Under Federal Rule of Evidence 901(b)(2), a non-expert may opine that a particular writing was made by the defendant. But, critically, the rule says that the non-expert’s “familiarity with [the handwriting” must not have been “acquired for the current litigation.” In other words, the non-expert can’t just review known exemplars of the defendant’s handwriting for the purpose of going into court and identifying a particular writing as the work of the defendant.
But what happens when, during the course of a criminal investigation, a law enforcement officer becomes familiar with the defendant’s handwriting? Can that officer give a non-expert opinion at trial or does the officer’s involvement in the investigation mean that the officer’s familiarity with the handwriting was “acquired for the current litigation”? In a recent case, the Eleventh Circuit held that the officer could offer a non-expert opinion, reasoning that simply because the officer investigated the defendant for a crime doesn’t mean that he acquired familiarity with the handwriting “for the current litigation.”
The case is United States v. Iriele, No. 17-13455, 2020 WL 5987496, at *5 (11th Cir. Oct. 9, 2020). During a search of Iriele’s home, investigators seized a handwritten ledger detailing certain transactions that Iriele used to allegedly launder money. Its admissibility and significance depended in part on whether Iriele had authored it. Over Iriele’s objection, the district court allowed a law enforcement agent who had investigated Iriele’s money laundering schemes to give an opinion to the jury about whether the handwriting in the ledger was Iriele’s. He opined that it was.
On appeal, Iriele argued that the district court’s admission of the testimony violated Rule 901(b)(2) because the officer had acquired familiarity with the handwriting for the current litigation. The Eleventh Circuit rejected the argument. The Eleventh Circuit reasoned that the rule only bars a lay witness from studying up on a defendant’s handwriting for the sole purpose of later testifying at a trial. If the lay witness became familiar with the defendant’s handwriting for some other purpose—e.g., to help solve a crime—the witness may testify at trial. As the Eleventh Circuit explained:
“A lay witness becomes familiar with someone’s handwriting ‘for the current litigation’ when he does so solely for the purpose of identifying it at trial. Rule 901(b)(2) bars such a witness from identifying the handwriting because if he did, he would be intruding in an area that is ‘reserved to the expert [witness]’ . . . . An investigator who becomes familiar with the defendant’s handwriting for the purpose of solving a crime is different from a lay witness who makes a handwriting comparison so he can testify about it at trial. That investigator is in the same position as any other lay witness who, as part of his job or in his day-to-day affairs, has seen examples of the defendant’s handwriting, such as the defendant’s ‘accountant, employee[,] or family member’ . . . . His opinion about the defendant’s handwriting is not categorically barred by Rule 901(b)(2).”
The Eleventh Circuit wasn’t the first to tackle the question. Other circuits had reached this same holding. See United States v. Harris, 786 F.3d 443, 447–48 (6th Cir. 2015); United States v. Ali, 616 F.3d 745, 753–54 (8th Cir. 2010); United States v. Samet, 466 F.3d 251, 256 (2d Cir. 2006); United States v. Scott, 270 F.3d 30, 48–50 (1st Cir. 2001).
In short, any challenge to a law enforcement’s non-expert opinion on handwriting will hinge on why the law enforcement gained familiarity with the handwriting. If you can show that it was gained solely for the purpose of testifying at trial, the testimony will remain inadmissible.
A link to the full opinion is below.
https://cases.justia.com/federal/appellate-courts/ca11/17-13455/17-13455-2020-10-09.pdf?ts=1602266434
