HANDWRITING EXPERTS AS WITNESSES
While the qualification necessary for the permission of a witness to
testify in court as an expert is largely discretionary with the judge,
such discretion is usually exercised with so great liberality that it
is not often that a witness offered as an expert is refused by the
court on the ground of deficient qualification. It is usually held
that any one possessed of anything more than ordinary opportunity for
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studying or observing handwriting may give expert testimony, which the
jury may receive for what it is deemed to be worth. Bank officials and
employees are declared by most courts to be competent witnesses. If on
any previous occasion one has given testimony, that fact is usually
accepted as a sufficient qualification, or if he has ever seen the
person write whose writing is in question, he is deemed competent.
With such limited qualification it is no matter of surprise that
expert testimony is sometime made to appear at very great
disadvantage. Incompetent and mercenary witnesses will seek
employment, and since there are always two sides to a case, and on
each side lawyers who spare no efforts for victory, there is a chance
for every kind of witness, as there is for every kind of attorney.
Expert evidence is that given by one especially skilled in the subject
to which it is applicable, concerning information beyond the range of
ordinary observation and intelligence.
Opinion evidence is the conclusions of witnesses concerning certain
propositions, drawn from ascertained or supposed facts, by those who
have had better opportunities than the ordinary individual or witness
to judge of the truth or falsity of such propositions, or who are
familiar with the subject under inquiry, and give their conclusions
from the facts within their own knowledge concerning certain questions
involved.
Let us look at the question as it presents itself to the layman, to
men of science and experience, to microscopists, to bank officials and
others having much to do with writing. An expert in handwriting
occupies a totally anomalous position when called before a court as a
witness. Technically he is both a witness and an advocate, sharing the
responsibilities of both but without the privileges of the latter. He
has to instruct counsel and to prompt him during its course. But in
cross examination he is more open to insult because the court does not
see clearly how he arrives at his conclusions, and suspects whatever
it does not understand. Nearly every person who has had to appear in
court as an expert has been subjected to more or less humiliation by
the judge.
It may be, perhaps, cynically hinted that men who have made the
science of disputed handwriting a study should be willing to bear all
kinds of arrogance for the public good. In the first place, many
thoroughly competent experts in any department of science distinctly
and peremptorily refuse to be mixed up in any affair which may expose
them to cross examination. Many experts will investigate a matter,
give a report of their conclusions, but absolutely refuse to appear in
court.
Another not very edifying spectacle is that of paid handwriting
experts standing in court and contradicting each other, or pretending
to contradict in the interests of their respective clients, is not
exactly right. These men would change places and reverse positions and
arguments if necessary. Men of the world are tempted to say that
"Science can lay but little claim to certainty in demonstrating the
truth or falsity of handwriting and the whole procedure is more a mass
of doubtful speculations than a body of demonstrable truths." But it
must be remembered that a professional expert must be paid for his
services, and always tell the truth as it appears to him.
It is clearly seen that our present method of dealing with experts
regarding disputed handwriting is found to be on all sides not just
exactly satisfactory. Oftentimes the public is skeptical and many
honest and thorough experts are scandalized. The bench and bar share
this feeling but unfortunately are disposed to blame the individual
rather than the system.
There is no question but what this unanimity of dissatisfaction will
vanish as soon as a remedy is seriously proposed. To that, however, we
must come unless we are willing to dispense with expert evidence
altogether.
It is contended by many that an expert should be the adviser of the
court, not acting in the interest of either party in a lawsuit. Above
all things an expert ought to be exempt from cross-examination. His
evidence, or rather his conclusions, should be given in writing and
accepted just as the decisions of the bench on points of law.
Opinions of eminent judges have differed widely respecting the
reliance to be placed upon testimony founded upon expert comparisons
of handwriting, but it should be remembered that those opinions have
been no more varied than has been the character and qualifications of
the experts by whose testimony they have been called forth.
It is too true that very frequently persons have been allowed to give
testimony as experts who were utterly without experience in any
calling that tends to bestow the proper qualifications for giving
expert testimony.
The constant professional observation of handwriting in any line of
financial or commercial business tends to confer expert skill. It
should be said here, however, that the average bank cashier or teller
bases his opinions and his identifications generally upon the
pictorial effect without recourse to those minuter and more delicate
points upon which the skilled expert rightly places the greatest
reliance. Such testimony can not be compared for accuracy or value
with that of the scientific investigator of handwriting. It follows,
then, that one who is endowed with more than ordinary acuteness of
observation, and has had an experience so varied and extensive as to
cover most of these lines, is likely to be best fitted for critical
and reliable expert work.
In a word, the trained expert eye, even on so slight a thing as a
simple straight line, will detect certain peculiarities of motion, of
force, of pressure, of tool-mark, etc., that in normal circumstances
the result will stand for its author just as his photograph stands for
him. Now, this being undoubtedly true within certain limitations, how
more than incontestable must be the proposition to any rational man
that if, instead of a simple undeviating pen-stroke, lines that run to
curves and angles and slants, and shades and loops and ticks, and
enter into all sorts of combinations, such as any specimen of
handwriting must, however simple, bear inherent evidences of
authorship that yield their secrets to the expert examiner as the
hieroglyphics on an Egyptian monument do to a properly educated
antiquarian.
The propriety of admitting the evidence of handwriting experts in
investigating questions of forgery is now recognized by statute in
most states. Common sense dictates that in all investigations
requiring special skill, or when the common intelligence supposed to
be possessed by the jury is not fully adequate to the occasion, we
should accept the assistance of persons whose studies or occupations
have given them a large and special experience on the subject. Thus
such men of experience or experts are admitted to testify that work of
a given description is or is not executed with ordinary skill; what is
the ordinary price of a described article; whether described medical
treatment or other practice was conducted with ordinary skill in a
specific case; which of two colliding vessels, their respective
movements being given, was in fault; whether one invention was an
infringement of another, looking at the models of both; and other
cases already mentioned.
This is as near to an exact definition of who are admissible as
experts as it is possible for us to come. In all these cases it is to
be observed that the expert is to speak from no knowledge of the
particular facts which he may happen to possess, but is to pronounce
the judgment of skill upon the particular facts proved by other
witnesses. Of course the court must be first satisfied that the
witness offered is a person of such special skill and experience, for
if he be not, he can give no proper assistance to the jury; and of
course, also, very much must at least be left to the discretion of the
court, relative to the need of such assistance in the case; for very
often the matter investigated may be so bunglingly done that the most
common degree of observation may be sufficient to judge it.
Where a witness is called to testify to handwriting, from knowledge of
his own, however derived, as to the hand of the party, he is not an
expert, but simply a witness to a fact in the only manner in which
that fact is capable of proof. Nor is he an expert who is called to
compare a test writing, whose genuineness is established by others,
with the writing under investigation, if he have knowledge of the
handwriting of the party, because his judgment of the comparison will
be influenced more or less by his knowledge, and will not be what the
testimony of an expert should be, a pure conclusion of skill.
But when a witness, skilled in general chirography, but possessing no
knowledge of the handwriting under investigation, is called to compare
that writing with other genuine writings that have been brought into
juxtaposition with it, he is strictly an expert. His conclusions then
rest in no degree on particular knowledge of his own, but are the
deductions of a trained and experienced judgment, from premises
furnished by the testimony of other witnesses.
One of the palpable anomalies of the present practice regarding
experts on handwriting is that a person who has seen another write, no
matter how ignorant the observer may be, is competent to testify as to
whether or not certain writing is by the hand of the person he has
once seen engaged in the art of writing, while an expert handwriting
witness may only testify that the hand appears to be simulated but may
not point out the differences between specimens of genuine writing and
the instrument in controversy.
It is safe to presume that the apparently unreasonable position of the
law was assumed with a good object in view, and it is probable that
the object was the protection of the court from the swarm of so-called
experts which might be hatched by a laxity in the wording of the law.
Few things would be easier for a dishonest person than to swear he was
a competent expert, and then to swear that a document was, in his
opinion, forged or genuine, according to the requirements of his
hirer. The framers of the practice in reference to expert testimony on
documents seem to have had in mind that the only possible kind of
testimony as to documents was that based upon impressions; and that
the only method of coming to a conclusion was by giving words to the
first mental effect produced on a witness after he has looked at a
writing.
For this reason the practice has grown up in many trials of preparing
carefully forged signatures and producing them before the witness as a
test of how far he is able to distinguish genuine from forged
signatures.
However expert a witness may be, however successful in discriminations
of this kind, self-respect and a becoming modesty should induce him to
refuse to answer them without distinctly stating that his answer,
which gives his best judgment at the time, must be subject to reversal
if by longer and more thorough investigation it appear that the
opposite view were the true one.
When there is presented before a court of law a document, of which it
is important to know whether a part or the whole of the body, or the
signature, or all, is actually in the handwriting of some person whose
writing or signature in other exhibits is admitted to be genuine, the
counsel on each side usually seeks the aid of one or more handwriting
experts.
Usually a teacher of writing is called, but more often the cashier or
paying teller of a bank is preferred. There seems to be a good reason
for choosing a bank cashier or a paying teller, for the man upon whose
immediate judgment as to genuineness of signatures, reinforced by a
large and varied knowledge of human nature and quick observation of
any suspicious circumstances depends the safety of a bank, has
certainly gained much experience and is not apt to be easily deceived
in the kind of cases coming daily before him. How much the average
cashier and paying-teller depends upon the trifling circumstances
attending the presentation of a check, the appearance of the person
presenting it, the probability of the drawer inserting such a sum,
etc., becomes apparent when one has heard a number of these useful
officers testify in cases where they are deprived of all these
surroundings, and required to decide whether a certain writing is by
the same hand which produced another writing, both being unfamiliar to
them.
In this case they are obliged to create a familiarity with the
signatures of a man whose character and peculiarities they have never
known.
They miss the aid of some feature, such as a dash, a blot, or the
distortion of a letter, which would recall to them the character of
the writer. Most of the best experts of this class confess that they
cannot tell on what their judgment is based. They simply think that
the writing is not by the same hand as that admitted to be genuine.
"No," they will tell you, "it is not merely superficial resemblance. I
don't know what it is, but I feel sure," etc. These witnesses are more
frequently right than the more pretentious professional expert. The
former trust to the instantaneous impressions which they receive when
papers are handed to them; the latter too often give their attention
to the merely superficial features of chirography without getting
beyond the more obvious resemblances and differences which are
frequently the least important.
While the expert in handwriting should confine himself to the concrete
examinations of the paper, ink, seals, etc., and leave to the counsel
the task of reasoning on the purport of the words added, and all other
matters not allied to the materials left as the result of the forgery,
yet it would be unreasonable to neglect altogether these means of
corroborating a previously formed suspicion, or directing a course of
inquiry.
That expert would be more or less than human who could shut his eyes
to the importance of the fact that certain words containing evidence
in the manner of their formation or their position that raised doubts
as to their genuineness by their import gave to the person who might
have written them benefits which he would not have derived in their
absence.
The parts of a writing which demand the closest attention are those
which have been made unconsciously and which are not easily noted by a
superficial view. The height, the spread of the letters, the
peculiarities of the endings, the nourishes, and the general shape are
things which the forger observes and imitates, often with success; but
the curvature of a letter in its different parts is not easily
appreciated by the naked eye.
There are but few laws in the United States regarding the functions of
handwriting experts. Courts in various states have followed decisions
made by higher courts where matters affecting expert testimony have
been carried to the court of last resort. A code of uniform laws on
this question is being agitated and will soon be called to the
attention of all state legislatures. England has adopted a simple and
concise law on admissibility of testimony of handwriting experts.
In the absence of such laws a few extracts from Stephens' Law of
Evidence, an English work, will be found interesting and instructive:
Article XLIX: "When there is a question as to any point of science or
art, the opinions upon that point of persons specially skilled in any
such matter are deemed to be relevant facts.
"Such persons are hereinafter called experts.
"The words 'science or art' include all subjects on which a course of
special study or experience is necessary to the formation of an
opinion, and amongst others the examination of disputed handwriting.
"Illustration: The question is, whether a certain document was written
by A. Another document is produced which is proved or admitted to have
been written by A.
"The opinions of experts on the question whether the two documents
were written by the same person, or by different persons, are deemed
to be relevant."
Article LI: "When there is a question as to the person by whom any
document was written or signed, the opinion of any person acquainted
with the handwriting of the supposed writer that it was or was not
written or signed by him, is deemed to be a relevant fact.
"A person is deemed to be acquainted with the handwriting of another
person when he has at any time seen that person write, or when he has
received documents purporting to be written by that person in answer
to documents written by himself or under his authority, and addressed
to that person, or when in the ordinary course of business, documents
purporting to be written by that person have been habitually submitted
to him.
"Illustration: The question is, whether a given letter is in the
handwriting of A, a merchant in Calcutta.
"B is a merchant in London, who has written letters addressed to A,
and received in answer letters purporting to be written by him. C is
B's clerk, whose duty it was to examine and file B's correspondence. D
is B's broker, to whom B habitually submitted the letters purporting
to be written by A for the purpose of advising with him thereon.
"The opinions of B, C, and D on the question whether the letter is in
the handwriting of A are relevant, though neither B, C, or D ever saw
A write.
"The opinion of E, who saw A write once twenty years ago, is also
relevant."
Article LI I: "Comparisons of a disputed handwriting with any writing
proved to the satisfaction of the judge to be genuine is permitted to
be made by witnesses, and such writings, and the evidence of witnesses
respecting the same, may be submitted to the court and jury as
evidence of the genuineness or otherwise of the writing in dispute.
This paragraph applies to all courts of judicature, criminal or civil,
and to all persons having by law, or by consent of parties, authority
to hear, receive, and examine evidence."