Some handwriting experts claim expertise by saying they are as good as, if not better than, other kinds of experts. In a number of cases, handwriting experts have used this assertion in reference to scientific DNA evidence. I guess if one cannot prove expertise on one’s own, hitching a ride on a pair of handy coattails might work. The following is based on a consultation by an attorney on how to handle a handwriting expert making what turned out to be a rather preposterous claim: “Handwriting evidence is just as reliable as DNA evidence.” In four steps this was impeached. In some cases the following might be all you need, but cautions are called for so you do not take a chance of entrapping yourself and impeaching your own case rather than the other side’s.
An important text-note: Within favorable circumstances, we handwriting experts can prove our conclusions beyond a reasonable doubt. But we cannot achieve it via the mathematical/statistical ways DNA experts use. An alleged handwriting expert, who impertinently claims equality with a DNA expert knows neither that forensic method nor the proper forensic method for handwriting expertise. Here is how you can deflate the handwriting expert ego inflated with false DNA pretensions.
The very soul of this cross-examination has two imperatives. First imperative is to bear in mind where you aim to be at the end of it all: You want to be the satisfied trooper who has either eliminated the opposing handwriting expert and/or prevailed on a favorable motion, ideally of summary judgment, because the opposing handwriting expert has been eliminated or thoroughly impeached as a reliable expert witness. And how, you wonder, do we have a chance of that outcome? Because, having claimed equality with DNA experts, the handwriting expert must match their rigorous methods, chief of which is well-founded evidence of statistical probabilities in all aspects of their conclusions. Meanwhile, handwriting expertise is well known for a lack of well-founded statistical probabilities, being of an entirely different type of physical evidence. We handwriting experts should routinely present some types of statistical probabilities, mainly in the often asserted opinion that a writer has a certain habit in one or more given graphic features. And on that issue, I hopefully will provide another technical essay.
The case United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993), gives at page 1194 a summary explanation how DNA patterns are statistically applicable in determining identifications. A sharp and knowledgeable handwriting expert could explain how such is not reasonably applicable to handwriting identification and why. But a sharp and knowledgeable handwriting expert would not ill-advisedly claim mastery of the methods and level of mathematical evidence DNA experts must employ. However, there is a good chance that a handwriting expert selected at random would say yes to the invitation we would quote when I was a child and someone was being tricked: “Come into my parlor, said the spider to the fly.”
You will impeach the witness in four steps:
STEP ONE: Arm yourself with criteria for the admissibility and the reliability of DNA evidence, because scientifically the other side has inadvertently obliged itself to satisfy them all.
STEP TWO: Get the excessive self-estimate on the record and live before the fact finder.
STEP THREE: Thoroughly interrogate the opposing expert on his self-estimate.
STEP FOUR: Make your most appropriate and effective motions.
Let us look at these four steps in some detail.
STEP ONE: Arm yourself with criteria for legal admissibility and reliability of DNA evidence. The procedure and questions in your cross-examination are taken directly from relevant, published court case reports.
I am using an older case because it was used in the original case I worked on and because it clearly sets forth seven essential criteria the handwriting expert had to have satisfied in order to be as reliable as a DNA expert scientist. The case is United States, Appellee, v. Adrian Paul
Martinez, Appellant. No. 91-1996. United States Court of Appeals, Eighth Circuit. 3 F.3d 1191 (8th Cir. 1993). The best landmark cases of all time and the finest of current cases would be cited today. However, it is critically important to cite one or more published cases that set forth clearly and neatly the scientific criteria that establish the reliability of DNA evidence. This is the greatest virtue of the Martinez case. If there is an objection to any question, the reply is simply a citation to and quotation from a published appeal or supreme court decision approving it. At the start these cases are your secret store of weapons and ammunition, not to be revealed till need and usage require. Both your current opponent and potential opponents will be left guessing just how well armed you are, thus giving you a mystique that might intimidate future opponents at least a little bit.
STEP TWO: Get the expert’s claim on the record and live before the fact finder. Now the witness cannot squirm out of the self-made trap.
Q. Mr. Expert, you claimed your handwriting identification evidence is as reliable and scientifically accurate as DNA evidence. Right?
Q. Do you claim your method equals DNA evidence in how correct the results are; that is, how right the conclusions are?
NOTE: If he says “No” to either of the above, he admits his report is false in its claims. He is impeached already. If he says “Yes” to all, he has been delivered into your hands. If you need to make an offer of proof in reply to an objection, not being an attorney I guess it would go something like this:
“Your Honor, if Mr. Expert cannot measure up to the reliability that DNA evidence has achieved in courts of law, we contend he ought to be disqualified for three reasons:
“First, he should be held to the standards of reliability he claims to meet.
“Second, if he is asking the jury to believe him on basis of claims proven to be false, he should not be permitted to testify.
“Third, if a claim is proven false, either he does not realize he made a false claim or he does. If he does, he commits perjury. If he does not, he lacks the required mental acumen.
“We will demonstrate he does not satisfy the essential criteria of reliability that DNA evidence has, but they are the specific criteria on which he bases his claim to reliability, however inadvertently.”
STEP THREE: Thoroughly interrogate the witness on his claim of scientific reliability. This is a very big step in both time and factual bulk.
Q. Mr. Expert, DNA experts compare a sample from a known, named suspect to a questioned sample from an unknown source. Do you do that as a handwriting expert?
NOTE: You establish the legal foundation of your questions by a direct reference to and quote from the relevant case law whenever required. Or you ask the witness to demonstrate his brilliant mastery of DNA expert methods, impeaching his short comings by references to the legal, published case reports or learned treatises.
Q. Are the known and questioned writing samples that you compared in the exhibits shown during your direct testimony?
NOTE: This question can become far more technical and detailed, but that gets us into a different issue: rules for exemplars in handwriting expert examination. Let us keep this simple and focus on precisely DNA related issues.
Q. DNA experts look for specific sets of traits appearing in specific patterns. Did you look for specific sets of handwriting traits appearing in specific patterns?
IF “NO”: The witness is self-impeached and so could not possibly measure up to the reliability of DNA evidence. Go to the next question.
IF “I do not understand the question” or anything similar: The witness is self-impeached for lacking knowledge and understanding needed in any scientific investigation and testimony. Go to the next question.
IF “YES”: Ask for the following data:
How many patterns of traits did you discover and use? Name them.
[then for each pattern named] Give me the list of traits in this pattern.
[then for each trait given] Is this trait significant for identification?
What makes it significant for identification?
On the enlarged exhibit(s) of known samples from Defendant, point out every place where this pattern appears.
NOTE: If the witness cannot follow this line of questioning, then the witness did not use this key method that is used in DNA evidence and so is self-impeached. If this criterion is not met, the witness did not make a reliable identification as a DNA expert would have, and again is self- impeached.
NOTE: I am leaving out the critical factor as to where precisely DNA experts look for patterns to occur. I do not recall coming across such a factor in any text on forensic handwriting examination, except for Albert S. Osborn in his major book, Questioned Documents, second edition, Montclair, NJ, Patterson Smith Publ., 1929. In several places he discusses the value of first and last strokes in determining genuine vs. false signatures. If you inquire about this issue, I doubt one in a hundred handwriting experts would know what you ask about. Osborn is the most notable and referenced document examiner in American forensic history. He is still the major authority on issues of handwriting. If one disagrees with him, one should be prepared to offer a good explanation why.
If the witness passes the test about patterns, ask:
Q. Was that enough to identify Defendant as the writer of the questioned signature?
IF “YES”: He is self-impeached because by DNA standards it only means Defendant is a possible suspect. You then ask for the physical evidence of how probable it is that someone else wrote the questioned material, as in the following series:
Q. DNA analysis determines probability of someone else being the match. Did you determine the probability of anyone else except Defendant being the writer when you made the handwriting identification?
IF “NO”: He again impeaches himself on his DNA claim. Go to the next question.
IF “YES”: Other technical evidence would show he cannot possibly do so. But we are keeping this simple, so we skip this complex issue.
Q. DNA matching is based on collections of DNA samples from hundreds of people. Do you have a collection of samples from hundreds of people for each handwriting trait you relied on?
IF “NO”: He is again self- impeached on his claim.
IF “YES”: Demand discovery of the material.
NOTE: DNA collections are broken down by race and ethnic groups, so for handwriting we need to take a slightly different approach. Additionally, the comparable material on handwriting is of a different nature.
Q. Can people have similar handwriting from such factors as being of the same family, same race or ethnic group, having learned the same handwriting system, being in the same occupation, and similar associations?
Q. Did you identify all such factors that relate to the Defendant?
IF “NO”: He is again self-impeached.
IF “YES”: Q. Give us all such factors you discovered that apply to Defendant.
NOTE: For each factor ask what special handwriting traits are related to that factor and where are they in Defendant’s handwriting. If the expert denies there is any effect at all, ask for the writing model that proves all that. My anticipation is you will get a lot of stutters and hesitations.
STEP FOUR: Make your most appropriate and effective motions. Maybe a motion to dismiss the expert for all the self-impeaching statements you demonstrated. Then maybe a summary judgment motion if the expert was a source of opponent’s essential evidence. There have been cases where dismissal of the handwriting expert opened the door wide for a successful summary judgment motion.