ANNEXURE
THE
EVIDENCE
OF
HANDWRITING
EXPERTS
–
ADMISSIBILITY
AND
ADEQUACY THEREOF IN SOUTH AFRICAN LAW
PROBLEMS RELATING TO THE EVIDENCE OF HANDWRITING EXPERTS
In terms of South African law of evidence, when dealing with the identification of a
disputed handwriting, the required evidence need not be given by an expert.
However, where the handwriting is disputed and it is attempted to prove the identity
of the writer by comparison of specimens, only a handwriting expert can give
evidence on the similarities or differences between two specimens of handwriting
which are not personally known to them, since the opinion of an unskilled person
could add nothing to the court’s own observations, and, of course, it will be the
court’s responsibility to make the final decision.
The problems relating to the evidence of handwriting experts is highlighted by Mr
Greenfield. In essence the problems relate to the credibility of such witnesses and
the accuracy of their findings. Mr Greenfield, in his submission, correctly points out
that in handwriting, points of similarity do not necessarily prove the identity of the
writer and many errors occur because this is often the criteria used by the expert to
support his or her findings. As an example he states that a forged signature by
tracing is bound to have many similarities. In addition a further problem with the
evidence is also that the features used to identify similarities fall into different
categories, for example, the category of class characteristics, ie features that are
common to many people and the category of individual characteristics, ie features
which are peculiar to a specific individual. In addition natural variations are bound to
occur in everybody’s handwriting, and, for an expert bent on finding dissimilarities to
prove that the features are in fact dissimilarities, is yet another source of error.
In his view the greatest source of error arise from the inadequate number of known
specimens (standards) available for comparison purposes. Here again standards fall
into categories, namely collected standards which are writings that appear on
documents written in the normal course of events and standards which are of lesser
value, ie writings which are specifically requested for comparison purposes.
In
addition Mr Greenfield is of the view that one of the sources of error is the failure to
investigate fully the line quality (which includes the smoothness of the line and the
1
pressure pattern), the pen movement, the line direction and the sequence of strokes.
At present there is no governing body that determines who is an acceptable
handwriting expert or witness in a court of law and as a result anybody who feels he
or she knows something about handwriting analysis can present him or herself as a
handwriting expert. In addition he states that there are several primadonnas about,
who have spent many years in the field, and who have fixed approaches regarding
methods that are not always correct and they are not prepared to yield. The result is
that the profession concerned (a forensic examiner of questioned documents) is
degraded and treated with contempt in our courts of law.
Mr GREENFIELD’S PROPOSED SOLUTION TO THE PROBLEM
Mr Greenfield proposes a solution to the problems identified above and, in his view,
all suitably qualified “Forensic Questioned Document Examiners” who practice the
profession on a full-time basis, should be invited to attend an inaugural meeting,
convened by the Department of Justice in order to present their credentials
confirming their expertise in the field. A register of all acknowledged practitioners
should be drawn up and administered by the Department or a committee appointed
by the Department. Practitioners should be required to register with this body and to
pay a registration fee. A code of Ethics should be developed to guide their conduct
and an ombudsman, comprising three registered practitioners, drawn from the
registered members on a roster basis, should be appointed to deal with situations
where there are conflicting opinions, and the consensus opinion of the ombudsman
should be accepted by both parties. The expert accepted by the ombudsman will be
the one to give evidence in court and he or she present the consensus opinion.
THE EVIDENCE OF HANDWRITING EXPERTS IN SOUTH AFRICAN LAW
INTRODUCTION
The evidence of experts in South African law of evidence presents peculiar difficulties
in the assessment of its probative value. “Expert witnesses”, remarked Ramsbottom
J in R v Jacobs1 “are not the judges of fact in relation to which they express an
opinion” and judicial officers “should be careful, therefore, not to allow the opinion of
witnesses to take the place of their own finding of fact”. The court does not usually
1
1940 TPD 142 at 147-147; approved in S v Adams 1983 (2) SA 577 (A) at 586 A.
2
have any means by which it can verify the witness’s conclusions, and if there is a
conflict of expert testimony in some matters where the rationale for the opinion is
utterly beyond the grasp of the usual trier of fact, it may be thrown back upon
doubtful factors such as the rival witnesses’ reputation and experience.
A court
which relies on the evidence of an expert is, to a greater or lesser extent, at times
taking a step in the dark - something which should be done only with considerable
caution. Usually the determination depends on the examination of opinions and the
analyses of the reasoning behind them. A good deal will depend upon the general
repute of the witness’s profession.
It is generally accepted that the identity of
fingerprints can be accurately established by expert inspection even though the
points of identity may not be apparent to an untrained person, and a court may
therefore decide that it is safe to accept an expert’s opinion on the matter despite
being unable to satisfy itself that the prints are identical. This, however, is not the
case with the evidence of handwriting experts in South Africa, as will be argued
below.
BACKGROUND
In terms of South African law any witness who knows a person’s handwriting is
competent to identify it.2 He or she may have acquired this knowledge by observing
the person writing or by receiving documents which purported to be in his or her
handwriting, or seeing such documents in the ordinary course of business. The
degree to which the witness is familiar with the disputed handwriting will affect the
weight of his or her opinion, but even the fact that he or she has seen the writing only
once does not render his or her evidence inadmissible.
More difficult problems arise when attempts are made to identify a handwriting by
comparison with another specimen which has been proved to be genuine.
Our
courts have frequently emphasised that this method of identification must be used
only with the greatest caution.
A witness who is looking for similarities in two
specimens of handwriting is unlikely not to find any, and this may involve the witness
in an unconscious circuitry reasoning.
2
DT Zeffert, AP Paizes, A St Q Skeen The South African Law Of Evidence Butterworths
2003 on 307.
3
There are, however, statutory provisions which expressly allow the courts to rely
upon a comparison of handwritings. Section 228 of the Criminal Procedure Act, 51 of
1977, reads as follows:
Comparison at criminal proceedings of a disputed writing with any writing
proved to be genuine, may be made by a witness, and such writings and the
evidence of any witness with respect thereto, may be submitted as proof of
the genuineness or otherwise of the writing in dispute.3
Only a handwriting expert is entitled to give evidence on the similarities or differences
between two specimens of handwriting which are not personally known to him or her,
since the opinion of an unskilled person could add nothing to the court’s own
observations, and, of course, it will be the court’s responsibility to make the final
decision.4 But the statute has been interpreted to mean that the court may rely upon
its own comparison of the writings, unassisted by expert evidence, although, as a
matter of practise such a course is greatly discouraged. In R v Kruger5, after what
was called by the Supreme Court of Appeal in S v Boesak an exhaustive review of
the comparative English position, De Beer I said:
S 248 [which was to the same effect as the present s 228] to my mind
empowers the court to compare documents without the intervention of expert
witnesses or handwriting students. But in doing so it is almost impossible to
overstate the attendant dangers..
In S v Boesak6 the Supreme Court of Appeal approved the rule as stated in R v
Kruger (supra) as being correct in principle and remarked that the position in our law
is, in essential respects, similar to that in the United States, Canada, and Australia,
as well as England. In particular the Court stated the fact that the court itself is
allowed to compare the handwriting of the appellant on the letter with other genuine
specimens of his signature, is acknowledged in our law, as in several other legal
systems. This was laid down by the Full Bench of the Orange Free State in R v
Kruger 1941 OPD 33 at 38, after an exhaustive review of the comparable position in
England. (See also s 228 of the Criminal Procedure Act 51 of 1977.). The Supreme
Court of Appeal stated that the rule seems to be correct in principle. Even in cases
where expert witnesses testify, it is the Judge who bears the responsibility of making
a final judgment (Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
3
A similar provision for civil cases is contained in section 4 of the Civil Proceedings
Evidence Act, 25 of 1965.
4 S v Boesak 2000 (3) SA 381 (SCA) at 399D.
5 1941 OPD 33. See also Stewarts and Lloyds of SA Ltd v Croyden Engineering and Mining
Suppliers (Pty) Ltd 1979 (1) SA 1018 (W).
6
2000 (3) SA 381 (SCA) 399C.
4
Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) at 370E - H; Gentiruco AG v
Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616D-617C. See also Hoffmann and
Zeffertt The South African Law of Evidence 4th at ed 104-6.) The position in our law
is, according to the court, in essential respects, similar to that in the United States
(Wigmore On Evidence paras 21-29 et seq); Australia (Adami v The Queen (1959)
108 CLR 605 (High Court of Australia) D at 616-7); Canada (R v Abdi (1997) 34 OR
(3d) 499 (CA)) and England ( R v Rickard (1918) 13 Cr App R 140; Cross and
Tapper on Evidence 8th ed at 761, and Phipson Evidence 14th ed paras 17-15 and
17-16.) The court stated that the rule under discussion should be applied with
caution, but, taken in conjunction with all the other factors indicative of the
authenticity of the letter discussed above, the court was of the view that it was
entitled to conclude, prima facie, that it was written and signed by the appellant. In
the absence of evidence to the contrary, and having regard to all the other indicia
mentioned above, the court was satisfied that the authenticity of the letter has been
proved beyond reasonable doubt.
In the appeal to the Constitutional Court (S v Boesak 2001(1) SA 912 CC) the
Constitutional Court found no fault with the fact that the Supreme Court of Appeal
had made such comparison on appeal but after the hearing of the appeal.7 This is so
because the comparison is merely part of the evaluation of the totality of the
evidence. Taken in conjunction with all the other factors indicative of the authenticity
of the letter, the Constitutional Court was of the view that the Supreme Court of
Appeal was entitled to conclude prima facie that the letter was written and signed by
the appellant. Together with the other circumstances the Constitutional Court was
satisfied that the State had proved beyond reasonable doubt that the whole amount
donated by Simon had been donated to the children of South Africa and that the
appellant had unlawfully appropriated R250 000 of that amount. In the result the
appeal against the convictions on counts 4 and 5 were dismissed.
In S v Van Dyk
8
the court held that the evidence of a handwriting expert is to be
approached with caution. A handwriting expert testified that seven points of
correspondence between the undisputed specimen handwriting and the disputed
handwriting were sufficient to identify the latter as having been written by author of
former. This evidence was not challenged. The accused was convicted where seven
7
8
S v Boesak 2001 (1) SA 912 (CC).
1998 (2) SACR 363 (W).
5
points of correspondence were established. Furthermore, a handwriting expert
compared the forged signature with undisputed examples of the appellant's
handwriting, and concluded that the signature had been made by the appellant. The
expert indicated seven points of correspondence on a chart, and mentioned in his
evidence that there was, in addition, an eighth such point. According to the expert,
seven points of correspondence were sufficient to identify the appellant's handwriting
beyond reasonable doubt.
THE EVIDENCE OF HANDWRITING EXPERTS IN AMERICAN LAW
BACKGROUND
The problems highlighted by Mr Greenfield relating to the evidence of handwriting
experts are not peculiar to South African law. Similar problems and concerns exist
for example in the USA. Michael J. Saks9 gives the following background to the
evidence of handwriting experts in the USA:
The opinions of experts upon handwriting, who testify from comparison only,
are regarded by the courts as of uncertain value, because in so many cases
where such evidence is received witnesses of equal honesty, intelligence and
experience reach conclusions not only diametrically opposite, but always in
favor of the party who called them.
While some courts continued to reject such expertise, and most that allowed it
remained sceptical, a group of professional experts was growing up and
beginning to seek greater respectability. It is ironic that when expert
handwriting identification testimony was first declared admissible in America
and England, there were no experts. That is to say, the lawyers seeking to
admit such testimony merely had to proffer various witnesses who were
willing to assert a kind of ad hoc expertise acquired as a side effect of being
something else, such as a postal inspector or a bank teller. No practicing
forensic document examiner today would concede any expertise to such
witnesses.
When the legal system agreed to accept handwriting identification testimony,
however, it created a demand which was met by people who increasingly
turned their entire attention to filling it. Not surprisingly, these people soon set
out to create a standard theory and practice, giving their trade the
appearance of "science." Among the first of those people was Charles
Chabot, who, despite his name, was English. Originally a lithographer by
trade, he developed an interest in handwriting identification about the time
such expert testimony was gaining admissibility in English courts. It is unclear
how much he was influenced by contemporary French theory and practice,
but in 1871, at the urging of his lawyer-disciple Edward Twistleton (who wrote
9
Science and nonscience in the courts: Daubert meets Handwriting identification expertise
Iowa Law Review 82 IALR 21 October, 1996, http://www.law-orensic.com/handwriting_2.htm.
6
a lengthy theoretical introduction to the book), Chabot published The
Handwriting of Junius Professionally Investigated. This was the first book in
English to assert that there was a science of handwriting identification, and to
illustrate its methodology.
Two American books on handwriting identification were published in the
1890s--William E. Hagan's Disputed Handwriting (1894) and Daniel T. Ames's
Ames on Forgery (1899). But the event that was to transform handwriting
identification expertise from ugly duckling to swan was the 1910 publication of
Albert S. Osborn's Questioned Documents, with an introduction by John
Henry Wigmore.
Osborn's book, Osborn's personality, and Osborn's friendship with Wigmore
were the cornerstones upon which respect was built for handwriting
identification expertise in the United States. ] Osborn set out the theory and
practice of the claimed expertise so comprehensively that it is fair to say that
all treatments of the subject since have simply been rearrangements or
expansions of Osborn's 1910 book. As to his personality, he was clearly a
man of exceptional intelligence and critical abilities, but with a blind spot. He
had a kind of mystical faith in the ability of the human mind to create a system
of analytical expertise for the solution of virtually any class of problem. While
he could be laudably sceptical regarding the claims of others, he never
seemed to notice that most of the generalities upon which he built his system
lacked empirical verification. Nevertheless, he had faith in his vision and his
ability to sell others on that vision, whether the audience was a jury or a group
of students, lawyers, or judges. His most significant convert was Wigmore,
the most influential figure in evidence theory in the last century. Together,
Osborn and Wigmore conducted a quarter-century public relations campaign
on behalf of "scientific" handwriting identification expertise as practiced by
Osborn and described in his book.
The ultimate triumph of this vision was finally insured by the Lindbergh baby
kidnapping case, State v. Hauptmann, in 1935. Osborn was the chief witness
called to testify that Bruno Richard Hauptmann had written all of the ransom
notes found or sent after the abduction of the son of Charles A. Lindbergh.
The public seemed to need to believe Hauptmann was guilty, wanted him
convicted, and was grateful to those who supplied the evidence. Osborn
became a celebrity. For nearly sixty years after the affirmance of State v.
Hauptmann, no reported opinion rejected handwriting expertise, nor displayed
much skepticism towards it. The testimony, which at the turn of the century
was deemed of "uncertain value," became universally regarded as scientific
and dependable. In 1977, a New York court noted the change: "Since that
rather cynical observation was made by our highest court in Hoag, examiners
of questioned documents, as handwriting experts prefer to be called, have
attained more respectable standing in the courtroom." As a New Jersey court
observed in 1957, after the Hauptmann case, handwriting identification
expertise could no longer be regarded as "the lowest order of evidence, and
... accorded little evidential weight."
Frye and Daubert
For generations judicial thinking concerning the required dependability of
expert testimony, especially that which might be labelled "scientific"
testimony, was dominated by the so-called Frye test. The essence of the test
was that testimony concerning scientific expertise was admissible only if the
validity of the scientific principle or process upon which it was based had
7
obtained general acceptance in the relevant scientific community.
Unfortunately, Frye itself contained no guidance on how to determine what
constituted the relevant community to be looked to for acceptance. (This is
hardly surprising, considering that the Frye opinion itself was less than a page
and a half long.) In addition, Frye suggested that this test was required only
for "novel" scientific evidence, without explaining why the same test was not
appropriate for older claims and methodologies.
For nearly seventy years, judicial and academic exegetes made virtually
whatever they wished out of the Frye test. Some found it to be a formidable
barrier to admissibility, and others the most illusory of restrictions on the
introduction of unvalidated and undependable "expertise." Critics of the Frye
test attacked it from both sides, some saying its approach should be
abandoned because it kept too much out, and yet others saying that it should
be abandoned because it let too much in.
When Congress adopted the Federal Rules of Evidence in 1975, it made no
reference to Frye, either in the language of Federal Rule of Evidence 702
(FRE 702) itself or in the short and particularly unhelpful advisory committee
note. In the almost two decades that followed, courts and commentators
variously construed (FRE 702), the standard it implied, and the judge's role in
enforcing it, including whether any of the many versions of "Frye" continued to
play any proper role at all in federal court trials under the Federal Rules of
Evidence. Initially, proponents of the "let it all in" school of thought seemed to
dominate under a broad construction of what might "assist the trier of fact to
understand the evidence." But by the early 1990s, there was increasing
sentiment that judges were admitting too much expert testimony of little or no
dependability. In 1991, this led the Judicial Conference Advisory Committee
on Civil Rules to propose an amendment to (FRE 702) which would have
required that all expert testimony--not just "scientific" expertise--be subject to
a preliminary finding by the judge that it was "reasonably reliable." While this
rule was never promulgated, it formed the immediate background for the
Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.
In United States v. Lewis,10 the primary question posed by the defendant's motion to
prohibit the testimony of forensic document analyst John W. Cawley, was whether his
handwriting identification evidence was sufficiently reliable to be admissible pursuant
to Rule 702 and Daubert.11 The Government argued that the court was not required
to apply Daubert to handwriting identification analysis and that, in any event, Mr.
Cawley's testimony was reliable.
The court noted that Rule 702 provides (see footnote 10):
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
10
11
220 F. Supp.2d 548 (S.D. W.Va., Sept. 11, 2002).
See Fed. R. Evid. 702; Daubert, 509 U.S. at 579.
8
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
As the Supreme Court explained in Daubert and Kumho Tire, under Rule 702, the
district judge must ensure that the expert's testimony is both relevant and reliable
before it may be admitted, regardless of whether the testimony is scientific or based
on technical or other specialized knowledge.12. When the expert's testimony's "factual
basis, data, principles, methods, or their application are called sufficiently into
question, the trial judge must determine whether the testimony has a reliable basis in
the knowledge and experience of the relevant discipline."13
The court concluded that:
In performing this gate-keeping responsibility, the Supreme Court has
articulated four factors the court may consider:
(1) Whether a theory or technique can be or has been tested;
(2) Whether it has been subjected to peer review and publication;
(3) Whether, in respect to a particular technique, there is a high known or
potential rate of error and whether there are standards controlling the
technique's operation; and
(4) Whether the theory or technique enjoys general acceptance within a
relevant scientific community.
526 U.S. at 149-50(citing Daubert, 509 U.S. at 592-94) (internal quotations
marks and alterations omitted). These various factors are not an exhaustive
list of all possible ways to assess reliability, nor must all of the factors be
applied in every case. 526 U.S. at 150. Depending on the facts of the case
and the type of testimony being challenged, it may very well be unreasonable
to apply all of these factors. Id. at 151. Accordingly, the trial judge is given
discretion in determining how and in what manner to make reliability
determinations pursuant to Daubert.
Where, however, the Daubert factors are reasonable measures of the
testimony's reliability, the Supreme Court has instructed that the trial judge
should consider them. Id. at 152. While district courts have considerable
leeway in determining how to assess reliability, they do not have the
discretion to simply abandon their gate-keeping function by foregoing a
reliability analysis. Id. at 158-59. (Scalia, J., concurring). Significantly, "in a
particular case the failure to apply one or another of [the Daubert factors] may
be unreasonable, and hence an abuse of discretion."
Id. (Scalia, J.,
concurring).
This court is not persuaded by the Government's argument that the court
need not apply the Daubert factors. For support, the Government cites
several cases where circuit panels have affirmed a district court's admission
12
13
See Kumho, 526 U.S. at 147; Daubert 509 U.S. at 589.
Kumho, 526 U.S. at 14 (quoting Daubert, 509 U.S. at 592).
9
of a handwriting expert. See, e.g., United States v. Jolivet, 224 F.3d 902, 90506 (8th Cir. 2000) (affirming under plain error review the district judge's
decision to admit handwriting expert's testimony without applying Daubert
factors); United States v. Paul, 175 F.3d 906, 910-11 (11th Cir. 1999)
(concluding summarily that Daubert factors do not necessarily apply to
admission of handwriting expert, but failing to address any alternative
measures of reliability); United States v. Velasquez, 33 V.I. 265, 64 F.3d 844,
849-50 (3d Cir. 1995) (cautioning against strict application of the reliability
requirement and finding that the ultimate touchstone is helpfulness to the trier
of fact).
While these cases all emphasize the district judge's discretion in choosing
how to assess the expert's reliability and the "flexibility" afforded the court
under Daubert and Kumho, they do not provide any rationale for declining to
apply the Daubert factors. These courts simply downplay their rejection of the
Daubert factors by minimizing the importance of reliability. The rationale given
in these cases is that reliability in the handwriting identification context is a
less significant concern due to the fact that the jury is able to see for itself
whether the writings are similar. See, e.g., Paul, 175 F.3d at 911; United
States v. Jones, 107 F.3d 1147, 1160-61 (6th Cir. 1997) (citing United State
v. Buck, 1987 U.S. Dist. LEXIS 9913, No. 84 Cr. 220-CSH, 1987 WL 19300,
at *3 (S.D.N.Y. Oct. 28, 1987)).
The Supreme Court's mandate in Daubert, however, runs contrary to this
rationale. There, the Court explained that Rule 702's requirement that
evidence "assist the trier of fact in reaching its conclusion" goes primarily to
relevance; an assessment of reliability is an additional component of the
judge's gatekeeper function. Daubert, 509 U.S. at 591-92. Simply put, expert
testimony that does not relate to any issue in the case is not relevant, and
thus, not helpful. Reliability, on the other hand, is an assessment of whether
the expert's reasoning or methodology is valid and warrants the relaxation of
the common law first-hand knowledge requirement for witnesses. See id. at
592.
Here, the court finds that all of the Daubert factors reasonably apply to
handwriting analysis and thus are helpful to the court in assessing the
reliability of Mr. Cawley's testimony. As a branch of forensic science,
handwriting analysis has many characteristics that are resonant with the
traditional concept of "science." See Reference Manual on Scientific
Evidence, Federal Judicial Center 69 (2000) (noting that "science" embodies
the vast array of knowledge about the mysteries of our world, including the
technologies which have transformed our lives). Handwriting analysis
proposes a theory that each person's handwriting is unique, and involves a
method by which a trained expert can identify each writing's author. The
sufficiency of that theory and method can be tested through the basic factors
set forth in Daubert
For instance, because the results in handwriting analysis are based on
identification, there must be a corresponding probability of error. See D.
Michael Risinger & Michael J. Saks, Science and Nonscience in the Courts:
Daubert meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21, 36
(1996). In other words, it is possible to calculate the number of times a
handwriting expert correctly identifies the author of a handwriting sample.
This number can then be used by courts as an indicative error rate. Other
qualities of handwriting analysis, such as the theory that penmanship
10
characteristics are separable from each other, and that there is a base rate of
penmanship characteristics in a population of potential authors, are also
capable of measurement. Id. at 36-37.
Yet despite the relative ease with which such measurements could be made,
the Government did not offer any evidence of reliable testing and error rates,
or of any of the other Daubert factors through Mr. Cawley's testimony. The
Government had the burden of establishing by a preponderance of the
evidence that Mr. Cawley's expert testimony was sufficiently reliable to be
admissible under Rule 702. See Maryland Cas. Co. v. Therm-O-Disc, Inc.,
137 F.3d 780, 783 (4th Cir. 1998). The court found that the Government did
not meet its burden.
In a recent article Michael J Saks14 pointed out that document examiners do many
things. They examine typewriting for signs of idiosyncratic typeface wear and
alignment that might indicate a common origin for two documents. They analyze ink
to reveal its physical and chemical properties. They scrutinize the alignment of
printed lines and the overlap of handwritten lines to determine if words or phrases
have been after-inserted. And they analyze the composition, method of production,
and watermark of paper to ascertain its probable origin and, in some cases, its age.
In performing these tasks, the document examiner may often use specialized
knowledge of manufacturing processes and manufacturer specifications, not unlike
that employed in firearms identification concerning the relative number, spacing,
pitch, and direction of twist of grooves and lands in various makes of rifled barrels.
He highlights the fact that two events have occurred in recent years which combined
to stimulate a re-evaluation of handwriting identification expertise. The first was the
1989 publication of an article in the University of Pennsylvania Law Review, pointing
out the lack of empirical validation of the claims of the expertise. The other was the
U.S. Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals,15
Inc., which rejected previous approaches to the acceptability of scientific expertise
under the Federal Rules of Evidence, and put into play the validity of claims of
scientific expertise even in areas in which that expertise had long been taken for
granted. As a result there has been a flurry of litigation over the validity of handwriting
identification expertise, resulting in several recent federal decisions.
14
Science and nonscience in the courts : Daubert meets handwriting identification expertise
Iowa
Law
Review
82
IALR
21
October,
1996,
http://www.lawforensic.com/handwriting_2.htm.
15
Supra.
11
In another article Bob E. Lype highlights the problems with the evidence of
handwriting experts in the following terms:16
Handwriting expert testimony has been admitted in courts throughout the
United States for well over a century and a half, and in Tennessee
handwriting experts were specifically permitted to testify by statute from 1889
until 1991. When the "Frye test" was the accepted standard for admitting
expert testimony, handwriting experts easily met the "general acceptance"
standard. However, a number of recent events have raised new questions
about the role of handwriting experts and the admissibility of their testimony,
both nationwide and in Tennessee. Whereas it was once generally accepted
that a lawyer faced with a questionable signature or handwritten document
could simply "get a handwriting expert" to resolve the issue, today if a
lawyer's case turns upon the genuineness or authenticity of handwriting, that
lawyer must do substantially more homework regarding handwriting experts.
If a handwriting expert becomes involved in the case, the lawyer should be
prepared to defend (or attack, depending upon the perspective) handwriting
expertise.
The Recent Developments
The profession of handwriting experts, sometimes also known as forensic
document examiners or questioned document examiners, has been under a
full-scale attack nationwide in recent years, and the attack is making its way
into Tennessee courts. The attack began with a scathing law review article
published in 1989 in which the authors concluded that (1) there was
insufficient testing of the proficiency and methodology of handwriting experts
to establish the reliability of their expert testimony, and (2) the research and
data that existed at the time tended to show that handwriting experts were not
nearly as accurate or proficient as they claimed to be. Shortly thereafter, the
Supreme Court overruled the general acceptance standard of the "Frye test"
when the Daubert decision appeared in 1993. The Daubert decision is
sometimes viewed as the Supreme Court's answer to the proliferation of "junk
science" testimony in the courts, and it imposed upon the federal district
courts a gatekeeper role in assessing the reliability and methodology of
scientific expert testimony. The federal courts are split as to whether Daubert
applies to nonscientific expert testimony (i.e., testimony based upon
"technical or other specialized knowledge," rather than science, as
contemplated by Rule 702). While the Supreme Court clarified the Daubert
standard in late 1997, it did not address the application of Daubert criteria to
non-scientific expert testimony.
Following the Daubert decision, some of the authors of the 1989 law review
article were called to testify as expert "critics" of the reliability of handwriting
expertise, in an attempt to disqualify professional handwriting experts. While
this tactic met with only limited success, it became increasingly popular.
16
The Handwriting on the Wall: The State of Handwriting Expert Testimony in Tennessee
Published in the Tennessee Bar Journal, Vol. 34, No. 5, September/October, 1998.
12
Perhaps the pinnacle for the "expert critics" of handwriting examiners
occurred in 1995, when the Third Circuit reversed a criminal conviction
because the district court failed to permit one of the law review authors to
testify as an "expert critic" of handwriting analysis. Since then, the "expert
critics" have been offered in numerous cases around the country, and there is
a growing body of case law on the federal district court level addressing their
contentions and the admissibility of handwriting expert testimony.
The Tennessee Supreme Court gave us the McDaniel decision in late 1997,
declining to specifically adopt the Daubert standard for the admissibility of
expert testimony under the Tennessee Rules of Evidence, but nonetheless
imposing a similar gatekeeping role upon Tennessee trial judges in assessing
the underlying reliability of scientific expert testimony. As in the federal courts,
there remains a question as to whether the McDaniel standard applies to nonscientific testimony based upon "technical or other specialized knowledge,"
but the Tennessee Supreme Court did note that in deciding whether expert
testimony will "substantially assist the trier of fact" for purposes of Tenn. R.
Evid. Rule 702, the trial court must necessarily make a determination as to
the validity or reliability of the evidence. This statement would arguably be
true regardless of whether the evidence is scientific or based upon "technical
or other specialized knowledge."
Is Document Examination a Science?
Document examiners frequently refer to themselves as "forensic scientists."
On a larger scale, some would question whether any of the "forensic
sciences," such as fingerprint identification, firearms or bite mark
identification, or even forensic pathology, are "true sciences." As the courts
decide whether Daubert and McDaniel apply to non-scientific expert
testimony, this may become a more important concern. Can handwriting
expertise be held to scientific standards?
From the lawyer's perspective, it makes little practical difference whether a
handwriting expert is permitted to testify under the scientific or the "technical
or other specialized knowledge" arm of Rule 702. This may affect how the
lawyer is permitted to refer to the expert's testimony in argument, or whether
the expert may qualify his opinion "within a reasonable degree of scientific
certainty." It may also lead to a special jury instruction from the court. While
this distinction involves more than mere semantics, and it is no doubt
important to the handwriting experts, the lawyer's first concern is whether the
expert will be permitted to testify before the jury.
While handwriting experts have offered mixed answers to the question of
whether their expertise is "scientific," there is a trend in the courts to find that
they are qualified because of "technical or other specialized knowledge." In
U.S. v. Starzecpyzel, the district court in New York gave an extended
discussion of this question. The court heard testimony from one of the coauthors of the 1989 law review article criticizing the reliability of the
anticipated expert testimony, but it permitted the handwriting expert to testify
after analogizing the expert's work to the non-scientific work of a harbor pilot
who has repeatedly navigated a particular waterway. This same conclusion
was reached more recently by the Sixth Circuit in U.S. v. Jones. In that case,
the court noted that no other courts have found expert handwriting analysis
inadmissible under the Federal Rules of Evidence. In deciding that the
13
handwriting expert was qualified, the court noted that scientific principles
relate to aspects of handwriting analysis, but the expertise is not truly
scientific.
The question of whether handwriting expertise is scientific may become more
or less significant as the courts decide whether the Daubert and McDaniel
criteria apply to non-scientific expert evidence. The present trend seems to
favor admitting the testimony as non-scientific, but the "expert critics" are
continuing their attacks on the field.
Reliability Concerns
The primary thrust of the attack on handwriting expertise concerns reliability.
The critics claim there has not been sufficient testing of the capabilities of
document examiners, and that the data available shows they have a
surprisingly poor accuracy rate. It is generally conceded that the 1989 law
review article correctly pointed out the dearth of reliable test data in the field,
but there is a great disagreement over the interpretation of the data that
exists.
While there have been sporadic tests and studies of document examiner
proficiency through the years, the central debate is over the meaning of two
groups of tests -- five tests mailed out by the Forensic Sciences Foundation
(FSF) in the 1970s and '80s, and a group of related, controlled tests
performed by Dr. Moshe Kam in the 1990s. The critics of handwriting
expertise claim that the FSF tests demonstrate extremely poor accuracy rates
by document examiners, concluding (and sometimes testifying) that they
establish at best a 57 percent correct, 43 percent incorrect "batting average"
for the group. On the other hand, proponents of handwriting expertise are
quick to point out serious deficiencies in the methodology, participation rates
and reliability of the FSF tests, which lacked control groups and were mailed
out to anyone who ordered them. Proponents of handwriting expertise point to
three recent studies by Dr. Kam, which they claim demonstrate that
handwriting experts possess skills far superior to laypersons. Dr. Kam's
controlled tests compared the abilities of document examiners and laypersons
in correctly matching various sets of handwriting. Critics of Dr. Kam's studies
challenge his interpretation of the test data and the make-up of his tests. They
claim that the non-professional test-takers were not motivated to perform, that
the tests were too easy, and that the proper interpretation of the test data is
that laypersons did just as well as professionals.
The critics of handwriting expertise also complain that the field lacks
standards, discipline, and a true methodology. They argue that handwriting
experts do not quantify their findings with any numerical analysis of
similarities or differences in compared writings, and there is no uniformity in
procedure, nor even terminology. The critics also complain that the
recognized bodies certifying document examiners are akin to a fraternity, and
there is no meaningful testing in the certification process.
Proponents of handwriting expertise, on the other hand, claim that they do
follow a recognized methodology and protocol. They also note that there is a
recognized certification board for document examiners, and that boardcertified examiners have completed an extensive two-year training program
and a vigorous certification process, complete with written and oral board
14
examinations. Finally, the handwriting experts point out that not all fields of
expertise are subject to numerical standards. Unlike fingerprint analysis, there
is no "magic number" of similarities or differences which will permit a
handwriting identification. The handwriting experts note that, while fingerprints
are static and essentially unchanging, free and natural handwriting will
change according to a variety of influences.
These disagreements have led to several recent cases where Dr. Kam and
one of the co-authors of the 1989 law review article have given extensive
expert testimony, either in connection with a motion in limine, a Daubert
hearing, or (recently in Tennessee) a McDaniel hearing. These hearings are
typically filled with complicated and confusing statistical interpretations, as
well as attacks on the credibility of the opposing experts, so they are "battles
of the experts" in the truest sense. Until there are binding decisions from
higher courts, it appears that these battles will continue, as the critics of
handwriting expertise show no signs of lessening their attacks.
The Role of "Expert Critics"
One aspect of the current debate that is sometimes overlooked is the proper
role of an "expert critic" of a particular field. In order to give opinions regarding
the reliability and deficiencies of handwriting expertise, or any other field, the
critic must first be qualified as an expert himself. How does one qualify as an
"expert critic?" This remains unclear and will no doubt lead to further litigation.
With regard to the co-authors of the 1989 law review article, none of them has
been trained or tested in the principles of forensic document analysis. They
are academic professors, and their knowledge of the field is through selfdirected self-study, including research of the legal history of handwriting
experts and the published studies of proficiency tests, together with anecdotal
discussions with handwriting experts. Two of the co-authors have no training
in statistical analysis or research methods, yet they have been permitted to
testify regarding interpretations of the reliability and meaning of various
proficiency tests.
While it is clear that there must be some inquiry into the reliability of expert
testimony under Daubert and McDaniel, the question remains how one
becomes qualified as an "expert critic" of any field. While this is presently at
issue in the arena of handwriting expertise, it will likely become an issue in
other fields as well. Some of the "expert critics" have hinted that they will soon
turn their scrutiny upon other forensic sciences.
Conclusion
The testimony of handwriting experts has been generally accepted for
decades. As a result, their testimony has been highly influential in criminal
convictions and acquittals, as well as civil cases upholding or rejecting wills
and deeds. The courts that have considered the recent attacks on the
admissibility of handwriting expert testimony seem to favor admission of the
testimony as "technical or other specialized knowledge." These courts are no
doubt influenced by the long history of general acceptance of handwriting
expert testimony as reliable, which the document examiners claim is
bolstered by the recent test data compiled by Dr. Kam.
15
The current battles spring from noble intentions, asking the courts to
scrutinize the abilities of handwriting experts before they are given the
weighty mantle of "expert witness" before a jury. Now that the cards are being
placed on the table, there is a tremendous controversy over how to interpret
all of the data. Until higher courts ultimately resolve this question, lawyers in
Tennessee and elsewhere must take a closer look at the role of handwriting
experts, and if necessary, must join the battle.22
CONCLUSION17
For a long time forensic handwriting analysis seemed more respectable, but its status
has been shaky since 1993, when the Supreme Court handed down its ruling in
Daubert v. Merrell Dow Pharmaceuticals. Previously the chief criterion for the
admissibility of expert testimony had been whether it was based on techniques
"generally accepted" by scientists. Daubert gave federal judges much greater
discretion in deciding admissibility. It suggested they consider (1) whether a theory or
technique can be tested, (2) whether it's been subject to peer review, (3) whether
standards exist for applying the technique, and (4) the technique's error rate.
The above sounds reasonable, but Daubert created an uproar, because “the dirty
little secret” of much so-called expert testimony was this: though it was possible in
principle to test and validate most forensic techniques, in many cases no one had
ever done so. In 2002 one judge even restricted testimony based on fingerprint
analysis, saying he was unconvinced the technique was a science rather than a mix
of craft and guesswork.
THE NEED FOR REFORM
No forensic technique has taken more hits than handwriting analysis. In one
particularly devastating federal ruling, United States v. Saelee (2001), the court noted
that forensic handwriting analysis techniques had seldom been tested, and that what
testing had been done "raises serious questions about the reliability of methods
currently in use." The experts were frequently wrong - in one test "the true positive
accuracy rate of laypersons was the same as that of handwriting examiners; both
groups were correct 52 percent of the time." The most basic principles of handwriting
17
Cecil
Adams
Is
handwriting
analysis
legit
http://www.straightdope.com/columns/030418.html 18-Apr-2003.
16
science?
18-Apr-2003
analysis - for example, that everyone's handwriting is unique - had never been
demonstrated. "The technique of comparing known writings with questioned
documents appears to be entirely subjective and entirely lacking in controlling
standards," the court wrote. Testimony by the government's handwriting expert was
ruled inadmissible.
Prosecutors scrambling to find scientific validation for handwriting analysis last year
touted a study by Sargur Srihari, a professor of computer science at the State
University of New York at Buffalo. Srihari subjected 1,500 writing samples to
computer analysis. Conclusion: In 96 percent of cases, the writer of a sample could
be positively identified based on quantitative features of his handwriting such as letter
dimensions and pen pressure. Skeptics objected that lab results using a computer
prove nothing about what a human can do in the real world, and who can argue? If
expert testimony is going to send people up the river, it better be more than
someone’s prejudices dressed up as science.
Craig M. Cooley18 argues that there is a definite need for reform when dealing with
the evidence of forensic experts. He points out that the golden thread which runs
through the web of administration of justice in criminal cases is that if two views are
possible on the evidence, one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused should be adopted. Skilled
witnesses come with such bias in their minds to support the case in which they are
embarked that hardly any weight should be given to their evidence. A bald assertion
by the expert that his deduction is premised upon well-recognized scientific principles
is inadequate to establish its admissibility if the witness's application of these
principles is untested and lacks indicia of acceptability
Forensic science has rarely been subjected to the kind of scrutiny and independent
verification applied to other fields of applied and medical science. Instead, analysts
testifying in courts about fingerprint analysis, bite marks, handwriting comparisons
and the like have often argued that in their field the courtroom itself provided the test.
18
Forensic Science and the Death Penalty: Why Reform is Needed in the Forensic Science
Community to Ensure that the Innocent Are Not Erroneously Sentenced to Death
17
Everyone connected with the justice system expects forensic science to be infallible.
It is not. “Forensic science, including DNA testing, is operating in a noman’s land
where there are no accredited standards for the laboratories.
He notes that one of the cornerstones of forensic science is the presumed validity
and reliability of scientific test results and interpretations. This presumption must now
be viewed through a more cautious lens since the aforementioned cases represent
only a few of the ever-growing number where erroneous (honest mistakes) or
fraudulent (purposeful errors) forensic science has led to miscarriages of justice. In
particular, the forensic identification sciences (e.g., handwriting analysis, firearms
identification, hair analysis, ect.) are primarily responsible for the bulk of these
injustices. According to Barry Scheck and Peter Neufeld, out of eighty-one wrongful
convictions fifty-three percent were primarily the result of erroneous forensic science.
Moreover, twenty-five percent of the erroneous convictions were attributed to
fraudulent and/or tainted evidence. More recently, Saks et al. assert that forensic
science errors were a contributing factor in at least sixty-six percent of the erroneous
convictions they identified. Additionally, fraud or tainting of evidence was a
contributory factor in at least thirty one percent of the wrongful convictions identified
by them. This research suggests that forensic science may exceed eyewitness
inaccuracy as the foremost cause of wrongful convictions. Consequently, Justice
Brennan’s comment in United States v. Wade that the vagaries of eyewitness
identification are well known; the annals of criminal law are rife with instances of
mistaken identification can now be extrapolated to the forensic sciences. Likewise,
with these statistics it could be reasonably argued that from the viewpoint of
conventional science, the forensic identification sciences are contenders for being
the shoddiest science offered to the courts.
CONCLUSION
It is submitted that the evidence of handwriting experts in South Africa is
characterised by the same deficiencies as in the American criminal justice system. In
essence the problem of reliability of the evidence and the adequacy of proof goes to
the heart of the problem. This is also clear from the submission of Mr Greenfield.
However, in terms of the existing law in South Africa, evidence relating to disputed
documents can be given by handwriting experts as well as lay persons.
The
adequacy of and weight attached to such evidence is, however, decided by the court.
18
In view of the outline above it is submitted that the proposals submitted by Mr
Greenfield will not solve the identified problems. Unlike the evidence of finger print
experts, the evidence of handwriting experts is not accepted by our courts without
reservation as providing prima facie proof of the identity of the writer of a disputed
document. In terms of the case law the acceptance or rejection of such evidence is
the prerogative of the court and the court is called upon to determine the reliability
thereof in the light of the evidence given. In all cases the court must be able to justify
its decision and to provide sufficient reasoning for its decision. It is true that the lack
of standards to which such evidence must adhere, the lack of a professional body
controlling the accreditation of experts in the field and the admissibility of evidence by
so-called “experts” of dubious character discredits the profession and casts doubt on
the reliability of handwriting experts in general. It is, however, submitted that the
proposal of Mr Greenfield that an ombudsman comprising of three persons is to
decide who is to give evidence in court, is not acceptable. In the first instance,
unless good grounds exist for excluding the evidence of a particular witness such
decision cannot be taken by an ombudsman on behalf of the court. The ultimate
decision rests with the court and in view with the peculiar problems regarding the
reliability of such evidence (outlined in the reference to position in the USA) it is
submitted that the proposal cannot be justified.
Furthermore, in view of the questions raised whether or not the conclusions reached
by handwriting expert are the result of scientific processes it is submitted that it would
be premature to make provision for the acceptance of such evidence in legislation.
The establishment of a professional body for such experts and the accompanying
procedural prescripts, the accreditation requirement and the establishment of a code
of ethics could go a long way in improving the bad image of handwriting experts and
could assist in providing motivation for the acceptance of evidence. It is, however,
submitted that the establishment of a professional body and the accompanying
prescripts and procedures is something which must be considered by the profession
itself and is not something to be prescribed in legislation. The intervention by the
Department of Justice would not in itself provide more credibility to the process as
envisaged by Mr Greenfield.
In the USA it is argued that traditional forensic fields such as fingerprints,
questioned documents, toolmark identification, handwriting identification and
hair/fiber analysis are not based on science, but rather on subjective comparisons
by individual examiners. While physical evidence by itself cannot be erroneous, its
19
subjective interpretation can produce errors, which in turn can result in the ultimate
injustice. In the USA there is substantial support for the reform of structural and
regulatory framework of the forensic science community. It is argued that structural
and regulatory inadequacies exist in the forensic science community. The Paul
Coverdell National Forensic Sciences Improvement Act of 2000, attempted to
address these inadequacies.
It is still argued that while the Act presents a
significant step in the right direction, it still fails to address (a) the ‘conflicts of
interest’ that exist within the forensic community and (b) the regulatory
inadequacies of the community.
As currently organized and structured, the forensic science community in the USA
and, possibly also in South Africa, is bound to generate more erroneous, fraudulent
and shoddy science, which in turn will produce further erroneous convictions. As one
report in the USA noted, many forensic scientists face a critical deficiency of
essential reference material and collections required to perform their jobs.
Educationally, funding for graduate-level forensic science research is currently
nonexistent. Similarly, lack of funding has led to “chronic understaffing” in many of
the Nation’s crime labs. In terms of quality assurance, criminal forensics laboratories
are a generation behind food, drug, medical and industrial laboratories in their quality
assurance systems. Likewise, at present, there are no national standards ensuring
the competency of laboratory examiners. Adding to the problem is that in many
cases, labs are managed by law-enforcement officials who have no experience with
science. In regard to laboratory standards, forensic science is virtually unregulated…
with the paradoxical result that clinical laboratories must meet higher standards to be
allowed to diagnose strep throat than forensic labs must meet to put a defendant on
death row.
Fewer than half of the 400 to 450 forensics labs in the USA are
accredited by the American Society of Crime Laboratory Directors [ASCLAD]. Only
New York State requires such accreditation. Most importantly, too many forensic
experts in the criminal justice system manifest a police-prosecution bias, a
willingness to shade or distort opinions to support the state’s case.
Regulation of the forensic science community in South Africa can be considered as a
solution to the problem, but it is submitted that it should not be done without a proper
and more detailed investigation as to the need for reform in South Africa.
20