Throughout the forensic laboratory, a “standard” is simply a known item to which an unknown item can be compared. While “standards” are needed in typewriter, printer, photocopy and other non-handwriting examinations, these specialized standards will be discussed in those respective overviews and this discussion will pertain solely to handwriting and signature standards.
In the everyday world of the document examiner, where handwriting comparisons occupy the majority of the workload, a standard is normally some quantity of writing represented to be from a specific individual. There being no doubt as to the origin of this writing, it will likely survive an attack upon its authenticity in court. The examiner can compare these standards to a questioned writing and frequently provide a clear cut, demonstrable opinion as to authenticity, or lack thereof. Handwriting standards are frequently referred to as “exemplars,” “specimens,” or “knowns.” These terms are for the most part interchangeable, however some laboratories assign slightly different meanings to one or more of these terms, such as referring to “exemplars” as “requested” standards, as described later in this section.
A Brief History
Before 1880 exemplar writing was not admitted in United States courts. Experts simply stated their opinion as to whether a document was genuine or forged. Expert testimony as to who wrote a document was not allowed. If the experts disagreed, all expert testimony was disregarded. A sad state of affairs.
At about the turn of the century, standards for handwriting comparisons began being permitted into evidence. These standards, however, were only allowed if they were already part of the case for another purpose. Standards specifically produced for comparison were not allowed. Finally, the question of admissibility of handwriting standards was addressed by Federal Statute (Title 28, U.S. Code, Section 1731). This states “The admitted or proved handwriting of any person shall be admissible for the purpose of comparison to determine genuineness of another handwriting attributed to such person.”
The next challenge to the admissibility of exemplars came by way of Fifth and Sixth Amendment arguments to having the subject provide standards as opposed to those standards already in existence.
Gilbert v. California in 1967 settled one argument by ruling that a handwriting exemplar is an identifying physical characteristic outside Fifth Amendment provisions against self-incrimination.
Lewis v. U.S. answered the Sixth Amendment challenge, that of right to counsel during the taking of exemplars.1
All too often inconclusive opinions such as “can’t be identified nor eliminated” or “could have written” are rendered when much more definitive results would have been possible with adequate standard material.
The ideal exemplar to be used for a handwriting comparison is one which duplicates all the conditions under which the questioned material was written. It contains the same written words and numerals, it was executed at approximately the same time, using the same writing implement, the same type of paper bearing the same format (check, airlines ticket, etc.), in the same writing style (cursive vs. printed), and repeated often enough so as to reveal nearly all of the author’s normal variations in his writing. In addition, these standards would be produced without the writer having knowledge of the purpose for which they are to be used.
Obviously, all of the above requirements cannot be met every time, or even most of the requirements some of the time, but it is important that as many of these criteria be satisfied as possible. As the standard material digresses from the ideal total duplication of the questioned writing, so may the examiner’s ability to use that material to definitively answer the question of identification or elimination. Generally, the more standard material submitted to the examiner for comparison, the greater the potential for a definitive opinion.
Standard handwriting is generally considered to fall into two groupings: non-request standards, sometimes referred to as “gathered,” and request or “collected” standards.
Non-request standards are quite simply writings which were indisputably prepared by the accused when he had no reason to think that they would be used for a handwriting comparison. They are, therefore, inherently devoid of any attempt to disguise (to be discussed later). The disadvantage to non-request standards is that it may be difficult to find samples that fit the criteria of repeating the format and context of the questioned writing. Incompatible non-request standards may relegate an examination to a comparison of apples and oranges. However. the advantage of non-request standards eliminating any possibility of disguise normally outweighs the possible disadvantages.
Further, the investigator must be sure that these known writings can be successfully attributed to the suspect, and that they were acquired in a legal manner. If challenged in court, standards that cannot be proven to be the product of a specific individual may have very limited value, if any at all. Most often if the standards fail this challenge, the examination and resultant opinions will not be allowed into evidence. Normal course of business records, checks and other documents, writings and signatures, whether witnessed or not, are almost always allowed by the courts as adequate standards. Challenges to their admissibility as hearsay evidence are usually unsuccessful.
In a relatively simple straightforward case, especially one that involves signatures, adequate standards should not be a problem. Sources of non-request standards could include eye-witnessed writings, admitted writings and signatures, normal course of business records, and legal documents, such as:
Affidavits, Automobile Repair Estimates Bank Signature Cards
Bills of Sale Checks
Credit Applications Diaries
Educational and Vocational Materials Employment Applications
Insurance Applications Legal Documents
Notes to Jailers Probation Reports
Receipts Safe Deposit Signature Cards
Signed Fingerprint Cards Miranda Rights Warnings
Requested standards are those in which the subject is asked to write specific material, usually through dictation. These standards will be used for the express purpose of conducting a handwriting comparison. Court ordered standards fall into this category.
This class of standard lends itself to certain advantages in that the format and content of the questioned writing can be followed closely under the examiner’s direction and control. It has, however, the disadvantage of allowing the writer the knowledge that this writing will be used for a comparison that may well be adverse to his best interests. Consequently, writers will often attempt to alter their normal writing or otherwise disguise their writing so as to foil or confuse the pending examination. Many times these attempts will succeed and hinder, or even render impossible, a viable examination and definitive opinion. This may be offset to some degree, by the testimony of the examiner as to the indications of disguise that are present. However, this opinion is difficult to prove and subsequent testimony concerning disguise is often difficult to come by. Even though the examiner may be well versed in disguised writing and may have little problem in recognizing this facade, proving it is often a enigmatic proposition. The proof itself may require non-request writings. At times some of the indications of disguise can be part of someone’s normal handwriting style. Often, the writings of elderly individuals and individuals taking medication or having had an injury or infirmity display one or more characteristics normally associated with disguise. However, on those occasions when testimony concerning disguise is possible and properly based and presented, it is very effective. After all, why would an innocent individual disguise his writing?
Exemplars, if not voluntary, may be either court ordered or provided for by Grand Jury subpoena. Often objections to court-ordered standards are based upon the Fifth Amendment privilege against self-incrimination. These objections, and others, have already been answered in several landmark cases. Among the more prominent are Schmerber v. California, Gilbert v. California, and U.S. v. Wade.
A Grand Jury subpoena has the advantage of obtaining standards from an individual not yet under arrest. The process of obtaining these standards in this manner is, however, slower than that by court order. In either case, providing the date, time, place and designated agent, along with a statement as to the expectation of naturalness in the exemplar writings, within the body of the motion or subpoena will lay the ground work for contempt proceedings, or similar sanctions, if the court order or subpoena is not complied with. Of course, the defendant on trial for a capital felony that may result in life imprisonment or even the death penalty, and facing other damning evidence has little to fear from a contempt of court charge. Some of the rulings found in the section dealing with legal precedent may be significant when contempt power is contemplated.
Court-ordered standards may carry additional baggage. Occasionally, the Court will limit the quantity or content of the standards to be taken. Time limits (length of the standard session) may be imposed. Even the physical location of the standard session may be addressed. Some courts have even decided that the document examiner must take the standards instead of the investigator or attorney. Other courts have decreed that the document examiner must be present, and yet others have ordered that the document examiner may not be present. The questioned document examiner has little control over limitations imposed by the Court. If the definitiveness of the resultant opinion suffers from these court imposed limitations, so be it.
The individual who is attempting to disguise his or her handwriting is trying to produce a convention that they are not accustomed to. Handwriting is, after all, almost an afterthought once the writer is past the formative learning years.
To change this almost instinctive process by adding disguise takes a cognizant and decided effort on the part of the writer. He must concentrate on changing what he has become accustomed to doing automatically. In the preponderance of cases, the changes in of themselves will not be consistent. That is, the letter “a” which has been disguised in one word may look very different from the “a” in the next word. These two “a’s” may be very different from a subsequent “a” made in yet a third place. As the disguise is not instinctive using habitual characteristics, an effort has to be made to create it. The writer in order to make all of the disguise appear consistent, must remember something that he is unaccustomed to doing.
There will be cases, however, where a lengthy legal battle over the providing of exemplars or some other facet of the case will have given a suspect adequate time to practice a disguise. He may even have had enough time to develop and commit to memory a new handwriting style. In light of this, it is always in the best interests of the pending examination to gather request exemplars as early into the initial case investigation as possible. Once the suspect realizes the evidence potential of the disputed writing, it is almost a sure bet that he will be opportunistic enough to take steps to contaminate that portion of the case. This is particularly true if he is incarcerated while awaiting trial, with little but time on his hands. Some correctional institutions or other jail facilities have quite elaborate law libraries that include texts concerning questioned document examinations.
Some of the more common methods employed by an individual attempting to disguise are easily recognized:
Writing very large or very small Writing very fast or very slow
An exaggerated slant of the writing Writing with the off hand
Embellished or unnecessary additions to the letters Grotesque letter forms
Heavy Pen Pressure (indentation depth) Combinations of any of the preceding
Although some examiners believe that it is impossible to disguise one’s writing to the point that identification is impossible, the fact is, this can be accomplished. A writer’s new and thoroughly practiced handwriting, sufficiently different from the writer’s original writing style, will prevent an identification. However, depending upon the writers accomplishment of this difficult task, some individual characteristics of his original writing may “bleed through” into the exemplars. These few habitual movements may serve to at least associate the writer to the questioned material within the parameters of probability. When disguise is suspected, the quantity of standards taken should be substantially increased. The writer can be asked to write more quickly or the dictation may be given in a faster manner. These tactics may serve as a distraction from the process of disguise. Often the subject will slip more and more into his normal handwriting as the standard session continues and he becomes mentally tired and hand weary.
Even if the writer has no intention to disguise, he may inadvertently alter his handwriting to some extent by being self-conscious and paying too close attention to how he is writing, it’s legibility, form, and what he perceives to be the way the examiner wants him to write. Extensive exemplars may be necessary to keep this author from writing in this over-cooperative manner.
Acquiring Requested Exemplars
Although every case will dictate the exact methodology to be employed, some general rules pertaining to how requested exemplars should be taken must be considered.
The writer, or subject as he often is, must never be allowed to see the actual questioned material. If, as is the practice in some laboratories, the questioned material is simply put down in front of the subject and he is asked to “write this,” the ensuing examination is in jeopardy. Resultant similarities between the exemplars and the questioned material may be alibied. After all, the instruction of the document examiner was to “write like this.” Similarities could then be explained because he was attempting to do exactly as the examiner wanted by simulating the writing in front of him. For this reason, the ideal exemplar session is one in which the examiner dictates the questioned material and the writer never sees the disputed writing. This dictation should be accomplished without punctuation, capitalization, or spelling direction. Such errors is these areas may become vital cogs in the identification process.
If the material in question is a signature, the writer should have placed in front of him a 3×5 card or small slip of paper and asked to write the questioned name. This 3×5 card would then be removed and another put in its place. The writer again would be asked to write the questioned name. This procedure should be repeated some fifteen or twenty times; more if disguise is suspected. By taking away the 3×5 card after each signature, the writer attempting to disguise would not have the advantage of seeing what he has already effected and then copying that alteration from one exemplar to another. Disguise is an unaccustomed and laborious form of writing and it will be difficult to remember how each letter has been modified after it has been taken from view.
If the questioned writing is of a lengthier quantity, the writer may be instructed to write the questioned material, as it is dictated, on a pad of paper. Depending on the length of the questioned material this process should be repeated several times or more.
Although some questioned document examiners disagree, it may be advisable to tell the suspect that the exemplars he is producing appear disguised (if that is the case) and could result in contempt proceedings. Some writers so admonished, will suddenly revert to their non-disguised normal writing; most will continue the pretense.
The suspect can be instructed to write faster or slower, larger or smaller, or with similar non-specific guidance without compromising the integrity of the standards. However, instructions as to precise letter or word formations will negate the value of the exemplars in much the same manner as if the writer were shown the questioned material. A record of instructions to the writer should be kept. If the questioned document examiner or investigator thinks this procedure might endanger the case because of legal issues, he is advised to seek counsel or proceed with caution. On those occasions when procurement of exemplars is to be part of a criminal investigation interview process concerning other facts of the case, the exemplars should be obtained as early as possible during the procedures, and before any questioning. Miranda may be given if necessary after the exemplar session is finished.2 After Miranda is given, the suspect may become antagonistic and decide not to cooperate by disguising the standards or refusing to provide them at all.
At all times during the exemplar session care should be exercised by keeping the original evidence out of the subject’s reach. Again, this is especially true in criminal matters. Dictation can be given using photocopies or notes. Given the opportunity, and with the evidence within physical reach, the defendant may attempt to destroy it. More than one document examiner has had to restore a questioned writing after it has been torn, crumpled, and in one of the author’s cases, chewed.
On occasion, the suspect may interrupt the exemplar session by confessing, or identifying himself as the writer of the questioned material. When this occurs, it would be wise for the questioned document examiner or investigator to avoid any discussion of the suspect’s statements and continue with the exemplar session. Any discussion at this point would likely require Miranda Warning (in criminal cases) and possibly provide a basis for legal red-herring maneuvering by opposition counsel. After the session is over, and after reading Miranda if necessary, the subject can be given the opportunity to reiterate or expound upon anything that he may have said. In any case, when the exemplar session is finished, anyone having heard the spontaneous admissions should make note of what was said and be prepared to testify with regard to those statements.
There will be times when it is in the best interest of the case not to disclose the contents of the questioned writing to the accused. Some Courts may not allow requested standards containing certain words or specific passages taken from the questioned writing. While confining the scope of the exemplars, adequate standard material may still be obtained from the writer.
There are several catch-all paragraphs that have been in use for many years. These paragraphs while not duplicating the exact content of the questioned material, do have many of the common letter associations found in various English words. Additionally they have all of the capital letters of the alphabet, common punctuation, and the numbers “1” through “9.” In those instances where dictating the exact questioned material has been prohibited by a judge, it is easy to custom tailor one of these paragraphs by changing the names to questioned names or an address to a questioned address, or other portions similarly. Left in their original form these catch-alls may be only marginally effective. As in other forms of exemplars, these should be written several times.
The London Letter
Our London business is good, but Vienna and Berlin are quiet. Mr. D. Lloyd has gone to Switzerland and I hope for good news. He will be there for a week at 1496 Zermott Street and then goes to Turin and Rome and will join Colonel Parry and arrive at Athens, Greece, November 27th or December 2nd. Letters there should be addressed King James Blvd. 3580. We expect Charles E. Fuller Tuesday. Dr. L. McQuaid and Robert Unger, Esq., left on the ‘Y. X.’ Express tonight.
The Egyptian Letter
From Egypt we went to Italy, and then took a trip to Germany, Holland and England. We enjoyed it all but Rome and London most. In Berlin we met Mr. John O. Young of Messrs. Tackico & Co., on his way to Vienna. His address there is 147 upper Zeiss Street, care of Dr. Quincy W. Long. Friday the 18th, we join C. N. Dazet, Esquire and Mrs. Dazet, and leave at 6:30 A.M. for Paris on the ‘Q. X.’ Express and early on the morning on the 25th of June start for home on the S. S. King.
Very sincerely yours,”
The Class of “16” Letter
Well, the old class of “16” is through at last. You ask where the boys are to be. Val Brown goes on the 24th to Harvard for law. Don’t forget to address him as “Esquire.” Ted Updyke takes a position with the N. Y. W. H. & H. R. R., 892 Ladd Ave., Fall River, Massachusetts, and Jack McQuade with the D. L. & W. at Jersey City, N. J. 400 E. 6th Street. William Fellows just left for a department position in Washington; his address is 735 South G. St. At last account, Dr. Max King was to go to John Hopkins for a Ph.D. degree. Think of that! Elliott goes to Xenia, Ohio, to be a Y. M. C. A. secretary. I stay here for the present. What do you do next? How about Idaho?
Yours truly, and goodbye.
Additionally, the writer may be instructed to reproduce all of the printed and cursive letters of the alphabet, both upper case and lower case. He may also be asked to write numbers from “1” to “100”. Other dictated material as necessary, such as the days of the week or months of the year, may also be required.
Some agencies have developed their own generic handwriting exemplar forms. It would appear that some of these have been created by someone with a misplaced sense of humor, requiring the subject to write names such as “Xerxes Y. Zitto” or “Urestes V. Whitehouse”.
Because of the new river of immigrants currently arriving in many areas of the United States, the questioned material may be written in a language other than English, although using the same or similar alphabet. The examiner may already have problems with the style of examination because he will not recognize foreign language words or perhaps even the letters of the words if they have been individualized extensively. If he tries to give the writing instructions or mispronounces words and names during the dictation, the resultant exemplars will likely be of a reduced value. If the document examiner is not fluent in the other language an interpreter will be required. A little time spent with this interpreter prior to the exemplar session will be beneficial. A discussion of what will be needed during the session and how it will be acquired will make a possibly strained session much smoother. Languages utilizing different alphabets than that of the examiner present even greater challenges.
Other mechanisms available to the document examiner for the taking of exemplars would include tailor made formats such as check models, or bank signature cards. Additionally in cases involving charge card slips, the examiner might acquire a quantity of blank charge card receipts and have the suspect execute those in much the same manner as the original ones. This same method might be employed by the use of deposit and withdrawal slips, retail store receipts, and the like.
1 The section on “Legal Opinions” further explores these and other important court rulings pertaining to handwriting exemplars.
2 While giving the subject his Miranda Rights may be part of the criminal interview process, Miranda does not cover, nor is it necessary for the acquisition of handwriting exemplars.