Court and the Document Examiner - Questioned Documents - Norwitch Document Laboratory
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Court and the Document Examiner

 

Pretrial Conferences

The final part that a document examiner plays in the forensic drama is that of testifying in court to the findings of his examination.  This testimony is usually the reason that the examination was undertaken in the first place.

Ideally, prior to court testimony, the examiner (who now takes on the role of an expert witness) has had a conference with his attorney to establish the best line of questioning that will communicate the examiner’s opinions with the most clarity and impact.  Many examiners choose to provide the attorney with a pre-planned list of qualifying questions. This previously constructed list of qualifying questions is not meant to take the place of a pretrial conference, but may become a necessity because of time constraints that may obviate the possibility of a pretrial conference.  When this is occasioned, the attorney should be admonished that deviation from the prescribed questions may result in answers quite different than what he expects to hear.

The pretrial conference is the ideal forum for speculation as to cross-examination questions.  Normally the attorney conducting the cross-examination attempts to limit the witness to simple “yes” or “no” answers.  Of course the expert witness, giving opinion testimony, need not be limited to these constrictions.  However, redirect should be designed to clarify any cross-examination questions that had simple monosyllabic answers when in fact, a lengthier explanation is in order.

 

Court Displays

A court chart created by the document examiner can be used to display similarities between a questioned writing and standard writing.  It can just as easily, of course, be a display of differences if the examiner’s opinion is one of disassociation.  The court chart should be simplistic and easily viewed, while maintaining enough information to illustrate the examiner’s opinion.  An over-crowded chart should be avoided.

It may not be in the best interest to produce graphic displays of opinions that are couched in probability.  Many times these gray area opinions are a compilation of characteristics that have been interpolated by the examiner and therefore may not be readily appreciated by the casual observer.  The overzealous examiner, producing a court chart to support a probable opinion, may hurt his opportunity to convey a correct message to the jury, who may be confused by what it perceives to be dissimilarities that the document examiner opines are similarities.

A properly prepared court demonstration is an immeasurably disarming device for cross-examination.  It is the cross-examiner’s obligation to create doubt in the minds of the jurors about the opinions reached by the expert.  A court chart, properly demonstrated, will subtly shift the examination from the document examiner to each member of the viewing audience.  The jury thus becomes the document examiner and may even be found doing their own comparisons.   The author has frequently had the impression that while he was explaining one particular letter formation, the jury had already compared that letter formation and was now continuing on with the next comparison item on the chart and forming their own opinions.  Once the jury has been convinced by the demonstration, and their own comparisons, effective cross-examination must necessarily attempt to attack the display rather than the document examiner.  This is a difficult task.  Once an individual is convinced by something that he has applied his own logic and perceptual ability to, the possibility of changing his opinion to an opposite point of view is exceedingly difficult.

The attorney who insists on a vigorous cross-examination after a court chart has been introduced and properly presented, must necessarily point to the chart and question “differences” that he observes.  The examiner, on the other hand, now has the opportunity to explain these “differences.”  The presentation of a court chart should already have been preceded by a discussion by the expert about individual variation, that is, that no individual writes the same thing exactly the same way. This will serve to explain why the attorney conducting the cross-examination sees “differences” while the examiner does not. This is a golden opportunity for the examiner, having already laid the proper predicate using the topic of individual variation, to reinforce that concept.  Having already explained the circumstances by which two letter formations may appear to be slightly different, this is now the opportunity to restate that opinion.  The attorney that continues an attack in this area chances mental ridicule by the members of the jury who have already made a determination, having seen the same things that the document examiner has pointed out. The cross-examiner may be thought of as attempting to distort the facts.

Court charts or other demonstrative material may take the form of photographically or computer prepared exhibits that simply display an area of questioned writing on one side and a corresponding area of comparable standard material on the other.  It may be advantageous for the examiner to also prepare smaller copies of this same chart to be handed out to each individual juror if the court so allows.  In many cases and in many states these may be allowed to be taken into the jury room during final deliberation.

Other adequate means of demonstrating opinions can be in the form of presentations such as PowerPoint or overhead transparencies.  An advantage with transparencies is that on occasion portions of the chart may be excluded by the judge for one reason or another.  The offending material may be quickly trimmed away with a pair of scissors and the trimmed remaining transparency once projected, will still look as good and as professionally created as it did before.  The affect of similar censoring to a photographic chart would have to take the form of covering up the areas of prohibitive material.  This might cause a jury to think that evidence pertinent to the case was being hidden.  This would almost necessarily create a negative ambience surrounding the demonstration.

The expert is always well advised to remind all in the courtroom that the demonstration chart is only an illustration of some of the viable features found during the examination and was not used for the examination itself.

While most court displays are usually very presentable and visually attractive, today’s computer, scanner, and printer  technology can produce what is arguably the best of demonstration materials.  The entire court chart can be produced by scanned images of the evidence.  Composite exhibits can be produced by scanning each separate sentence, paragraph, or page portion that contains some part of the evidence (usually a letter or two) and then moving each portion, piece by piece, into conjunction with the others by using a “paint” program.  The remaining unused evidence portions are simply “erased” from the screen.

These scanned images can additionally be “cleaned” of background confusion with the same software.  These programs allow magnification of an image portion and selective removal of unnecessary material on a pixel by pixel basis.  However, by using this medium the overzealous witness has an opportunity to modify the evidence.  Depending on the software used, a letter or other composite part can be not only rotated by increments of as little as one degree, but can even be skewed, slanted or scaled.  Obviously an unethical individual could also remove pertinent portions of a letter or even create portions that do not exist.

Rev 3/16