Part 5 (1/2)
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 gla.s.s; 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 doc.u.ments 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 s.h.i.+fting 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 s.p.a.ce 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 s.p.a.ce 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 a.s.sist 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.