CHAPTER 12 HANDWRITING AND QUESTIONED DOCUMENTS

• Jurisdiction: United States

Chapter 12 Handwriting and Questioned Documents

Overview

Handwriting "experts" have testified in courts for many years about authorship and forgery. The basic premise used by handwriting experts is that handwriting, like fingerprints, is unique to the individual. Therefore, a person cannot disguise his or her handwriting from an expert who examines both a sample of the person's genuine handwriting and a purported forgery. Handwriting analysis is frequently used in courts to establish a number of issues:

1. Did an individual write a particular document in his or her "normal writing"?
2. Did an individual forge the writing of another person?
3. Did an individual write a document, attempting to disguise his or her normal writing?

The National Research Council, in its 2009 report, explained that the area of "Questioned Document Examination" involved comparison and analysis of documents and printing and writing instruments in order to identify or eliminate suspects as the source of the handwriting.

Although this chapter will focus primarily on handwriting analysis, the NRC noted that questioned document examination involved analysis of many factors:

• determining whether the document is the output of mechanical or electronic imaging devices such as printers, copying machines, and facsimile equipment;
• identifying or eliminating particular human or machine sources of handwriting, printing, or typewriting;
• identifying or eliminating ink, paper, and writing instrument;
• establishing the source, history, sequence of preparation, alterations or additions to documents, and relationships of documents;
• deciphering and restoring obscured, deleted, or damaged parts of documents;
• recognizing and preserving other physical evidence that may be present in documents; and
• determining the age of a document.¹

The methods used to determine common authorship were developed by Albert Osbourn, Sr., in the early 1900s and have remained virtually unchanged. The examiner first views the suspected document and exemplars of the natural handwriting of the suspected author. If the examiner determines that he has enough writing to compare, he will first look for obvious differences, which might rule out the suspected author. Such differences include such "macro" features as line slant, pen pressure, and the like. If the suspect cannot be ruled out, the examiner will then proceed to examining "micro" features, such as the size and shape of particular letters. There is no set number of similarities that an examiner must find to determine a match.

Courts have admitted handwriting testimony for many years, but when confronted with the Daubert tests, some courts have determined that handwriting identification is not reliable. Experts cannot state which characteristics are most important, nor can they state that if a writer of a known document has x number of similarities, there is given probability that the writer wrote the questioned document.

In 2009, the National Research Council issued a "Summary Assessment" of the current status of handwriting analysis suggesting that the "scientific basis for handwriting comparisons needs to be strengthened."

[R]ecent studies have increased our understanding of the individuality and consistency of handwriting and computer studies and suggests 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 or replicability of the practices used by trained document examiners, the committee agrees that there may be some value in handwriting analysis.²

All this may change with the advent of computer programs designed to compare questioned documents. One computer system has determined that handwriting is unique, by looking for a certain number of macro and micro features. In essence, it is similar to DNA testing in that it does not look at all possible match points, but the sample it examines is large enough to make probability estimates of common authorship.

Handwriting may well be a type of forensic science that does not meet Daubert, but that will lead to a form of computer analysis that will meet the tests in the near future.

Chapter Objectives

Based on this chapter, students will be able to:

1. Explain the different purposes for which handwriting comparison can be used.
2. Explain the scientific hypotheses about intra-writer and inter-writer handwriting.
3. Identify the different opinions a handwriting expert may give about common authorship.
4. Identify the 21 basic areas of macro characteristics experts look for in traditional handwriting analysis.
5. Understand the subjective elements of traditional handwriting analysis.
6. Explain the process involved in comparing handwriting as a forensic investigative device.
7. Explain how the admissibility of handwriting expert testimony has been viewed by the courts before and after Daubert and after the Kuhmo decision.
8. Evaluate whether traditional handwriting experts should be able to point out similarities and differences but not give an opinion as to authorship.
9. Evaluate the issues, including publicity and notoriety, which affected handwriting analysis in both the Hauptmann and the Ramsey ransom notes.
10. Explain how traditional handwriting analysis may be both generally accepted and yet still fail the remaining Daubert tests.
11. Evaluate the process of handwriting comparison when done by computer and compare with traditional handwriting analysis.

The Traditional Handwriting Analysis Process

The purpose of handwriting analysis is to determine whether a particular individual wrote a questioned document, based on examination and comparison of characteristics in his handwriting and that in the questioned document:

The main goal of all forensic identification, including handwriting identification, is individualization. Individualization is the establishment that a person or object now held is the same person or object associated with a past event in a particular way, to the exclusion of all other candidates.³

Handwriting expert testimony can range from the routine cases, such as whether a defendant forged a check by "copying" the handwriting of someone else, to the highly dramatic. The best known handwriting cases have been ransom notes, in which the suspect has tried to disguise his writing. From the famous kidnapping of the Lindberg baby, in which Bruno Richard Hauptmann was executed based on evidence that included testimony about his authorship of the ransom note — to JonBenét Ramsey, in which officials have been unable to conclude that any known suspect wrote the ransom notes, continue to intrigue.

Handwriting testimony has also undergone a transformation from the early days. At one point, the only "expert" permitted to testify in court was someone who had actually seen the writer's handwriting. Today, experts are people who generally have no first-hand knowledge of the writer, but have applied certain theories to determine authorship.

Traditional Handwriting Analysis Is a Subjective Process

Even handwriting experts agree that there is no identifiable "system" for analyzing handwriting and that the process depends on training and experience. Although the American Board of Forensic Document Examiners was established in 1977,⁴ whose members include the American Society of Questioned Document Examiners,⁵ there is no formal training to become a handwriting examiner. Most examiners have been trained at forensic laboratories.

Unfortunately, as yet there is no program of reputable courses offered or training available in Canada or the United States to private persons who wish to enter the discipline. As a result, the few qualified private practicing examiners are, frequently, former employees of government forensic laboratories whose personal facilities for performing the work may be inadequate and may vary substantially.⁶

There are some who would argue that the 1910 text called Questioned Documents, written by Albert Osborn, is the definitive text on handwriting analysis. However, the book is currently out of print,⁷ so it is doubtless not being used in any current training programs.

Handwriting analysis is subjective. Unlike fingerprints, there is no agreed upon number of points of comparison required to declare a "match." No one claims that handwriting analysis is a "science," although it has been called a "technique." After the Daubert standards were extended to "technical" experts by the Supreme Court in Kuhmo, some courts have attempted to apply these standards to handwriting. Most cases, however, seem to continue to accept handwriting expert testimony, even when it is challenged. The question we will examine is "why?" There appear to be three main reasons:

1. Handwriting expert testimony has been admitted since the early 1800s and therefore continues to be admitted because of its longevity,
2. Handwriting is "generally accepted" within the litigation community,
3. As the jury can examine the handwriting for themselves, there is little fear of prejudice from the expert opinions.⁸

Handwriting is one of those "unique" human characteristics that have been accepted as part of common wisdom. As we will see, there has never been a scientific study to confirm this common perception; nonetheless "experts" on handwriting have been permitted to testify in court both before and after Daubert virtually without challenge. Yet, how do we know that it is true that handwriting is unique? How does one become an expert in identifying handwriting? What techniques and methods do they use? Exactly how do they determine that a particular piece of handwriting originated from a particular person? What is the threshold of identification? And especially, what makes it possible to say with authority that this handwriting was produced by person A attempting to appear as if it were written by person B?

The Role of Training and...