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- Page 3 of 6 Defendants have argued, however, @ itis just as plausible that the killer had been hiding away in the home for many hours, waiting for the household to go to sleep, before he sprung into action. That waiting time would have allowed him the leisure to write a note. Further, the length of time that it took to practice and write the note could also conceivably undermine a notion that Mrs. Ramsey wrote it. Under plaintiff's scenario, Page 86 Mrs. Ramsey was working quickly to create a staged crime scene before her husband and son awoke. Given those time constraints, and presumably a desire to provide as little handwriting as possible for purposes of _ future analysis, she arguably would not have written such a long note. Accordingly, the existence of this | peculiar, long Ransom Note does not necessarily favor, as the killer, either an intruder or Mrs. Ramsey. | Thus, the only conceivable piece of evidence by which plaintiff can hope to carry his burden of proof is evidence that indicates that Mrs. Ramsey actually wrote the note. Factoring into the analysis the testimony of Mr. Epstein that there are similarities between Mrs. Ramsey's handwriting and the Ransom Note does not, however, enable plaintiff to meet that burden. The fact that there may be similarities between the two hardly constitutes persuasive evidence that Mrs. Ramsey actually wrote the Note. Without that proof, plaintiff cannot show that Mrs. Ramsey was the killer. b. Consideration of Epstein’. Testimony That He Was Absolutely Certain that Mrs. Ramaey Wrote the Ransom Note The Court has earlier indicated its conclusion that there is insufficient reliability to Mr. Epstein's methodology to permit him to state his conclusion that Mrs. Ramsey wrote the Ransom Note. As noted supra, Epstein opined that he is "100 percent certain" that Patsy Ramsey wrote the Ransom Note and that "there Page 87 is absolutely no doubt" that she is the author. Supra at 51. The Court believes its conclusion on the admissibility of this evidence to be correct. Further, as the identify of the writer is virtually the only evidence that plaintiff can offer to shoulder its burden, then the question of the identity of the writer is synonymous with the underlying question in this litigation: did Mrs. Ramsey kill her child. Nevertheless, even if the Court were to permit Epstein to testify as to the above conclusion, the Court does not believe his testimony would provide the “clear and convincing evidence" necessary for a reasonable finder of fact to conclude that Mrs. Ramsey.wrote the note. As stated before, "clear and convincing" evidence requires "a clear conviction, without hesitancy of the truth." Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 2BS n. 11 (1990) . The parties have agreed that handwriting analysis is, at best, an inexact and subjective tool used to provide probative, but not clear and convincing evidence, of a questioned document's author. (SMF 212; PSMF 212.) Nonetheless, the Court will assume that there could be cases where the handwriting in question is either so obviously not the handwriting of a particular individual or so close a match to that person's penmanship, that a finder of fact could comfortably rely on the handwriting, alone, to reach a particular conclusion. Indeed, well before the days of forensic handwriting experts, courts have allowed lay witnesses to http://www. angelfire.com/ar3/jonbenet/judgecarnes9.html 5/10/2005 \