A Primer on Handwriting Analysis
"Handwriting expert" is a commonly used phrase among popular media that implies a higher level of expertise than handwriting analysis. In fact, according to the American Society of Questioned Document Examiners (ASQDE), there is no established standard of training or certification. The methods of training vary from one examiner to another. Some are forensic scientists who focus more on ink and paper, whereas others may be more interested in personality indicators. There are, however, some basic widely accepted methods and processes.
Handwriting analysis is not something that was invented recently. It began as an investigative tool in Europe in the 1800s. The trend did not gain real popularity, though, until the invention of the typewriter in the late 1800s. For the first time, people saw how different it felt to type. People also started leaving their handwriting behind when they typed. Only a few years later , handwriting experts were called to testify in court for the first time.
A handwriting analysis expert may come up with insights that challenge the perception of the common layperson. A handwriting expert uses their understanding of the science behind handwriting to differentiate types and identify common traits. For example, an expert might shine a special light on a handwritten document to reveal any differences in the amount of ink used for each letter or any extra pressure marks the writer left in the paper.
There are some issues with handwriting analysis that leave room for improvement. For example, handwriting experts cannot agree on if text is hard to read due to age or personality factors. Because of this, a judge will likely not allow handwriting analysis evidence in court if the case in question relies too heavily upon personality or physical differences rather than ink and paper analysis. Admissibility is key if you are hoping to present handwriting analysis evidence in court.
Legal Prerequisites for Admissibility
Legal standards for admissibility of forensic evidence vary on a state-by-state basis, though there are generally two primary legal standards that govern the admissibility of such evidence: the Daubert Standard and the Frye Standard. The applicability of the Daubert standard over the Frye standard is determined by the state in which the case is being prosecuted. Currently, 39 states use the Daubert standard, while 11 states continue to apply the Frye standard.
The Frye standard was originally established by the 1923 case of Frye v. United States. The case involved the admissibility of a systolic blood pressure deception test, which later became known as the polygraph. In that case, the court established that a new scientific technique or discovery is inadmissible in a court of law unless such vigilance has reached a point where it has "gained general acceptance in the particular field in which it belongs to the standards adherent by the community of the laboratories."
Under the Daubert standard (Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579 (1993)), a party seeking admissibility of expert testimony must fulfill the obligations established in Rule 702 and Daubert v. Merrell Dow Pharms, whereby the judge determines whether the reasoning or methodology underlying the testimony is scientifically valid and whether the method or testimony will help the trier of fact understand the evidence or determine a fact at issue. Although the Daubert standard is also concerned with whether the theory or technique has general acceptance within the relevant scientific community, the standard goes further to require that the evidence be relevant to the facts of the case and that the testimony be given by a qualified expert.
Forensic pathologist Cyril Wecht has expressed his concerns regarding a judge’s qualifications to understand scientific validity and application, and has proposed that cases shouldn’t be judged solely on scientific validity, as an inexperienced judge may not fully understand the scientific techniques or background.
The admissibility of handwriting analysis into a court of law is often determined by whether the expert performing the handwriting analysis meets the Daubert standard and Frye standard. For handwriting analysis to be admissible in Texas courts, for example, the expert conducting the analysis must be a licensed expert and have training in questioned-document examination. This expert’s qualifications will be fully licensed, although Texas allows for individuals who operate within their confinements and abide by the state’s Code of Ethics to practice forensic document examination without licensure.
Cases on the Use of Handwriting Analysis
In the area of admissibility, courts have been hesitant to admit handwriting evidence when the expert offering that evidence has not clearly articulated what knowledge and skills that expert actually possesses. The resulting question is whether that expert possesses those sufficient skills and knowledge to ensure that the expert reaches a conclusion that exceeds the mere guess or conjecture, and is thus reliable under the Daubert standard for admissibility. In two cases, Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co., Ltd., v. Carmichael, the United States Supreme Court adopted the reliability standard articulated by the Court in Frye v. United States (Frye standard) and established that the admissibility of expert testimony must be guided by "general acceptance of the scientific community." The Supreme Court later clarified, in Daubert, that the Frye standard is not the appropriate standard for the admissibility of handwriting expert testimony in federal courts.
In Allen v. Nimmo, the defendant challenged the admissibility of Plaintiff’s handwriting expert’s testimony on the basis that a handwriting expert does not posses "scientifically valid methods of examination." The Allen court stated that the Frye standard as established in Frye was a general standard for admissibility applied on an ad hoc basis that may "only require a proponent of scientific evidence to show general acceptance among scientists using a particular scientific technique or theory…without regard to the evidentiary reliability of the particular analysis performed…" The court stated that "the Frye test may be satisfied, even if there is no general acceptance of a forensic technique, if the trial court determines that the particular analysis performed by the forensic expert is generally accepted." The Allen court determined, based on its own review of the scholarly literature and audio-visual literature on the subject of handwriting expert testimony, that there are appropriate methods for the examinations and comparisons to which handwriting experts subject questioned documents. Among these methods are collections of expert-reviewed reference specimens, step-by-step data recording that permits independent expert review, and cross-examination of the expert.
In Kelly v. State, 21 P.3d 516 (Cal. 2001), the California Supreme Court identified four factors that it would consider relevant when assessing admissibility of handwriting evidence: the potential rate of error, the existence of standards controlling the fashioning of expert testimony, the degree of scientific acceptance, and the level of proper maintenance. Specifically, the court explained that: The first [factor] is the potential rate of error…[H]andwriting experts can invoke the possibility of error in an impressive number of different ways, and the possibility of error from improper comparing procedures is so pronounced that it precluded admission of the compendium. This circumstance weighs heavily in the scales against shielding handwriting comparison testimony from both examination and rebuttal. The second [factor] is the existence of standards controlling the fashioning of expert testimony…[H]andwriting experts adopt conventions regarding the structure of a valid comparison, and the convention may be followed closely in some cases and with little attention in others. The third [factor] is the degree of scientific acceptance…the experience of handwriting experts is based on a few educated guesses rather than on a pattern of success. This evidence is not sufficiently trustworthy. The final [factor] is the level of proper maintenance…[H]andwriting experts are required to observe specific standards such as strict maintenance of a collection of exemplars.
Expert Witnesses and Qualifications
The admissibility of a handwriting analysis or forensic document examination may depend on a finding by the court that the expert relied on a reliable methodology to reach a scientifically valid conclusion, and that the expert is qualified to provide the testimony. Illinois Rule 702 governs the admissibility of expert testimony. Supreme Court Rule 215 governs the discovery of the qualification of expert witnesses. For example, Illinois Rule 215(a)(1)(D) requires any expert witness to "file and serve a copy of the expert witness’ curriculum vitae with the court and with all parties." 210 Ill. Stat. ยง 215(a)(1)(D).
The Bar Association for Forensic Examiners published a standard concerning accepted qualifications and identification of expert witnesses. The article discussed standards for "Training and Education, Published Work, Membership in Professional Associations, Certifications and Licensure for Forensic Document Examiners." For example, the author David Faust wrote: In addition to degree and/or work. It is desirable, but not universally expedient, for [forensic] document examiners to regularly attend scientific and technical meetings, for example, of the American Academy of Forensic Sciences, International Association of Forensic Scientists, World Human Identification, Associated Research Centers for the Advancement of Forensic Sciences, and/or the American Society of Professional Criminalists. Speaking and organizing meetings , serving on committees and boards within the specialized associations, presenting and writing peer-reviewed papers also accrue to the benefits of both expert an court.
There is an early case concerning the admissibility of this scientific evidence, People v. Franks, 19 Ill. App. 3d 305 (Ill. App. Ct. 1st Dist. 1974), Finding the expert witness is qualified, the court held that there was no evidence that the results of the graphological analysis were unreliable. The court wrote: [T]he trial judge was not required to conduct a mini-trial, hearing the qualifications of each proposed expert witness before deciding whether to admit the proposed evidence. The record shows that, with the assistance of the State’s Attorney, he had an adequate basis upon which to decide if the proffered evidence met the test of admissibility. After determining that the witnesses had sufficient education and experience in the field, he concluded that the graphological data offered a basis for expert opinion testimony and neither the jury’s nor the court’s inquiry into the reliability of such testimony was made a condition for its admissibility. 19 Ill. App. 3d 305 (Ill. App. Ct. 1st Dist. 1974).
Thus, to determine the admissibility for handwriting analysis or forensic document examination it must be shown that the expert witness’s method is reliable and has reached scientific validity. Furthermore, the expert witness must have the necessary qualifications.
Proponents and Critics
Not everyone agrees on the usefulness of handwriting examiners, though. Critics point to the subjectivity of many forensic document examiners, as well as the impact of poor training and inadequate resources. For instance, in his article "Forensic Document Examination and the Daubert Reforms" in the William & Mary Bill of Rights Journal 1994, Chief Judge William C. Lee of the U.S. Court of Appeals for the Seventh Circuit remarked that "even the most experienced witnesses in this area of the law have been forced to rely in recent years upon questionable studies of the probable error rates in their disciplines. No one can say with any certainty, for example, what the ‘background’ rate of person-to-person differences for any given individual’s handwriting might be, much less her signature, but it appears to be a relatively unknown figure." Furthermore, according to a report in the New York Times, a 2009 study in which 10 forensic handwriting experts were asked to match up 80 handwritten letters and numbers in 20 minutes (the average amount of time such expert witness testimony usually receives in court) resulted in even highly experienced experts giving wildly different results.
The American National Standards Institute (ANSI)/Banknote Corporation, which creates standards for forensic document examiners and other forensic scientists to follow, released a statement contending that the above-mentioned 2009 study was designed to provoke controversy and not a scientifically sound experiment. ANSI/BAC 8220-2009, "Handwriting Identification Standard," was published later that year, emphasizing that forensic document examiners should meet certain training and examination requirements before being certified. It also states "There is no accepted definition of error rates for forensic document examiners generally, much less, for handwriting examiners specifically." The standard also calls for post-examination reviews and more research into factors affecting visual perception and cognitive decision making. According to a recent study published in Science (2012), six forensic handwriting experts on an average exonerated at least one in four convicted criminals who requested their handwriting expertise.
Some proponents of handwriting analysis also have suggested that a lack of formal guidelines for expert testimony on handwriting analysis has made courts reluctant to use handwriting as evidence. In 1999, handwriting was admissible in 91 percent of the federal criminal courts surveyed, according to a 2004 report. That figure was down to 66 percent by 2002, however, according to the New York Times article. And in civil courts, the percentage of courts willing to accept handwriting as evidence dropped from 82 percent in 1990 to 41 percent in 2002. Some handwriting experts have called for an increased cooperation between the scientific community and examiners to ensure that the field remains credible and clients have confidence in the results.
The Future of Handwriting Analysis in the Courtroom
As technology evolves and the legal landscape undergoes shifts, the role of handwriting analysis in courts is likely to expand. One of the most significant technical advancements is the development of sophisticated handwriting analysis software. Such programs use complex algorithms that analyze large volumes of handwriting samples to determine consistency with known handwriting. This could be a useful tool for legal professionals, as it allows for quick comparisons of multiple samples and aids in uncovering forgeries or undisclosed alterations.
Unlike most forensic sciences, for which there are generally widely accepted standards and methodologies, handwriting analysis has been considered somewhat controversial due to its subjectivity. To combat this, the future may hold significant changes in the way handwriting experts are certified. Organizations may develop separate, specific certifications that focus solely on handwriting analysis. In addition, certain forensic laboratories may choose to use only enlisted handwriting experts who are nationally or internationally recognized and have known accreditation .
There is also the potential for courts to employ a gatekeeping role that requires judges to determine if handwriting analysis evidence can be reasonably and reliably produced, similar to the Daubert standard for scientific evidence. The growing use of Daubert has resulted in several parties to precedents related to the admissibility of handwriting analysis. Even the future possibility of Daubert application may make the reliability of handwriting analysis increasingly questionable.
Handwriting analysis may also see more use in criminal cases as new offenses emerge. Criminal activity perpetrated by those whose identity remains unknown, specifically through the medium of text messages, has become increasingly common. These often leave no forensic trace but visual handwriting analysis. Courts may, therefore, recognize the validity of handwriting analysis for these cases.
Overall, despite some of the limitations within the field of handwriting analysis, it is likely to be used more frequently in both civil and criminal courts.