|Year : 2019 | Volume
| Issue : 4 | Page : 181-186
Handwriting expertise reliability: A review
Bing Li1, Nian Li2
1 Institute of Evidence Law and Forensic Science, Key Laboratory of Evidence Law and Forensic Science; Collaborative Innovation Center of Judicial Civilization, Beijing, China
2 School of Criminal Law, Northwest University of Political Science and Law, Xi'an, China
|Date of Submission||14-Aug-2019|
|Date of Decision||16-Oct-2019|
|Date of Acceptance||13-Nov-2019|
|Date of Web Publication||11-Dec-2019|
Fada Institute of Forensic Medicine and Science, No. 26, Houtun South Road, Qinghe Xiaoying Area, Haidian District, Beijing
Source of Support: None, Conflict of Interest: None
Handwriting expertise, as a form of forensic evidence, was once considered by most courts under the Anglo-American law system to be infallible, but this position was significantly challenged by the Daubert case (1993) and further by the President's Council of Advisors on Science and Technology report published in 2016. In China, handwriting expertise has often been accepted as forensic evidence. However, this does not mean that there is no need to review the reliability of handwriting expertise. In this study, we analyze the current situation in China regarding the reliability of handwriting identification using cases from China's judicial judgment database. We intend to identify the reasons for rejection of handwriting expertise, analyze the outcomes of applications for re-examination, and examine the court's evaluation of different forensic opinions in relation to a given case. We also propose ways to strengthen the reliability of handwriting identification in China.
Keywords: Chinese judicial judgment database, expertise, handwriting identification, reliability
|How to cite this article:|
Li B, Li N. Handwriting expertise reliability: A review. J Forensic Sci Med 2019;5:181-6
| Introduction|| |
Handwriting expertise has been used in courts in the United States since the beginning of the 20th century, but the litigation model and the way in which the Anglo-American legal system treats evidence has meant that handwriting expertise has always been controversial. The Frye case (1923) was the first time that different rules of admissibility for expert testimony and other forms of evidence were proposed. The judge wrote in the judgment that “It is difficult to define at what time the scientific principle of discovery might cross the boundary between the test phase and the verification phase. At some point in this transitional region, the evidentiary value of scientific principles will inevitably be recognized. Although the courts will play an important role in the adoption of expert testimony derived from accepted scientific principles or findings, the deductions must be fully established.” Since then, handwriting expertise has been widely used and generally accepted in judicial cases.
The Daubert case (1993) established new standards, in that the courts began to distinguish “scientific knowledge” from “technical knowledge” and other “special knowledge.” Under the influence of this new standard, some judges began to question the scientific basis of handwriting expertise, and increasingly, doubts emerged in cases involving handwriting expertise.
The Starzecpyzel case (1995) pushed the use of handwriting expertise to the limit. The defendant's lawyer questioned the handwriting expert's evidence based on articles by three professors in the field and the precedent set by the Daubert case that required the court to either exclude the relevant expert testimony from the case or conduct a separate hearing to decide whether to admit the expert testimony. The defendant's lawyer believed that if the reliability of evidence required by the Federal Supreme Court in the Daubert case was the standard, then handwriting expertise was unable to reach that standard. The court conducted a separate hearing, and the defendant's lawyer proposed that based on the relevant expert testimony in the Federal Rules of Evidence, handwriting expertise did not meet the requirements set out in the rules, nor did it satisfy the Daubert precedent regarding the standard of scientific validity. In the hearing, handwriting expertise was officially defined as special knowledge. This special knowledge did not apply in the Daubert case, but the rules state that the expert can apply the professional and empirical skills based on his or her training and experience to help the jurors. This case was a major turning point in the treatment of handwriting expertise.
In the judgment handed down in the Kumho Tire case (1999), the Federal Court's publicly available document contained a description of all the “scientific knowledge,” “technical knowledge,” and some “special knowledge” that were needed to comply with the Daubert standard. Despite this provision, the court in which the Kumho Tire case was heard did not establish clear standards regarding the use of handwriting expertise. Subsequently, the US courts displayed a range of attitudes toward the use of handwriting expertise in cases. Some continued to allow handwriting expertise, whereas others refused to accept this form of expert testimony. Some set restrictions on adoption, for example, by allowing experts to conduct handwriting comparisons, but only for the purpose of pointing out the similarities and differences between different samples of handwriting without inferring the identity of the writer. The latter view is the current position in relation to the use of handwriting expertise as expert testimony in the United States. The amendment to Section 702 of the 2000 Federal Rules of Evidence strengthened the “reliability” clause in the Daubert Rules and elevated the judicial precedent to national legislative provisions. The “sufficient facts or materials,” “reliable principles and methods,” and “reliable application,” as specified here, all express the need for the “reliability” of scientific evidence.
China first stipulated the qualifications required by examiners and forensic science institutions based on the justice administrative management system, and then implemented a judge-led review of the use of expert opinions in litigation. However, legislation lacks details in the reliability of expert opinions. While many scholars have examined the reliability evaluation standards regarding scientific evidence, which can be used for analysis and discussion, most scholars still advocate the use of the Daubert standard established in the United States to review the reliability of scientific evidence presented in China. However, some scholars do not classify what constitutes scientific evidence, some of the proposed standards lack operability, and some standards focus on evidence relying on instruments and equipment, thus the developed standards do not meet the needs of reviews of the reliability of handwriting expertise. Therefore, in this study, we draw on the abovementioned research, refine some of the standards so that they can be applied to the review of the reliability of handwriting expertise, analyze various cases and the misunderstandings that have arisen therein, and propose an effective way to strengthen the reliability of handwriting expertise in China.
| the Current Situation in China|| |
In terms of the examination and approval of expert opinions in China, there are two main laws and regulations. In July 2010, the “Provisions on Several Issues Concerning the Examination and Judgment of Death Penalty Cases” were officially implemented. Article 23 states that when expert opinions are under scrutiny, the eight elements listed in [Table 1] are the main focus. These include the admissibility and adoption of expert opinions. Meanwhile, Article 24 of the Regulations stipulates the eight conditions leading to the exclusion of expert opinions [Table 1].
| Judicial Scrutiny of the Reliability of Handwriting Expertise|| |
To understand the practice of the review of handwriting opinions in China, we searched the public database of judicial cases using keywords such as “handwriting examination,” “repetitive examination,” and “multiple examinations.” We identified 37 civil judgments which are relatively detailed in the process of identification of disputes and reasonable judgments. The judgments in these cases reflected the process used by the judges in reviewing expert opinions. Most of the cases involved disputes relating to contracts, private loans, and inheritances and included two or more opinions in relation to handwriting identification. We conducted detailed statistical analyses of the expert opinions involved in these 37 cases.
Statistical analysis of reasons for objections to handwriting expert opinions
Most of the objections were identified by examining the grounds cited for either appeal or otherwise by the prosecution and the defense and were classified into seven groups [Table 2].
[Table 2] and [Chart 1] show that during the civil litigation process, lawyers for both parties expressed concerns about various aspects of the examination procedure, the samples used for identification, and the sample conditions used for comparison. Thus, the focus was on the selection of appropriate samples, questioning the validity of the comparison samples, and failing to entrust the forensic agency under the legal procedures.
Regarding the selection of handwriting samples, the following problems were identified. First, the extraction of the experimental samples was too far removed in time from the creation of the questioned document, the number of control samples was insufficient, and there was a lack of comparability between the experimental samples and the questioned document, as well as improper collection and comparison procedures. During the selection of samples, the focus was on the authenticity of the samples. Some samples were created under abnormal conditions and did not reflect the normal writing habits of the individual.
Second, there were numerous objections to the use of a duplicate of a questioned document, with the parties believing that the handwriting information contained in the duplicate did not fully reflect that contained in the original document. Therefore, the expert opinion based on the duplicate was not considered reliable. Some cases were re-examined because the validity of the samples in terms of legality and authenticity was not recognized by both parties.
Third, there were objections to the principles, techniques, and methods used in handwriting identification. Some re-examinations were the result of a lack of a uniform objective standard for handwriting identification, which is widely considered to be entirely based on subjective judgment.
Finally, the examination procedure lacked entrustment agreement, and there was inconsistency between the request for identification and the conclusion of the examination. Among these issues, the most widely cited was the failure to engage an appropriate forensic science institution in accordance with the legal requirements.
Analysis of re-examination applications
When the prosecution and the defense have differing opinions regarding the results of the examination, the judge's decision becomes crucial. Our analysis revealed that 22 applications for re-examination were rejected for a variety of reasons [Table 3].
It can be seen from [Table 3] that the main reason for the court's rejection of applications for re-examination is that the applicant cannot prove that there is a legal requirement for re-examination (Article 27: Some Provisions of the Supreme People's Court on Civil Evidence). When applying for re-examination, whether the burden of proof provided by law is complete becomes the primary factor affecting the court's review and decision-making. For an objection relating to the qualifications and examination procedures of the forensic science institution, only the objection itself is reviewed. The various reasons for the rejection of applications for re-examination are shown in [Chart 2].
The court's evaluation of different forensic opinions in the same case
When multiple expert opinions in relation to handwriting are presented in a case, the judge has certain discretion regarding the determination of the preferred expert opinion. When judging the authenticity of the evidence and its power of proof, the lack of objective judgment standards means that the judge needs to rely on subjectivity to make decisions, which means that the judge always has to exercise a certain degree of “free proof.” The judge's decision-making process in relation to the acceptance of a particular expert opinion needs to be explained in the judgment, along with details regarding the basis for and reasoning underlying the overall judgment, as this provides a basic guarantee that justice has been properly administered. [Table 4] lists the various reasons why the courts refused to accept the expert opinions either during the original hearing or during re-examination.
It can be seen from [Table 4] that when the court reviews multiple expert opinions, the emphasis is on whether the examination process and the sample origin is legal, but the examiners' qualification and examination methods rarely received attention. In some cases, the judge accepted the expert opinions during re-examination, but did not explain why. In many cases, there is no legal dispute in handwriting examinations in practice. If there is no such exclusion, then how do the judges adopt it and make decisions? The various reasons are listed in [Table 5].
|Table 5: Reasons for selecting one expert opinion when opinions are provided by different institutions|
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| Features of the Scrutiny of Handwriting Expertise in China|| |
Based on the abovementioned analysis of handwriting expert opinions, we can identify several features in terms of judges' preferences when reviewing expert opinions on handwriting in China.
Is there a difference between forensic agencies at different levels?
When a judge is faced with contradictory expert opinions on handwriting from different forensic science institutions, how does he/she make a decision? Can he/she simply select the expert opinion provided by the higher-level institution? The expert opinions from the Ministry of Public Security and the County Public Security Bureau state that there is no statute differentiating forensic science institutions, and they have the same effect in law. If there is a contradiction between opinions, the examiners should explain the reasons for their opinion to the court. When a judge is faced with contradictory opinions, how can he/she choose between them? Further, judges are more likely to recognize the qualifications of the nationally certified forensic institutions and believe that expert opinions issued by nationally certified forensic institutions are more reliable than those issued by nonnationally certified forensic institutions. The regulations point out that “different forensic agencies maintain an independent relationship,” and forensic science has no hierarchy. Therefore, forensic expertise only talks about science, but not authority.
Scrutiny of samples
1. Reliability is subject to the limitations of the samples
The samples in the four abovementioned cases were all duplicates. The judges considered that the expert opinions based on the duplicates were flawed, and it was difficult to ensure their reliability, and so they were excluded. However, although the samples in the case mentioned above are also duplicates, the judges found that the “expert opinion indicated that the three persons' signatures (including the date of payment) were formed by photocopying, but this 'Agreement' also stated that 'The photocopy has the same legal effect'.” Therefore, the court confirmed the authenticity of this part of the Agreement. In theory, photocopies can lead to inaccurate examination results.
2. The conditions under which the questioned document and the samples were created differ, resulting in a low level of comparability between them
The different conditions under which the samples were created might affect the result of the comparison and thus the reliability of the handwriting expert's opinion. The quantity and quality of the control samples are very important in handwriting identification. Quality means that the conditions under which the questioned document and the control samples were created should be the same or similar in terms of, for instance, writing speed, writing conditions, writing instruments, and writing posture. From the perspective of this principle, handwriting is actually relatively stable. However, as time progresses, there will be some changes in terms of features or details. In two of the cases mentioned above, the control samples were created at around the same time as the questioned documents, and both were accepted. In contrast, in one case, the control samples and the questioned document used in the original hearing were created 21 years apart, whereas in the re-examination process, different control samples were submitted that were created only 2 years before or after the questioned document, and so the court decided that the expert opinion presented in the re-examination was more reliable.
The lack of reviews of the basis of handwriting identification and the reliability of the methods used
One case worthy of consideration relates to a dispute involving both fingerprint identification and signature identification. In the court, the defendant denied that the signature and fingerprint belonged to him, but the results of the expert examination revealed that while the defendant did not write the signature, the fingerprint was that of the defendant's right thumb. The judge was required to review different expert opinions. In the judgment, it was noted that “A fingerprint is a special symbol that everyone has, and it cannot be repeated for others. It has an objective basis for identifying the individual. However, due to the instability of the personal signature, only experimental control samples were used for the signature comparison. Therefore, the reliability of the fingerprint identification is higher than that of the signature identification. The authenticity of the questioned document is confirmed“ (GaoXin Civil judgement No. 1400 ).” This is a rare case of a judge questioning the basis of handwriting identification. However, the judge did not answer the following question clearly: Why is the reliability of handwriting identification less than that of fingerprint identification?
| Conclusion|| |
Handwriting identification has a long history in courts all over the world, and the basic principles and scientific methods used have generally been those accepted in the field of forensic identification. Therefore, expert opinions on handwriting are generally not questioned on the grounds of the reliability of the principles or methods used. However, in recent years, there has often been concern expressed regarding the lack of validity and reliability of methods, which should not be adopted. The German court affirmed that handwriting identification was a confirmed science and stated that problems regarding handwriting identification were not based on the principles of handwriting comparisons, but on the selection of an appropriate examiner. We believe that the principles and methods of traditional handwriting identification are reliable, but handwriting identification expertise is based on professional knowledge and experience. Although this form of evidence has been used in courts for a long time, its standing as evidence is relatively weak. Although it is based on expert opinion in practice, it is less reliable than other forms of evidence based on scientific knowledge. The reliability of an expert opinion on handwriting has two components: the reliability of the handwriting comparison and the reliability of the expert's skills. Specifically, it includes three elements:
- First, the reliability of the handwriting comparison
- Second, the reliability of the professional knowledge and experience of the expert
- Third, the verifiability of the results based on experience.
If a new handwriting identification method emerges, it will likely involve the first element, namely, the reliability review of the methods and experience. Mostly, it is a review of the reliability of the expert experience and a review of the repeatability of the results based on experience. The latter two have experienced various challenges and developments in US courts.
Financial support and sponsorship
This research was funded by the Youth Scientist Program of the CUPL Science Research Project (2016), Grant No. 16ZFQ82009.
Conflicts of interest
There are no conflicts of interest.
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[Table 1], [Table 2], [Table 3], [Table 4], [Table 5]