§ 24.11 QUESTIONED DOCUMENTS; HANDWRITING

• Jurisdiction: United States

§ 24.11. QUESTIONED DOCUMENTS; HANDWRITING

Questioned document examinations cover a wide range of analyses: handwriting, hand printing, typewriting, mechanical impressions, altered documents, obliterated writing, indented writing, and charred documents.¹⁹³ Rule 901(b)(3) provides that an item of evidence may be authenticated by comparison with specimens, which would include handwriting examinations by an expert witness.¹⁹⁴

After Daubert, handwriting comparison testimony came under attack. In 1995, a district court in United States v. Starzecpyzel¹⁹⁵ concluded that "the testimony at the Daubert hearing firmly established that forensic document examination, despite the existence of a certification program, professional journals and other trappings of science, cannot, after Daubert, be regarded as 'scientific . . . knowledge.' "¹⁹⁶ The court further stated that "while scientific principles may relate to aspects of handwriting analysis, they have little or nothing to do with the day-to-day tasks performed by [Forensic Document Examiners]. . . . [T]his attenuated relationship does not transform the FDE into a scientist."¹⁹⁷ Nevertheless, the court did not exclude handwriting comparison testimony. Instead, it admitted the testimony as "technical" knowledge.

Later cases divided, with appellate courts upholding admissibility¹⁹⁸ and some district courts excluding the evidence.¹⁹⁹ In addition, some trial courts permit expert testimony about the similarities and dissimilarities between exemplars but not opinions that the same person wrote both.²⁰⁰ This controversy has been exhaustively covered in several articles.²⁰¹

In 2009, the National Academy of Sciences issued a report on forensic science. With respect to handwriting comparison, the Report stated:

The scientific basis for handwriting comparisons needs to be strengthened. Recent studies have increased our understanding of the individuality and consistency of handwriting . . . and suggest that there may be a scientific basis for handwriting comparison, at least in the absence of intentional obfuscation or forgery. Although there has been only limited research to quantify the reliability and replicability of the practices used by trained document examiners, the committee agrees that there may be some value in handwriting analysis.²⁰²

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Notes:

^[193] 2 Giannelli & Imwinkelried, supra note 40, ch. 21.

^[194] See infra § 28.05.

^[195] 880 F. Supp. 1027 (S.D.N.Y. 1995).

^[196] Id. at 1038.

^[197] Id. at 1041. See also...