comparison of textual material of known and unknown authorship, in an attempt to disclose idiosyncracies peculiar to authorship in an attempt to determine whether the authors could be identical. See Government Exhibit 4, Job Description of Aural Analysis GS-11. See also Pickett testimony at 73-74; Miron testimony at 12-15.
This Court is of the opinion that to allow the United States Attorney to present the proffered evidence to the jury without the aid of an expert would be, in effect, to allow a non-expert to use forensic linguistic analysis and ultimately testify on matters solely within the realm of expert testimony. This the Court will not allow as the jury would be seriously mislead. Dr. Miron stressed in his testimony that without the aid of an expert the jury could easily misinterpret the significance and the weight to be applied to either similarities or dissimilarities in the textual materials. Transcript, June 8, 1982, at 41-42.
The possibility that the jury would be mislead by a study of similarities and dissimilarities with or without the aid of an expert is very strong. For example, it is obvious to the Court that the addresses on the envelopes of the threatening communications read "Chestnut St" while the exemplars provided by Defendant Clifford read "Chesnu St" an obvious dissimilarity which is not mentioned in the Federal Bureau of Investigation Report. When presented with this situation, Dr. Miron testified in his opinion that the difference in spelling would be evidence of one area of dissimilarity, and if that were the only evidence he would conclude that the Defendant was not the author of the threatening communications. Transcript, June 8, 1982, at 34. However, Dr. Miron went on to conclude that in his professional judgment he would not count it as a significant difference, that is, it would be a difference but one that he would not weigh heavily. Transcript, June 8, 1982, at 37-39.
The reason Dr. Miron would not consider it to be a significant misspelling is "because neither word (Chestnut or Chesnu) would occur in the (frequency) count with respect to this. I would not try to make a determination of the frequency of this word because I would not expect the name of a street to occur. They did not count one million words in Saltsburg, Pennsylvania". Two other misspellings of explosives and figure would however, be heavily weighted by Dr. Miron as similarities which would lead him to the probable conclusion that the communications were written by the same author.
It is readily apparent to this Court that it is not the similarities or dissimilarities which are controlling, but it is the weight to be given to them which is the crucial factor in performing forensic linguistic analysis. Obviously, the determination of the weight and significance is something which is beyond the realm of an ordinary juror. To place the question before the jury with or without the aid of an expert would be seriously misleading and would lead to the dangerous situation wherein the jury verdict would be based on surmise and speculation, and not on proof beyond a reasonable doubt which is the constitutional standard required in all criminal cases.
This Court has also considered the possibility of permitting expert testimony on the similarities and dissimilarities in the writing, and concludes that the use of expert testimony would not materially enhance the reliability and trustworthiness of this type of untried evidence. After an extensive review of the law applicable to the use of scientific and expert testimony in criminal cases, this Court has found only one case wherein a similar fact situation was presented to the trial court. In United States v. Hearst, 412 F. Supp. 893 (N.D.Cal.1976), the defense sought to admit the testimony of Dr. Singer, a psycholinguist, who would have testified that her expertise enabled her to "conclude from stylistic comparison of known writings and utterances of the defendant with certain writings and tape recordings of the defendant's voice offered into evidence by the Government that these latter writings or utterances could not have been authored by the defendant." 412 F. Supp. at 894.
The Hearst court ruled against the admissibility of such testimony, not because the expert was not qualified in the field of psycholinguistics, but because the state of the art of psycholinguistics was such that it had not achieved such general acceptance among psychological and scientific authorities to justify its admission. To allow its admission would therefore have created an unjustifiable "aura of special reliability and trustworthiness". 412 F. Supp. at 895. This exclusion by the trial court was held proper on appeal. See United States v. Hearst, 563 F.2d 1331, 1349 (9th Cir. 1977) (rehearing denied).
This Court is not persuaded that in the instant case the trustworthiness and reliability of the forensic linguistic methods has been established or that the method has gained general acceptance in the scientific community since the Hearst case was decided.
The Federal Bureau of Investigation itself considers the results of the linguistic method to be inappropriate for testimonial purposes. See Court Exhibit 1-A, Federal Bureau of Investigation Lab Report ("You are reminded that since application of the linguistic method is not considered a positive means of identification, results of such examinations are provided for investigative assistance only, and are not intended for testimony"). (underlining supplied). It is also important to note that Penelope Pickett, the Federal Bureau of Investigation aural analyst who authored Court Exhibit 1-A, is not certified by the Federal Bureau of Investigation as being an expert for trial purposes. Special Agent Ronald Furgerson, the unit chief in charge of the technical evaluation unit of the document section, testified that because of the laboratory policy relating to linguistic analysis, there has been no need to qualify her as an expert since the basis for the services is for investigative assistance, without regard to what may happen in the judicial system past the investigation stage. Transcript, June 8, 1982, at 53-54. Special Agent Furgerson also stated that because of the unknown variables in the field, the laboratory uses forensic linguistics for investigative guidance only and not for positive identification. Transcript, June 8, 1982, at 66. Special Agent Furgerson also testified that he would be uncomfortable if the linguistic method were used for positive identification. Transcript, June 8, 1982, at 69-70. Ms. Pickett, who prepared the FBI report, Court Exhibit 1-A, testified that she could not make a positive identification of the Defendant as the author of the threatening correspondence, only that there was a "strong likelihood" that the Defendant was the author of the threatening communications. Transcript, June 8, 1982, at 75-76.
Although Federal Rule of Evidence 702 permits the admission of expert testimony where it will aid the trier of fact, the right of a criminal defendant to a fair trial is a countervailing restraint on the admissibility of the evidence under Rule 702. United States v. Green, 548 F.2d 1261, 1268 (6th Cir. 1977).
"The fate of a defendant in a criminal prosecution should not hang on his ability to successfully rebut scientific evidence which bears an "aura of special reliability and trustworthiness, although in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain general acceptance in its field." United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977) (inadmissibility of results of ion microprobic analysis of human hair).
Forensic linguistic analysis has not been shown to be a reliable method of ascertaining authorship, as evidenced by the fact that the Court is unable to find any instances wherein testimony pertaining to the linguistic method has been permitted, and further evidenced by the fact that the Federal Bureau of Investigation is unable to use the results of the linguistic method as positive identification.
Forensic linguistic analysis is unlike fingerprint identification, ballistics identification or even voice spectrograph where the subject of that analysis is considered by the scientific community to be a unique characteristic. Further, once a similarity or dissimilarity is found, the forensic linguistic analyst uses his subjective judgment and expertise to assign a weight of significance to each particular difference, thus giving rise to an element of speculation which is not present in the other mentioned tests. The potential for the jury to be mislead by the use of a linguistic analysis is ever present.
Finally, this Court is cognizant of another danger present in the use of the linguistic method, namely the problem of determining authorship in a questioned document. The questioned document or sample could have been copied from another source, dictated by another person, or deliberately disguised in an attempt to imitate distinctive styles which would implicate a third person. See Testimony of Furgerson, Transcript, June 8, 1982, at 57.
In summary, this Court has exercised its discretion and holds that linguistic analysis is not admissible in the instant case, with or without the use of expert testimony. It is inadmissible as expert testimony because the method has not been shown to be trustworthy, reliable, accurate, or conforming to a generally accepted scientific theory. The probative value of the testimony is outweighed by the potential that the jury will be mislead and defendant's right to a fair trial is further jeopardized by the undue weight such testimony would carry with the jurors, which would result in possible mistake or confusion.
The evidence is also inadmissible without the aid of an expert. Dr. Miron concedes that such testimony could not be evaluated properly by the jury without the aid of an expert. The evidence itself is inherently untrustworthy, and this inherent defect cannot be cured by presenting the testimony without the aid of an expert.
The Court therefore denies the request of the Government for additional handwriting exemplars; and after exercising its discretion, the Court holds that the Government's Motion in Limine is also denied, and the Government will not be permitted to introduce known exemplars of the Defendant's writings for the purposes of stylistic comparisons with the anonymous communications.
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