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

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."





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