Questioned Document Opinions

One of the most exasperating tasks facing a document examiner is that of expressing orally, and/or published, the opinion(s) which he has formulated in his mind concerning a given case. This opinion often has to accommodate a complex finding. Compounding this difficulty is the knowledge that the language which is chosen will be subject to critical review by way of depositions, pretrial conferences and perhaps a rigorous questioning by several attorneys during trial.  While finding the right verbiage is a difficult process, the interpretation may be more difficult.

It is likely that the examination was undertaken at the request of an investigator, police officer, or attorney.  The final opinion formed as a result of the examination was likely to have been written in a manner which will best conform to the submitter’s needs and expectations, and yet the words may finally rest upon the ears of the jury and judge.  Will their understanding of the opinion be the same as the submitter’s, for whom the examination was undertaken?

During testimony, the competent expert will be able to express and demonstrate his opinions in a manner such as to have all in the courtroom assign the same weight to the findings as he does.  However, in the majority of cases, both civil and criminal, the expert himself is not called upon, but rather his written report is introduced into evidence.  This stipulation by the opposition to the written report may occur during settlements, plea negotiations, or even in the midst of trial. Many times this is done under the guise of assisting the court as a time saving procedure when in fact it is actually in the best interests of one side or the other rather than have the expert demonstrate just how damning (or how weak) the evidence actually is. In any event, whether well thought of or not, the stipulation process is a time-saver to all mired in the judicial process, but especially the examiner.  Were it not exercised, the expert would spend a large portion of his waking hours in courtrooms and justice building hallways.

The unfortunate result of stipulation is that the judge and jury are deprived of the examiner’s explanations and are left to their own personal interpretation of the language used in the opinions, which, as you will recall, may have been written for the investigator. Of course, in the black or white, yes or no opinions, such as “Mr. Smith is identified as the writer of…” or “The submitted photocopier was used to copy…”, there is little room for misinterpretation.  However, these people to whom we have entrusted the outcome of a judicial process often must decide, unaided, what terms such as “could have written…”, “indications present that…”, “possibly”, “highly probable”, and so on, really intend to mean.  Is “not genuine”, “no evidence present”, and “is eliminated as the writer” all equal in meaning? Oftentimes examiners themselves, although agreeing to the results of an examination, disagree as to how the opinion should be stated simply because of how they perceive the terminology will be interpreted.  Many laboratories tend to develop their own specifically worded opinions which are assigned sliding values from identification on one side, to elimination on the opposite side.  These same words taken to another laboratory or another locale may have a significantly different meaning, sometimes seemingly diametrically opposed.

Some laboratories avoid this problem area altogether by simply eliminating the gray areas of probability.  Their opinions are simply that of identification, elimination, or no opinion at all.  While this posture is, on occasion, envied by the examiner who is in the midst of a wrestling match with his thoughts and the English language because his opinion is something less than an absolute, it has very definite shortcomings.  The most important of these is that the true, actual value of the evidence is obscured by an unenlightening, but safe, misuse of words.  An examiner working within this system may be subjected to undue pressure by the evidence submitter, his laboratory, or even himself, to push a less than definitive opinion to a certainty because his mental opinion is closer to an identification or non-identification than it is to “no opinion”.  The inherent risk in this situation, that of being wrong, is certainly greater than it is in an opinion of “probable”.

A second drawback to this reporting procedure is that it does not lend itself to giving the submitter an investigative lead.  Any investigator worth his salt will certainly pursue a “could have written,” “possibly wrote,” or “indications” opinion because quite obviously the examiner has seen some evidence that leans to the right of dead center.  The practical effect of such an opinion is for the investigator to realize the suspect is still in the running, so to speak.  The elimination of this form of opinion may have the effect of stopping any further investigation on a case in which there may be a viable conclusion.  Many questioned document examiners when opining in gray areas, give reasons for the failure to reach a definitive opinion.  Most of these go still further and suggest methods that the investigator can take, such as submission of additional, or better standards, to provide a basis for supplemental examination and possibly more definitive results.

During his training period, a document examiner is taught to mentally interpolate less than ideal evidence and formulate opinions based upon that process.  The greater majority of these opinions which involve less than ideal evidence, will be in the area of probability with only an occasional, definitive “yes” or “no”. Removing the probability range of opinions from the expert’s bag of reporting skills places him back on the level of the lay person in viewing only ideal evidence from which common logic often dictates the correct opinion.

In view of the preceding, is there then some manner of reporting an opinion that fits all requirements and is interpreted the same by everyone? Of course not.  At best an examiner’s opinions are a compromise of all the possibilities and therefore the best interpretation of these opinions is an oral interview with the author of them.   This is not always possible.   Fortunately, within the forensic sciences and specifically the questioned document examination discipline, there is commonly used phraseology which may easily be understood.

In an effort to unify and simplify document examination opinions, the organization SWGDOC (Scientific Working Group Documents), made up of approximately fifty (50) government and private document examiners, published guidelines for document examination opinions, initially through ASTM (American Society for Testing Materials).  These recommended guidelines are as follows: ¹

Identification (definite conclusion of identity)
This is the highest degree of confidence expressed by document examiners in handwriting comparisons. The examiner has no reservations whatever and is certain, based on evidence contained in the handwriting, that the writer of the known material actually wrote the writing in question.

Strong Probability (highly probable, very probable)
The evidence is very persuasive, yet some critical feature or quality is missing so that an identification is not in order; however, the examiner is virtually certain that the questioned and known writings were written by the same individual.

Probable
The evidence contained in the handwriting points rather strongly toward the questioned and known writings having been written by the same individual; however, it falls short of the “virtually certain” degree of confidence.

Indications (evidence to suggest)
A body of writing has few features which are of significance for handwriting comparison purposes, but those features are in agreement with another body of writing.

No Conclusion (totally inconclusive, indeterminable)
This is the zero point of the confidence scale. It is used when there are significantly limiting factors, such as disguise in the questioned and/or known writing or a lack of comparable writing, and the examiner does not have even a leaning one way or another.

Indications Did Not
This carries the same weight as the indications term, that is, it is a very weak opinion.

Probably Did Not
The evidence points rather strongly against the questioned and known writings having been written by the same individual, but, as in the probable range above, the evidence is not quite up to the “virtually certain” range.

Strong Probability Did Not
This carries the same weight as strong probability on the identification side of the scale; that is, the examiner is virtually certain that the questioned and known writings were not written by the same individual.

Elimination
This, like the definite conclusion of identity, is the highest degree of confidence expressed by the document examiner in handwriting comparisons. By using this expression the examiner denotes no doubt in his opinion that the questioned and known writings were not written by the same individual.

While the above definitions of opinions are likely in use by a majority of document examiners, both in government service and private laboratories, they should by no means be thought of as all-inclusive.  Many other opinions are used by the numerous document examiners throughout the country and have been developed to fulfill that specific document examiner’s needs.  The examiner is aware that no standard language is adequate for all of the varied case conclusions that will be encountered.  He must also be aware that movement away from opinions worded in the simplest of terms opens the door for confusion.

Rev 06/19

¹  Copyright by SWGDOC