The conundrum
An FHE is engaged by private individuals, corporates or members of the legal profession who seek to shed light on anomalies in a document or to identify or authenticate signatures or writing. The explicit role as an FHE expert with particular skills and knowledge are required to decipher questioned documents or writings which are “not generally available to the average person”. (Dumani, 2005)
Yet, when called upon to give expert evidence, the FHE ‘s personal credibility can become the centre of attention instead of the credentials, quality of work and expertise as discussed below.
The skills and expertise required to produce a forensic document/handwriting report and to reach an expert conclusion should only be provided by a professional who has the specific proficiency and understanding about these exacting specialised areas of expertise.
The forensic report that follows a handwriting or document investigation may be compiled meticulously and the conclusions may be based on sound principles, however, the challenges that the expert may face when testifying are onerous and not for the timorous.
Certainly; for the truth to be uncovered, for justice to be seen to be done and in the interests of safeguarding the rights of all, careful examination of all expert witnesses and their credentials has to become a trial within a trial, hearing, arbitration or deposition. The expert’s professional background, training, membership of relevant associations, continuous professional development, methodology and competency have to be verified before the expert opinion can qualify as evidence. In addition to this; the expert’s testimony needs to be evaluated for exaggerations, misstatements and for bolstering of facts.
The expert’s report and conclusion also need to be considered for formal logic which deals with apprehension, judgement and reasoning and for material logic, which deals with the evaluation of measurable factors. The expert should be able to demonstrate the observed discriminating features and should be able to explain the principles of handwriting and document examination. In addition, the validity and reliability of the examination upon which the report and conclusion are based requires a detailed assessment. Was the methodology employed compliant with accepted standards and were the conclusions reached compliant with set standards? Are there signs in the reporting of confirmation bias or other bias such as expert witness tending to report and conclude comparably for similar clients?
In short, the verification of the expert witness as possessing specialised knowledge should be directed at the fundamental and significant level of skill and expertise as described above.
In actuality, these measurable factors of qualifying the FHE are not always used with the FHE rather undergoing “ad hominem” attempts by the legal profession to discredit the expert personally and herein lies the conundrum. The witness verification should centre on the message, not the messenger.
What are the reasons for the intermittent compromised credibility of the FHE?
The knowledge and skills of FHE’s are not universally regarded as scientific nor as being particularly complex. Some believe that a layperson would be just as capable of verifying a genuine signature as an FHE merely by the pictorial or form differences and similarities. Kam’s (2001) study compared the ability of experts and non-experts to examine questioned signatures and to determine whether the signatures were genuine or simulations (forgeries). His study showed a significant difference in the error rate for determining the genuineness of signatures between document examiners (0.49%) and laypersons (6.47%). These studies by Kam (Kam, Fielding G, & and Conn, 1997)as well as studies by Sita, Found, and Rogers, (Sita, 2002) provide clear statistical proof of the greater accuracy of conclusions drawn by document experts as opposed to opinions obtained from laypersons. The results of Dr. Kam and Dr. Found’s research provide statistical reasoning for allowing the expert to provide opinion.
Experience is not always the prerequisite for skill as shown in the same study by Sita, Found, and Rogers, (Sita, 2002) where a wide range of skill was found amongst FHE’s and no significant relationship was found between the number of years they had been practising and their correct, inconclusive and error rates.
Very often, experts in the field will have divergent views and opinions. This is amplified by a significant level of distrust and disdainful regard in the legal fraternity for FHE’s making themselves available as “professional witnesses, perfecting their courtroom performance by repeated practice in order to present their testimony and achieve the maximum effect. Bias or inclination in favour of the party by whom the witness is employed, has through the ages been the most frequent judicial criticism levelled against expert witnesses. Expert witnesses have for long been described as “hired guns…” (Dumani, 2005)
Our legal system is adversarial in nature and lends itself to harsh attacks of the messenger by skilled and trained adversaries. Whilst it is strongly acknowledged that in order for justice to be served, the incompetent and unqualified expert FHE should be ousted for incompetence in that specific field; the incompetence at providing evidence should be not be included in the ousting which could be as a result of avoiding the message of the FHE who plainly gets caught in the crossfire.
As in any other profession there are those who produce inferior unprofessional work and those who produce work of a very high standard. The differences in standards are as a result of a lack of an oversight body to monitor compliance with international best practice. A further element contributing to the vast discrepancies in standards is the dearth of quality accredited courses structured and administered by suitably qualified and experienced individuals, such as one might find in other disciplines. (Rosa, 2017)
There is a facet to handwriting and signatures that is extremely personal, no matter what our station. Innately the sense that our handwriting and our signature bear witness to private facets of our personality is something that we do not want to share publicly. If the veracity of the handwriting sciences is to be absolutely acknowledged it renders the handwriting expert a voyeur and thereby a potentially threatening force to all who come under its scrutiny. This makes for a certain amount of scepticism at the knowledge and skill of the forensic handwriting expert expressed in expedient hope that one’s own handwriting and signature would not be able to be scrutinised by the same principles and methodologies.
The solution to raising the credibility of the FHE as expert witness:
The establishment of a regulatory body and regulatory framework.
Proficiency testing by the regulatory body for those who have studied; have solid experience and compulsory participation in Continuous Professional Development.
The accreditation of a South African FHE course which is a preliminary and compulsory step in becoming a recognised qualified forensic document examiner.
In short, skilled FHE’s are a necessary component of discerning the truth in cases involving questioned writing or documents. The “court will ultimately decide whether an expert’s opinion is to be relied on or not and to determine what weight has to be given to it”. (Dumani, 2005) This determination should, however, be based on the considerations discussed above and not on personal attempts to discredit the FHE.
References
Dumani, M. (2005). Aspects of Expert Evidence in the Criminal Justice System.
Kam, M. P., Fielding G, M., & and Conn, R. P. (1997). Writer Identification by Professional Document Examiners. Journal of Forensic Sciences , 39 (No. 1).
Rosa, C. P. (2017). The Forensic Document Examiner as Expert Witness in South Africa.
Sita, J. F. (2002). Forensic Handwriting Examiners' Expertise for Signature Comparison. Journal of Forensic Sciences , 47 (No. 5).