Art Forensics #6:

The Forensic Art Expert

Read articles in the series here:
Art Forensics #1 - Introduction: Forensic Science under Attack by NAS
Art Forensics #2 - Forensic Science and Provenance Research: Questioned Documents
Art Forensics #3 - Handwriting Analysis
Art Forensics #4 - Forensic Linguistics
Art Forensics #5 - Forensics and the Fingerprints of the Artist

Introduction

In the ongoing legal slugfest between PWG and FAR® a common thread or concept running through and percolating the claims and counterclaims is the notion of the expert. Attorneys, and investigators who served in a prosecutorial function claim that they are experts because they have been involved in various art crimes. Other experts lay claim because they have a special relationship with the artist, or his organization. Other self styled experts have pushed the envelope and maintained a global expertise because they possess one specific art credential supposedly capable of encompassing all things related to art. In many cases it is confusing as to what criteria establish "X" as an art expert. Personal property appraisers evaluate the price of a given piece; attorneys are experts in the law and unless they possess additional credentials are not experts in art authentication. One would think that like questionable art, art authenticators taken to task by prime movers in the authentication game, auction house professionals, would not only go away mad but just go away.

Earlier articles in the FAR library have touched upon expert standards, i.e. Scholarship... and Nailing Down an Appraisal. Recent study has more clearly identified a more comprehensive picture of what constitutes fine art expertise. Self appointed art authentication experts fail to recognize that various court cases such as Daubert, Kumho, and various Federal Rules of Evidence (FRE) have laid the standards of what constitutes forensic expert status in the courts and the right to provide expert testimony. This analysis will attempt to provide a clearer picture of what art expertise or forensic fine art authentication is about.

The Laws Grounding Expertise in Court

It has been said that only a judge may establish who an expert is. This apparently innocuous statement emanates from Kumho Tire Company, Ltd. v. Patrick Carmichael and FRE 702. Here the Supreme Court expanded its Daubert ruling and directed trial courts to take note that it is up to the judge to determine who may be considered an expert in providing testimony in a court of law. Commonly referred to the "gatekeeper role", it provided wide latitude for judges in allowing expert testimony or evidence. Evidence provided in court can be broken down into two categories: witness and expert. According to rule 602 of the Federal Rules of Evidence (FRE) witness evidence consists of testimony based on the witness having personal knowledge of the matter before the court. Here the witness observed some part of the action which is before the court – he saw the perpetrator shoot the police officer. Rule 702 of the FRE which deals with the trier of fact - judge/jury - states that if scientific, specialized, technical expertise will help identify or determine a fact, such expert testimony may be admitted. It may be admitted if the expert is qualified by knowledge, skill, experience, training, or education. Under FRE 701 non-experts who possess knowledge related to a given case may provide evidence as long as it does not contravene FRE 702 which deals with professional experts.

Case Studies of Expertise

In 1999 in United States v. Paul a battle among experts was recorded. On the prosecution side was Larry Ziegler, an FBI document examiner. On the defense was a law professor questioning Ziegler's expertise under an In Limine challenge (In Limine refers to the opposition legal team requesting a motion to exclude expert testimony prior to trial. This request to exclude is made to the presiding judge). Following the Daubert principles of skill, experience, training, or education in the field, the court denied the In Limine challenge and accepted the expertise of Ziegler. It concluded that Ziegler satisfied the Daubert standards in that Ziegler had 30 years of experience in handwriting analysis, was a member of four professional handwriting document analysis organizations, established laboratories for the government, lectured and taught extensively, and trained new document examiners. Although the attorney authored tomes on handwriting analysis he was not an expert under Daubert.

In the United States v. Janet Thornton an In Limine challenge was presented against Derek Hammond a forensic document examiner with the Army Criminal Investigative Unit. It noted that Hammond's testimony should be excluded because he was not an expert and that forensic document examination was not reliable or valid. The court replied that Hammond had more than 10 years experience as a document examiner, attended numerous seminars and courses, was certified by education, experience and training, published, served as an expert witness 18 times and passed a three part formal examination. As to the unreliability of document examination, studies had demonstrated its reliability and as such, the In Limine objection was denied.

Case Study of Expertise Denied

In People v. James Hyatt (2000), Hyatt was charged with burglary. The defense proffered Dr. Simon Cole as an expert witness. Dr. Cole held a Bachelor's Degree in History from Princeton and a PhD from Cornell University. Cole's dissertation focused on fingerprinting evidence. Cole published a book on fingerprint evidence and authored several peer reviewed articles on fingerprint evidence. Under cross examination Cole indicated that he was not a scientist, did not examine the actual fingerprints in the case, and was aware that the defense fingerprint expert agreed with the prosecution expert that there was a match between the exemplars and the prints found at the crime scene. Cole further admitted to the court that his knowledge of fingerprinting processes was minimal and obtained from professional literature, his theories had not been tested, that he had never served as an expert nor were his theories generally accepted in the scientific community. Based on this Frye hearing to allow Cole to testify the court held that:

1. Cole did not meet acceptable standards of reliability in his deductions since they were anecdotal and second hand rather than scientific.
2. Cole possessed only minimal knowledge of fingerprint collection and comparison.
3. The historical approach followed by Cole did not meet generally accepted scientific standards promulgated by Frye.
4. Cole's attack on the scientific underpinning of fingerprint identification was one of an advocate.
5. Cole's testimony would neither be relevant or assist the jurors in understanding the issues.

The court ruled against Cole with a stinging remark labeling Cole's approach as "junk science."

In various IRS cases such as Farber v. Commissioner, Isbell v. Commissioner, and Shein v. Commissioner, expert analysis of fine art in terms of authentication and value fell short due to the expert not performing adequate research, not having even a general idea of the background of the item being examined, not even examining the item, and providing an evaluation prior to examination. In point, poor scholarship and investigation and not being knowledgeable about the field upon which the expert is commenting destroys expertise considerations. Like Cole, minimal understanding or lacking required educational credentials preclude the expert from fulfilling standard expertise requirements.

Identifiers of the Art Expert

From the above it seems evident what criteria the court is looking for in an expert. The Cole case is significant in that the court also tells us what it will not accept as factors inferring expertise. The interesting point about the criteria for and against expertise is that it is not far off our common notions of the essence of expertise. Webster's dictionary describes expertise as acquiring of a special skill or knowledge of a particular subject through professional training and practical experience. What the court has done is to add some weight to the skeleton by adding some additional muscles. In the case of the art expert one would argue that the court would expect the following:

1. Specialized training and experience applicable only to the specialized field. If expertise is grounded in sculptures, the expertise is not applicable outside that medium. There is no such expertise labeled as general since by its very definition it is specialized or specific.
2. The expertise must be grounded in generally accepted science. Non-science, anecdotal, history, or literature grounding is unacceptable. Concluding from a chemical analysis of the paint used in a work via certain standard tests would be warranted. Concluding from a New York Post letter to the editor would not.
3. It is expected that the expert be involved with his or her specialty for at least 10 years. A newly minted PhD will probably be stringently questioned.
4. It is expected that the expert has served as an expert in court on numerous occasions. The more occasions the greater the weight of expertise. The court will accept experts without any expert testimony experience if they present proper training, experience, education, and identifiers of expertise such as publications, peer reviews, and teaching.
5. The expert should have publications and have had them reviewed by his or her peers.
6. The court also expects that the expert be involved in continuous learning in the specialty. The court does not expect the knowledge to be vitiated by time and atrophy.
7. Maximization of experience, training, education, or knowledge is welcomed. Minimalization is frowned upon since it conveys the message that the expertise is lacking. A commonly accepted mark of expertise is the years spent being involved in a given specialty. A physician serving his residency would not be looked upon as an expert. A physician having 10 years experience caring for the sick would.
8. Expert testimony requires that the trier of fact be enlightened. Information provided must be relevant and capable of being understood by the judge and jury. Questionable science or theories will exclude the expert.

Conclusion

Expertise as defined by the legal system is constantly being challenged from within and without. For the most part the court does not rule in favor of In Limine challenges. Such challenges usually arise from those outside the field they are criticizing, and by those with less or little practical experience or training compared to the opposition expert. The legal system under various Frye and Daubert rulings is undergoing change and becoming more rigorous in identifying what experts it will accept. Courts seem to be looking for expertise with a long standing history of experience, success, scholarship, extensive knowledge of an area, practice, constancy of achievement, specificity, integrity, and an unambiguous understanding of what expertise is all about. Theory, logic and research is not going to supplant knowledge gained from day to day practice.

— by John Daab Ph.D.  |  November 23, 2009

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