Criminal Defense - "That's Not My Handwriting" ... or is it?
The Handwriting’s on the Wall…….or Wherever ...
Client: “The bank doesn’t have any video of me at the window, so what can they do to me?”
Attorney: “Why don’t we go into my office to discuss this some more?”
Misconceptions abound about the use-and potential misuse-of handwriting analysis in order to prove or demonstrate a particular point in the courtroom. While entertaining, most TV shows, movies, and popular fiction shed little light on what is actually admissible in court, and for what purpose.
While there are a handful of forensic psychologists in the employ of the federal government who might offer fascinating insights into the mind of a serial killer based upon his writings, or how a particular kidnapper might respond to negotiation based upon a ransom note, the realities in a Colorado state courtroom are far more mundane.
The experts in this field work in the area of questioned documents, the purpose of which is generally to draw conclusions about the identity of the person preparing it, or the circumstances of its preparation. In all but a handful of cases, the personality or motivation of the person preparing the document is beyond the purview of the expert’s role in the case.
There are relatively few forensic document examiners in Colorado who work for law enforcement, most being in the employ of the Colorado Bureau of Investigation. These individuals undergo specialized training, serve a lengthy apprenticeship under a more experienced mentor, and likely belong to one or more organizations or societies of individuals in the field. They perform examinations in the lab, prepare reports of their findings, and testify as expert witnesses in court proceedings. So what does this all really mean?
One thing it could mean is that they could be called upon to offer an expert opinion as to whether a particular person signed a document, such as an allegedly forged check. The signature on the questioned check is compared to known samples of a person’s handwriting, and an opinion rendered on if the signatures were written by the same person. The known signatures can be other checks known to have been written on the account of the suspect, for example, or perhaps taken from the signature block of a contract.
If no good known samples exist, a defendant can be compelled by court order to provide exemplars of their handwriting for comparison to the original. These exemplars would simulate the conditions present when the questioned check was written, by offering a signature area the same size as the check, on similar paper, and used with a similar instrument (usually a ball point pen, but it could be a felt tip, fountain pen, or Sharpie, if that’s what the original was prepared with). Usually the writer is instructed to provide 10 or more signatures, and perhaps even a few left-handed ones for a right-handed writer.
Before we go any further, a couple of clarifications are in order. If you are formally charged in court, and your identity as the writer of the forged check is in question, then yes, a judge can order you to submit to this process, even if it could help lead to your conviction. While you cannot be required to provide an oral or written statement implicating yourself (eg, “Yes, I forged that check”), submitting yourself to forensic examination is fair game. Likewise for a person formally charged in a sexual assault case, who can be court ordered to give up DNA samples that could seal his fate. However, only a judge has the authority to issue such an order. If you are merely suspected, even arrested, by the police for a forgery, they can ask you to submit to exemplars, but you can decline. Later, of course, if the DA files formal charges anyway, you’re back on the hook.
So, back to the questioned check and the samples. The examiner will look for certain characteristics in the writings, such as shapes of the letters (does he always open or close his lower case “a”, for example) spacing, height of capital letters, loops, dots in the letter “i”, tails on the ends of words, etc. How hard the pen is pressed to the paper can be compared, which will naturally vary within a signature, but with some consistency across the samples. Document examiners always prefer the ink originals, but can also work with photocopies. Much of this is done under a microscope, or through strong back lighting. Transparent copies are often prepared for direct overlay comparison.
The examiner will then render an opinion, with varying degrees of certainty, about whether the samples and the questioned check were written by the same person. Rarely will he declare it a perfect match with 100% certainty, but it could be something like “highly likely”, which will be good enough for the DA to run with. A finding that the signatures are “consistent with one another” would be admissible in court, but far less damaging. (Having a red Chevy might be “consistent with” what the bank robber drove, but that’s not enough to convict anyone.) A finding that the signatures are “inconsistent with one another” will generally be good news.
At the risk of stating the obvious, the better and more consistent a person’s writing, the easier the comparisons are to make. Terrible penmanship (such as mine) will make it tougher on the prosecution. Yes, you can try to fake your exemplars, but do a poor job of it, and your faked exemplars will be blown up on a big screen for the jury to see, along with the examiner’s expert opinion on what to look for when someone’s trying to mask their true signature. That could look worse for you than a merely “consistent” finding, so don’t do anything silly without getting expert legal advice.
If the stakes are high enough, and the evidence in the case could go either way, a defendant can always consult (and pay for) his own document expert to perform an examination. Assuming procedures are followed to check out and properly preserve the prosecution’s evidence, this right cannot be denied. A defense expert might come to a different conclusion than the DA’s, or might simply testify that the methodology used by the prosecution expert was flawed in some fashion. Choosing the right expert for this purpose is critical, as they will need to have the professional experience and credentials to challenge the findings of a very capable prosecution witness. If they reach the same conclusion as the DA’s expert, then we’ll have to take a hard look at “Plan B”-whatever that is.