Chapter 7 THE HANDWRITING EXPERT

No Law Regulating Experience and Skill Necessary to Constitute An Expert-Experts Held Competent to Testify in Court-Bank Officials and Employes Favored-An Expert On Signatures-Methods Experts Employ to Identify the Work of the Pen-Where and When an Expert's Services Are Needed-Large Field and Growing Demand for Experts-Qualifications of a Handwriting Expert-How the Work Is Done-A Good Expert Continuously Employed-The Expert and the Charlatan-Qualifying as an Expert-A System Which Produces Results-Principal Tests Applied by Handwriting Experts to Determine Genuineness-Identification of Individu

al by His Handwriting-How to Tell Kind of Ink and Process Used to Forge a Writing-Rules Followed by Experts in Determining Cases-The Testimony of a Handwriting Expert-Explaining Methods Employed to Detect Forged Handwriting-The Courts and Experts-What an Expert May Testify to-Trapping a Witness-Proving Handwriting by Experts-General Laws Regulating Experts-The Base Work of a Handwriting Expert-Important Facts an Expert Begins Examination With-A Few Words of Advice and Suggestion About "Pen Scope"-Detection of Forgery Easy If Rules Suggested Are Observed-Expert Witnesses, Courts, and Jurors.

There is no rule of law fixing the precise amount of experience or degree of skill necessary to constitute a handwriting expert. The witness need not be engaged in any particular business or claim to be a professional expert. He must, however, claim to have experience. With that limitation, cashiers, paying tellers, other bank officers, attorneys, bookkeepers, business men, conveyancers, county officials, photographers, treasurers and clerks of railroads, etc., and writing teachers have in various cases been held competent to testify as an expert. And it has been held that experience with handwriting generally or specially will enable the witness to testify specially or generally thereto. Bank officials, and especially cashiers, tellers, and book-keepers, are usually regarded as competent by most courts to pass authoritatively upon handwriting.

Generally speaking, the witness must claim to be an expert, or at least show that he had the means of gaining experience. He need not claim to be an expert, but he must claim to have had such experience as will make him feel competent to express an opinion.

He may always give the reasons for his opinion, but he must confine his testimony to his opinion based on the handwriting itself, and not as affected by the facts of the case. He cannot state any inferences deduced from the facts. He must also testify himself. Evidence of what an expert has said with reference to a writing is inadmissible for the purpose of bringing that opinion before the court.

An expert may be tested with other papers in the case, but not with irrelevant papers, and the whole of the test paper must be shown him. He is entitled to see it all.

Letter-press copies and duplicates made by writing machines are not originals and therefore cannot be used as a standard of comparison.

An expert cannot give an opinion as to the genuineness of a signature based upon a comparison thereof with signatures not before the court.

The standard of comparison used by the expert must be produced in court. Photographic copies are admissible when accompanied by the originals. When original writings are in evidence and the genuineness thereof disputed, magnified photographic copies of the writing and of admitted genuine writings are admissible in evidence, for comparison by jury or expert when accompanied by competent preliminary proof that the copies are accurate in all respects except as to size and color.

The services of the expert are required in a wide range of civil and criminal cases. Where handwriting is questioned on notes, checks, drafts, receipts, wills, deeds, mortgages, bonds, anonymous letters, money orders, registered letter receipts, letters, pension papers, and in smuggling, and in short, on any kind of document where it becomes necessary to establish the identity of the writer, the expert is called in. Life, liberty, honor, and property are frequently balanced on a pen point-a few marks of the pen being the determining feature of many a case.

The handwriting of the schoolboy and schoolgirl, though crude, is conventional and idealized. It has but few characteristics so long as the school model or copy-book hand is the goal. The pupil gives constant attention to the handwriting as well as to the thought. A number of students of about the same grade, under the same teacher, will write much alike. Fifteen or twenty of these students could each write a line on a page and it might baffle a layman, and perhaps puzzle an expert, to tell whether or not more than one person wrote the page. This constant striving after one ideal, and putting thought on the handwriting, had drawn them all toward that ideal and away from individuality.

The employment of professional handwriting experts as witnesses in court cases that often involve enormous sums of money, or the liberty or even the lives of suspected malefactors, has awakened widespread interest in the methods of this class of experts, their resources and capabilities in conserving the ends of justice.

Many uninformed people appear to look on the handwriting expert as one who, by intuition or the possession of some mysterious occult power, is enabled to distinguish at a glance the true and the spurious in any questioned handwriting. Nothing could be further from the fact.

The secret of his power-as in any other line of scientific research-lies wholly in his intimate familiarity with the innumerable physical details which comprise the written line or word or letter-sometimes so slight a matter as the dotting of an i or the placing of a comma. It is precisely the same specialized sense, born of acute observation and minute scrutiny that enables an expert chemist to take two powders of like weight and color, identical in appearance to the common eye and perhaps in taste to the common palate, and say: This drug is harmless, wholesome; that is a deadly poison-and to specify not only their various individual constituents but the exact proportion of each. The trained eye of the handwriting expert (as in another case could that of the expert chemist) can often detect at a glance certain distinguishing earmarks of submitted writing that enable him to fix the identity of the writer almost off-hand. In the the great majority of cases, however, the cunning of the forger calls for deliberate, painstaking study and investigation before the conscientious expert is willing to announce with absolute surety an opinion so often fraught with tremendous possibilities for good or for evil.

Nothing else that a person does is so characteristic as the handwriting, and the identification of the individual can be established by it better than by portraits or almost any other means. As lawyers and laymen and courts are finding this out, the handwriting expert is more and more called upon to untangle snarled questions and to right wrongs.

It is only when attention is directed to this interesting science by the wide publicity given to some great case in which handwriting plays an important part that the notice of the general public is drawn to it. The average person would be surprised to know of the great number of cases that find their way to the office of the handwriting expert. The man who has made a success in this line is constantly in demand, and makes frequent trips to distant points to appear as witness in courts.

Though nearly every large town has some one who devotes some attention to handwriting, there are but five or six men in this country who give to it practically all of their time, and who have gone very deeply into the subject.

To allow any person to qualify as an "expert" and to testify as such is a matter wholly within the discretion of the court. Unfortunately, courts frequently are lax in determining this question. Almost any one who can write is permitted to give alleged "expert" testimony regarding handwriting. In one well-known case, a case, too, involving life and death-the court unwittingly accepted the "expert" testimony of a witness who, it was afterward proven, was unable to write even so much as his own name. In the litigation attending the disposal of large mining interests held at Butte, Montana, the court permitted testimony in regard to the handwriting of the testator from a witness who admitted that he had seen the testator write but once, and that in lead pencil over twenty years before.

Any one accustomed to writing is usually allowed to qualify as an "expert." To the lay mind it is natural to confound experts who have studied the subject deeply in all its various phases with those who have had occasion to examine it casually, or who may possess uncommon facility with the pen without ever having had occasion to investigate scientifically just those little illusive points upon which the professional expert places his reliance.

Hence, when we read of "experts" being mistaken, or of an equal number of them appearing on opposite sides of the same case, it will nearly always be found upon investigation that they are of the class described above, whose lack of thorough special training and specialized experience really should have disqualified them from giving testimony. Though any one may call himself an "expert," or a "professional expert," for that matter, thus opening the door to charlatanism in exactly the same manner that it is opened more or less in all vocations, yet, as a matter of fact, it is very rare that professional handwriting experts testify to a contrary state of facts, and the cases in which they have been proven mistaken are remarkably few.

Experts who have a natural aptitude coupled with experience that produces skill are able, by a system which they have reduced to a science, to detect the spurious from the genuine handwriting with almost unvarying success. But their conclusions are not reached by second sight or sleight-of-hand methods, but rather by painstaking, scientific investigation.

Some of the principal tests applied to determine the genuineness of handwriting are these: The actual and relative slant of the letters or the angles between their stems and the base; the constancy and accuracy with which a straight line is followed as a base; the amount of pressure used on the pen and the part of the stroke where it is applied, and the positions of the line as a whole relative to the edges of the paper. The simplest punctuation mark under the microscope has its own individuality. It would be difficult to find two writers whose semicolons and quotation marks cannot be distinguished at a glance. The dotting of the i and crossing of the t afford an infinite number of relations between points and lines, and in both of these the time element and the freedom of muscular movement play important parts. Even the health and self-control of the penman, as well as the physical circumstances, show their influence on these little strokes.

The identification of the individual by means of his handwriting is of great value in legal trials and outside of courts. Its use cannot be dispensed with any more than can the knowledge obtained in any other line of science.

One often hears a man boast of his ability to successfully duplicate another person's signature or handwriting, and to the casual observer the counterfeit really will bear a striking resemblance to the original. However, let the two be placed in the hands of an expert on disputed handwriting and he will pretty quickly determine which is the original and which the forgery. Furthermore, he will tell you what process was used to make the duplicate, for there are several methods in use among forgers, and can even tell the composition of the ink.

In the determination of any handwriting there is no actual rule to guide an expert, as each case must be a law unto itself. The time of day that the signature was made and the condition for the moment of the individual have considerable bearing on the case, as has also the writer's general physical condition. Whether he was standing or sitting when the signature was made is a matter of importance. The quality of the paper and the make of the pen also have to be taken into consideration. In the case of forgery, where the forger has employed a finger movement writing with the muscles and apparently without education, there is scarcely any difficulty in arriving at a conclusion. The long flowing hand is easy to detect. When, however, the writing is finical a large mass of material has to be examined before a decision can be reached.

The testimony of an expert is without doubt the most dangerous kind of evidence when not supported by additional testimony; but, on the other hand, if the known facts fit in well, it is the strongest kind of testimony that can be submitted, and is usually known as "opinioned evidence." There probably is no class of professional witnesses which is subjected to such severe cross-examination as experts in handwriting, and, considering the great importance of their testimony, they should be ever ready and willing to explain the methods employed by them in arriving at their decision, which, of course, is the result of a comparison of the analyses of several pieces of writing, taking account of all exaggerations, idiosyncrasies and unusual peculiarities.

All evidence of handwriting, except where the witness has seen the writing in question written, is derived from four sources: First, from comparison; second, from the internal evidence of the writing itself; third, from the knowledge of the writing, from having frequently seen a person write; fourth, where one has received letters whose authorship has been subsequently verified by admission, or acted upon in such manner as to receive the approval of the writer. Comparison is made between the writing in question and other writing admitted by the writer to be genuine, or otherwise proved to be so to the satisfaction of the court.

The evidence adduced from comparison is more or less certain according to the skill of the expert and the circumstances of the case. Internal evidence is such as is presented by the peculiar quality of lines when drawn or worked up by slowly following traced lines, retouched shades, rubbered surface of the paper, and every indication of an artificial or mechanical process of producing writing.

Testimony based upon a knowledge of writing gained from having at some time seen a person write is the most fallacious of all testimony respecting handwriting; it can be only a mental comparison of writing in question with such a vague idea or mental picture as may remain from a casual view of the writing at some time more or less remote; and besides, one may perceive another in the act of writing and yet have little or no opportunity of forming any mental conception of it, even at the time of writing.

In some cases where the courts will permit it the expert witness may fully explain upon what he bases his opinion but it oftener occurs that the trial judge will limit the evidence down to the very narrow scope and the mere relation of such facts as the jury can see. Where a forgery is well executed the difference in general appearance between it and the genuine writing of the person whose signature is questioned, when compared, is very small. The limit put upon expert evidence by the trial judge takes from the effect of the testimony all the benefit of an explanation of the facts upon which the opinion is founded.

Juries are generally allowed to examine enlarged photographs of the writing, and sometimes to see it under the microscope, but even when so doing what they see unexplained cannot be appreciated intelligently and unless taken for granted as meaning something which the experience of the expert who gives the opinion understands, and which they without such an education, could not be expected to understand that which the photographs show and the microscope makes visible is just as likely to be misleading as otherwise.

An expert may testify as to the characteristics of the handwriting in question; as to whether the writing is natural or feigned, or was or was not written at the same time, with the same pen and ink, and by the same person, and as to alterations or erasures therein; and as to the age of the writing and obscurities therein; the result of his examination of the writing under a magnifying glass; and to prove in some cases the standard of comparison.

In the United States a witness may be asked to write on cross-examination, but not in direct.

Before a paper can be accepted as a standard of comparison it must be proved to be genuine to the satisfaction of the judge. His decision on this question is final if supported by proper evidence. In some states the question of genuineness is for the jury.

A party denying his handwriting may be asked on cross-examination, if his signature to another instrument is genuine. This is the test which may be successfully applied to ascertain if the signature is genuine. A plaintiff, on one occasion, denied most positively that a receipt produced was in his handwriting. It was thus worded, "Received the Hole of the above." On being asked to write a sentence in which the word "whole" was introduced, he took evident pains to disguise his handwriting, but he adopted the phonetic style of spelling, and also persisted in using the capital H.

The practice of thus testing a witness is vindicated by one of the most sagacious of German jurists, Mittermaier, on grounds not only of expediency, but of authority.

Comparison of handwriting, either by jury or witness, is uniformly allowed to prove writings which are not old enough to prove themselves, but are too old to admit of direct proof of their genuineness.

Handwriting, considered under the law of evidence, includes not only the ordinary writing of one able to write, but also writing done in a disguised hand, or in cipher, and a mark made by one able or unable to write.

The principles regulating the proof of handwriting apply equally to civil and criminal cases.

The paper the handwriting of which is sought to be proved by experts must ordinarily be produced in court, but such production will be excused when the paper has been lost or destroyed and when it is a public record, which cannot be brought into court.

Genuineness may be proved in all cases, except where paper is required to be identified by an official seal, and except as controlled by law applicable to attested instruments.

It may be proved by his own admissions; by witnesses who saw the party write; by witnesses who corresponded with the party; by witnesses who had seen papers acknowledged by the party; by witnesses having personal relations with the party.

Comparison of handwriting, technically called presumptio ex scripto nunv viso, is where a paper or papers are proved or admitted to be in a party's handwriting, and a witness entirely unacquainted with the party's handwriting, or the jury, is allowed to make a comparison by juxtaposition of the writing so proved or admitted, and the writing disputed.

All evidence of handwriting, except where the witness sees the documents written, is in its nature comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind derived from some previous writing.

In all the states of the Union the laws are uniform on the proposition that experts may testify as to comparisons made and the results based on such comparisons, except that the paper admitted to be genuine shall not contain matter of a frivolous nature, etc.

In a broad, general way the element of common sense is the basework of an expert's success in the business. He cannot depend upon anything suggesting intuition. Where two signatures or two specimens of writing are in question and one exhibit is a forgery and the other is genuine, or where both are genuine, yet in question, the expert is in the position of making his proofs and demonstrations convincing to the layman-the hard headed citizen who insists that "you show me." Frequently this citizen is on a jury where he has had to admit that he is not particularly intelligent before he would be accepted for the place.

As a first proposition to such a man, however, the expert in chirography may put him to the proof that out of a dozen signatures of his own name no two will be alike in general form. Then he may turn to the authentic and forged signatures in almost any case and show to the layman that the first question of forgery arose from the fact that these two signatures at a first glance are identically alike to almost the minutest detail. With all the skill which the forger has put into his crooked work, he keeps to the old principle of copying the authentic signature which he has in hand, and the more nearly he can reproduce this signature in every proportion the more readily the forgery can be proved.

One of the most important facts from which the expert may begin his investigations of possible forgery is that every man using a pen in writing has his "pen scope." This technical term describes the average stretch of paper which a man may cover without lifting the pen from the paper and shifting his hand to continue the line. In even the freest, swinging movements of a pen where the hand follows the pen fingers, there are occasional breaks in the lettering or undue stretch of space between the words which will indicate a characteristic scope of the pen if the specimens under investigation cover an ordinary paragraph in length.

As applied to the signatures of the ordinary individual, this pen scope will appear in some form in the signature. The writer may lift his pen before he has spelled out a long Christian or surname, he may indicate it in the placing of a middle initial or in the space which lies between the initial and the last name. In the case of the signature of one's name, too, it should be one of the easiest and lest-studied group of words which he is called on to put upon paper. In writing a letter, for example, the pen scope through it may show an average stretch of one inch for the text of the letter, while in the signature the whole length of the signature twice as long, may be covered. But if the writer covers this full stretch of his name in this way the expert may prove by the necessary short pen scope of the copyist that the studied copy is a forgery on its face. For however free of pen stroke the forger may be naturally, his attempts to produce a facsimile of the signature shortens it beyond the scope of the original signer.

If a search be made through a series of undisputedly genuine signatures, it will be found that one characteristic fails in one and another in another. Here is where the handwriting expert makes his service valuable. He studies all these important points, and is not long in arriving at a successful conclusion.

The introduction of the experimental method into all modern investigation has led to the hope that in this difficult subject means will be found to introduce simpler forms of determining regular or irregular handwriting.

As long as the steps by which experts reach their conclusions are so intricate or recondite that only the results may be stated to the jury, just so long will the character of expert testimony suffer in the opinion of the public, and the insulting charge against it be repeated that any side can hire an expert to support its case.

If a single competent expert could be selected by the court to take up questions of this kind and lay his results before it, the present system would be less objectionable than it is. Nevertheless, this solution is probably not the best, because no man is capable of always observing and judging correctly, and the most careful man may be led astray by elements in the problem before him of which he does not suspect the existence. It would seem, therefore, to be fairer and less open to objection if a plan of investigation were followed which can be clearly explained to those who are to decide a case and the resulting data left in their hands to assist them in their decision.

In such a manner of presentation, if any important data have been omitted, or if the premises do not warrant the conclusion, the errors can be detected without accusing the expert of lack of good faith or ignorance of his subject. The fact that he has testified in hundreds of cases and in every court in the world should not be allowed to influence the jury against a logical conclusion drawn from uncontroverted facts.