Some person or persons had put together the

following get-rich-quick scam. Someone opened a bank account in Lichtenstein in the

fictitious name "William Cooper" using a falsified copy of a passport. They then gained

access to the personnel and pay records of 30 to 35 American soldiers stationed at a base

in Bamberg, Germany. Using the information on bank accounts in those records, they

sent letters to the (American) banks of the soldiers directing wire transfers of the

complete balance of their accounts to the "William Cooper" account at "one a.m. Eastern

Time Zone on 01 May 1992." The letters were apparently typed, with handwritten

signatures. The scheme was uncovered when the banks were told by their depositors that

the letters were fraudulent. (It is not completely clear whether this was before or after

any transfers, but appears to have been before, as a result of bank inquiries concerning

these unusual balance transfer directives.)

Suspicion fell upon Private Joseph M. Durocher and Specialist Jeffrey A. Ruth,

who were personnel action clerks in Bamberg with access to the relevant bank

information. Durocher was interrogated, and apparently cooperated with prosecutors,

confessing to the scheme and implicating Ruth. Durocher's testimony was the main

evidence against Ruth. The only corroboration of Durocher's story was a questioned

document examiner's testimony that Ruth signed one of the thirty-odd forged signatures

on letters to banks, and that Ruth wrote one (but not all) of the signatures of William

Cooper on the applications used to open the bank account in Lichtenstein.

By now the reader will see the problem. Under a proper Kumho Tire approach, the

issue would have been:

[W]hat if anything establishes that questioned document examiners can reliably identify

the writer of a small sample of writing comprised of only 14-16 letters, under

circumstances where the writing might or might not represent an attempt to simulate the

writing of the named signatory (since whoever created the scam had access to records

containing their actual signatures), and where there is a high circumstantial likelihood of

disguise of some sort being utilized in the writing in any event?

This question was clearly neither asked nor answered by the court in Ruth
RULING

As authority for this the court pointed to no data of any kind, but to an unpublished preDaubert

opinion in United States v. Buck,' 12 and concluded on this basis that the

challenged handwriting identification testimony was admissible as helpful to the trier of

fact under Federal Rule of Evidence 702. This unanalyzed global approach is now

clearly inappropriate after Kumho Tire. 11

3 What it reflects, as much by implication as

explicitly, is a combination of what may be called the "sufficient experience" test, which emphasizes
experience without testing to see if such experience has actually

resulted in the claimed skill, and the "guild" test, 115 in which the existence of an

organized group which supervises accreditation (and an expert's membership in it) is

taken as a sufficient warrant to infer reliability for admissibility purposes. As we will

see, elements of these two approaches, usually conflated, 116 have commonly been

invoked in an effort to justify admission of claimed handwriting identification expertise,

and I will henceforth refer to this conflated rendition simply as the "guild test."

It is important to note what application of expertise was being claimed reliable in

Ruth. It was not the ability to determine if a signature was genuine, as was the case in

Starzecpyzel. It was the much more questionable ability to attribute the authorship of a

very small sample of writing (like a forged signature) to a particular person based on

comparison to examples of the asserted forger's true writing