United States v. Crisp ( 2003 )

  •                            PUBLISHED
                    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
                     v.                             No. 01-4953
                Appeal from the United States District Court
           for the Middle District of North Carolina, at Durham.
                    William L. Osteen, District Judge.
                          Argued: December 6, 2002
                          Decided: March 31, 2003
           Before WILKINS, Chief Judge, and MICHAEL and
                       KING, Circuit Judges.
    Affirmed by published opinion. Judge King wrote the majority opin-
    ion, in which Chief Judge Wilkins joined. Judge Michael wrote a dis-
    senting opinion.
    ARGUED: John A. Dusenbury, Jr., Assistant Federal Public
    Defender, Greensboro, North Carolina, for Appellant. Douglas Can-
    non, Assistant United States Attorney, Greensboro, North Carolina,
    for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public
    Defender, Greensboro, North Carolina, for Appellant. Anna Mills
    2                       UNITED STATES v. CRISP
    Wagoner, United States Attorney, Greensboro, North Carolina, for
    KING, Circuit Judge:
       Patrick Leroy Crisp appeals multiple convictions arising from an
    armed bank robbery carried out in Durham, North Carolina, on June
    13, 2001. Crisp maintains that his trial was tainted by the Govern-
    ment’s presentation of inadmissible expert testimony. His appeal
    presents a single question: whether the disciplines of forensic finger-
    print analysis and forensic handwriting analysis satisfy the criteria for
    expert opinion testimony under Daubert v. Merrill Dow Pharmaceuti-
    cals, Inc., 
    509 U.S. 579
     (1993). As explained below, the prosecution’s
    fingerprint and handwriting evidence was properly admitted, and we
    affirm the convictions.
       At approximately 12:25 p.m. on June 13, 2001, a lone male, wear-
    ing a mask and surgical gloves, and carrying a handgun, entered the
    Central Carolina Bank in Durham, North Carolina. He approached
    Joan Adams, a teller, threw a bag on the counter, and instructed her
    to "fill up the god*mned f***ing bag." Adams promptly gave the
    gunman the sum of $7,854 in cash, which included bait bills and an
    electronic tracking device. Then, a horn sounded twice from the park-
    ing lot outside, and the robber left the bank and made his getaway in
    a purple Ford Probe automobile.
       Shortly thereafter, Durham police officer Michael Britton heard
    radio traffic stating that a purple Ford Probe was involved in a bank
    robbery. Driving on Faison Road, he observed a purple Ford Probe
    parked on the wrong side of the street. Officer Britton immediately
    secured the vehicle, and he later learned that it had been stolen the
    previous day.
      The next day, June 14, 2001, the authorities received a call on its
    Crimestoppers telephone line from an individual who claimed to have
                           UNITED STATES v. CRISP                        3
    information about the robbery of the Central Carolina Bank. The
    caller provided detailed information, and later that day the police met
    the caller, Michael Mitchell, at a local restaurant. Mitchell informed
    the officers that Patrick Crisp and Lamont Torain had robbed the
    bank. He further attested that Crisp and Torain had attempted to
    recruit him to participate in the robbery, but that he had declined.
    Mitchell explained that Crisp had detailed the entire robbery plan to
    him. On the basis of Mitchell’s information, the police obtained an
    arrest warrant for Crisp.
       On June 15, 2001, Crisp, while driving a rented Pontiac Grand Am
    with Mitchell as a passenger, came upon a police license checkpoint.
    Crisp was unable to produce a valid driver’s license, and he advised
    the officers that his name was Jermaine Jackson. A small amount of
    marijuana was found in the vehicle. While Crisp was being inter-
    viewed, Mitchell informed the police of Crisp’s real identity, and the
    officers promptly learned of the outstanding warrant for Crisp’s
    arrest. Crisp was then taken into custody.
       Torain was also arrested, and he was incarcerated in the same jail
    as Crisp. On June 20, 2001, as he walked past Crisp’s cell, a hand-
    written note (the "Note") was slid out from under Crisp’s door. The
    Note, the last line of which was allegedly crossed out when delivered,
           You know if you don’t help me I am going to get life in
        prison, and you ain’t going to get nothing. Really it’s over
        for me if you don’t change what you told them.
          Tell them I picked you up down the street in Kathy’s car.
        Tell them that I don’t drive the Probe. Tell them Mike drove
        the Probe. He is the one that told on us. Tell them the gun
        and all that shit was Mike’s. That is what I am going to tell
        them tommorow [sic].
           Tell the Feds Mike drove you away from the bank.
    4                      UNITED STATES v. CRISP
       During the investigation of the robbery, Crisp’s girlfriend, Kather-
    ine Bell, gave police officers consent to search both her residence in
    Hillsborough, North Carolina, and her car, a white Ford Escort. The
    officers found surgical gloves in the vehicle, and in her bedroom they
    discovered a bullet proof vest and a sawed-off shotgun. In the course
    of the investigation, the officers obtained palmprints and handwriting
    exemplars from Crisp.
       Both Mitchell and Torain testified against Crisp at Crisp’s trial,
    which was conducted from September 10 through September 13,
    2001, in Winston-Salem, North Carolina.1 Mitchell testified, inter
    alia, that on June 11, 2001, Crisp told him he needed to make some
    quick money and that he planned to rob a bank. Mitchell told the jury
    that Crisp then took him to the Central Carolina Bank, informed him
    that he (Crisp) and Lamont Torain were going to rob it, and asked if
    Mitchell would participate. The following day, Mitchell, Crisp, and
    Torain discussed the robbery plan in further detail. Crisp showed
    Mitchell a bullet proof vest, a sawed-off shotgun, an automatic
    weapon, a mask, and clothing, all of which Crisp and Torain intended
    to use in the bank robbery. Mitchell further testified that Crisp had
    shown him the purple Ford Probe. According to Mitchell, the initial
    plan was that he and Torain would enter the bank, and Crisp would
    drive the getaway vehicle. The following morning, however, when
    Torain came to pick up Mitchell for the robbery, Mitchell begged off,
    explaining that he had to babysit his children.
       Torain described to the jury a slightly different set of events. He
    asserted that it was Mitchell and Crisp who planned the robbery, and
    that, originally, it was he who was to drive the getaway vehicle.
    According to Torain, when Mitchell refused to participate, the plan
    changed: Torain entered the bank, while Crisp waited in the getaway
      At trial, Mary Katherine Brannan, a fingerprint expert with the
    North Carolina State Bureau of Investigation ("SBI"), testified that
    Crisp’s right palm had produced a latent print that had subsequently
    been recovered from the Note. Furthermore, a handwriting expert,
      The credibility of both Mitchell and Torain was substantially
                            UNITED STATES v. CRISP                        5
    Special Agent Thomas Currin, a "questioned document analyst" with
    the SBI, testified that Crisp had authored the Note.
       Crisp presented an alibi defense. His cousin, Cecilia Pointer,
    claimed that, on the day of the robbery, her husband and Crisp came
    to her place of employment at approximately 12:30 p.m., and that the
    two men then left to submit applications at a temporary employment
    agency. She testified that they stopped back by her work around 1:00
    p.m. or 1:15 p.m.
      After the four-day jury trial, Crisp was found guilty of bank rob-
    bery, bank robbery with a dangerous weapon, and brandishing a fire-
    arm during and in relation to the bank robbery. On November 27,
    2001, he received a sentence of 356 months of imprisonment and five
    years of supervised release. His notice of appeal was timely filed on
    November 27, 2001, and we possess jurisdiction pursuant to 28
    U.S.C. § 1291.
       Fingerprint and handwriting analysis have long been recognized by
    the courts as sound methods for making reliable identifications. See,
    e.g., Piquett v. United States, 
    81 F.2d 75
    , 81 (7th Cir. 1936) (finger-
    prints); Robinson v. Mandell, 
    20 F. Cas. 1027
     (D. Mass. 1868) (hand-
    writing). Today, however, Crisp challenges the district court’s
    decisions to permit experts in those fields to testify on behalf of the
    prosecution. The fingerprinting expert, Brannan, gave her opinion that
    a palm print lifted from the Note was that of Crisp; the handwriting
    expert, Currin, testified that, in his judgment, the handwriting on the
    Note matched Crisp’s handwriting. We review for abuse of discretion
    a district court’s decision to admit or reject expert testimony. General
    Elec. Co. v. Joiner, 
    522 U.S. 136
    , 139 (1997); see also Kumho Tire
    Co., Ltd. v. Carmichael, 
    526 U.S. 137
    , 152 (1999) ("[T]he trial judge
    must have considerable leeway in deciding in a particular case how
    to go about determining whether particular expert testimony is reli-
       The Federal Rules of Evidence provide that "[i]f scientific, techni-
    cal, or other specialized knowledge will assist the trier of fact to
    understand the evidence or to determine a fact in issue, a witness
    6                       UNITED STATES v. CRISP
    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 Supreme Court has made clear that it
    is the trial court’s duty to play a gatekeeping function in deciding
    whether to admit expert testimony: "[T]he trial judge must ensure that
    any and all scientific testimony or evidence admitted is not only rele-
    vant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 
    509 U.S. 579
    , 589 (1993).
       In Daubert, the Court announced five factors that may be used in
    assessing the relevancy and reliability of expert testimony: (1)
    whether the particular scientific theory "can be (and has been) tested";
    (2) whether the theory "has been subjected to peer review and publi-
    cation"; (3) the "known or potential rate of error"; (4) the "existence
    and maintenance of standards controlling the technique’s operation";
    and (5) whether the technique has achieved "general acceptance" in
    the relevant scientific or expert community. Id. at 593-94. Rather than
    providing a definitive or exhaustive list, Daubert merely illustrates
    the types of factors that will "bear on the inquiry." Id. As Daubert
    emphasized, the analysis must be "a flexible one." Id.; see also
    Kumho, 526 U.S. at 141-42 (concluding that testing of reliability
    should be flexible and that Daubert’s five factors neither necessarily
    nor exclusively apply to every expert).
       We turn first to whether the fingerprint evidence was properly
    admitted against Crisp. Crisp has challenged the admission of this
    evidence on several grounds: His primary contention is that the prem-
    ises underlying fingerprinting evidence have not been adequately
    tested. Crisp also maintains that there is no known rate of error for
    latent fingerprint identifications, that fingerprint examiners operate
    without a uniform threshold of certainty required for a positive identi-
    fication, and that fingerprint evidence has not achieved general accep-
    tance in the relevant scientific community.
       Fingerprint identification has been admissible as reliable evidence
    in criminal trials in this country since at least 1911. See People v. Jen-
                            UNITED STATES v. CRISP                          7
    96 N.E. 1077
     (Ill. 1911); see also Jennifer L. Mnookin, Finger-
    print Evidence in an Age of DNA Profiling, 67 Brooklyn L. Rev. 13
    (2001) (discussing history of fingerprint identification evidence).
    While we have not definitively assessed the admissibility of expert
    fingerprint identifications in the post-Daubert era,2 every Circuit that
    has done so has found such evidence admissible. See United States v.
    299 F.3d 984
     (8th Cir. 2002) (concluding that fingerprint
    identification satisfies Daubert); United States v. Havvard, 
    260 F.3d 597
    , 601 (7th Cir. 2001) (same); United States v. Sherwood, 
    98 F.3d 402
    , 408 (9th Cir. 1996) (noting defendant’s acknowledgment that
    "fingerprint comparison has been subjected to peer review and publi-
    cation," and holding that trial court did not commit clear error where
    it admitted fingerprint evidence without performing Daubert analy-
    sis); see also United States v. Llera Plaza, 
    188 F. Supp. 2d 549
    , 572-
    73 (E.D. Pa. 2002) (discussing long history of latent fingerprint evi-
    dence in criminal proceedings, and citing lack of proof of its unreli-
    ability, to hold such evidence admissible); United States v. Joseph,
    2001 WL 515213
    , *1 (E.D. La. May 14, 2001) (observing that "fin-
    gerprint analysis has been tested and proven to be a reliable science
    over decades of use for judicial purposes"); United States v. Martinez-
    136 F. Supp. 2d 17
    , 20 (D.P.R. 2001) (noting that questions
    of reliability of fingerprint identifications can be addressed through
    vigorous cross-examination of expert witness).
       Upholding a district court’s admission of fingerprint evidence, the
    Seventh Circuit emphasized in Havvard that the district court "prop-
    erly considered the Daubert factors in analyzing [the defendant’s]
    motion and concluded that fingerprinting techniques have been tested
    in the adversarial system, that individual results are routinely sub-
    jected to peer review for verification, and that the probability of error
    is exceptionally low." 260 F.3d at 601. As here, the defendant in Hav-
    vard contended that "fingerprint comparisons are not reliable because
    the government admits that the basic premise that all fingerprints are
       In United States v. Rogers, 
    2001 WL 1635494
     (4th Cir. Dec. 20,
    2001) (unpublished), we upheld the admissibility of fingerprint evidence.
    We observed both that the Government’s expert had "testified to the
    existence of numerous studies" supporting the proposition that all finger-
    prints are unique, and that the defendant was unable to cite any "evidence
    suggesting that fingerprint evidence is unreliable." Id. at *1.
    8                       UNITED STATES v. CRISP
    unique remains unproven, and because there are no objective stan-
    dards for defining how much of a latent fingerprint is necessary to
    conduct a comparison or for evaluating an individual examiner’s
    comparison." Id. at 600. The defendant further maintained that the
    district court erred in requiring him to offer some basis on which to
    find fingerprint analysis unreliable. Id. The Havvard court, however,
    properly rejected this line of argument. Emphasizing that general
    acceptance remains an important consideration under Daubert, the
    Seventh Circuit concluded that the district court properly recognized
    that "establishing the reliability of fingerprint analysis was made eas-
    ier by its 100 years of successful use in criminal trials, and appropri-
    ately noted that nothing presented at the hearing undermined [the
    expert’s] testimony." Id. at 600-01.
       In his challenge to the admissibility of the fingerprint evidence,
    Crisp begins with the contention that the basic premises underlying
    fingerprint identification have not been subjected to adequate testing.
    The two premises that he singles out as requiring more searching
    scrutiny are: (1) that no two persons share the same fingerprint; and
    (2) that fingerprint examiners are able to make reliable identifications
    on the basis of small, distorted latent fingerprint fragments. In support
    of his assertions, Crisp notes that the expert in this case, Brannan, was
    unable to reference any study establishing that no two persons share
    the same fingerprint; she was able only to testify that no study had
    ever proven this premise false. In addition, Crisp contends that the
    Government itself seems unsure of the reliability of fingerprint evi-
    dence: in particular, Crisp notes that the National Institute of Justice,
    an arm of the Department of Justice, issued a solicitation for finger-
    print validation studies in March of 2000. This solicitation calls for
    "basic research to determine the scientific validity of individuality in
    friction ridge examination," and also seeks the development of stan-
    dard procedures for fingerprint comparisons and for the testing of
    those procedures once adopted. National Institute of Justice, Forensic
    Friction Ridge (Fingerprint) Examination Validation Studies 4 (Mar.
    2000). Finally, though Crisp cites no studies demonstrating the unreli-
    ability of fingerprinting analysis, he brings to our attention two law
                              UNITED STATES v. CRISP                           9
    review articles discussing the paucity of research into the fingerprint
    identification process.3
        Crisp next maintains that, because the basic premises behind fin-
    gerprint analysis have not been properly tested, there can be no estab-
    lished error rates.4 He also asserts that fingerprint examiners operate
    without uniform, objective standards, noting that Brannan herself tes-
    tified that there is no generally accepted standard regarding the num-
    ber of points of identification necessary to make a positive
    identification. Finally, Crisp contends that, while fingerprint analysis
    has gained general acceptance among fingerprint examiners them-
    selves, this factor should be discounted because, according to Crisp,
         See Margaret A. Berger, Procedural Paradigms for Applying the
    Daubert Test, 
    78 Minn. L
    . Rev. 1345, 1353 (1994) ("Considerable foren-
    sic evidence [such as fingerprinting] made its way into the courtroom
    without empirical validation of the underlying theory and/or its particular
    application."); Michael J. Saks, Merlin and Solomon: Lessons from the
    Law’s Formative Encounters With Forensic Identification Science, 49
    Hastings L.J. 1069, 1105-06 (1998) (noting that the first courts to recog-
    nize the validity of fingerprint analysis "invested little effort assessing
    the merits of the proffered scientific evidence" and observing that: "Fin-
    gerprint evidence may present courts applying Daubert with their most
    extreme dilemma. By conventional scientific standards, any serious
    search for evidence of the validity of fingerprint identification is going
    to be disappointing. Yet the intuitions that underlie fingerprint examina-
    tion, and the subjective judgments on which specific case opinions are
    based, are powerful.").
         It is true that, in Rogers, we found fingerprinting evidence admissible
    in part because, in that case, "the possibility of error was mitigated . . .
    by having two experts independently review the evidence." 
    2001 WL 1635494
    , *1. Here, there was no such independent review. And although
    Brannan, the fingerprint expert, testified to achieving perfect scores on
    all of her proficiency tests, such tests may not in and of themselves estab-
    lish a low error rate, since a fingerprint used for testing purposes may be
    clearer and more complete than a print harvested from a crime scene. For
    example, while the Llera Plaza court recognized that FBI experts were
    required to take proficiency tests, and that those experts scored highly on
    such tests, it observed that the tests themselves "presented little chal-
    lenge, principally because . . . the latent prints in the tests were . . . of
    substantially greater clarity than one would normally harvest from a
    crime scene." 
    188 F. Supp. 2d
     at 565.
    10                      UNITED STATES v. CRISP
    the relevant community "is devoid of financially disinterested parties
    such as academics." United States v. Starzecpyzel, 
    880 F. Supp. 1027
    1038 (S.D.N.Y. 1995).
       Crisp today advocates the wholesale exclusion of a long-accepted
    form of expert evidence. Such a drastic step is not required of us
    under Daubert, however, and we decline to take it. The Daubert deci-
    sion, in adding four new factors to the traditional "general accep-
    tance" standard for expert testimony, effectively opened the courts to
    a broader range of opinion evidence than was previously admissible.
    Although Daubert attempted to ensure that courts screen out "junk
    science," it also enabled the courts to entertain new and less conven-
    tional forms of expertise. As the Court explained, the addition of the
    new factors would put an end to the "wholesale exclusion [of expert
    testimony based on scientific innovations] under an uncompromising
    ‘general acceptance’ test." Daubert, 509 U.S. at 596.
       The touchstones for admissibility under Daubert are two: reliability
    and relevancy. See id. at 589, 597; see also Kumho, 526 U.S. at 152
    ("The objective of [Daubert’s gatekeeping] requirement is to ensure
    the reliability and relevancy of expert testimony."). Under Daubert,
    a trial judge need not expend scarce judicial resources reexamining a
    familiar form of expertise every time opinion evidence is offered. In
    fact, if a given theory or technique is "so firmly established as to have
    attained the status of scientific law," then it need not be examined at
    all, but instead may properly be subject to judicial notice. Daubert,
    509 U.S. at 592 n.11.
       While the principles underlying fingerprint identification have not
    attained the status of scientific law, they nonetheless bear the impri-
    matur of a strong general acceptance, not only in the expert commu-
    nity, but in the courts as well. See Havvard, 260 F.3d at 601 (noting
    lower court’s observation that fingerprint analysis has enjoyed "100
    years of successful use in criminal trials"); Llera Plaza, 
    188 F. Supp. 2d
     at 563, 572-76 (describing longstanding consensus in expert com-
    munity as to reliability of fingerprint identification process in holding
    admissible expert fingerprint identification evidence); see also Her-
    nandez, 299 F.3d at 991 (upholding admissibility of fingerprint identi-
                             UNITED STATES v. CRISP                         11
    fication evidence one year ago); Jennings, 96 N.E. at 1083 (upholding
    admissibility of fingerprint identification evidence ninety-two years
    ago). Put simply, Crisp has provided us no reason today to believe
    that this general acceptance of the principles underlying fingerprint
    identification has, for decades, been misplaced. Accordingly, the dis-
    trict court was well within its discretion in accepting at face value the
    consensus of the expert and judicial communities that the fingerprint
    identification technique is reliable.
       In addition to a strong expert and judicial consensus regarding the
    reliability of fingerprint identification, there exist the requisite "stan-
    dards controlling the technique’s operation." Daubert, 509 U.S. at
    593. As Brannan testified, while different agencies may require dif-
    ferent degrees of correlation before permitting a positive identifica-
    tion, fingerprint analysts are held to a consistent "points and
    characteristics" approach to identification. Analysts are also consis-
    tently subjected to testing and proficiency requirements. Brannan’s
    testimony is entirely in keeping with the conclusions of the post-
    Daubert courts that uniform standards have been established "through
    professional training, peer review, presentation of conflicting evi-
    dence and double checking." Rogers, 
    2001 WL 1635494
    , *1; see also,
    e.g., Llera Plaza, 
    188 F. Supp. 2d
     at 566-71 (detailing development
    of identification criteria and holding that "standards which control the
    opining of a competent fingerprint examiner are sufficiently widely
    agreed upon to satisfy Daubert requirements"); cf. Havvard, 260 F.3d
    at 599 (holding that, while uniform standards may not exist, "the
    unique nature of fingerprints is counterintuitive to the establishment
    of such a standard").
       Furthermore, in Havvard, the Seventh Circuit determined that Dau-
    bert’s "known error rate" factor was satisfied because the expert had
    testified that the error rate for fingerprint comparison was "essentially
    zero." 260 F.3d at 599. Similarly, and significantly, Brannan testified
    here to a negligible error rate in fingerprint identifications.
       In sum, the district court heard testimony to the effect that the
    expert community has consistently vouched for the reliability of the
    fingerprinting identification technique over the course of decades.
    That evidence is consistent with the findings of our sister circuits, and
    Crisp offers us no reason to believe that the court abused its discretion
    12                      UNITED STATES v. CRISP
    in crediting it. The district court also heard evidence from which it
    was entitled to find the existence of professional standards controlling
    the technique’s operation. Those standards provide adequate assur-
    ance of consistency among fingerprint analyses. Finally, the court
    heard testimony that fingerprint identification has an exceedingly low
    rate of error, and the court was likewise within its discretion in credit-
    ing that evidence. While Crisp may be correct that further research,
    more searching scholarly review, and the development of even more
    consistent professional standards is desirable, he has offered us no
    reason to reject outright a form of evidence that has so ably withstood
    the test of time.
       Finally, even if we had a more concrete cause for concern as to the
    reliability of fingerprint identification, the Supreme Court emphasized
    in Daubert that "[v]igorous cross-examination, presentation of con-
    trary evidence, and careful instruction on the burden of proof are the
    traditional and appropriate means of attacking shaky but admissible
    evidence." Daubert, 609 U.S. at 596. Ultimately, we conclude that
    while further research into fingerprint analysis would be welcome, "to
    postpone present in-court utilization of this bedrock forensic identifier
    pending such research would be to make the best the enemy of the
    good." Llera Plaza, 
    188 F. Supp. 2d
     at 573 (internal quotation omit-
       In seeking to have his convictions vacated, Crisp also challenges
    the admissibility of the opinions of Currin, the handwriting expert, on
    grounds that are essentially identical to those on which he relied to
    make his case against fingerprint evidence. Crisp contends that, like
    fingerprinting identifications, the basic premise behind handwriting
    analysis is that no two persons write alike, and thus that forensic doc-
    ument examiners can reliably determine authorship of a particular
    document by comparing it with known samples. He maintains that
    these basic premises have not been tested, nor has an error rate been
    established. In addition, he asserts that handwriting experts have no
    numerical standards to govern their analyses and that they have not
    subjected themselves and their science to critical self-examination and
                            UNITED STATES v. CRISP                        13
       While the admissibility of handwriting evidence in the post-
    Daubert world appears to be a matter of first impression for our
    Court, every circuit to have addressed the issue has concluded, as on
    the fingerprint issue, that such evidence is properly admissible. See
    United States v. Jolivet, 
    224 F.3d 902
    , 906 (8th Cir. 2000) (citing
    Eleventh Circuit’s Paul decision and upholding admission of expert
    handwriting testimony); United States v. Paul, 
    175 F.3d 906
    , 911
    (11th Cir. 1999) (emphasizing "flexible" nature of district court’s
    gatekeeping function, and noting that "the ability of the jury to per-
    form the same visual comparisons as the experts cuts against the dan-
    ger of undue prejudice from the mystique attached to experts"
    (internal quotation omitted)); United States v. Jones, 
    107 F.3d 1147
    1161 (6th Cir. 1997) (upholding admission of expert handwriting tes-
    timony and observing that "just because the threshold for admissibil-
    ity [of expert testimony] under Rule 702 has been crossed, a party is
    not prevented from challenging the reliability of the admitted evi-
    dence"); United States v. Velasquez, 
    64 F.3d 844
     (3rd Cir. 1995) (dis-
    cussing standard methodology applied by handwriting analysts, and
    upholding admission of expert handwriting testimony).5
       The Government’s handwriting expert, Thomas Currin, had
    twenty-four years of experience at the North Carolina SBI. On voir
    dire, and then on direct examination, he explained that all questioned
    documents that come into the SBI are analyzed first by a "questioned
    document examiner"; and that the initial analysis is then reviewed by
    another examiner. Currin discussed several studies showing the abil-
        Certain district courts, however, have recently determined that hand-
    writing analysis does not meet the Daubert standards. See, e.g., United
    States v. Lewis, 
    220 F. Supp. 2d 548
    , 554 (S.D. W. Va. 2002) (finding
    proficiency tests and peer review meaningless where the evidence
    showed that handwriting experts "always passed their proficiency tests,
    . . . [and that] peers always agreed with each others’ results" (emphasis
    in original)); United States v. Brewer, 
    2002 WL 596365
     (N.D. Ill. 2002);
    United States v. Saelee, 
    162 F. Supp. 2d 1097
     (D. Alaska 2001); United
    States v. Hines, 
    55 F. Supp. 2d 62
     (D. Mass. 1999).
    14                      UNITED STATES v. CRISP
    ity of qualified document examiners to identify questioned handwrit-
    ing.6 In addition, he had passed numerous proficiency tests,
    consistently receiving perfect scores. Currin testified to a consistent
    methodology of handwriting examination and identification, and he
    stated that the methodology "has been used not only at the level of
    state crime laboratories, but [also in] federal and international crime
    laboratories around the world." When he was questioned regarding
    the standards employed in questioned document examination, Currin
    explained that every determination of authorship "is based on the
    uniqueness of [certain] similarities, and it’s based on the quality and
    the skill and the training of the document examiner."
       At trial, Currin drew the jury’s attention to similarities between
    Crisp’s known handwriting exemplars and the writing on the Note.
    Among the similarities that he pointed out were the overall size and
    spacing of the letters and words in the documents; the unique shaping
    of the capital letter "L" in the name "Lamont"; the spacing between
    the capital letter "L" and the rest of the word; a peculiar shaping to
    the letters "o" and "n" when used in conjunction with one another; the
    v-like formation of the letter "u" in the word "you"; and the shape of
    the letter "t," including the horizontal stroke. Currin also noted that
    the word "tomorrow" was misspelled in the same manner on both the
    known exemplar and the Note. He went on to testify that, in his opin-
    ion, Crisp had authored the Note.
       Our analysis of Daubert in the context of fingerprint identification
    applies with equal force here: like fingerprint analysis, handwriting
    comparison testimony has a long history of admissibility in the courts
    of this country. See, e.g., Robinson v. Mandell, 
    20 F. Cas. 1027
    Mass. 1868). 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. Further-
        Rather than analyzing the ability of document examiners to correctly
    identify authorship, the studies to which Currin referred examined
    whether document examiners were more likely than lay people to iden-
    tify authorship correctly. In one study, lay participants had a 38% error
    rate, while qualified document examiners had a 6% error rate.
                            UNITED STATES v. CRISP                        15
    more, as with expert testimony on fingerprints, the role of the hand-
    writing expert is primarily to draw the jury’s attention to similarities
    between a known exemplar and a contested sample. Here, Currin
    merely pointed out certain unique characteristics shared by the two
    writings. Though he opined that Crisp authored the Note in question,
    the jury was nonetheless left to examine the Note and decide for itself
    whether it agreed with the expert.
       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. But in light of Crisp’s failure to offer us any reason today
    to doubt the reliability of handwriting analysis evidence in general,
    we must decline to deny our courts and juries such insights as it can
       For the foregoing reasons, we affirm the district court’s evidentiary
    rulings, and thus we affirm the convictions of Patrick Leroy Crisp.
    MICHAEL, Circuit Judge, dissenting:
       The majority believes that expert testimony about fingerprint and
    handwriting identification is reliable because the techniques in these
    fields have been accepted and tested in our adversarial system over
    time. This belief leads the majority to excuse fingerprint and hand-
    writing analysis from the more careful scrutiny that scientific expert
    testimony must now withstand under Daubert v. Merrell Dow Phar-
    maceuticals, Inc., 
    509 U.S. 579
     (1993), before it can be admitted. In
    Patrick Leroy Crisp’s case the government did not prove that its
    expert identification evidence satisfied the Daubert factors or that it
    was otherwise reliable. I respectfully dissent for that reason. In dis-
    senting, I am not suggesting that fingerprint and handwriting evidence
    cannot be shown to satisfy Daubert. I am only making the point that
    the government did not establish in Crisp’s case that this evidence is
    reliable. The government has had ten years to comply with Daubert.
    It should not be given a pass in this case.
    16                      UNITED STATES v. CRISP
        The Daubert case lists five factors for assessing the reliability of
    expert scientific testimony: (1) whether the expert’s theory can be or
    has been tested; (2) whether the theory has withstood peer review and
    publication; (3) whether there is a known or potential rate of error; (4)
    whether standards exist for the application of the theory; and (5)
    whether the theory has been generally accepted by the relevant scien-
    tific community. Daubert, 509 U.S. at 593-94. These factors are not
    meant to be exclusive or necessarily dispositive. Id. However, when
    "the Daubert factors are reasonable measures of the [expert] testimo-
    ny’s reliability, the Supreme Court has instructed that the trial judge
    should consider them." United States v. Lewis, 
    220 F. Supp. 2d 548
    551 (S.D. W. Va. 2002) (citing Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 152 (1999) (emphasis added)).
       The majority excuses fingerprint and handwriting analysis from
    any rigorous Daubert scrutiny because these techniques are generally
    accepted and have been examined for nearly one hundred years in our
    adversarial system of litigation. These circumstances are not suffi-
    cient to demonstrate reliability in the aftermath of Daubert. To say
    that expert evidence is reliable because it is generally accepted is to
    say that it is admissible under Daubert because it was admissible
    under the old rule articulated in Frye v. United States, 
    293 F. 1013
    1014 (D.C. Cir. 1923) (allowing expert evidence that had "gained
    general acceptance in the particular field in which it belongs"). Frye’s
    "general acceptance" rule was replaced by Fed. R. Evid. 702, which
    now requires expert testimony to be "the product of reliable principles
    and methods." Daubert, of course, outlines the factors that are rele-
    vant to the determination of reliability. Nothing in the Supreme
    Court’s opinion in Daubert suggests that evidence that was admitted
    under Frye is grandfathered in or is free of the more exacting analysis
    now required. See United States v. Saelee, 
    162 F. Supp. 2d 1097
    1105 (D. Alaska 2001) ("[T]he fact that [expert] evidence has been
    generally accepted in the past by courts does not mean that it should
    be generally accepted now, after Daubert and Kumho.").
       Nor is fingerprint and handwriting analysis necessarily reliable
    because it has been subjected to the adversarial process of litigation.
    In a criminal case like this one, adversarial testing simply means that
                            UNITED STATES v. CRISP                       17
    the defense lawyer cross-examines the government’s expert. That, I
    concede, is important, but it only goes part way. In most criminal
    cases, particularly those in which the defendant is indigent, the defen-
    dant does not have access to an independent expert who could review
    the analyses and conclusions of the prosecution’s expert. Simon Cole,
    Suspect Identities: A History of Fingerprinting and Criminal Identifi-
    cation 280 (2001) [hereinafter Cole, Suspect Identities] (noting that
    defense lawyers rarely challenge fingerprint evidence, in part because
    they often do not have the funds to hire experts). Lack of money is
    only one problem. Lack of independent crime laboratories is another.
    The great majority of crime laboratories are operated by law enforce-
    ment agencies. Paul C. Giannelli, The Abuse of Scientific Evidence in
    Criminal Cases: The Need for Independent Crime Laboratories, 4 Va.
    J. Soc. Pol’y & L. 439, 470 (1997); Paul C. Giannelli, "Junk Science":
    The Criminal Cases, 84 J. Crim. L. & Criminology 105, 118 (1993).
    More important, criminal defendants do not appear to have access to
    experts who could challenge the basic principles and methodology of
    fingerprint and handwriting analysis. Jennifer L. Mnookin, Finger-
    print Evidence in an Age of DNA Profiling, 67 Brooklyn L. Rev. 13,
    38-39 (2001) [hereinafter Mnookin, Fingerprint Evidence] (explain-
    ing that fingerprint evidence came to be seen as particularly powerful
    in part because it was so rarely challenged by the defense); Cole, Sus-
    pect Identities, supra at 280 (reporting that New York City police
    officers caught fabricating evidence chose to create fingerprint evi-
    dence because it was so unlikely to be challenged). Our adversarial
    system has much to commend it, but it is not a general substitute for
    the specific Daubert inquiry. The system without Daubert did not
    work to ensure the reliability of fingerprint and handwriting analysis.
    As I point out in parts II.B. and III infra, fingerprint and handwriting
    analysis was admitted with little judicial scrutiny for decades prior to
       Nothing in the history of the use of fingerprint and handwriting
    evidence leads me to conclude that it should be admitted without the
    scrutiny now required by Daubert. The government, of course, has
    the burden to put forward evidence "from which the court can deter-
    mine that the proffered testimony is properly admissible" under Dau-
    bert. Md. Cas. Co. v. Therm-O-Disc, Inc., 
    137 F.3d 780
    , 783 (4th Cir.
    1998). The government utterly failed to meet its burden here.
    18                      UNITED STATES v. CRISP
       At Crisp’s trial the government’s fingerprint identification evi-
    dence failed to satisfy any of the Daubert requirements for establish-
    ing scientific reliability. The first Daubert factor is whether the
    technique has been tested. The government did not offer any record
    of testing on the reliability of fingerprint identification. See J.A. 361
    (testimony of the government’s fingerprint expert, an employee of the
    North Carolina Bureau of Investigation, stating that she was not
    aware of any testing on the validity of the science). Indeed, it appears
    that there has not been sufficient critical testing to determine the sci-
    entific validity of the technique. See United States v. Llera Plaza, 
    188 F. Supp. 2d 549
    , 564 (E.D. Pa. 2002); Robert Epstein, Fingerprints
    Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S.
    Cal. L. Rev. 605, 624-26 (2002); David A. Stoney, Fingerprint Identi-
    fication: The Scientific Basis of Expert Testimony on Fingerprint
    Identification, in 3 Modern Scientific Evidence: The Law and Science
    of Expert Testimony § 27-2.0, § 27-2.1.2[6] (David L. Faigman et al.
    eds., 2002). Specifically, with respect to forensic fingerprint examina-
    tion, there have not been any studies to establish how likely it is that
    partial prints taken from a crime scene will be a match for only one
    set of fingerprints in the world. Stoney, supra at § 27-2.3.2 ("The
    issue is not the finding of two fingerprints that are alike, but rather
    the finding of prints from two different fingers that can be mistakenly
    judged to be alike by a fingerprint examination."). Although the gov-
    ernment introduced evidence that its fingerprint expert in this case
    had taken and passed proficiency tests, see J.A. 362-63, this evidence
    gave no basis for a conclusion that these proficiency tests reflect real
    world conditions. Proficiency testing is typically based on a study of
    prints that are far superior to those usually retrieved from a crime
    scene. Llera Plaza, 
    188 F. Supp. 2d
     at 565 (acknowledging that profi-
    ciency tests may not reflect real world conditions); compare also
    Lewis, 220 F. Supp. 2d at 554 (noting that proficiency tests are inade-
    quate when everyone passes), with J.A. 362 (testimony of the govern-
    ment’s fingerprint expert in this case, saying that she always achieved
    a perfect score on proficiency tests). The government did not intro-
    duce evidence of studies or testing that would show that fingerprint
    identification is based on reliable principles and methods.
                            UNITED STATES v. CRISP                         19
       The second Daubert factor is whether the science or technique has
    been subjected to peer review and publication. Again, the government
    offered no evidence on this factor at trial. Fingerprint examiners, like
    other forensic scientists, have their own professional publications.
    Epstein, supra at 644. But unlike typical scientific journals, the fin-
    gerprint publications do not run articles that include or prompt cri-
    tique or reanalysis by other scientists. Indeed, few of the articles
    address the principles of fingerprint analysis and identification at all;
    rather, most focus on the process of lifting fingerprints from crime
    scenes. Epstein, supra at 644. This lack of critical analysis in the fin-
    gerprint identification field has had a predictable effect. Unlike tradi-
    tional scientific fields where criticism and vibrant exchange of ideas
    have led to dramatic advances, the techniques used by fingerprint ana-
    lysts have changed little over the years. Simon Cole, What Counts for
    Identity? The Historical Origins of the Methodology of Latent Finger-
    print Identification, Sci. in Context, Spring 1999, at 139, 165 (noting
    that little change has taken place in the methodology of analyzing
    latent prints).
       The third Daubert factor calls for consideration of the known or
    potential rate of error. The government has not tested the reliability
    of fingerprint identification, so it ignored the error rate factor in this
    case. J.A. 360 (testimony of government’s expert that "[a]s far as sta-
    tistics, off the top of my head at this point, I cannot give you any. I
    do know that . . . errors have been made in the field of fingerprints.");
    see also Epstein, supra at 633. Some courts have merely assumed that
    the rate of error in fingerprint identification is low. See Llera Plaza,
    188 F. Supp. 2d
     at 566 (concluding that the absence of evidence of
    high error rates means that the error rate is not unacceptably high).
    And that may be. But an error rate must be demonstrated by reliable
    scientific studies, not by assumption. Nor is it sufficient after Daubert
    for a proponent simply to show that a particular fingerprint examiner
    scores well on proficiency tests. First, it is unclear whether the profi-
    ciency tests taken by the examiner in this case were representative of
    real life conditions. Cf. Llera Plaza, 
    188 F. Supp. 2d
     at 565 (acknowl-
    edging that proficiency tests may not reflect real world conditions).
    Second, where tests have attempted to imitate actual conditions, the
    error rates have been alarmingly high. Epstein, supra at 634. In a
    1995 test conducted by a commercial testing service, less than half of
    the fingerprint examiners were able to identify correctly all of the
    20                      UNITED STATES v. CRISP
    matches and eliminate the non-matches. On a similar test in 1998, less
    than sixty percent of the examiners were able to make all identifica-
    tions and eliminations. Id. at 634-35. An error rate that runs remark-
    ably close to chance can hardly be viewed as acceptable under
       The fourth Daubert factor asks whether there are universal stan-
    dards that govern the application of the technique. The government
    did not establish that there are such standards. Its expert asserted that
    her department had controlling standards, yet when pressed on the
    point, she admitted that the degree of similarity required to find that
    prints are matching "is left up to each individual examiner." J.A. 363.
    As one forensic expert contends, "[a]ny unbiased, intelligent assess-
    ment of fingerprint identification practices today reveals that there
    are, in reality, no standards." Stoney, supra § 27-2.3.1[2]. Many fin-
    gerprint examiners testify in terms of matching points, that is, the
    number of similarities between the ridges in the print taken from the
    crime scene and the ridges in the defendant’s known print. But the
    trend has been toward eliminating any requirement for a minimum
    number of matching points before an opinion can be given that a
    latent print and a known exemplar are attributable to the same person.
    See J.A. 363 (testimony of the government’s fingerprint expert that no
    minimum number of points is required); Llera Plaza, 
    188 F. Supp. 2d
    at 570 (somehow concluding that the fingerprint examination field
    has uniform standards because most examiners agree that no mini-
    mum number of points is required to confirm a match). The trend
    away from a minimum-point requirement may not be unreasonable
    because the requirement, although adopted by some agencies (and
    countries), is not based on scientific study. Epstein, supra at 637
    (quoting a fingerprint expert as saying that the point system is based
    on "educated conjecture"); Cole, Suspect Identities, supra at 270 (dis-
    cussing Britain’s eventual rejection of the sixteen-point minimum).
    Examiners have not, however, been able to replace the point system
    with anything more concrete. Epstein, supra at 638-39; Cole, Suspect
    Identities, supra at 268-69. There is even disagreement as to what
    aspects of the fingerprint the examiner should rely on. One prominent
    expert rejects traditional reliance on ridge characteristics and calls on
    examiners to look at other details such as sweat pores and ridge
    edges. Epstein, supra at 639; Cole, Suspect Identities, supra at 267.
    Others, however, vehemently reject this approach, explaining that
                            UNITED STATES v. CRISP                       21
    variations in these particular details are especially common because
    of differences in pressure, residue on the fingers, the condition of the
    surface on which the print is left, and processing techniques. Epstein,
    supra at 639-40. All of this leads one expert to conclude that "[t]he
    criteria for absolute identification in fingerprint work are subjective
    and ill-defined. They are the product of probabilistic intuitions widely
    shared among fingerprint examiners, not of scientific research."
    Stoney, supra § 27-2.3.1[1]. See also Cole, Suspect Identities, supra
    at 268-69.
       Further, even the safety checks that are thought to be universally
    accepted are not consistently followed. For example, fingerprint
    experts are supposed to reject as matching a pair of prints that contain
    even one dissimilarity. Epstein, supra at 640. At least one expert,
    however, has said that when fingerprint examiners believe the prints
    are a match, they explain away the differences rather than discounting
    the match. Epstein, supra at 640-41. Moreover, independent verifica-
    tion of a match by a second examiner is considered to be essential.
    See Cole, Suspect Identities, supra at 269; Epstein, supra at 641. Yet
    in many cases, including this one, no verification takes place. See ante
    at 9 n.4 (noting that no independent review took place in this case);
    Epstein, supra at 641; Cole, Suspect Identities, supra at 282 (explain-
    ing that an error made by Scotland Yard was attributed to the fact that
    independent verification did not take place); see also Cole, Suspect
    Identities, supra at 280-81 (detailing extensive fabrication of finger-
    print evidence in the New York City Police Department that was not
    uncovered sooner in part because no independent verification took
    place). Moreover, any verification that does take place is not indepen-
    dent in the truest sense. The reviewer is usually a supervisor or col-
    league in a forensic lab associated with law enforcement, so the
    reviewer may share the same inclinations as the original examiner.
    See Cole, Suspect Identities, supra at 269.
       In short, the government did not establish that there are objective
    standards in the fingerprint examination field to guide examiners in
    making their comparisons.
      The fifth (and final) Daubert factor is whether the technique has
    been generally accepted in the relevant scientific community. I
    acknowledge, of course, that the general public, which sees movies
    22                      UNITED STATES v. CRISP
    and television programs that regularly portray fingerprinting and other
    forensic techniques as key to crime solving, regards fingerprint identi-
    fication as perfectly reliable. Moreover, several circuit courts since
    Daubert have held — without going deeply into the question — that
    fingerprint evidence is admissible. See United States v. Hernandez,
    299 F.3d 984
    , 991 (8th Cir. 2002); United States v. Havvard, 
    260 F.3d 597
    , 601 (7th Cir. 2001); United States v. Sherwood, 
    98 F.3d 402
    , 408
    (9th Cir. 1996). But "[t]he Daubert court did not suggest that accep-
    tance by a legal, rather than a scientific community, would suffice."
    United States v. Starzecpyzel, 
    880 F. Supp. 1027
    , 1038 (S.D.N.Y.
    1995). The fingerprint examination community is certainly a propo-
    nent of the technique. That community’s enthusiasm, however, must
    be subjected to objective scrutiny if Daubert is to have any meaning.
    One author asserts that "mainstream scientists, by and large, have
    ignored the question of whether individuals can be reliably identified
    through small, distorted latent fingerprint impressions." Epstein,
    supra at 646. At least two forensic commentators have expressed con-
    cern about the lack of objective scientific research into the reliability
    of the technique. Id. Nothing in the record in this case shows that the
    fingerprint examination community has challenged itself sufficiently
    or has been challenged in any real sense by outside scientists. Accord-
    ingly, the government did not establish that the technique has valid,
    general acceptance in the scientific community. The fifth factor is not
    satisfied. The government thus failed to demonstrate in this case that
    fingerprint identification is reliable under the specific Daubert
       Even if the proponent of scientific expert evidence does not satisfy
    the Daubert factors, the evidence may be admissible if it is otherwise
    shown to be reliable. Cf. Daubert, 509 U.S. at 593-94; ante at 10. The
    government also failed to provide other reasons to establish that its
    fingerprint evidence in this case is reliable.
       Fingerprint identification’s long history of use does not by itself
    support the decision to admit it. Courts began admitting fingerprint
    evidence early last century with relatively little scrutiny, and later
    courts, relying on precedent, simply followed along. To put it bluntly,
    the precedent of prior admission, rather than exacting scientific scru-
                            UNITED STATES v. CRISP                         23
    tiny, led to its universal acceptance. Cole, Suspect Identities, supra at
    186 ("Fingerprint evidence won acceptance without being subjected
    to the kind of organized skepticism and careful scrutiny that is sup-
    posed to be inflicted upon scientific and legal facts."); id. at 259 (not-
    ing that fingerprint evidence had became widely accepted although
    "latent fingerprint identification was . . . not based on scientific
    research at all[ ] [but] [i]nstead . . . was based on anecdote, experi-
    ence, and nineteenth century statistics"); Michael J. Saks, Merlin and
    Solomon: Lessons from the Law’s Formative Encounters with Foren-
    sic Identification Science, 49 Hastings L.J. 1069, 1104 (1998) (noting
    the lack of serious inquiry into the admissibility of fingerprint evi-
    dence in the early years). As a matter of fact, other forms of evidence
    in vogue at the time fingerprinting began to be commonly used were
    generally believed to be more credible. Cole, Suspect Identities, supra
    at 93, 146, 159. For example, experts in the Bertillon technique took
    minute measurements of the human body — including the bones in
    the face, arms, and feet, and the shape and size of the ears — to iden-
    tify criminals. Id. at 34-44. The Bertillon system and its offshoots
    were widely used in France and were recognized by many states in
    the United States. Cole, Suspect Identities, supra at 146-49. It, like
    fingerprinting, was admitted as evidence in criminal cases. See, e.g.,
    State v. Hill, 
    64 P.2d 71
    , 75 (Kan. 1937); see also Downs v. Swann,
    73 A. 653
    , 654-55 (Md. 1909) (upholding as constitutional the use of
    Bertillon measurements for identification purposes in a criminal
    case); Cole, Suspect Identities, supra at 146-47 (noting use of Bertil-
    lonage and similar systems in the United States). Today, we consider
    the Bertillon system to be absurd. See People v. King, 
    72 Cal. Rptr. 478
    , 483-84 (Cal. Ct. App. 1968) (noting that we should heed the
    "tragic lessons of the Bertillon system"). Fingerprinting replaced the
    Bertillon system. But Bertillonage did not fall out of favor because
    anyone demonstrated its unreliability or fingerprinting’s superiority.
    Rather, law enforcement officials found the Bertillon system too cum-
    bersome to use and too complicated to entrust to untrained techni-
    cians. See Cole, Suspect Identities, supra at 91, 93, 159.
    Fingerprinting, on the other hand, rose in popularity because the
    prints could be taken and analyzed quickly by those with little train-
    ing or experience. Id. at 159 ("Fingerprinting, then, emerged not as
    a method of criminal identification superior to anthropometry [Bertil-
    lonage] but rather as a quick and cheap, supposedly less scientific
    24                      UNITED STATES v. CRISP
    way of identifying those whose crimes did not justify the expense of
    anthropometry."). These advantages were seen to outweigh finger-
    printing’s primary drawback — that it was believed to be considera-
    bly less reliable than the Bertillon system. Cole, Suspect Identities,
    supra at 87-88, 93-94. Fingerprint identification’s long history of use,
    therefore, does not itself establish its reliability.
       Fingerprint identification may also be seen as reliable because the
    examination community prevents its experts from testifying to a
    match unless they are certain of the match. Fingerprint experts, in
    other words, refuse to hedge their testimony in terms of probability.
    3 David L. Faigman et al., Modern Scientific Evidence: The Law and
    Science of Expert Testimony § 27-1.0, § 27-1.0 (2002 & Supp. 2003).
    This practice seems to have hastened the technique’s acceptance by
    courts, who have been attracted to its seeming infallibility. Mnookin,
    Fingerprint Evidence, supra at 36. Professions of absolute certainty
    by an expert witness, however, seem out of place in today’s court-
    room. Even a DNA match has a small chance of being in error.
    Indeed, there is some suggestion that the certainty requirement for
    fingerprint identification is a false comfort. In one case, two prints
    found at a crime scene — identified with certainty by FBI experts as
    matching the defendant’s exemplars — were sent along with the
    defendant’s exemplars by the FBI to all fifty state crime laboratories.
    See D. Michael Risinger et al., The Daubert/Kumho Implications of
    Observer Effects in Forensic Science: Hidden Problems of Expecta-
    tion and Suggestion, 
    90 Cal. L
    . Rev. 1, 41 (2002). Seven state labs
    found that one print could not be conclusively matched; five labs said
    the same about the second print. Id. Faced with this result that vio-
    lated the tenet that no identification should be made if there was room
    for disagreement, the FBI sent annotated versions of the fingerprints,
    indicating important points of similarity, back to the twelve labs that
    did not find complete matches. Id. With time to reconsider, the ini-
    tially dissenting labs changed their conclusions to support the FBI’s
    original identification. Id. The amount of maneuvering it took to reach
    the certain match requirement in this one case raises doubts about
    whether this requirement can be relied upon to ensure reliability.
       The history of fingerprint identification and the dogged certainty of
    its examiners are insufficient to show that the technique is reliable.
    Because of that and the government’s failure to show that its finger-
                            UNITED STATES v. CRISP                         25
    printing evidence is reliable under the Daubert standards, I conclude
    that the district court’s decision to admit the fingerprint evidence was
    an abuse of discretion. Cf. 3 Faigman et al., supra § 27-1.0 ("A judge
    who takes Daubert’s commands seriously would be hard pressed to
    write a coherent opinion justifying a decision to admit the expert [fin-
    gerprinting] opinion.")
       Handwriting identification evidence has been greeted with more
    skepticism by courts in the wake of Daubert. Some courts have
    refused to admit it. See Lewis, 220 F. Supp. 2d at 554; Saelee, 
    162 F. Supp. 2d
     at 1106; see also Starzecpyzel, 880 F. Supp. at 1028
    (admitting handwriting evidence only after concluding, prior to
    Kumho, that Daubert did not apply, and explaining that if Daubert did
    apply, it "might well have concluded that forensic document examina-
    tion constitutes precisely the sort of junk science that Daubert
    addressed"); United States v. Hines, 
    55 F. Supp. 2d 62
    , 68 (D. Mass.
    1999) (noting that a rigorous application of the Daubert standards to
    handwriting evidence would reveal "serious problems"). Other courts
    have allowed testimony about the similarities between handwriting
    samples without permitting the expert to testify to conclusions about
    the authorship. See United States v. Rutherford, 
    104 F. Supp. 2d 1190
    1193 (D. Neb. 2000) (excluding testimony on the authorship of a doc-
    ument, although allowing uncontested evidence of the similarities and
    differences between two samples); Hines, 55 F. Supp. 2d at 63-64
    (allowing admission of testimony about similarities and differences
    but denying admission of testimony drawing conclusions about
    authorship). I believe that the government’s evidence on handwriting,
    like its evidence on fingerprinting, does not demonstrate its reliability,
    and the evidence should therefore have been excluded. Cf. Andre A.
    Moenssens, Handwriting Identification Evidence in the Post-Daubert
    World, 66 UMKC L. Rev. 251, 276-77 (1997) (noting that if Daubert
    factors were applied to forensic sciences, many expert opinions would
    no longer be admissible).
      I will again run through the Daubert factors, considering first
    whether the technique of handwriting analysis has been tested. The
    proposition that forensic document examiners can reliably identify
    handwriting was not established in this case. See Saelee, 
    162 F. Supp. 26
                          UNITED STATES v. CRISP
    2d at 1102 (noting the lack of testing); Hines, 55 F. Supp. 2d at 68
    (concluding that handwriting has never been "subject to meaningful
    reliability or validity testing"). Starzecpyzel, 880 F. Supp. at 1036
    (noting the lack of evidence to support the principle that no two peo-
    ple write identically). This case aside, it appears that no one has ever
    assessed the validity of the basic tenets of handwriting comparison,
    namely, that no two individuals write in precisely the same fashion
    and that certain characteristics of an individual’s writing remain cons-
    tant even when the writer attempts to disguise them. The government
    asserted in this case that because these premises had not been dispro-
    ven, they must be true. See J.A. 334-35; Moenssens, supra at 319-20
    (asserting these premises to be true but providing no evidence to sup-
    port them); cf. Jennifer L. Mnookin, Scripting Expertise: The History
    of Handwriting Identification Evidence and the Judicial Construction
    of Reliability, 
    87 Va. L
    . Rev. 1723, 1806 (2001) [hereinafter
    Mnookin, Scripting Expertise] (discussing basic tenets of handwriting
    analysis). One researcher has attempted to compare the ability of pro-
    fessional examiners to identify handwriting with the ability of lay per-
    sons. See J.A. 332-34. Even with this study, which is discussed
    below, the data on handwriting analysis is "sparse, inconclusive and
    highly disputed." Starzecpyzel, 880 F. Supp. at 1037; D. Michael Ris-
    inger with Michael J. Saks, Science and Nonscience in the Courts:
    Daubert Meets Handwriting Identification Expertise, 
    82 Iowa L
    . Rev.
    21, 65 (1996) [hereinafter Risinger & Saks, Science & Nonscience]
    ("Put simply, if courts trust handwriting experts to be experts, little
    incentive exists to advance the field’s knowledge or to test its claims.
    And so, in the past century virtually no research of that kind has been
    done."). Moreover, although the government’s expert here testified to
    his success on proficiency tests, the government provides no reason
    for us to believe that these tests are realistic assessments of an exam-
    iner’s ability to perform the tasks required in his field. See J.A. 342
    (testimony of the government’s handwriting expert that he has always
    achieved a perfect score on proficiency tests); Lewis, 220 F. Supp. 2d
    at 554 (noting that proficiency tests are inadequate when everyone
    passes); Saelee, 
    162 F. Supp. 2d
     at 1102 (noting the problems with
    studies on the error rate of individual examiners as well as the lack
    of data supporting the underlying premises of the field); see also D.
    Michael Risinger, Handwriting Identification: The Scientific Status of
    Handwriting Identification Expertise, in Modern Scientific Evidence,
                             UNITED STATES v. CRISP                         27
    supra § 28-2.0, § 28-2.3.8[3] (2002 & Supp. 2003) [hereinafter Ris-
    inger, Handwriting Identification]. If what little the government said
    in this case is any indication, the premises upon which handwriting
    analysis is based have not been exposed to a sufficient amount of
    objective testing.
       The next Daubert question is whether handwriting examination has
    been subjected to peer review and publication. The government did
    not present any evidence about peer review or critical scholarship in
    the field. See, e.g., Hines, 55 F. Supp. 2d at 68 (concluding that hand-
    writing analysis has not been subjected to meaningful peer review);
    Starzecpyzel, 880 F. Supp. at 1037 (explaining that articles on hand-
    writing analysis are "significantly different from scholarly articles in
    such fields as medicine or physics, in their lack of critical scholar-
    ship"). Those within the field have failed to engage in any critical
    study of the basic principles and methods of handwriting analysis, and
    few objective outsiders have taken on this challenge. Starzecpyzel,
    880 F. Supp. at 1038 (concluding that the literature on handwriting
    analysis "fails to meet the expectations of the Daubert court — that
    a competitive, unbiased community of practitioners and academics
    would generate increasingly valid science"); D. Michael Risinger et
    al., Brave New "Post-Daubert World" — A Reply to Professor Moen-
    ssens, 29 Seton Hall L. Rev. 405, 441 (1998) [hereinafter Risinger et
    al., Reply] ("No members of the handwriting identification commu-
    nity are rewarded for doing empirical testing and for examining the
    claims of the enterprise skeptically."); Starzecpyzel, 880 F. Supp. at
    1038 (identifying relevant fields of science that could be expected to
    have an interest in document examination but concluding that experts
    in these fields "are either unfamiliar with forensic document examina-
    tion, or are critical of the field"). This lack of critical review has ham-
    pered the advancement of methodology in the field. Indeed, the field
    of handwriting analysis, unlike most other technical fields, relies pri-
    marily on texts that were written fifty to one hundred years ago. J.A.
    335 ("The methodology of handwriting examination, handwriting
    identification, is consistent with those proposed back as early as the
    1900s."); Starzecpyzel, 880 F. Supp. at 1038 (describing "the apparent
    stagnation of research within the [forensic document examiner] com-
    munity"). The second Daubert factor, peer review and publication, is
    not satisfied.
    28                      UNITED STATES v. CRISP
       The next Daubert factor requires a look at the technique’s known
    or potential rate of error. Under pressure from courts, handwriting
    analysis appears to have been subjected to more testing than finger-
    print analysis. See Risinger, Handwriting Identification, supra § 28-
    2.3. In this case, however, the government failed to introduce any evi-
    dence about what the error rate might in fact be. See J.A. 332-33 (tes-
    timony of the government’s handwriting expert discussing studies in
    general terms); J.A. 336 ("I would hesitate to say that it has a known
    rate of error . . . ."); J.A. 338 ("So I, again, would have to say that
    I’m not aware of any set error rate . . . ."). The testing that has been
    done suggests that experts, on average, do better than non-experts at
    avoiding false positives, that is, in identifying someone as an author
    who in fact is not. See Risinger et al., Reply, supra at 421; Risinger,
    Handwriting Identification, supra § 28-2.3.6[4]. On some tests, how-
    ever, the best of the non-experts did as well as some of the experts.
    See Risinger et al., Reply, supra at 421. Even these modest results
    have been challenged. Id. at 423-29 (noting problems in the method-
    ology of the testing, including motivational differences between
    experts and non-experts, the lack of controls to prevent sharing of
    answers among experts, and the lack of similarity between the test
    and the day-to-day work of document examiners); Risinger, Hand-
    writing Identification, supra § 28-2.3 (discussing the tests). Moreover,
    other more challenging studies that more accurately reflect real world
    conditions show higher rates of error. One study found that as many
    as nine percent of document examiners misidentified a forgery as
    being written by the named author, and almost one-quarter of the
    examiners incorrectly concluded that a disguised writing was written
    by someone other than the true author. Risinger, Handwriting Identifi-
    cation, supra § 28-2.3.8[1]. The error rates in the testing that has been
    reported are disquieting to say the least. In any event, the government
    did not satisfy the third Daubert factor in this case.
       The next Daubert factor focuses on whether there are standards or
    controls that govern the expert’s analysis. In this case the govern-
    ment’s expert asserted that handwriting examiners follow the same
    methodology, J.A. 335-36, but he provided no listing of objective
    criteria that are used to form an opinion. There does not seem to be
    any list of universal, objective requirements for identifying an author.
    J.A. 342-43; Lewis, 220 F. Supp. 2d at 554 (explaining that handwrit-
    ing experts had no set number of similarities required to proclaim the
                            UNITED STATES v. CRISP                       29
    handwriting a match); Saelee, 
    162 F. Supp. 2d
     at 1104 ("The tech-
    nique of comparing known writings with questioned documents
    appears to be entirely subjective and entirely lacking in controlling
    standards."); Risinger & Saks, Science and Nonscience, supra at 39
    (explaining that because document examiners base their conclusions
    on their own empirical observations rather than publicly available
    data, the results are "only as good as the unexaminable personal data-
    base of the practitioner[ ] and the practitioner’s not-fully-explainable
    method of deriving answers").
       The last factor is whether the technique is generally accepted in the
    scientific community. The general acceptance of handwriting analysis
    appears to come only from those within the field. Saelee, 880 F. Supp.
    at 1104 (explaining that handwriting analysis has been generally
    accepted by those in the field); Hines, 55 F. Supp. 2d at 68 (conclud-
    ing that handwriting evidence has only been generally accepted by
    those in the field, not by disinterested experts in other fields). And
    those within the field have not challenged or questioned its basic
    premises. More is required to meet the "general acceptance" factor.
    Lewis, 220 F. Supp. 2d at 554 (noting that general acceptance in the
    forensic community was insufficient to satisfy the fifth Daubert fac-
    tor); Starzecpyzel, 880 F. Supp. at 1038 (discounting general accep-
    tance among the community of forensic document examiners because
    it is "devoid of financially disinterested parties").
       The government did not show that there are factors beyond the
    Daubert list that credibly demonstrate the reliability of handwriting
    evidence. Like fingerprint experts, document examiners have long
    been allowed to testify in judicial proceedings. Saelee, 
    162 F. Supp. 2d
     at 1104-05 ("Testimony from these experts has, until recently,
    been uncritically accepted as reliable in the courts."). But, like the
    case of fingerprint evidence, there is no reason to believe that long-
    standing use of handwriting evidence demonstrates its reliability. The
    testimony of handwriting experts was initially admitted into evidence
    because courts saw it as no less reliable than that of lay witnesses who
    claimed to be able to identify the writers of documents. Mnookin,
    Scripting Expertise, supra at 1763-64, 1784; D. Michael Risinger et
    al., Exorcism of Ignorance as a Proxy for Rational Knowledge: The
    Lessons of Handwriting Identification "Expertise", 137 U. Pa. L. Rev.
    30                      UNITED STATES v. CRISP
    731, 762 (1989). But that does not make handwriting analysis a reli-
    able science.
       Because the government has failed to demonstrate either that its
    handwriting evidence satisfies the Daubert factors or that it is other-
    wise reliable, I would reverse the district court’s decision to admit it
    as an abuse of discretion. See Starzecpyzel, 880 F. Supp. at 1028
    ("The Daubert hearing established that forensic document examina-
    tion, which clothes itself with the trappings of science, does not rest
    on carefully articulated postulates, does not employ rigorous method-
    ology, and has not convincingly documented the accuracy of its deter-
       Because the government failed to show that its fingerprint and
    handwriting evidence meets Daubert’s requirements or is otherwise
    reliable, the evidence should have been excluded. The government
    conceded at oral argument that this evidence was necessary to prove
    Crisp’s guilt beyond a reasonable doubt. Because the evidence was
    inadmissible, I would reverse Crisp’s conviction. I must therefore
    respectfully dissent.