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U.S. v. VAN WYK

February 8, 2000

UNITED STATES OF AMERICA,
V.
ROY VAN WYK, DEFENDANT.



The opinion of the court was delivered by: Bassler, District Judge.

OPINION

This opinion addresses the question whether an agent of the FBI can testify as a forensic stylistic expert and whether forensic stylistics is a reliable technique to allow the expert to identify Defendant as the author of unidentified threatening letters.

This matter comes before the Court on the Defendant's in limine motion to exclude the testimony of the Government's expert witness FBI Special Agent James R. Fitzgerald ("Fitzgerald" or "Agent Fitzgerald"). For the reasons set forth below, the Court grants in part Defendant's motion to exclude Fitzgerald's testimony by limiting his testimony to the comparison of characteristics or "markers" between handwritten and typed writings, in which Defendant is known to be the author ("known writings") and the handwritten and typed writings, in which authorship is "questioned" or unknown ("questioned writings"). Fitzgerald's testimony regarding any "external" or extrinsic factors and his conclusion as to the author of the "questioned" writings are barred.

I. BACKGROUND

Defendant seeks to exclude the proposed expert testimony of Agent Fitzgerald. Fitzgerald testified at a F.R.E.Rule 104 evidentiary hearing on February 3, 2000.*fn2 The Government presents Agent Fitzgerald as an expert in forensic stylistics,*fn3 an area of scientific expertise which the Government has conceded is novel. (February 3, 2000 Hearing Transcript ("Hearing Tr."), at 179.) Forensic stylistics is the examination of writing style "for the express purpose of resolving litigated questions related to disputed authorship or meaning." McMenamin, G. Forensic Stylistics, 58 Forensic Science Int'l, 1, 45 (1993) (hereinafter "McMenamin article"). More specifically,

[i]n cases of disputed authorship, the linguist analyzes and describes the style of writing of a document of questioned authorship and compares and contrasts its language to that of documents known to be written by a given author.

Id. at 3.

For purposes of this motion, it is helpful to divide Fitzgerald's opinion into three components: (1) internal evidence, which is actual comparisons of similarities or "markers" within the "four corners"*fn4 of the known and questioned writings; (2) external or extratextual evidence, such as "known dates of composition, date and location of mailing, DNA evidence, and the like";*fn5 and (3) opinion that the author of all the questioned writings is the same individual and that Defendant is that author.

Defendant argues that Agent Fitzgerald is not qualified to testify as a forensic stylistics expert. Defendant notes that no expert has yet testified in the area of linguistic stylistics, indicating its lack of reliability. Moreover, the jury is capable of comparing samples of writings without Fitzgerald's testimony.

II. DISCUSSION

A. Standard Governing Admissibility of Expert Opinions

Federal Rule of Evidence 702 governs the admissibility 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.
  Fed.R.Evid. 702. The Rule therefore has three fundamental requirements: (1) the proffered witness must qualify as an expert by knowledge, skill, experience, training, or education; (2) the expert must testify to scientific, technical, or other specialized knowledge; and (3) the expert's testimony must assist the trier of fact. United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995). When faced with a proffer of expert testimony, the court must make a preliminary determination as to all of these Rule 702 requirements. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The Third Circuit has interpreted the first requirement of Rule 702 liberally. See e.g., In Re Paoli R.R. Yard PCB Litig. ("Paoli I"), 916 F.2d 829, 855 (3d Cir. 1990) (exclusion is not proper remedy simply because experts did not have degree or training that district court thought would be most appropriate). "We have eschewed imposing overly rigorous requirements of expertise and have been satisfied with more generalized qualifications." In Re Paoli R.R. Yard PCB Litigation ("Paoli II"), 35 F.3d 717, 741 (3d Cir. 1994); see Hammond v. International Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982) (holding that an engineer, whose only qualifications were sales experience in field of automotive and agricultural equipment and teaching high school automobile repair, nevertheless could testify in products liability action involving tractors); Knight v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979) (holding that expert could testify that unguarded elevator buttons constituted design defect despite expert's lack of specific background in design and manufacture of elevators).

The proposed expert must possess knowledge, skill, experience, training, or education in the area of his or her testimony greater than the average layperson. See Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 114 (3d Cir. 1987); Ebeling & Reuss, Ltd. v. Swarovski Int'l Trading Corp., A.G., 1992 WL 211554, at *20 (E.D.Pa. Aug.24, 1992). The proposed expert "should not be required to satisfy an overly narrow test of his own qualifications." Gardner v. General Motors Corp., 507 F.2d 525, 528 (10th Cir. 1974); see also DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir. 1990) ("Rules 701-703 relating to expert testimony provide for the admission of evidence with any marginal utility absent a substantial countervailing concern.") The expert need not have complete knowledge about the field in question, need not be certain, and need not be unbiased. 3 Weinstein's Evidence, ¶ 702[4]. The expert must only be able to aid the jury in resolving a relevant issue. While the level of expertise may affect the weight to be accorded the expert's opinion, it does not affect admissibility.

The Third Circuit has held that it is an "abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization the court considers most appropriate." Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996) (reversing district court for excluding testimony of plaintiff's expert regarding alleged causes of mesothelioma in asbestos case).

"The second requirement of Rule 702 — that the expert testify to scientific, technical or other specialized knowledge — is intended to ensure the reliability or trustworthiness of the expert's testimony." Velasquez, 64 F.3d at 849 (citing Daubert, 509 U.S. at 590-91, 113 S.Ct. 2786). An expert's opinion must be "reliable," that is, based on valid reasoning and reliable methodology, as opposed to "subjective belief or unsupported speculation." Kannankeril v. Terminix Int'l, 128 F.3d 802, 806 (3d Cir. 1997) (citations omitted). "[I]f an expert opinion is based on speculation or conjecture, it may be stricken." Fedorczyk v. Caribbean ...


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