The opinion of the court was delivered by: SIMMONS
Defendant Russell Clifford was indicted by the Grand Jury in a two count indictment: Count I charged that on or about December 29, 1980, in Saltsburg, Pennsylvania, Defendant Clifford knowingly caused the United States Postal Service to deliver a communication (with hand printed letters in block) form containing threats to injure the persons of Charles Sharon, and others, in violation of 18 U.S.C. §§ 2 and 876; Count II charged that on or about January 2, 1981, in Saltsburg, Pennsylvania, Defendant Clifford knowingly deposited in an authorized depository for mail matter a communication (with hand printed letters in block form) and addressed to Charles Sharon, to be sent and delivered by the United States Postal Service, which contained threats to injure the person of Charles Sharon and others, in violation of 18 U.S.C. §§ 2 and 876.
On March 26, 1982, the United States filed a Motion requesting that Defendant Clifford be required to furnish further handwriting exemplars to the Government. On March 2, 1982, Defendant Clifford had previously furnished to the Federal Bureau of Investigation certain hand printed exemplars for comparison with the threatening communications. During the course of the investigation, the United States obtained various pieces of handwritten (cursive) correspondence allegedly written (but not block printed), authored, and signed by Defendant Clifford. However, the hand printed exemplars previously obtained were not suitable for comparison with the handwritten (cursive) correspondence, and Defendant, through his counsel, refused to stipulate that he authored the handwritten (cursive) correspondence. The government's intention in procuring the additionally requested handwritten (cursive) exemplars was to identify Defendant Clifford as the author of the handwritten (cursive) correspondence, and then to compare that known handwritten (cursive) correspondence with the block printed threatening communications, in an attempt to show Defendant's authorship of the threatening communications by means of certain similarities in spelling, abbreviation, syntax and paragraphing between the block printed threatening communications and the cursive handwritten correspondence. This methodology of handwriting comparison was labeled "Forensic Linguistic Analysis".
Argument on that motion was heard April 14, 1982, and the Court took that motion under advisement, pending submission of briefs by the parties. On April 26, 1982, the United States filed a Motion in Limine, seeking a ruling pertaining to the admissibility at trial of certain documentary evidence. These documents were identified as Exhibits B-1 through B-7, consisting of written letters, some with envelopes, which were addressed to various people and officials of Saltsburg, Pennsylvania; Exhibit C consisted of the block printed handwriting exemplars provided by Defendant Clifford on March 2, 1982.
During the course of the April 14, 1982 argument, and after the United States filed its Motion in Limine, it appeared to the Court that the analysis of similarities in spelling, abbreviation, syntax and paragraphing which the Government intended to make at trial pertained to the aforementioned methodology known as "forensic linguistic analysis." Therefore, in order to make an informed decision regarding the propriety of requiring additional handwritten exemplars as requested by the Government, and in order to properly rule on the Motion in Limine, this Court entered an Order on May 17, 1982, requiring a hearing on the use, and present state of the art of the "forensic linguistic method", to determine whether this type of methodology presently was sufficiently reliable and trustworthy to warrant its use in the above-captioned criminal matter.
That hearing was held June 8, 1982, and expert testimony was furnished by several agents, employees and experts of the Federal Bureau of Investigation. Following that hearing, and after consideration of the briefs previously submitted, as well as the testimony presented at that hearing, this Court orally ruled from the bench that the Motion for Production of Further Handwriting Exemplars was denied for the reason that said new methodology, namely, "Forensic Linguistic Analysis" had not been advanced to the point wherein the state of said art was sufficiently trustworthy and reliable to be used in a criminal case. The Court further ruled that the Government could not introduce at trial the documentary evidence offered in its Motion in Limine. The purpose of this Supplemental Opinion is to clarify, explain, and delineate the basis of the Court's June 8, 1982 ruling.
II. The Forensic Linguistic Method
At the June 8, 1982 hearing, the Court received the testimony of Dr. Murray S. Miron, a professor at Syracuse University who renders psycholinguistic services to the Federal Bureau of Investigation; Penelope Pickett, an aural analyst with the Federal Bureau of Investigation Laboratory, and the author of the FBI report denoted as Court Exhibit 1-A; and Special Agent Ronald M. Furgerson, the unit chief in charge of the technical evaluation unit of the document section of the Federal Bureau of Investigation Laboratory.
Dr. Murray S. Miron testified that he is under contract with the Federal Bureau of Investigation to provide psycholinguistic services in cases involving disputed or unknown authorship. These analyses include psychiatric characteristics of the author, demographic characteristics of the author (age, economic, background, residence) and linguistic analysis based on syntax, punctuation, and spelling. To accomplish this, Dr. Miron has developed computer programs which compare vocabulary and stylistic variants, e.g., length of sentence, number of periods, exclamation marks, dependent clauses. Additionally, each vocabulary item is assessed with respect to its frequence of occurrence in the language. Certain misspellings and certain abbreviations would be weighted heavily in the comparison, while others would be lightly weighted or not weighted at all. Transcript, June 8, 1982, at 8-10.
Dr. Miron uses standard counts of present American English which list the frequency of occurrence of more than one million words of text taken from fiction, novels, newspapers, and other printed sources. In determining whether a certain misspelling is a significant factor, reference is made to this sample, and if that particular misspelling does not appear, such misspelling is considered to be significant, and the word is known as a signature word, that is, a distinctive word that is idiosyncratic or peculiar to a particular writer. Transcript, June 8, 1982, at 10-13.
Dr. Miron concurred with the identification of the significant features of the known and unknown samples that were made by the Federal Bureau of Investigation expert in Court Exhibit 1-A because the misspellings were unusual. Tr., June 8, 1982, at 20.
Dr. Miron also stated that the application of these methods as evidentiary proof of authorship was premature, and the author of the threatening communications could not be identified to the exclusion of any other possible author. Part of the problem in determining authorship is that the samples involved were short segments, and since language shows high degree of variability, larger samples were required to insure that there is a representative sample. Dr. Miron also stated that he did not consider the method to be suitable for testimonial purposes to establish certainty of authorship, although he stated expert testimony could be used to point out to a jury how unusual certain similarities or dissimilarities are. The Court ...