THE INTEGRATION OF BANKING AND TELECOMMUNICATIONS: THE NEED FOR REGULATORY REFORM

BEST PRACTICES 369

as represented by McMenamin’s work, the best exposition of the
method, or Leonard’s testimony in the BWI deposition.

D. Admissibility

In United States v. Van Wyk,^92 Judge Bassler reasoned that
intuition-based forensic linguistics had never been tested for its
reliability, so no one knows how well or how poorly it actually
works, and no one knows how much writing is required for it to
work, or whether it works well or poorly at identifying authors.
This lack of scientific rigor falls short of Federal Rule of
Evidence 702.^93 As the court put it:

Although Fitzgerald employed a particular methodology

that may be subject to testing, neither Fitzgerald nor the

Government has been able to identify a known rate of

error, establish what amount of samples is necessary for

an expert to be able to reach a conclusion as to

probability of authorship, or pinpoint any meaningful

peer review. Additionally, as Defense argues, there is no

universally recognized standard for certifying an

individual as an expert in forensic stylistics. Various

judicial decisions regarding handwriting analysis, while

not identical to text analysis, are instructive because

handwriting analysis seems to suffer similar weakness in

scientific reliability, namely the following: no known

error rate, no professional or academic degrees in the

field, no meaningful peer review, and no agreement as to

how many exemplars are required to establish the

probability of authorship.^94

(^92) United States v. Van Wyk, 83 F. Supp. 2d 515 (D.N.J. 2000).
(^93) FED. R. EVID. 702.
(^94) Van Wyk, 83 F. Supp. 2d at 522 (citing United States v. Hines, 55 F.
Supp. 2d 62, 69 (D. Mass. 1999); see also United States v. Santillan, No.
CR-96-40169 DLJ, 1999 WL 1201765, at *2 (N.D. Cal. Dec. 3, 1999); Pre-
Trial Transcript, United States v. McVeigh, No. 96-CR-68, 1997 WL 47724
(D. Colo. Feb. 5, 1997).