The expert in handwriting can seldom be coaxed into a position in which he can be proved wrong. Really it is extremely simple. Is the signature of the deceased so exact that no one would dare dispute it? Not he! The expert will declare it a tracing should his retainer dictate; otherwise not; but whichever way he testifies he can never really be proved wrong, at least in this world, since the one who could tell has passed away to another. Under the circumstances, no wonder the expert can afford to be very positive.
In criminal cases these experts affect the side of the prosecution. Is a conviction secured? It is the result of his skill, while in case of an acquittal, he protests that justice has been cheated, and the prosecuting attorney never fails to indorse this view. He dearly loves a forgery case. If retained by the prosecutor, that official will protect the expert, and have witnesses to corroborate his opinion; while, should the defence secure his services, the expert’s opinion will be corroborated by the defendant himself. The only thing which will prove the expert in error would be a confession—an unlikely occurrence.
But disputed writings, disguised, and anonymous communications are his joy, and again it is almost impossible to prove him wrong; and again his work is very simple. In these cases the guilty man, whoever he may be, never comes forward to admit his crime, so that the expert can blame whom he pleases or, rather, whom he is paid to blame. It is simplicity itself—similarities are to be pointed out. It is self-evident that all writings must contain similarities, for were there no resemblances the art of writing would be useless. In fact, that one person can read another person’s writing, is based on this principle. Surely it is just because we all do make the twenty-six letters of our alphabet more or less alike, that we can read each other’s writing at all. In such a case the dissimilarities (and they are in all writing) will be regarded as attempts at disguise. And, since all writings must consist of similarities or dissimilarities, either or both will be argued as proof against a victim of this kind of evidence. To sum up, their art is to offer a theory favorable to the side retaining them, in such a manner that it may be believed or doubted, but which cannot be disproved.
Another question regarding this class of experts is, do they keep their oath, “to tell the truth, the whole truth, and nothing but the truth?” If engaged by the prosecution do they disclose the points favorable to the defendant—no matter how apparent? Never. Although under oath to tell all, they are advocates for one side only. They are always positive, they swear to their opinions; but are they accurate? Suppose they should be tested, examined with writings of known and living persons, and knew nothing of the circumstances of the case, and had no District Attorney to warn and protect—suppose some one tried to fool them—a child could do it!
The law limits all opinion evidence. It is not considered as good as testimony to fact; much has been written on the justice of so doing. Judge Woodward in “The North American Review” for October, 1902, has treated the subject from a legal standpoint. In this article referred to he shows in no uncertain way how the opinions of experts in questions of disputed handwriting are regarded by bench and bar, especially in the higher courts. Moreover, he cites many instances of injustice done by this kind of opinion evidence. Beside this, I believe, there is a justly popular prejudice against this particular kind of expert testimony.
I have tried to show that this opinion evidence—expert testimony in regard to questions of disputed handwritings—is less accurate and has less authority than the opinion of other specialists. If this is true, should it not be limited to a greater extent than all other kinds of expert testimony? And to this end I venture to propose the following: That a commission be appointed to thoroughly and exhaustively examine all so-called public and official experts in handwriting. No thorough and conscientious expert would object to being tested as to his qualifications. Licenses should be issued to the successful candidates. (Few “sheepskins” would be needed.) Such a license should be required before the expert can practise in court.
