cannot be based on "pure speculation, rather than reasonable
inference." Fedorczyk, 82 F.3d at 75.
When presented with a proffer of expert "scientific" testimony,
the court must make a "preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid." Daubert, 509 U.S. at 592, 113 S.Ct.
2786. To do so, the court should consider the following factors,
in addition to any other applicable factors: (1) whether a method
consists of a testable hypothesis; (2) whether the method has
been subject to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards controlling
the technique's operation; (5) whether the method is generally
accepted; (6) the relationship of the technique to methods that
have been established to be reliable; (7) the qualifications of
the expert witness testifying based on the methodology; and (8)
the non-judicial uses of the method. Velasquez, 64 F.3d at 850
n. 8 (citing Paoli II, 35 F.3d at 742 n. 8); Daubert, 509
U.S. at 593-95, 113 S.Ct. 2786.
Finally, the Court must consider the third requirement, whether
the expert's testimony will "assist the trier of fact" to
understand evidence or determine a fact in issue. This
requirement goes primarily to relevance. Daubert, 509 U.S. at
591, 113 S.Ct. 2786. The proffered expert's testimony must "fit"
under the facts of the case so that "it will aid the jury in
resolving a factual dispute." Id. (quoting United States v.
Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Daubert's
requirement that the court act as gatekeeper for expert testimony
under F.R.E.Rule 104(a) "applies not only to testimony based on
`scientific' knowledge, but also to testimony based on
`technical' and `other specialized' knowledge." Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d
The party seeking to admit expert testimony "bears the burden
of establishing its admissibility by a preponderance of proof."
Schmaltz v. Norfolk & Western Railway Co., 878 F. Supp. 1119,
1120 (N.D.Ill. 1995) (citing Daubert v. Merrell Dow Pharm.,
Inc., 43 F.3d 1311, 1316 (9th Cir. 1995)); see also United
States. Libutti, 1994 WL 774646, at *1 (D.N.J. Feb.8, 1994)
(noting that court had previously determined that defendant had
not met his preliminary burden on proffered expert testimony).
In assessing a proffer of expert scientific testimony under
F.R.E.Rule 702, the Court must also consider other applicable
rules such as F.R.E.Rule 403, which "permits the exclusion of
relevant evidence `if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . .'" Daubert, 509 U.S. at
595, 113 S.Ct. 2786. Because of the risk that expert evidence can
be powerful and quite misleading, "`the judge in weighing
possible prejudice against probative force under Rule 403 of the
present rules exercises more control over experts than over lay
witnesses.'" Ibid. (citing J. Weinstein, Rule 702 of The
Federal Rules of Evidence Is Sound; It Should Not Be Amended,
138 F.R.D. 631, 632 (1991)).
1. Qualification as an Expert
Agent Fitzgerald is a member of the National Center for the
Analysis of Violent Crimes ("NCAVC") unit of the FBI Academy in
Quantico, VA. See Fitzgerald Curriculum Vitae ("Fitzgerald
CV"), at 1. He has been in that unit for about five years.
Ibid. As evident from the name of the group, the NCAVC's role
is to aid in solving violent crime or violent crime-related
matters. Hearing Tr. at 110. Agent Fitzgerald does not have a
degree in linguistics, forensic stylistics, or text analysis; he
has a bachelor's degree in criminal justice and a master's degree
in criminal justice administration. Ibid. He has, however,
among other things, attended threat assessment, psychotherapy
assessment, and risk assessment seminars that have involved
matters related to the assessment of text, id. at 111-12,
taught and conducted research in text analysis, id. at 115-19,
analyzed text on a weekly or even daily basis during the course
of his five years at NCAVC, id. at 113, and has worked on text
analysis in a number of high profile matters including the
Unabomber case. Id. at 121-27.
Defendant contends that Fitzgerald is not qualified as an
expert because he only began receiving specialized training in
forensic stylistics in 1998, that he has attended only three
seminars in this area, and that he has only performed between ten
and twelve document analyses to determine authorship. Defendant's
Supplemental Memorandum in Opposition to the Proposed Expert
Testimony Of James Fitzgerald, at 13.
As evidenced by testimony during the evidentiary hearing,
however, since 1998, Fitzgerald has had rather extensive
experience in text analysis, having observed and studied text for
years. He arguably qualifies as an "observational" expert because
he has examined so many examples over an extended period of time.
Cf. United States v. Hines, 55 F. Supp.2d 62, 69 (D.Mass. 1999).
Because the expert need not have complete knowledge about the
field in question, Fitzgerald qualifies as an expert in text
analysis under the flexible requirements of Daubert, Kumho, and
Defendant is, of course, entitled to cross-examine Fitzgerald
vigorously as to his expertise, or alleged lack thereof, and to
his methods used to reach his conclusions. These issues more
properly go to the credibility of Fitzgerald's testimony and the
weight the jury should give it, rather than to its admissibility.
See Gisriel v. Uniroyal Inc., 517 F.2d 699, 702 (8th Cir.
2. Reliable Scientific Testimony Aiding the Jury
Defendant also claims that the proffered expert testimony is
subjective, unreliable, and lacks measurable standards.
Unfortunately, no case law,*fn6 treatise, or law review article
has dealt with this precise issue of whether the examination of
text analysis to resolve a litigated question related to disputed
authorship or meaning, or forensic stylistics, constitutes
sufficiently reliable scientific evidence admissible in court.
Under the Daubert standard, one of the pertinent
considerations in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact is
whether the theory or technique has been subject to peer review
and publication. Publication is but one element of peer review.
Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Although it is not
dispositive of admissibility, publication in a peer reviewed
journal is relevant "in assessing the scientific validity of a
particular technique or methodology on which an opinion is
premised." Id. at 594, 113 S.Ct. 2786.
The Government has cited to one publication*fn7 dealing with
forensic stylistics — the McMenamin article.*fn8 That article
[l]inguistics is a well established scientific
discipline with a long history of inquiry, and
linguistic stylistics is the field within this
discipline that studies variation in written language
. . . Stylistics is an applied science in two senses.
It first requires an application of formal linguistic
theory to empirical (fact-finding) linguistics, and
second involves application of factual linguistics to
the "applied" field of stylistics, thus fulfilling
human purposes related to text description and
interpretation or author identification.
McMenamin article, at 48. "To the extent that variation in
written language can be measured, stylistics incorporates
statistics." Id. at 50.*fn9 According to the McMenamin
article, the results of stylistic analysis can be precise,
coherent, and relatively complete; additionally, when objective
stylistic analysis is restricted to demonstrable or measurable
facts, it will produce reliable results. McMenamin article, at
48-49. The McMenamin article also notes that there is not one
generally accepted technique of stylistic analysis; the decision
depends largely on the data presented. Id. at 49. Furthermore,
although there are those in the scientific community who view the
concept of style as defying analysis, "the scientific community
overwhelmingly accepts that style is present in all written texts
and that it can be observed, described, and analyzed." Id. at
50. Due, however, to the dearth of published cases or journals
addressing forensic stylistics, the novelty of this field, and
the fact that it has only been approved by law enforcement, the
Court has no way of determining whether the McMenamin article is
Fitzgerald testified to the specific methodology he uses in
determining authorship. First, he normally separates and catalogs
the writings either chronologically or by victim. Hearing Tr. at
132. In this case, because there were handwritten and typewritten
writings, he divided them into four categories: Known Typings
("KT"), Known Writings ("KW"), Questioned Typings ("QT"), and
Questioned Writings ("QW"). Ibid. Then he read the twenty-two
letters to obtain a sense for the "feel" of the writings. Ibid.
Third, he color coded the issues contained in the writings into
four categories: (1) punctuation and spelling; (2) threat; (3)
interesting phrases; and (4) correct or incorrect "trip" phrases
such as use of "there" or "their," use of "to," "two," or "too,"
and "your," or "you're." Id. at 133-34. Next, Fitzgerald
created a chart and determined whether a particular word,
abbreviation, or phrase
was used correctly or was an idiosyncracy. Id. at 134. His
results were reviewed by two other law enforcement officers.
Id. at 114. No sources outside the FBI have reviewed his
reports. Id. at 157.
Although Fitzgerald employed a particular methodology that may
be subject to testing, neither Fitzgerald nor the Government has
been able to identify a known rate of error, establish what
amount of samples is necessary for an expert to be able to reach
a conclusion as to probability of authorship, or pinpoint any
meaningful peer review. Additionally, as Defendant argues, there
is no universally recognized standard for certifying an
individual as an expert in forensic stylistics.
Various judicial decisions regarding handwriting analysis,
while not identical to text analysis, are instructive because
handwriting analysis seems to suffer similar weakness in
scientific reliability, namely the following: no known error
rate, no professional or academic degrees in the field, no
meaningful peer review, and no agreement as to how many exemplars
are required to establish the probability of authorship. See
Hines, 55 F. Supp.2d at 69; United States v. Santillan, 1999 WL
1201765, at *2 (N.D.Cal. Dec.3, 1999); United States v.
McVeigh, 1997 WL 47724 (D.Colo.Trans. Feb. 5, 1997).
In Hines, the court permitted the government's handwriting
expert to testify regarding the similarities and dissimilarities
between the defendant's handwriting and handwriting on a robbery
note, but did not allow the expert to testify to the identity of
the defendant as the author of the robbery note. In so holding,
the court recognized not only the lack of reliability of the
handwriting expert testimony, e.g. no known rate of error or
established standard, but also that the jury could easily
evaluate on its own the similarities between the handwriting
samples. The court noted, "[t]his is not rocket science, or
higher math." Hines, 55 F. Supp.2d at 70. Nevertheless, the
court was unwilling to disallow expert testimony altogether
because the handwriting expert testimony
involves more than just identifying what is similar
and what is different in the same way a lay person
would. It involves taking the next step — that this
or that similarity matters, that it equals a general
pattern. Presumably, the expert is helped in drawing
general patterns by the numbers of exemplars she has
seen, just like the spouse identifies the husband's
handwriting because she has seen it numbers of times.
Id. at 70 n. 21. The court determined, however, that the
expert's conclusion of authorship would be extraordinarily
prejudicial. In its analysis, it noted that the court in United
States v. McVeigh, 1997 WL 47724 (D.Colo.Trans. Feb. 5, 1997)
was faced with a similar issue. In McVeigh, the court stated:
"there is a great difference between a witness who
has the requisite training and skill saying, `Look,
I've compared this handwriting on this exhibit with
this exemplar and I've used the techniques of
microscoping (sic) and, you know, all of those things
that are often involved in that kind of comparison,
and these are the things I find,' and `I see these
similarities and these dissimilarities and so forth'
but does not go on to reach any sort of ultimate
conclusion that this was written by the same person
or expresses some probability or degree of
confidence. The problem with . . . handwriting is
that there is no testing of the — no
verification-type testing of these opinion results;
and in addition, there has never been within the
discipline of people who practice this skill — there
has never been any agreement on how to express the
results. There is no standardized nomenclature, you
know. Therefore, it seems to me that we should draw
the distinction between somebody getting on the stand
and saying `Yeah, written by the same person,' or
`no, not written by the same person,' vs. `these are
or these are the dissimilarities'; and the jury can
Id. at 70 (citing McVeigh, 1997 WL 47724, at *4).
In accordance with Hines and McVeigh, the district court
for the Northern District of California, also ruled that the
handwriting expert's testimony as to the "specific mechanics and
characteristics of handwriting" was admissible. Santillan, 1999
WL 1201765, at *5. The court was satisfied that such testimony
would "add to the general knowledge of lay persons and assist
them to make comparisons of different examples of handwriting."
Ibid. Yet, just as in Hines and McVeigh, the court did not
permit the expert to testify regarding his subjective opinion as
to who penned the unknown writings because, among other things,
no tests or studies of the accuracy of such an opinion had yet
been conducted. Ibid.; but see United States v. Paul,
175 F.3d 906, 911 (11th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct.
535, 145 L.Ed.2d 415 (1999) (permitting handwriting expert to
identify points of comparison between two writings and conclude
that defendant was the author of both, but noting that jury was
free to conduct own comparison and reach own conclusion regarding
authorship of the unknown writing).
i. Fitzgerald's Opinion on Authorship of Writings
The Court agrees with the rationale and approaches utilized in
Hines, McVeigh, and Santillan. The reliability of text
analysis, much like handwriting analysis, is questionable
because, as discussed supra, there is no known rate of error,
no recognized standard, no meaningful peer review, and no system
of accrediting an individual as an expert in the field.
Consequently, the existing data for forensic stylistics cannot
definitively establish, as can DNA data, that a particular person
is "the" author of a particular writing. Cf. Hines, 55
F. Supp.2d at 69. The Government has even conceded that while it
disagrees with the results of the decision in Hines, McVeigh,
and Santillan, the more cautious approach adopted by those
courts may be appropriate given the lack of prior judicial
approval of this area of expertise.
Because of the lack of scientific reliability of forensic
stylistics, the Court is not satisfied that the jury would
benefit from Fitzgerald's testimony as to his subjective opinion
that the questioned writings were written by the same individual
and that that individual is Defendant Roy Van Wyk. Moreover, the
fact that such a conclusion comes from an "expert" may place more
weight and credence on Fitzgerald's opinion than is warranted.
Acknowledging Fitzgerald's opinion as that of an expert and FBI
agent invests the opinion with an objectivity that this
methodology does not support. In weighing its prejudicial effect
compared to its probative value, exclusion is warranted. Because
the opinion testimony is substantially more prejudicial than it
would be probative, it should be excluded under F.R.E. Rule 403.
Therefore, Agent Fitzgerald is not permitted to testify to his
conclusion as to the identity of the author of the unknown
ii. Internal Evidence Testimony
As the Government states, there can be no question that
evidence of the known writings and unknown writings is
admissible; courts uniformly have admitted evidence of known
writings, recognizing that the particular or peculiar use of
grammar and spelling, for example, can be observed and identified
to establish authorship. See Clifford, 704 F.2d 86 (reversing
trial court's decision and permitting evidence of the defendant's
correspondence to show stylistic similarities between the
correspondence known to belong to the defendant and the
threatening letters, in order to show that defendant authored the
threatening letters); United States v. Campbell, 732 F.2d 1017
(1st Cir. 1984) (noting that misspelling a common word can be so
much of a testimonial message that defendant's Fifth Amendment
against self incrimination are triggered); United States v.
Pheaster, 544 F.2d 353, 372 (9th Cir. 1976), cert. denied,
429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977) ("The manner of
spelling a word is no less an identifying characteristic than the
manner of crossing a `t' or looping an `o'. All may tend to
identify a defendant as the author of a writing without involving
the content or message of what is written"); United States v.
Matos, 990 F. Supp. 141, 144 (E.D.N.Y. 1998) (holding Fifth
Amendment privilege applies because requiring someone to state
how he spells a word "may well serve to identify the person as
the perpetrator of a crime.")
The question here is whether the Court may properly allow Agent
Fitzgerald to testify as an expert regarding the comparisons of
markers between the known writings and questioned writings.*fn11
Defendant argues that Agent Fitzgerald's expert testimony will
not be helpful in assisting the trier of fact. He argues that
comparisons between the known and questioned writings could
easily be drawn by the jurors and that such expert testimony
would only overwhelm, confuse or mislead the jury. Unlike his
opinion on authorship, Fitzgerald's expertise in text analysis
can be helpful to the jury by facilitating the comparison of the
documents, making distinctions, and sharing his experience as to
how common or unique a particular "marker" or pattern is. See
Hines, 55 F. Supp.2d at 69. Therefore, the Court is satisfied
that Fitzgerald's testimony as to the specific similarities and
idiosyncracies between the known writings and questioned
writings, as well as testimony regarding, for example, how
frequently or infrequently in his experience, he has seen a
particular idiosyncrasy, will aid the jury in determining the
authorship of the unknown writings. The internal evidence related
to the "four corners" of the writings is admissible.
iii. External Evidence Testimony
Finally, Defendant objects that Agent Fitzgerald draws his
conclusion not only from documents submitted to him, but also on
"a review of the history of Van Wyk and the victimology of the
four women who were recipients of one or more of these
documents." Fitzgerald report, at 15. That is, Defendant claims
the proposed expert's opinion relies on "external" and background
information, the sum of which is to cast Defendant as a
"terrorizer" of women, or as a "very bad" person. Fitzgerald in
effect states that Van Wyk is the author because he is the
aggressor, whereas the issue is whether he is the aggressor
because he is the author. The Court agrees with Defendant and
finds that such external factors are actually "disguised"
propensity evidence, which is prohibited by F.R.E. Rule 404(b).
Accordingly, Fitzgerald's testimony regarding these external or
extratextual factors is barred. The jury has already heard that
evidence. For Fitzgerald to repeat it as an expert is highly
prejudicial and F.R.E. Rule 403 also precludes it.
For the foregoing reasons, Defendant's motion in limine to
exclude Fitzgerald's testimony is granted in part; Fitzgerald's
expert testimony is limited to the comparison of characteristics
or "markers" between writings known to have been authored by
Defendant and the writings in which authorship is "questioned" or
unknown. Fitzgerald's testimony regarding any "external" or
extrinsic factors is barred as is his conclusion regarding the
identity of the author of the "questioned" writings.
An appropriate Order follows.
This matter having come before the Court on Defendant's in
limine motion to
exclude the proposed expert testimony of FBI Special Agent James
R. Fitzgerald; and
The Court having considered the submissions of the parties; and
The Court having heard oral argument from the parties on
February 3, 2000 and February 4, 2000; and
For the reasons set forth in the Court's Opinion issued this
For good cause shown;
It is on this the 5th day of February, 2000 hereby ORDERED that
Defendant's motion in limine is granted in part and denied in
IT IS FURTHER ORDERED that Agent Fitzgerald may testify to the
comparison of characteristics or "markers" between the
handwritten and typed writings, of which Defendant is known to be
the author, and the handwritten and typed writings, of which
authorship is "questioned" or unknown; and
IT IS FURTHER ORDERED that Fitzgerald's testimony regarding any
"external" or extrinsic factors and his conclusion as to the
author of the "questioned" writings are barred.