In 1989, a Pennsylvania law review article written by three law professors raised serious doubts concerning the reliability of questioned document examination. Although uneducated in forensic science and having no formal training, the critics raised intelligent issues in their assessment and asked questions never before addressed by document examiners in the field. To summarize, the critics claimed the validity of questioned document examination had never been tested, no validity studies existed in academic literature and the law had never required the document field to prove its expertise. (My emphasis) . . .Please forgive the long quotation, but it is necessary at this point to pay closer attention to issues such as 1. whether questioned document examination is subject to objective testing; 2. whether there is a process of peer review; 3. whether there are known rates of error; 4. whether there are objectively determined standards against which an opinion is offered. As we learn from the above history, it wasn't until 1997, no doubt as a response to the McVeigh case, that the FBI created its Technical Working Group for Document Examination and not until "a few years later" that it adopted scientific methodologies.
Most document examiners paid little attention to the 1989 article. . .
[However, in a 1993 court ruling, Daubert v. Merrell Dow Pharmaceuticals Inc.,] the judge was now assigned the duty of gatekeeper tasked with the role of excluding any scientific discipline not worthy of courtroom testimony. The ruling added four factors, non-exhaustive, for judges to consider when assessing the admissibility of scientific evidence . . . The four factors are:
The first successful attempt to limit a document examiner's testimony came in U.S. v. Timothy James McVeigh in 1997. In McVeigh, the court determined that the document examiner would not be allowed to testify to an opinion but instead could merely point out similarities and differences. . . (My emphasis)
- Whether a theory or technique can be, or has been, tested;
- Whether the theory or technique has been subjected to peer review and publication;
- Whether there is a known or potential rate of error; and
- Whether there are standards controlling the technique’s operation. . . .
Other disappointing rulings for the forensic document field include U.S. v. Kent Rutherford and U.S. v. Chan Ian Saelee. In Rutherford, the document examiner was allowed to point out similarities and differences found in the evidence but could not testify to an opinion. In Saelee, the court excluded the document examiner from testifying altogether, stating “the government has failed to meet its burden of establishing that the proffered expert testimony in this case is admissible under Rule 702.” These exclusions were a wake-up call to the document community and helped ignite needed research that would prove most beneficial and would promote better organization and materials for attorneys involved in these challenges. Of the greatest benefit was the need to standardize all methodologies and examination practices used in the questioned document field. . .
In order to defend the field, more standards needed to be drafted. Because drafting a standard is an arduous task, the process of writing the necessary standards was a slow one. Around 1997, the U.S. Federal Bureau of Investigation created an organization called the Technical Working Group for Document Examination, or TWGDOC. This group was made up of members from various laboratories, and its purpose was to speed up the drafting of questioned document standards. A few years later the technical working group would change to the scientific working group, or SWGDOC. Today, nearly all of Subcommittee E30.02’s standards are based on guidelines written by SWGDOC. (My emphasis)
Since both the decision to rule John out and the many efforts to rule Patsy in date from 1997, they were clearly not based on the new standards, and there is some question as to whether these decisions followed any standards at all. Since literally every other aspect of this case has been subject to the most intense review, questioning, and debate, I find it remarkable that the decision to rule out what was initially the chief suspect has to my knowledge never been questioned at all by anyone involved in this investigation.