STATE OF MONTANA, Plaintiff and Respondent, v. CHERYL IRISH CLIFFORD, Defendant and Appellant.
No. 03-509
STATE OF MONTANA
Decided September 6, 2005
Rehearing Denied October 11, 2005
2005 MT 219 | 328 Mont. 300 | 121 P.3d 489
Submitted on Briefs January 11, 2005.
For Respondent: Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General; Robert Deschamps III and Kirsten LaCroix, Special Lewis and Clark Deputy County Attorneys, Missoula.
JUSTICE LEAPHART delivered the Opinion of the Court.
¶1 The jury found Cheryl Clifford (Cheryl) guilty of tampering with or fabricating physical evidence in violation of
PROCEDURAL BACKGROUND
¶2 The State filed an information charging Cheryl with four offenses. Count One charged Cheryl with tampering with or fabricating physical evidence in violation of
FACTUAL BACKGROUND
¶3 In 1991, Cynthia Hurst and her three children, Daniel, Kalina, and Wesley, moved from New Mexico to East Helena. During the next year, some missionaries from the Church came proselytizing to her door. By May 1992, she had joined the Church. Cheryl and Larry Clifford were also members. Cheryl was a process server and private investigator, and Larry was an officer at the EHPD. The Cliffords had two living children, Megan and Lance.
¶4 While the missionaries were encouraging Hurst to join the Church, Hurst began leaving her children with her friend, Charles Scott. Charles Scott lived with his twenty-four-year-old son, Michael Scott. At first, Hurst took the children to Charles‘s house because they had chicken pox, and could go neither to school nor to daycare. Latеr, the children wanted to go over there to “play Nintendo.” Charles and Hurst would let them stay the night. Over the course of a year and a half, the children went to Charles‘s house about a dozen times.
¶5 In 1994, Hurst‘s son, Daniel, called Hurst from school and cried as he told her that Michael Scott had been molesting him. Hurst filed charges with the EHPD, where Larry was on duty. During the investigation phase, Cheryl called Hurst and told her the police were going to charge Hurst because Hurst knew that Michael Scott was a child molester when Hurst left her children with him. In November 1995, the court sentenced Michael Scott to forty years in prison.
¶6 Larry was upset that the Deputy County Attorney would not charge Hurst for failing to protect her children. That November, in his capacity as a police officer, Larry filed a complaint against Hurst for negligent endangerment under
¶7 For the present case, the District Court admitted over seventy letters, but many more were received. Bradlеy Peterson was a Bishop
¶8 In early March 2000, William Cordes was working for the Criminal Investigation Bureau (CIB). The United States Secret Service had given him questioned-documents-examination training, and he had worked on document investigation cases in the past. The CIB chief had assigned him to this case. After bringing himself up to speed and reading the reports, Cordes decided to interview Cheryl and Larry. The Cliffords showed Cordes two fairly recent letters they said they had received in the mail. One of the envelopes had a postmark with a small “tx” constituting the only legible word on the postmark. The other had a “2 JAN” postmark from “LYKES” “SC.” Both of the envelopes had the suspicious writing similar to the writing that appeared on the other letters. Instead of giving the letters to Cordes, the Cliffords made copies for him on their fax machine.
¶9 In his application for a search warrant of the Cliffords’ house, Cordes testified that three of the letters contained references to the Cliffords, Cheryl claimed to have seen Hustler magazine pages in the ditch along a major Helena street while she was driving at 6:30 p.m. during the winter, a search warrant executed at the Hurst residence revealed no evidence connecting the Hursts to the letters, and the Cliffords had been extremely vocal in accusing Daniel and his parents of writing the letters. The Cliffords had an envelope from “LYKES, SC.” Upon contacting the nearest post office, Cordes discovered that Lykes is an abbreviation for Lykesland, which is the name for an unincorporated voting district. Neither “Lykes” nor Lykesland have post offices. The Cliffords had told Cordes that Daniel was in Army training in South Carolina at the time the letter was mailed. Based on
¶10 On March 14, 2000, Cordes and three other agents searched the Cliffords’ house. Inside, one of the agents found two stamp kits with individual rubber characters for making stamps. One of the kits had all the characters still glued and connected. The other had all the characters still glued together, except: “L,” “Y,” “k,” “E,” “S,” “2,” “J,” “A,” “N,” “X,” and “,“.
¶11 Following the search of the Cliffords’ house, only one more letter аrrived. A year after the search, in March 2001, a churchgoer received a letter marked “Return to Sender” with the same scrawled handwriting.
¶12 The Lewis and Clark County Sheriff‘s Office first contacted James Blanco about this case in December 1998. Blanco is one of about 150 experts in the United States and Canada certified by the American Board of Forensic Document Examiners. This is the only certification recognized by crime laboratories in the majority of governmental agencies, including the United States Secret Service; the Internal Revenue Service; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. In his first offive reports, Blanco could neither identify nor eliminate Cheryl, Larry, or Daniel as writers of the anonymous letters. After the search of the Cliffords’ house, Cordes sent Blanco another batch of documents to analyze for the writer‘s identity. This time, Blanco had more success. He identified Cheryl as the author of the Lykes envelope and the author of the “tx” envelope. In his final three reports, Blanco identified Cheryl as having written even more of the suspicious letters and envelopes.
¶13 To support the motion to file the information, the State‘s affidavit set forth, inter alia, Cheryl‘s and Larry‘s occupations and membership in the Church, details about the Michael Scott sexual molestation case, Larry‘s issuance of the negligent endangerment complaint, and the subsequent commencement of the letters. The affidavit described Cordes enlisting Blanco and Blanco‘s conclusions that Cheryl authored many of the letters. Further, it recited that John Wardell, who was also a member of the Church, had been delivering a small cargo container to the Hurst residence when he saw a vehicle driving by that looked exactly like a vehicle the Cliffords owned. Two days later, Wardell‘s daughter received a handwritten mailing referencing Wardell‘s trip to the Hurst residence.
¶14 The affidavit asserts that the Lewis and Clark Sheriff‘s Office had
¶15 In November 2001, Cheryl‘s and Larry‘s lawyers took Blanco‘s deposition. Blanco came prepared to give representative details of the methods of analysis by which he concluded that Cheryl had authored various letters, but he was not prepared to explain every detail of every comparison between the letters. At trial, Blanco had overhead projections and blown-up trial exhibits comparing the distinctive elements of the characters in the letters.
¶16 After the State rested, Cheryl moved for a directed verdict, contending that Blanco‘s testimony was the only concrete evidence, and it was insufficient as a matter of law to convict her. The District Court denied the motion. In presenting her defense, Cheryl intended to call Mark Denbeaux as a handwriting expert. The State objected, and the District Court excluded him.
¶17 We restate the issues Cheryl raises as follows:
¶18 1. Whether
¶19 2. Whether the affidavit accompanying the motion to file the information had inadequate probable cause upon which to file the information.
¶20 3. Whether the State failed to provide Blanco‘s reasons for concluding that Cheryl authored the documents so a continuance became necessary.
¶21 4. Whether Blanco‘s opinion testimony was sufficient as a matter of law to connect Cheryl and the questioned documents.
¶22 5. Whether
¶23 6. Whether
STANDARDS OF REVIEW
¶25 This Court reviews a district court‘s evidentiary rulings for abuse of discretion. State v. Cameron, 2005 MT 32, ¶ 14, 326 Mont. 51, ¶ 14, 106 P.3d 1189, ¶ 14. This Court reviews district court decisions on motions to continue to determine whether the district court abused its discretion. State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200, ¶ 24, 79 P.3d 817, ¶ 24. This Court reviews district courts denials of motions to suppress to determine whether the district court‘s findings of fact are clearly erroneous and whether the district court‘s interpretation and application of the law is correct. State v. Minez, 2004 MT 115, ¶ 16, 321 Mont. 148, ¶ 16, 89 P.3d 966, ¶ 16.
DISCUSSION
I. Rule 702, M.R.Evid.
¶26 Cheryl argues that, since Blanco, in his deposition, could explain neither how nor why he concluded that Cheryl authored the documents, the District Court should have held a hearing pursuant to Daubert and Kumho Tire Co. v. Carmichael (1999), 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238.
¶27
Testimony by experts.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
A. Daubert/Kumho Tire Co. Hearing
¶28 Questions concerning expert testimony‘s reliability are threefold under
¶29 The Daubert test helps determine the reliability of a field of expert methods. 509 U.S. at 592, 113 S.Ct. at 2796, 125 L.Ed.2d at 482; accord State v. Moore (1994), 268 Mont. 20, 41, 885 P.2d 457, 470. In Daubert, the United States Supreme Court adopted a four-factor test, of which the factors are neither necessary nor sufficient to determine whether the field of scientific evidence that the expert is proposing is reliable. 509 U.S. at 592-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d at 482-84; accord Moore, 268 Mont. at 41, 885 P.2d at 470-71. The Supreme Court expanded this test to cover technical or other specialized expert testimony. Kumho Tire Co., 526 U.S. at 141, 119 S.Ct. at 1171, 143 L.Ed.2d at 246.
¶30 The Daubert test does not require a district court to determine whether the expert reliably applied expert methods to the facts. Rather, if the witness is a qualified expert in the field, he may testify. Under a Daubert analysis, the reliability of Blanco‘s application of his expert field to the facts is immaterial in determining the reliability of that expert field.
B. Handwriting Expert‘s Opinion on an Ultimate Issue
¶31 Cheryl argues, under
C. Qualifying a Witness as an Expert
¶33 Cheryl argues that, because Blanco, in his deposition, could not state the basis for his conclusion that Cheryl authored the letters, he had no scientific, technical, or specialized knowledge under
II. Adequate Probable Cause Upon Which to File an Information and
IV. The Legal Sufficiency of Blanco‘s Opinion Testimony
¶34 Cheryl asserts, without much coherent argument, that the affidavit in support of the information lacked probable cause. Cheryl fails to provide even the statute requiring probable cause to file an information.
¶35 Cheryl also argues that Blanco‘s testimony was the only concrete evidence against her, and it was insufficient as a matter of law to convict her. Cheryl did nothing more in her brief than raise the argument. She fails even to cite a case. We decline to consider this argument, also. In re Marriage of Hodge, ¶ 10.
III. Blanco‘s Reasoning
¶36 Cheryl argues the District Court erred in refusing to continue the trial because the State had not provided Blanco‘s subjective judgments upon which he relied to conclude Cheryl wrote the documents. She cites
¶37 During his deposition, Blanco made some comparisons for the benefit of the attorneys. He compared Cheryl‘s known writings to the unknown writings for similarities. He showed them how he compared Cheryl‘s voluntary statement to the Helena Police Department with the “LYKES” letter. For example, the writings both had distinctive k‘s. Further, Blanco provided almost twenty documents on which he had made notations next to specific characters. The notations indicated that those characters had similarities with characters from other documents.
¶38 In January 2002, shortly after the deposition, the prosecution provided Blanco‘s eighteen-page affidavit in which he reiterated many of his deposition statements and reorganized many of those statements into a clear outline to show his methods. During trial, he testified in more detail.
¶39 Experts should explain their reasoning, so the opposing party can prepare for trial. See
¶40 Cheryl also asserts that the District Court erred by denying a continuance so her handwriting expert, Lloyd Cunningham, could recover from an illness so he could testify in person rather than through video depositions. Cheryl did nothing more in her brief than raise the argument. She fails to develop the argument or cite any authority. Accordingly, we decline to address it.
V. Allowing Denbeaux to Testify
¶41 Mark Denbеaux is a law professor at Seton Hall Law School in Newark, New Jersey, who specializes in evidence law. He co-authored an article criticizing handwriting evidence. Denbeaux claims that, after many years of study, he has identified the defects and limitations
¶42 First, arguably, Denbeaux is not an expert in the field of handwriting analysis; rather, he is an evidence professor who has, historically, criticized handwriting analysis evidence. It was within the District Court‘s discretion to conclude that Denbeaux did not qualify as an expert in handwriting analysis. State v. Southern, 1999 MT 94, ¶ 48, 294 Mont. 225, ¶ 48, 980 P.3d 3, ¶ 48. Moreover, Cheryl presented the testimony of her own handwriting expert, and performed a thorough cross-examination of Blanco. Thus, even if Denbeaux‘s testimony might have cast doubt on Blanco‘s testimony, Cheryl was able to accomplish that task through the testimony of her expert and cross-examination. Under these circumstances, the District Court did not abuse its discretion in precluding Denbeaux‘s testimony.
VI. Identity Evidence Linking Daniel Hurst to the Threatening Letters
¶43 Cheryl contends that the District Court made numerous evidentiary rulings that violated her rights to present a defense. Specifically, she alleges the District Court erred by excluding Daniel‘s (1) prior sexual activity, (2) psychological problems, (3) behavioral problems, (4) discharge from the U.S. Army for psychological reasons, (5) commitment to a mental health institution, and (6) conviction of vandalism in East Helena. Cheryl alleges this evidence qualifies under the seldom-used “reverse 404(b)” theory to identify Daniel as the author of the letters. By excluding that evidence, Cheryl contends the District Court violated
A. Reverse 404(b) Evidence
¶44 Cheryl sought to admit Daniel‘s prior sexual history and psychological profile to show that he, and not Cheryl, wrote the letters. On occasion, a defendant will use
¶45 Although the State raises the specter of prejudice to the government, it fails to develop that theory. Unfair prejudice against the government is rather rare. “Unfair prejudice’ within its context means an undue tendenсy to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”
B. The Modified Just Rule
¶46 The District Court excluded six categories of evidence that pointed toward Daniel. Cheryl argues that this evidence of misidentification was admissible as reverse 404(b) evidence tending to show that Daniel, and not Cheryl, wrote the letters. The District Court granted the State‘s motion in limine to exclude evidence of Daniel‘s other crimes, wrongs, or acts. Under
¶47
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
To be admissible under
is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Matt, 249 Mont. at 142, 814 P.2d at 56. Finally, (4) although relevant, a court may exclude evidence if the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence substantially outweighs its probative value. Matt, 249 Mont. at 142, 814 P.2d at 56.
C. Propensity Evidence
¶48 ““The difference between the proper use of other acts evidence to prove identity and the improper use of such evidence to prove propensity is a subtle matter.’ ” State v. Sweeney, 2000 MT 74, ¶ 32, 299 Mont. 111, ¶ 32, 999 P.2d 296, ¶ 32 (quoting United States v. Luna (9th Cir. 1994), 21 F.3d 874, 882). Indeed, this classification forms the crucial distinction at the basis of the third prong of the modified Just test. Specifically, if the proponent for admissibility offers the evidence solely to show propensity,
¶49 Of the six categories of evidence that Cheryl offers, four of them (psychological problems, behavioral problems, discharge from the U.S. Army for psychological reasons, and commitment to a mental health institution) provide only propensity evidence. Cheryl contends that
¶50 Someone vandalized the Cliffords’ car by spray-painting profanities in pink. Cheryl sought to admit evidence that Daniel had been convicted for vandalizing cars in East Helena. That evidence also creates a chain of inferences implicating propensity evidence: Daniel vandalized cars in East Helena, therefore he is a vandal, therefore he acted in conformity with that character trait when he vandalized the Cliffords’ car. Evidence in this category is clearly inadmissible propensity evidence.
¶51 The more difficult question arises when considering the admissibility of specific, prior sexual activities in which Daniel, willingly or unwillingly, participated. At various points, Cheryl wanted the court to admit evidence of or allow examination into various experiences including the specific acts of sodomy to which Michael Scott subjected Daniel, the presence of two other men while Michael Scott molested Daniel, the specifics of Daniel being molested when he was very young, and the specific acts of incest. The District Court admitted references to the acts, but excluded the specific activities. Evidence proving these specific facts is relevant to the identity of the author, Cheryl argues, because the letters refer to specific acts of sodomy, a “buttfuck party,” and specific incestuous acts.
¶52 The District Court excluded these categories of evidence under the modified Just rule. Unfortunately, we cannot discern which rationale the court used to exclude the evidence. The fourth prong of that test repeats
¶53
[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delаy, waste of time, or needless
presentation of cumulative evidence.
“The greater contains the less.”
¶54 In addition, the District Court allowed questions as to whether Daniel committed incest, but did not allow questions as to the specific acts. As above, the waste of time and needless presentation of cumulative evidence substantially outweigh the probative value of dwelling upon the specific instances. The District Court properly excluded this evidence.
¶55 Finally, the District Court also admitted evidence that other boys participated in the molestations at Michael Scott‘s home. Given this evidence that Daniel experienced a “buttfuck party,” evidence that two other men were present at other times amounts to needless presentation of cumulative evidence. The needless presentation of that cumulative evidence substantially outweighs the negligible probative value. Because these evidentiary items fail one prong of the modified Just test, we need not address the remaining prongs for admissibility. The District Court did not err by excluding this evidence.
D. Right to Put on a Defense
¶56 Cheryl cites State v. Johnson, 1998 MT 107, 288 Mont. 513, 958 P.2d 1182, for the proposition that the reliable nature of the identity” evidence was sufficient to tip the scales in favor of Cheryl‘s constitutional right to present a defense. Johnson addresses the balance between the defendant‘s right to present a defense and the victim‘s rights under the rape shield statute. ¶ 18-34. Cheryl‘s argument is very sparse and she fails to identify even the two interests on the scales. “A defendant‘s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer (1998), 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413, 418. Cheryl has not shown that these evidentiary restrictions are unreasonable, so we hold that they do not violate her right to present a defense.
VII. Cordes Facts in the Application for the Search Warrant
¶57 Cheryl asserts that the application for a search warrant for the Cliffords’ residence contained nothing more than the subjective beliefs of Cordes. Cheryl argues that the whole affidavit in support of the application for the search warrant contains only subjective beliefs, false statements, and misrepresentations. Cheryl cites Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672, for the proposition that a court must excise false statements and consider the remaining statements to determine whether probable cause existed for the issuance of the search warrant.
¶58 [5] In her argument, Cheryl fails to recognize that State v. Worrall, 1999 MT 55, ¶¶ 29-34, 293 Mont. 439, ¶¶ 29-34, 976 P.2d 968, ¶¶ 29-34, requires her to prove by a preponderance of the evidence that the statements in the affidavit were false. Franks, 438 U.S. at 164-65, 98 S.Ct. at 2681, 57 L.Ed. 2d at 677-78; Worrall, ¶¶ 32-35. Without providing any evidence, Cheryl merely claims that the assertions were subjective beliefs, false statements, and misrepresentations. Because Cheryl did not establish falsity as required under Worrall or Franks, the District Court did not err by refusing to exclude the evidence obtained in the search.
¶59 Affirmed.
JUSTICES COTTER, NELSON, WARNER and MORRIS concur.
JUSTICE NELSON concurs.
¶60 I concur in our Opinion because the trial court correctly followed Montana law as it presently exists. I write separately to point out the errors in that law and to urge correcting our case law and amending
A. The Federal Trilogy
¶61 In 1993, the United States Supreme Court decided the first of what was to be a trilogy of cases dealing with the admissibility of expert testimony. In Daubert v. Merrell Dow Pharm., Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469, the Court held that
¶62 The Court set forth various, flexible considerations that will bear on this inquiry, including, whether the theory or technique in question can be (and has been) tested; whether it has been subjected to peer review and publication; its known or potential error rate and the maintenance of standards controlling its operation; and whether it has attracted widespread acceptance within the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. The Court observed that the inquiry is to be a flexible one, focusing solely on principles and methodology, not on the conclusions they generate, and being mindful of other applicable Rules. Daubert, 509 U.S. at 594-95, 113 S.Ct. at 2797. Finally, the Court stated that cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising general acceptance standard, is the appropriate means by which evidence based on valid principles may be challenged. Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.
¶63 The second case in the trilogy was General Electric Co. v. Joiner (1997), 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508. In Joiner, the Court clarified Daubert in two respects. First the Court noted that trial courts could scrutinize the reliability of a proffered expert‘s reasoning process as well as his or her methodology. The Court stated that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Joiner, 522 U.S. at 146, 118 S.Ct. at 519. Second, Joiner made clear that abuse of discretion is the proper standard by which an appellate court should review a district court‘s decision to admit or exclude expert scientific evidence. Joiner, 522 U.S. at 146, 118 S.Ct. at 519.
¶64 The final of the three cases was Kumho Tire Co., Ltd. v. Carmichael (1999), 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238. In this case the Court applied Daubert‘s gatekeeping obligation to not only expert scientific evidence, but, as well, to all expert testimony.
B. Montana‘s Approach
¶65 Montana did away with the Frye general acceptance test before Daubert. In Barmeyer v. Mont. Power Co. (1983), 202 Mont. 185, 193, 657 P.2d 594, 598, we rejected the Frye test as not being in conformity with the spirit of the new rules of evidence.” We adopted the reasoning of United States v. Baller (4th Cir. 1975), 519 F.2d 463, 466, wherein the Fourth Circuit Court of Appeals held that it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.” Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598. Nearly twelve years later, we adopted Daubert, concluding that “before a trial court admits scientific expert testimony, there must be a preliminary showing that the expert‘s opinion is premised on a reliable methodology.” State v. Moore (1994), 268 Mont. 20, 42, 885 P.2d 457, 471.
¶66 Unfortunately, we also stated that the Daubert guidelines were consistent with Barmeyer concerning the admission of novel scientific evidence.” Moore, 268 Mont. at 42, 885 P.2d at 471. I say “unfortunately” because, as it turns out, we have, since, essentially done away with the Daubert standards by limiting the requirements of that case and the courts’ gatekeeping obligation to proffered expert testimony of “novel” scientific evidence only. See State v. Cline (1996), 275 Mont. 46, 55, 909 P.2d 1171, 1177; Hulse v. State, 1998 MT 108, ¶¶ 55-69, 289 Mont. 1, ¶¶ 55-69, 961 P.2d 75, ¶¶ 55-69; State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59; Gilkey v. Schweitzer, 1999 MT 188, ¶¶ 18-20, 295 Mont. 345, ¶¶ 18-20, 983 P.2d 869, ¶¶ 18-20; State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56; State v. Ayers, 2003 MT 114, ¶ 37, 315 Mont. 395, ¶ 37, 68 P.3d 768, ¶ 37. See also Rоbert L. Sterup, Into the Twilight Zone: Admissibility of Scientific Expert Testimony in Montana after Daubert, 58 Mont. L. Rev. 465, 485-86 (Summer 1997) (hereinafter Sterup).
¶68 While, arguably, the DNA evidence considered in Moore was “novel” in 1994, as far as Montana was concerned, and while Daubert was consistent with Barmeyer (without applying Daubert‘s various standards, per se), our consistency” observation grew into an exception which has effectively now swallowed Daubert. Worse, as I will discuss later, in imposing this limitation we have not only turned the Daubert approach on its head, unreasonably constraining, in the process, the trial judge‘s gatekeeping function, but we have rejected Kumho Tire1, and have paved the way for the admission of “scientific” evidence whose reliability and methodology have never been subject to any level of intellectual rigor. Contra Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176. Indeed we have, as this case demonstrates, fallen in to the trap of admitting expert scientific opinion that is connected to existing data only by the ipse dixit of the expert, contra Joiner, 522 U.S. at 146, 118 S.Ct. at 519-the only exception being for that scientific evidence which
C. The Error of our Ways
¶69 I start with two relatively simple examples.
¶70 Conventional wisdom declares that eyewitness testimony is reliable. Notwithstanding, this Court has acknowledged that a large body of research and scholarship еxists which demonstrates that eyewitness testimony can be unreliable and that, in appropriate cases, the trial court must, therefore, allow expert testimony on the reliability of eyewitness testimony. State v. DuBray, 2003 MT 255, ¶¶ 36-44, 317 Mont. 377, ¶¶ 36-44, 77 P.3d 247, ¶¶ 36-44.
¶71 Similarly,
¶72 Many times each year, we somberly intone the mantra: “credibility and weight given to the evidence is within the province of
¶73 Criminal cases have the potential for generating even more serious evidentiary problems. Professors David E. Bernstein and Jeffrey D. Jackson state that
the admission of forensic evidence in criminal cases remains relatively routine. Legal commentators agree that the Daubert trilogy has had far less of a constricting effect on forensic science evidence compared with its effect on evidencе in torts cases, most likely because defense attorneys in routine criminal cases lack the resources and expertise to challenge the admission of scientific evidence. Moreover, because all three cases in the Daubert trilogy arose in the civil context, lower courts seem more inclined to overcome their traditional inertia about admitting scientific evidence in that context.
David E. Bernstein & Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 Jurimetrics J. 351 n.17 (Spring 2004). This potential for the routine admission of “scientific” evidence is precisely what Justice Patricia O. Cotter criticized in State v. Damon, 2005 MT 218, 328 Mont. 276, 119 P.3d 1194, (Cotter, P., dissenting), where she predicted that ‘[t]rial courts will admit the PBT [or, preliminary breath test] evidence because we have said it is admissible, its scientific validity having now been decreed as a matter of law. That is all that will matter.”3 Damon, ¶ 63.
¶74 And, unfortunately, the case sub judice presents another example of the results of a “scientific” discipline being admitted through expert
¶75 In her article, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 Va. L. Rev. 1723 (2001) (hereinafter Mnookin), Profеssor Jennifer L. Mnookin argues for the application of Daubert standards to expert forensic evidence in criminal cases in various sciences and disciplines that have been and are considered presumptively reliable.
¶76 Professor Mnookin observes that some long-accepted forensic science evidence has recently received greater public scrutiny not only because the “experts” proffering the evidence were either astonishingly inept or downright corrupt,4 but also because of recent scientific developments such as DNA tests which have revealed the limitations of forensic techniques such as hair identification analysis. Mnookin, at 1725. Additionally, Professor Mnookin observes that several of the forensic sciences, including expert handwriting identification and fingerprint analysis, are now being criticized by historians, forensic watchdogs, and law professors who claim that these forensic techniques are not grounded in good science, that they have been inadequately tested, and that their methods have been insufficiently scrutinized. Mnookin, at 1725-26. She states:
Credible arguments have been leveled that these forms of evidence, though routinely used in courtrooms for a century or so, do not withstand scrutiny under Daubert. While no judge has yet excluded fingerprinting evidence on reliability grounds, courts are beginning to rein in handwriting experts.
Mnookin, at 1726-27.5
D. The Case Sub Judice
¶78 This should have been that case, but Clifford‘s request for a Daubert hearing on Blanco‘s testimony was denied. Under a correct application of Daubert the court‘s ruling would have been error. But the trial judge followed Montana law. And that brings me back to how we have jurisprudentially and improperly limited Daubert.
¶79 In the case at bar there was no showing that handwriting analysis is a “novel” science or discipline-even though Clifford had problems with how Blanco conducted his analysis. Although Daubert unmistakably covers not only the question of ‘field validity“i.e., whether the expert information is within a valid category of expertise and whether there is a field of knowledge that has credible tools to produce valid answers to questions-Daubert also requires “method validity.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. Method validity assumes the validity of the field, but answers the question of whether the methods used in the case were capable of producing valid answers. Daubert and Kumho Tire make method validity a prerequisite for the admission of expert evidence. Expert scientific testimony is admissible under Daubert only if it is the product of reliable principles and methods. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. In fact, Daubert, Joiner, and Kumho Tire all were concerned with method validity. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796; Joiner, 522 U.S. at 146, 118 S.Ct. at 519; Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176; United States v. Fleishman (9th Cir. 1982), 684 F.2d 1329. The realm of academia has produced vigorous debate about handwriting identification evidence: 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. 731 (1989); D. Michael Risinger & Michael J. Saks, Science and Nonscience in the Courts: Daubert Meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21 (1996); Andre A. Moenssens, Handwriting Identification Evidence in the Post-Daubert World, 66 UMKC L. Rev. 251 (1997); and D. Michael Risinger, et al., Brave New “Post-Daubert World” - A Reply to Professor Moenssens, 29 Seton Hall L. Rev. 405 (1998).
¶81 Because of the limitations we have jurisprudentially placed on Daubert-limiting its application to “novel” scientific evidence-Clifford‘s concern that Blanco‘s methodology did not produce valid results could not be the subject of a rigorous Daubert hearing. Rather, under Montana law her concerns would have to be addressed via Barmeyer-i.e., through cross-examination and refutation; something she attempted to do with Mark Denbeaux‘s testimony.
¶82 And there‘s the anomaly. Since the field validity of handwriting comparison, аs a discipline, was presumed-i.e., since it was deemed reliable-the court effectively determined that expert scientific evidence attacking the validity of Blanco‘s methods was “novel” and, therefore subject to Daubert. Thus, under Montana law, it would have been improper for the trial court to admit Denbeaux‘s testimony in front of the jury without a pre-trial Daubert hearing. We‘ve turned Daubert on its head.
E. Summary
¶83 In summary, under a correct application of Daubert, Clifford would have been entitled to a pre-trial Daubert hearing on the validity of Blanco‘s methodology. However, because of the manner in which we have limited Daubert (to “novel” scientific evidence), we placed Clifford in the anomalous position of having to request a Daubert hearing on Denbeaux‘s testimony attacking Blanco‘s methodology-it was Denbeaux‘s theories that were, after all, “novel.” Since handwriting analysis has long been recognized by courts as generally reliable and admissible, we forced upon Clifford the obligation to demonstrate that handwriting analysis, as a science or discipline-versus the methodology involved-is unreliable.
¶84 As noted, Montana‘s case law holds that subjecting expert testimony to the rigors of Daubert is necessary only when the science
¶85 If a litigant wants to challenge one of these tests, analyses or disciplines via Daubert-be it handwriting analysis, fingerprint analysis, or hair comparison-he or she should have the ability to do so, regardless of whether the test, analyses or discipline is “novel.” Our limitation on the use of Daubert has put the onus on the challenger-like Clifford-to prove that a test, analyses, discipline or presumption which is presumed reliable-often for no other reason than that it has been in use or in the courts for a long period of time-is not, in fact, reliable; that it is invalid as a field. Indeed, under our approach, a litigant-like Clifford-is precluded from attacking the methodology of one of these fields without first successfully attacking the reliability of the field itself.
¶86 This approach turns Daubert on its head; it severely constrains the trial court‘s gatekeeping function; and it puts us out of sync with the federal courts. See Sterup, at 479-87. It is time we reconsider our application of Daubert and Barmeyer to expert testimony. The case at bar is a perfect example of why.
F. Recommendations
¶87 Specifically, we should overrule our case law to the extent that it limits the application of Daubert to “novel” scientific evidence. Barmeyer, while consistent with Daubert as far as it goes, does not require the sort of rigorous pre-trial standards that should apply when expert evidence is proffered. Barmeyer may be appropriate for non-expert testimony. However, in my view, expert evidence is different than non-expert evidence. We all-jurors included-tend to trust experts, and if there are legitimate questions as to whether the field itself is bogus or whether the methods used by experts do not produce reliable results, then that testimony and evidence should be subject to challenge pre-trial. Many cases involve battles of experts. Neither side should have to contend with “expert” testimony that is unreliable.
¶88 Moreover, litigants who wish to challenge some of forensic science‘s mainstays-handwriting comparison being the one at issue here-and the intellectual rigor of the “experts” who testify in those
¶89 We also need to adopt Kumho Tire in the appropriate case. There is no reason that, in Montana, Daubert should not also apply to all expert testimony, not just that involving expert scientific evidence.
¶90 Finally, we need to amend
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(Emphasis added). Montana‘s
¶91 I concur because the trial court followed Montana law. It is that law that needs to be changed.
JUSTICE COTTER joins in the concurrence of JUSTICE NELSON.