One of the most exasperating tasks facing a document examiner is that of expressing orally, and on paper, the opinion which he has formulated in his mind concerning a given case. This opinion often has to accommodate a complex finding. Compounding this difficulty is the knowledge that the language which is chosen will be subject to critical review by way of depositions, pretrial conferences and perhaps a rigorous questioning by several attorneys during trial. The selection of his language is a difficult process at best, and the interpretation may be just as difficult.
It is likely that the examination was undertaken at the request of an investigator, police officer, or attorney. The final opinion formed as a result of the examination was likely to have been written in a manner which will best conform to the submitter’s needs and expectations, and yet the words will finally rest upon the ears of the jury and judge. Will their understanding of the opinion be the same as the submitter’s, for whom the examination was undertaken?
During testimony, the competent expert will be able to express and demonstrate his opinions in a manner such as to have all in the courtroom assign the same weight to the findings as he does. However, in the vast majority of cases, both civil and criminal, the expert himself is not called upon, but rather his written report is used. This stipulation by the opposition to the written report may occur during settlements, plea negotiations, or even in the midst of trial. Many times this is done under the guise of assisting the court as a time saving procedure when in fact it is actually in the best interests of one side or the other rather than have the expert demonstrate just how damning (or how weak) the evidence actually is. In any event, whether well thought of or not, the stipulation process is a time-saver to all mired in the judicial process, but especially the examiner. Were it not exercised, the expert would spend a large portion of his waking hours in courtrooms and justice building hallways.
The unfortunate result of stipulation is that the judge and jury are deprived of the examiner’s explanations and are left to their own personal interpretation of the language in the opinions, which, as you will recall, may have been written for the investigator. Of course, in the black or white, yes or no opinions, such as “Mr. Smith is identified as the writer of…” or “The submitted Royal typewriter was used to type…”, there is little room for misinterpretation. However, these people to whom we have entrusted the outcome of a judicial process often must decide, unaided, what terms such as “could have written…”, “indications present that…”, “possibly”, “highly probable”, and so on, really intend to mean. Is “not genuine”, “no evidence present”, and “is eliminated as the writer” all equal in meaning? Oftentimes examiners themselves, although agreeing to the results of an examination, disagree as to how the opinion should be stated simply because of how they perceive the terminology will be interpreted. Many laboratories tend to develop their own specifically worded opinions which are assigned sliding values from identification on one side, to elimination on the opposite side. These same words taken to another laboratory or another locale may have a significantly different meaning, sometimes seemingly diametrically opposed.
Some laboratories avoid this problem area altogether by simply eliminating the gray areas of probability. Their opinions are simply that of identification, elimination, or no opinion at all. While this posture is, on occasion, envied by the examiner who is in the midst of a wrestling match with his thoughts and the English language because his opinion in a particular case is something less than an absolute certainty, it has very definite shortcomings. The most important of these is that the true, actual value of the evidence is obscured by an unenlightening, but safe, misuse of words. An examiner working within this system may be subjected to undue pressure by the evidence submitter, his laboratory, or even himself, to push a less than definitive opinion to a certainty because his mental opinion is closer to an identification or non-identification than it is to “no opinion”. The inherent risk in this situation, that of being wrong, is certainly greater than it is in an opinion of “probable”.
A second drawback to this reporting procedure is that it does not lend itself to giving the submitter an investigative lead. Any investigator worth his salt will certainly pursue a “could have written” or “possibly wrote” opinion because quite obviously the examiner has seen some evidence that leans to the right of dead center. The practical effect of such an opinion is for the investigator to realize the suspect is still in the running, so to speak. The elimination of this form of opinion may have the effect of stopping any further investigation on a case in which there may be a viable conclusion. Many questioned document examiners when opining in gray areas, give reasons for their failure to reach a definitive opinion. Some go still further and suggest methods that the investigator can take, such as submission of additional standards, to provide a basis for supplemental examination and possibly more definitive results.
During his training period, a document examiner is taught to mentally interpolate less than ideal evidence and formulate opinions based upon that process. The greater majority of these opinions which involve less than ideal evidence, will be in the area of probability with only an occasional, definitive “yes” or “no”. Removing the probability range of opinions from the expert’s bag of reporting skills places him back on the level of the lay person in viewing only ideal evidence from which common logic often dictates the correct opinion.
In view of all the preceding, is there then some manner of reporting an opinion that fits all requirements and is interpreted the same by everyone? Of course not. At best an examiner’s opinions are a compromise of all the possibilities and therefore the best interpretation of these opinions is an oral interview with the author of them. This is not always possible. Fortunately, within the forensic sciences and specifically the questioned document examination discipline, there is commonly used phraseology which may easily be understood. To aid in understanding these terms, think of the document examiner’s sliding scale of opinions as a straight line marked by several labeled intersections. The center of this line is labeled “no opinion” or “cannot identify nor eliminate”, the left end of this line is labeled “elimination” and the right end of the line is labeled “identification”. Working from the outside edges of the scale towards the center, are found the opinions “highly probable”, “probable”, and “possibly”. For the purposes of simplicity the terms “possibly”, “probably”, and “highly probably”, will be discussed as if they resided solely on the right side of the scale, however, the same meanings are applicable with the appropriate negatives, on the left side.
The left edge of the opinion scale starts with the term “elimination”. This term quite simply means that that specific individual did not write the questioned material. As it applies to signature examinations, this opinion is one of the most difficult for the examiner to formulate, and in some laboratories is almost totally nonexistent. The reason for this is that an individual can trace or affect an alteration to the normal way of writing his own signature, therefore leaving behind the same indications of traced or simulated writing that another individual would leave behind while creating a forgery. In this manner the “victim” could deny the signature at some later date. Although the resultant product is not genuine, it does not mean that the individual whose signature appears on the document can be eliminated as the author.
Armed with the above knowledge concerning the danger of “elimination” many examiners are extremely hesitant, and rightfully so, to use that term. They instead use terms such as “there is no evidence that Mr. Smith wrote the questioned material” or “the questioned signature is not genuine.” While these opinions are not absolute, they may be considered as being tantamount to an elimination. They occupy the same position on the left side of the scale that “highly probable” occupies on the right.
The center of the scale, “no opinion” or “cannot identify nor eliminate”, is reserved for the examination which concludes in an “I don’t know” answer. The reasons for this position are numerous, however the most common cause lies in the quality or quantity of the submitted evidence; such as poor machine copies, or an insufficient quantity of standard (known) writings. Additionally, the examination may have been limited by the writer’s low skill level and the limited quantity of individual characteristics necessary for a more definitive opinion, there being those individuals whose handwriting has not developed much beyond the formative years.
The term “possibly” is synonymous with the words “could have”. It “may have occurred” or was “capable of having happened.” While there may be some similarities between the questioned and standard material, these similarities are neither numerous nor overly significant. However, there is also no evidence that there is a second writer. Certainly this term necessarily includes the thought that there may be others who could also have authored the questioned writing. Such an opinion is admittedly inconclusive and of negligible value in court, nevertheless the practical effect is that the investigator will realize that his suspect is still a candidate.
The term “probably” seems to confuse the attorney more than many of the others. Perhaps having spoken for such a long time in “legalese”, the attorney has lost sight of simpler English words. Quite simply, and almost directly from Webster, the word probable means that it is likely to happen or to be true, but not certain. It should be understood though, that this is certainly a conservative approach to the evidence by the Questioned Document Examiner, and in fact this presumption is much closer to the right edge of the opinion scale than the center.
The phrase “highly probably” places the opinion further along the scale toward an absolute identification. Per the dictionary definition, it should be thought of as being “far upward”, or to “great elevation”, or near its peak on the scale. This “highly probable” area of the opinion scale is also occupied by the terms “very probable” and “virtually certain”, and should be thought of for the most part as being interchangeable with those terms. It should be noted here, however, that many individuals view these three phrases with small degrees of difference, and some examiners prefer one term or another in order to gain a little more, or a little less inflection, within the opinion. These three opinions reflect a slender reed of doubt in a river of proof. While the document examiner will concede that there is a possibility of another writer, this possibility is so remote as to be virtually nonexistent.
The term “identification” needs little additional explanation and does not leave any room for the thought that there may be another writer. It should be noted here that often the expert who states this opinion in court is then asked by an attorney “Is this within a reasonable scientific certainty”? This terminology is at best obscure and seems to have been founded by the legal profession, who for the most part cannot even explain what it means. It does not appear, nor should it, on the document examiner’s opinion scale.
While the above opinions represent many of those in use in laboratories throughout the United States, they should by no means be thought of as all-inclusive. Many other opinions are used by the numerous document examiners throughout the country and have been developed to fulfill that specific document examiner’s needs. The examiner is aware that no standard language is adequate for all of the varied case conclusions that he encounters. He must also be aware that movement away from opinions worded in the simplest of terms opens the door for confusion.