-to-day tasks performed by FDEs" and that because it is not a "science," handwriting expert testimony is not subject to the Daubert requirements.40 He allowed the handwriting expert to testify as a technical or experience based expert.41

After Kumho, in United States v. Fujii, an American court excluded handwriting analysis testimony for the first time since the Lindbergh case,42

and it was followed in United States v. Saelee.43 While other courts have begun to express some reservations, they have not excluded handwriting analysis testimony altogether. Even when the testimony about handwriting comparison is far from conclusive, some courts have allowed it as being helpful to the jury.44 Notwithstanding the doubts about the scientific basis for handwriting comparison testimony, courts have still found it admissible for the most part. In 2003, the Fourth Circuit expressly ruled that handwriting comparison testimony was admissible under Daubert in United States v. Crisp.45 The Court there held that "The fact that handwriting comparison analysis has achieved widespread and lasting acceptance in the expert community gives us the assurance of reliability that Daubert requires. Furthermore, as with expert testimony on fingerprints, the role of the handwriting expert is primarily to draw the jury's attention to similarities between a known exemplar and a contested sample.”46 The Court seemed to almost abdicate the "gatekeeper" role for trial judges when it concluded that "To the extent that a given handwriting analysis is flawed or flimsy, an able defense lawyer will bring that fact to the jury's attention, both through skillful cross-examination and by presenting expert testimony of his own."47 In United States v. Mooney,48 the 1st Circuit reached a similar result without much

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Handwriting Comparison 105

explanation. For the most part, courts have continued, on one basis or another, to allow handwriting comparison testimony, although the testimony of particular witnesses has been excluded.49

Much like fingerprint testimony, the court system appears reluctant to actually apply a Daubert analysis to handwriting evidence which has been a standard tool in the prosecution's evidence arsenal for such a long time. It may well take a highly publicized post conviction DNA exoneration of a person who was convicted based on handwriting examiner testimony to change the trend. In the meantime, however, the good news is that the handwriting examiner community appears to be taking its scientific obligations more seriously and seeking to establish a true scientific basis for the claimed expertise. The principal prospect for such evidence may lie in recent efforts to use computer analysis to compile reliable databases of handwriting samples and quantifiable features and characteristics.

1 National Research Council of the National Academies, Strengthening

Forensic Science in the United States: A Path Forward (2009), p. 163 2 Risinger, D. Michael, Handwriting Identification, in Modern Scientific

Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §§34.1, et seq at 453; see also Morris, Ron N., Forensic Handwriting Identification: Fundamental Concepts And Principles 129-42 (2000).

3 Risinger, D. Michael, Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at, §34:12, at 569.

4 Id.. 5 State v. Hauptmann, 180 A. 809, 822 (N.J. 1935). 6 See Risinger, D. Michael , Handwriting Identification, in Modern Scientific

Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34:3, at 455-459; Lyssitzyn, Christine Beck, Forensic Evidence in Court: A Case Study Approach (2007), at 247.

7 Moriarty, Jane Campbell & Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, Judges’ J., Fall 2005, p. 16, 21 (2005); Risinger, D. Michael , Handwriting Identification, in Modern

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106 Forensic Science Evidence

Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34:3, at at 455-459; Risinger, D. Michael, Mark P. Denbeaux & Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification “Expertise”, 137 U. Pa. L. Rev. 731 (1989).

8 National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009), pp. 165-166.

9 Huber, Roy A. and A. M. Headrick, Handwriting Identification: Facts and Fundamentals (1999).

10 See Risinger, D. Michael, Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34:3, at 455-459; Lyssitzyn, Christine Beck, Forensic Evidence in Court: A Case Study Approach (2007), at 249.

11 See, e.g., Standard Descriptions of Scope of Work Relating to Forensic Document Examiners, ASTM E444-09 (2009); Standard Terminology for Expressing Conclusions of Forensic Document Examiners, ASTM E1658 – 08 (2008); Standard Guide for Minimum Training Requirements for Forensic Document Examiners, ASTM E2388 – 05 (2005).

12 American Board of Forensic Examiners, online at http://www.abfde.org/Index.html (last visited December 14, 2011).

13 Risinger, D. Michael, Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.10 at 563-564, citing Albert S. Osborne, Questioned Documents 6 (2d ed. 1929); and Ellen, David, The Scientific Examination of Documents: Methods and Techniques 9 (1989).

14 Id., at 568-569. 15 Lyssitzyn, Christine Beck, Forensic Evidence in Court: A Case Study

Approach (2007), at 251. 16 Saks, Michael J. and Holly VanderHaar, On the "General Acceptance" of

Handwriting Identification Principles, 50 J. Forensic. Sci. 119 (2005). 17 Risinger, D. Michael , Handwriting Identification, in Modern Scientific

Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.14 at 579.

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Handwriting Comparison 107

18 R. J. Muehlberger, et al, A Statistical Examination of Selected Handwriting

Characteristics, 22 J. For. Sci. 206 (1977); Srihari, Sargur N., Sung-Hyuk Cha, Hina Arora, Sangjik Lee, Individuality of Handwriting: A Validation Study, Sixth International Conference on Document Analysis and Recognition, ICDAR'01, (2001), available online at http://www.cedar.buffalo.edu/papers/articles/Individuality_Handwriting_2001.pdf (last visited December 14, 2011).

19 Risinger, D. Michael , Mark P. Denbeaux, and Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise", 137 U. Pa. L. Rev. 731 (1989).

20 Galbraith, Oliver, Craig Galbraith, and Nanette Galbraith, The "Principle of the Drunkard's Search" as a Proxy for Scientific Analysis: The Misuse of Handwriting Test Data in a Law Journal Article, 1 Int'l J. Forensic Document Examiners 7 (1995). For a full discussion of the ensuing debate, see Risinger, D. Michael , Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.14, at 581-643.

21 Risinger, D. Michael, Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.14 et seq.

22 Id. 23 Id. 24 Id. 25 Galbraith, Oliver, Craig Galbraith, and Nanette Galbraith, The "Principle of

the Drunkard's Search" as a Proxy for Scientific Analysis: The Misuse of Handwriting Test Data in a Law Journal Article, 1 Int'l J. Forensic Document Examiners 7 (1995).

26 Risinger, D. Michael , Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.14 et seq.

27 Id. 28 Kam, Moshe J., Wetstein, and R. Conn, Proficiency of Professional

Document Examiners in Writer Identification, 39 J. For. Sci. 5 (1994),

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108 Forensic Science Evidence

abstract available online at http://www.ncjrs.gov/App/Publications/ abstract.aspx?ID=146638 (last visited December 14, 2011).

29 Kam, Moshe, G. Fielding and Robert Conn, Writer Examination by Professional Document Examiners, 42 J. For. Sci. 778 (1997).

30 Id. 31 The criticisms included the use of monetary incentives for the layperson

subjects, aggregation of results, and other concerns. See Risinger, D. Michael , Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §34.29.

32 Kam, Moshe, Gabriel Fielding and Robert Conn, Effects of Monetary Incentives on Performance in Document Examination Proficiency Tests, 43 J. For. Sci. 1000 (1997).

33 Kam, Moshe, K. Gummadidala, G. Fielding, and R. Conn, Signature Authentication by Forensic Document Examiners, 46 J. For. Sci. 884 (2001).

34 Sita, J,, B. Found and D. Rogers, Forensic Handwriting Examiners' Expertise for Signature Comparison, 47 J. Forensic Sci. 1117 (2002).

35 Srihari, Sargur N., Sung-Hyuk Cha, Hina Arora & Sangjik Lee, Individuality of Handwriting, 47 J. Forensic Sci. 856, 871 (2002).

36 Id. 37 National Research Council of the National Academies, Strengthening

Forensic Science in the United States: A Path Forward (2009), pp. 166-167. 38 United States v. Starzecpyzel, 880 F. Supp. 1027, 42 Fed. R. Evid. Serv. 247

(S.D. N.Y. 1995). 39 Id. 40 Id. 41 Id. The distinction was later rejected in Kumho. 42 United States v. Fujii, 152 F. Supp.2d 939, 942 (N.D. Ill. 2000). The Court

held that "[c]onsidering the questions about handwriting analysis generally under Daubert, the lack of any evidence that the identification of handprinting is an expertise that meets the Daubert standards and the questions that have been raised, which the government has not attempted to answer, about its expert's ability to opine reliably on handprinting identification in dealing with native Japanese writers taught English printing in Japan, the court grants the defendant's motion."

43 United States v. Saelee, 162 F. Supp.2d 1097 (D. Alaska 2001). In a broader decision than Fujii, the Saelee Court found that the government could not

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Handwriting Comparison 109

establish that handwriting identification was "the product of reliable methods".

44 United States v. Hines, 55 F. Supp.2d 62, 67-68 (D. Mass. 1999) (holding that expert testimony about general similarities and differences between the evidentiary sample and defendant's exemplar was admissible but that the expert could not testify to the conclusion that the defendant was the author because it lacked empirical validation); People v. Todmann, 2010 WL 684009 (V.I. 2010) (upholding a trial judge's exclusion of handwriting testimony that the defendant "may have" signed the document because it was "far too speculative to be of any assistance to the jury, and will most likely mislead the jurors"). Cf. Miller v. State, ___A.3d ___, 2011 WL 4363938 (Md. 2011) (allowing ambiguous testimony that a comparison of handwriting samples showed characteristics "which prevents [defendant's] elimination as a suspect in this case").

45 United States v. Crisp, 324 F.3d 261 (4th Cir. 2003). 46 Id. 47 Id. 48 United States v. Mooney, 315 F.3d 54, 60 Fed. Evid. Serv. 60 (1st Cir. 2002). 49 See, e.g., United States v. Brooks, 81 Fed. R. Evid. Serv. 381 (E.D. N.Y.

2010). For an extremely detailed description of post-Daubert cases dealing with handwriting comparison, see Risinger, D. Michael , Handwriting Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §§34.4 -34.9.

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111

Chapter 9

Hair Analysis

Hair analysis can be a forensic tool because human hairs are routinely shed and can be discovered at a crime scene. Examination of hair found at the scene and compared with hair from a known source may be helpful to the extent that it reflects similarities. The extent of the similarity in those samples and the examiner’s ability to discover and compare those similarities is the principal issue when hair analysis is offered in a criminal case. Microscopic hair examination and analysis has been undertaken for over a century but has limited capability to identify individuals. Recent developments in DNA testing have greatly expanded the ability of hair sample examination to make individual identifications. Microscopic Hair Analysis

Traditionally, forensic evidence comparing human hair was based on a microscopic comparison of the evidentiary sample with a known sample from the defendant.1 To make a microscopic hair comparison, a control group of hairs from a known source must be properly collected by pulling or combing hairs from a subject.2 That requires a total of fifty hairs from different areas of the scalp or a total of twenty-five hairs from a pubic region.3 The samples are then examined macroscopically for gross feature comparison, such as color, form and thickness. In the microscopic stage, hairs are mounted on slides using a mounting medium that has the same refractive index as the hair. The hair analyst then attempts to identify the part of the body from which the hair might have come, based on certain area characteristics.

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112 Forensic Science Evidence

Features of the hair are divided into "major and secondary characteristics.” Major characteristics include color, treatment, pigment aggregation, shaft form, pigment distribution, medulla appearance, hair diameter, medullary index, and the presence or absence of a root or shaft. Secondary characteristics include cuticular margin, pigment density, pigment size, tip shape, and shaft diameter.4 The examiner then formulates an opinion as to exclusion or consistency.

Although used by investigative agencies, including the FBI,5 it is uniformly recognized that microscopic hair comparisons do not constitute a basis for an absolute identification.6 It can be useful, however, as exclusionary evidence, but for identification the most that it can show is a "class" identification, that a hair is consistent with having originated from a particular person but would also be consistent with many others.7 Prosecutorial and expert claims of a "match" based on hair analysis are gross overstatements of the capabilities of microscopic hair analysis.8 It is clear that substantial errors have occurred using microscopic hair analysis.9 In one recent case, a man served sixteen years in prison after he was convicted of rape based in part on the testimony of a police forensic analyst that “she believed each person’s hair was unique and that she could identify the unique characteristics” of the hair, and that hairs found near the victim matched the defendant's hair. The defendant was eventually exonerated by post conviction DNA testing.10 In a subsequent portion of a civil action, the 10th circuit characterized her testimony as "bogus."11 In another case, a defendant was sentenced to serve over 3,000 years in prison after his conviction for rape, sodomy, and other charges based in part on an analyst testimony that he compared hairs from the crime scene with the defendant's hair and found similar characteristics that he had seen in "less than 5 percent" of hair samples he had examined. The defendant was exonerated by DNA testing after serving over three years of his sentence.12

Nevertheless, courts have even recently allowed hair analysis testimony as generally accepted evidence.13 Many other courts have begun to exclude such testimony, at least when the analyst attempts to suggest that there is an individual identification by comparison.14 The NAS Report assessed the state of microscopic hair analysis:

No scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in

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Hair Analysis 113

the population. There appear to be no uniform standards on the number of features on which hairs must agree before an examiner may declare a “match.” . . . The committee found no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA.15

DNA Analysis of Hair Samples

The advent of DNA, and particularly the mtDNA method, has changed the field of forensic hair analysis completely. If the evidence sample has a root, typical and much more definitive nuclear DNA can, of course, be used.16 The mtDNA method, on the other hand, is not nearly as discriminating as the usual nuclear DNA, since it is based on mitochondria in human cells, which are shared by maternal relatives.17 Thus siblings will be indistinguishable based on mtDNA comparison.18 In spite of that limitation, the value of mtDNA comparison lies in the fact that mitochondria are found outside the nuclei of human cells and exist in shafts of hair that have no roots attached.19 Where there is no root, as is often the case, mtDNA is very effectively used to supplant, or at least support, a microscopic hair analysis.20

With the limitations on the accuracy of microscopic comparisons, mtDNA analysis can give the court a much more substantial basis for admitting hair analysis as a significant part of a prosecution.21

In State v. Pappas, the Supreme Court of Connecticut conducted

an exhaustive review of the status of mtDNA sequencing for hair analysis comparison.22 In language that would satisfy either Frye or Daubert, the court concluded that “the procedures used to extract and chart the chemical bases of mtDNA—extraction, PCR amplification, capillary electrophoresis, and the use of an automated sequencing machine to generate a chromatograph—are scientifically valid and generally accepted in the scientific community.”23

The use of mtDNA sequencing evidence, for hair and other sample

analysis, is becoming widespread and has been accepted by many courts.24 The trend is clearly that mtDNA evidence has become the standard for hair analysis testimony and that microscopic analysis alone

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114 Forensic Science Evidence

may no longer be sufficiently reliable for admission, regardless of the qualifiers placed on the testimony by the analyst.

1 See Modern Scientific Evidence: The Law and Science of Expert Testimony,

eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) §30.46.

2 Scientific Working Group on Materials Analysis (SWGMAT), Forensic Human Hair Examination Guidelines, 7(2) Forensic. Sci. Comm. (April 2005), available online at www.fbi.gov/hq/lab/fsc/backissu/april2005/standards/2005_04_standards02.htm (last visited December 14, 2011).

3 Id. 4 Id. 5 See, e.g., Deedrick, Douglas W. & Sandra L. Koch, Microscopy of Hair Part

1: A Practical Guide and Manual for Human Hairs, Forensic Sci. Comm, (Jan. 2004), available online at

http://www.fbi.gov/hq/lab/fsc/backissu/jan2004/research/2004_01_research01b.htm (last visited December 14, 2011).

6 Id. 7 See Moenssens, Andre A., Carol E. Henderson & Sharon G. Portwood,

Scientific Evidence In Civil And Criminal Cases § 11.13, at 732-34 (5th ed. 2007); National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009), pp. 155-161; Richard E. Bisbing, The Forensic Identification and Association of Human Hair, in 1 Forensic Science Handbook 420-21 (Richard Saferstein ed., 2d ed. 2002).

8 See, e.g., People v. Moore, 662 N.E.2d 1215 (Ill. 1996); People v. Linscott, 566 N.E.2d 1355 (Ill. 1991).

9 At least one court has found that Daubert required the exclusion of microscopic hair analysis evidence and overturned a conviction based on it. Williamson v. Reynolds, 904 F. Supp 1529 (E.D. Okla. 1995), aff'd sub nom. Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997); see Moriarty, Jane Campbell and Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, Judges’ J., Fall 2005, p. 16 (2005) at 21, ("Of the first seventy-one convictions that were reversed on the basis of DNA testing, twenty-one involved erroneous microscopic identification of hair samples."). See generally Smith, Clive A. Stafford and Patrick D.

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Hair Analysis 115

Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 Colum. Hum. Rts. L. Rev. 227 (1996) (questioning the scientific foundation of microscopic hair analysis).

10 The Innocence Project, David Johns Bryson, online at http://www.innocenceproject.org/Content/1701.php (last visited December 14, 2011).

11 Bryson v. Gonzales, 534 F.3d 1282 (10th Cir. 2008). 12 The Innocence Project, Timothy Durham, available online at

http://www.innocenceproject.org/Content/90.php (last visited December 14, 2011).

13 See State v. West, 877 A.2d 787 (Conn. 2005); Bookins v. State, 922 A.2d 389 (Del. Supr. 2007).

14 See Gianelli, Paul C. and E. West, Hair Comparison Evidence, 37 Crim. L. Bull. 514 (2001).

15 National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009), at pp. 160-161.

16 State v. Council, 515 S.E.2d 508, 516 n.12 (S.C. 1999) (citing Brian Huseman, Note, Taylor v. State, Rule 706, and the DNA Database: Future Directions in DNA Evidence, 22 Okla. City U. L. Rev. 397 (1997)).

17 Cheng, Edward K., Mitochondrial DNA: Emerging Legal Issues, 13 J. L. & Pol’y 99 (2005).

18 Id., at 106. 19 Id,. at 100. 20 For descriptions of the mtDNA process as applied to hair analysis, see State

v. Pappas, 776 A.2d 1091 (Conn. 2001). See also Bieber, Frederick R., Science and Technology of Forensic DNA Profiling: Current Use and Future Directions, in DNA And The Criminal Justice System, supra note 30, at 32-33; Kiely, Terrence F., Forensic Evidence: Science And Criminal Law 79-81, 106-19 (2d ed. 2006); Cheng, Edward K., Mitochondrial DNA: Emerging Legal Issues, 13 J. L. & Pol’y 99 (2005), at 107-116; Walker, Marlan D., Note, Mitochondrial DNA Evidence in State v. Pappas, 43 Jurimetrics J. 427 (2003) (describing the case of State v. Pappas, which admitted mitochondrial DNA identification evidence, and its consequences).

21 One study found that nearly twelve percent of declared microscopic hair identifications were found to be erroneous after mtDNA testing. Max M.

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Houck and Bruce Budowle, Correlation of Microscopic and Mitochondrial DNA Hair Comparison, 47 J. Forensic Sci. 964, 966 (2002).

22 State v. Pappas, 776 A.2d at 1100-1113 (Conn. 2001). 23 Id., at 1108. 24 Id.; see also United States v. Beverly, 369 F.3d 516 (6th Cir. 2004); United

States v. Coleman, 202 F. Supp. 2d 962 (E.D. Mo. 2002); Wagner v. State, 864 A.2d 1037 (Md. Ct. Spec. App. 2005); State v. Underwood, 518 S.E.2d 231 (N.C. Ct. App. 1999); State v. Council, 515 S.E.2d at 516-17.

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Forensic_Science_Evidence_Can_the_Law_Keep_Up_with…_—-_(Chapter_8_Handwriting_Comparison)
Forensic_Science_Evidence_Can_the_Law_Keep_Up_with…_—-_(Chapter_9_Hair_Analysis)