UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES v. CLIFFORD
704 F.2d 86 (1983)
HUNTER, Circuit Judge:
In a prosecution for mailing threatening letters in
violation of 18 U.S.C. §§ 2, 876 (1976), the United States
District Court for the Western District of Pennsylvania ruled that the
government could not introduce correspondence in the defendant's
handwriting in order to show stylistic similarities between that
correspondence and the threatening letters at issue. United
States v. Clifford, 543 F. Supp. 424 (W.D. Pa. 1982). The government
appeals from the pretrial order excluding that evidence. We have
jurisdiction to hear the appeal pursuant to 18 U.S.C. § 3731
(1976). We will reverse.
On March 9, 1982, a federal grand jury returned a
two-count indictment against appellee Russell Clifford. The
indictment charged Clifford with mailing threatening letters to Charles
Sharon, Clifford's successor as police chief of Saltsburg,
Pennsylvania. Those letters were printed in block style.
Through its investigation the government acquired various
pieces of cursive correspondence apparently written and signed by
Clifford. As one part of its case against Clifford, the
government wanted to point out to the jury certain similarities in
spelling, abbreviation, syntax, and paragraph structure between the
block-style threatening letters and the cursive correspondence. Those
similarities included misspellings of "figure" as "figuar" and
"explosives" as "explodsives," the inconsistent use of either circles
or dots for the letter "i," the lack of indentation or space between
paragraphs, the use of certain abbreviations such as "Chas." for
"Charles," and the use of long sentences in both sets of letters.
The government, however, recognized that there was no
direct proof that Clifford had written the cursive letters. The
government had circumstantial evidence that Clifford had written the
letters because they bore the signature "Russell Clifford" and because
they were addressed to city officials with whom Clifford regularly had
business contacts as chief of police. Clifford, however, refused to
stipulate that he had written the letters and refused voluntarily to
provide the cursive handwriting exemplars necessary to establish his
On March 26, 1982, the government filed a motion to compel
Clifford to provide handwriting exemplars written in cursive
style. The government intended to use those cursive exemplars to
prove that Clifford actually had written the cursive correspondence
bearing his signature before it began pointing out the similarities
between that cursive correspondence and the block-style threatening
On April 14, 1982, the district judge conducted a hearing
on the government's motion. In an attempt to explain its need for
the exemplars, the government showed to the judge an FBI report which
summarized the FBI's forensic linguistic analysis of the threatening
letters and of the cursive correspondence bearing Clifford's
signature. The FBI report stated that, based on a comparison
between the threatening letters and the cursive correspondence, there
was a "strong likelihood" that Clifford had written the threatening
letters. App. at 200A. The FBI report also stated that "you are
reminded that since application of the linguistic method is not
considered a positive means of identification, results of such
examinations are provided for investigative assistance only, and are
not intended for testimony." Id.
The district judge focused on the statement that the
results of forensic linguistic analysis "are not intended for
testimony," id. In light of that statement, he questioned the
admissibility at trial of the cursive correspondence for the purpose of
comparing it with the threatening letters. He further stated that
if that evidence were inadmissible, there would be no need to compel
Clifford to provide cursive exemplars. The judge requested
additional briefing and took the government's motion under advisement.
On April 26, 1982, the government filed a Motion in Limine
for a ruling that the cursive correspondence would be admissible at
trial subject to proper authentication by the government. On May
17, 1982, the district judge ordered a hearing to examine the state of
the art of forensic linguistic analysis before ruling on either of the
pending motions. He ordered the government to produce the author
of the FBI report and another forensic linguistics expert to testify at
the hearing. The government filed a response to that order
emphasizing that it did not intend to call any expert witnesses at
trial. The government indicated that pursuant to the judge's
order, however, it would present the following three witnesses at
the hearing: Dr. Murray S. Miron, professor of psycholinguistics at
Syracuse University and consultant in linguistics to the FBI; Special
Agent Ronald M. Furgerson, chief of the FBI laboratory unit responsible
for forensic linguistics; and Penelope O. Pickett, aural analyst for
the FBI laboratory and author of the FBI report at issue.
The judge conducted the hearing on June 8, 1982. Dr.
Miron testified that forensic linguistic analysis is the process of
matching stylistic similarities in different documents and then of
assigning weight to those similarities according to their
distinctiveness and frequency of occurrence. He further stated
that such an analysis could not provide a positive means of identifying
the author of an anonymous document. He indicated that the
results of forensic linguistic analysis could be probative in
establishing authorship but could not prove that one person, to the
exclusion of all other possible authors, had written a document.
The judge then asked Dr. Miron whether a jury, without the
aid of an expert, could analyze the various similarities and "draw
valid and certain conclusions beyond a reasonable doubt." App. at
123A. Dr. Miron stated that an expert could help a jury to decide
just how unusual or distinctive certain similarities are and thus how
much probative weight to assign to those similarities. App. at
124A. Dr. Miron further indicated that the jurors "might not draw
the proper conclusions if not assisted in how they are to interpret the
evidence." App. at 125A.
Both Special Agent Furgerson and Ms. Pickett testified
that forensic linguistic analysis does not provide a positive means of
identification. Special Agent Furgerson testified that the purpose of
forensic linguistic reports, such as the one prepared by Ms. Pickett in
this case, is to provide guidance for investigators. He testified
that those reports are prepared for use in investigations with "no idea
that eventually that information would be used for subsequent expert
testimony." App. at 142A. He stated that for that reason, the FBI
has never attempted to have Ms. Pickett certified as an expert witness.
App. at 135A-37A.
II. DECISION BELOW
Following the hearing the district judge orally denied the
government's motion to compel handwriting exemplars. The judge
also ruled that the government could not introduce at trial the cursive
correspondence listed in its Motion in Limine. In his
supplemental opinion the trial judge stated that he was exercising his
discretion under Federal Rule of Evidence 403 and holding that the
cursive correspondence was inadmissible with or
without the use of expert testimony. The judge concluded that
admitting such evidence would lead to a jury verdict "based on surprise
and speculation, and not on proof beyond a reasonable doubt." 543 F.
Supp. at 429.
Relying on the testimony of Dr. Miron, the judge ruled
that the correspondence was inadmissible without the aid of expert
witnesses because such evidence was "inherently untrustworthy," id. at
431, and because of the strong possibility that a jury would be misled
in evaluating the evidence on its own. He stated that "it is not the
similarities or dissimilarities which are controlling, but it is the
weight to be given to them which is the crucial factor in performing
forensic linguistic analysis." Id. at 429. The judge concluded that the
weighing process is "beyond the realm of an ordinary juror." Id.
He then discussed the admissibility of the evidence with
the aid of expert witnesses. He concluded that the use of experts
would not enhance the reliability of the evidence because forensic
linguistic analysis "has not been shown to be trustworthy, reliable,
accurate, or conforming to a generally accepted scientific theory." Id.
at 431. The judge relied primarily on the testimony of the FBI analysts
that forensic linguistic reports are used for investigative purposes
only. The judge also stated that he was unable to find any cases
in which "testimony pertaining to the linguistic method has been
permitted." Id. at 430.
On appeal the government contends that the district court
erred in refusing to allow the jury to make its own comparisons between
the two sets of documents. Appellee Clifford argues that the district
court's exclusion of the evidence was a proper exercise of his
discretion under Rule 403. We note at the outset that
a trial judge has broad discretion under Rule 403 to exclude relevant
evidence when its "probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury." Fed. R. Evid. 403; see Hamling v. United States, 418 U.S. 87,
124-25, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). A trial judge's
rulings under Rule 403 are rarely disturbed on appeal unless there is a
clear showing that the judge abused his discretion. United States
v. Long, 574 F.2d 761, 766-68 (3d Cir.), cert. denied, 439 U.S. 985, 58
L. Ed. 2d 657, 99 S. Ct. 577 (1978). In excluding the
evidence in this case, however, the district judge misconstrued the
nature of the government's request. The government never intended
to offer expert witnesses in forensic linguistic analysis nor did it
ever intend to offer the FBI report into evidence as positive proof of
Clifford's authorship. Thus the judge's concern with allowing
expert testimony in a relatively new scientific field was misplaced
given the nature of the government's request. The judge's concern
with using the FBI report for in-court testimony was equally misplaced.
The district judge excluded the cursive correspondence,
rejecting the government's argument that the jury could make its own
stylistic comparisons between the cursive correspondence and the
threatening letters. In excluding that cursive correspondence,
however, the judge meshed the question of the sufficiency of the
government's overall evidence with the question of the admissibility of
the cursive correspondence. He also considered factors going to
the weight which the jury may attach to the evidence as factors
affecting its admissibility.
In assessing the probative value of the evidence the judge
asked Dr. Miron whether a jury could examine the correspondence and
"draw valid and certain conclusions beyond a reasonable doubt." App. at
123A (emphasis added). A piece of evidence, however, need not
conclusively prove a fact beyond a reasonable doubt in order to be
admissible. Fed. R. Evid. 401 advisory committee notes. The test
of relevancy used by the trial judge to determine the admissibility of
a single piece of evidence is less stringent than the standard the
judge must later use under Fed. R. Crim. P. 29 to determine whether all
the government's evidence is sufficient to allow the case to go to the
jury. C. McCormick, McCormick on Evidence § 185 (2d.ed.1972). Rule
401 defines relevant evidence merely as evidence "having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable." Fed. R.
Evid. 401; see United States v. Steele, 685 F.2d 793, 808 (3d Cir.),
cert. denied, 459 U.S. 908, 103 S. Ct. 213, 74 L. Ed. 2d 170 (1982);
Carter v. Hewitt, 617 F.2d 961, 966 (3d Cir. 1980).
The correspondence which the government wanted to present
to the jury in this case is relevant. The similarities between
the cursive correspondence and the threatening letters, particularly
the unusual misspellings, clearly have some tendency to make Clifford's
authorship of the threatening letters more probable. The evidence is
thus admissible unless "its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury." Fed. R. Evid. 403.
We reject the district court's conclusion that the "jury
will be seriously misled" by the evidence. 543 F. Supp. at 428. In
reaching that conclusion the district judge relied on the testimony of
Dr. Miron that the jurors "might not draw the proper conclusions if not
assisted in how they are to interpret the evidence." App. at
125A. Given that testimony the judge concluded that "the
determination of the weight and significance [of the similarities] is
something which is beyond the realm of an ordinary juror." 543 F. Supp.
We disagree. The jury's function in every case is
"to weigh the credibility of witnesses, resolve evidentiary conflicts
and draw reasonable inferences from proven facts." United States v.
Young, 573 F.2d 1137, 1139 (9th Cir. 1978); see United States v.
Barber, 442 F.2d 517, 522 (3d Cir.), cert. denied, 404 U.S. 958, 30 L.
Ed. 2d 275, 92 S. Ct. 327 (1971). Clearly the weighing process which
the jury will perform in this case is not the same scientific process
which Dr. Miron performs. In his work Dr. Miron relies on
computer programs in order to identify similarities in writings.
He then uses standard "counts" of present American English, listings of
the frequencies of occurrence of words, in order to assign weight to
those similarities. App. at 92A-97A. We see no reason,
however, why jurors cannot merely examine the documents for themselves
and consider the similarities between the documents along with the rest
of the evidence presented by the government.
Weinstein notes that "the technique [of identifying a
writer by the internal patterns of the writing] -- without the aid of
experts or computers -- is one long used in the courts." 5 J. Weinstein
& M. Berger, Weinstein's Evidence para. 902(b)(4) (1982)
(citing Magnuson v. State, 187 Wis. 122, 203 N.W. 749 (1925)). The
government cites numerous cases where a jury has been allowed to
compare similarities in misspellings in two sets of documents as one
part of the government's overall case against a criminal
defendant. See, e.g., United States v. Larson, 596 F.2d 759, 765
n. 10 (8th Cir. 1979) (jury considered misspelling of "approach" as
"approuch" in kidnapper's ransom note and in defendant's letter to
parole board); United States v. Pheaster, 544 F.2d 353, 371-72 (9th
Cir. 1976) (jury considered similar misspellings in kidnapper's notes
and in defendant's exemplars), cert. denied, 429 U.S. 1099, 97 S. Ct.
1118, 51 L. Ed. 2d 546 (1977); Hughes v. United States, 320 F.2d 459,
461 (10th Cir. 1963) (jury considered similar misspellings in materials
illegally sent through the mails and in defendant's known writing),
cert. denied, 375 U.S. 966, 11 L. Ed. 2d 415, 84 S. Ct. 483 (1964); see
also Fed. R. Evid. 901(b)(4) (authentication of a document through
examination of internal patterns and distinctive characteristics is
Effective rebuttal by the defense attorney will lessen any
danger that the jurors might assign improper weight to their
comparisons. Any evidentiary arguments, however, are properly
addressed to the weight and not to the admissibility of the cursive
correspondence. See J. Wigmore, Wigmore on Evidence § 29
(1940); cf. United States v. Flenory, 619 F.2d 301, 304-05 (3d Cir.
1980) (involving admissibility of in-court identifications).
We therefore conclude that the district judge abused his
discretion in excluding the cursive correspondence offered to show
stylistic similarities between that correspondence and the threatening
letters. We hold that the documents listed in the government's
Motion in Limine are admissible subject to proper authentication by the
government. See United States v. Goichman, 547 F.2d 778, 783-84
(3d Cir. 1976) (per curiam); Fed. R. Evid. 901. We will
reverse the district judge's pretrial order and will remand for
proceedings consistent with this opinion.