645.1Handwriting Analysis

Overview

Handwriting analysis is typically used to determine the authorship of a piece of writing – for example, to determine whether the defendant wrote the threatening letter sent to the victim. A properly trained expert will conduct an analysis of the writing sample to look for distinctive characteristics, such as: (i) letter and word spacing; (ii) slant, size, and proportionality of letters; (iii) unusual formations of letters; (iv) flourishes; and (v) other individualized attributes. The expert will then compare those findings to a known sample from the suspected author, evaluate the similarities and differences between the two samples, and render an opinion on authorship. For a more detailed explanation of the analysis process, including some visual examples of similar and distinguishing characteristics, see:

1. "Handwriting Examination: Meeting the Challenges of Science and the Law,” Diana Harrison, Ted Burkes, and Denielle Seiger, Forensic Science Communications, October 2009 ; and
2. “Forensic Handwriting Analysis – Expert Introduction to Handwriting Analysis,” Mark Songer, Robson Forensic, January 1, 2014.

Unlike DNA or fingerprints, there is not a specific number of “points” or characteristics that must line up or correspond to support a finding that the same person wrote both samples; instead, the analyst makes an overall assessment of whether sufficient agreement exists between the two samples. Depending on the quality of the samples and the level of agreement of disagreement between them, the analyst may then render an opinion as to: (i) identification; (ii) possible identification; (iii) elimination; or (iv) no conclusion (i.e., insufficient basis to make a comparison). An analyst who finds a sufficient level of agreement to render an “identification” opinion should be prepared to explain any inconsistencies that do exist between the two samples.

For more information about suggested guidelines and procedures for conducting handwriting analysis, the Scientific Working Group for Forensic Document Examination (“SWGDOC”) has published these standards.

Admissibility and Reliability

Before the 2011 amendments to Rule 702 adopting the Daubert standard, expert testimony on handwriting analysis was frequently admitted in both civil and criminal trials in North Carolina. See, e.g., State v. Moore, 335 N.C. 567 (1994) (“the State's expert, SBI Agent Currin, a questioned documents examiner and forensic chemist, ruled out Thomas as the author to a ninety-nine percent degree of certainty”); Henson v. Green Tree Servicing, LLC, 197 N.C. App. 185 (2009) (“Plaintiffs' handwriting expert testified that “Nancy Henson probably did not sign ... [the Agreement]”); State v. Burke, 185 N.C. App. 115 (2007) (“handwriting expert's opinion was that defendant wrote the handwritten parts of the altered page”); Taylor v. Abernethy, 149 N.C. App. 263 (2002) (trial court erred by not allowing a handwriting expert to give his opinion regarding the validity of a signature on a contract).

There are not yet any post-2011 published North Carolina appellate cases reconsidering the reliability and admissibility of this type of expert testimony under Daubert. However, the Fourth Circuit analyzed the admissibility question at length in U.S. v. Crisp, 324 F.3d 261, 270-71 (2003), and concluded (in agreement with the majority of other federal circuit courts) that handwriting expert testimony (including a final opinion) is admissible under Daubert:

While the admissibility of handwriting evidence in the post-Daubert world appears to be a matter of first impression for our Court, every circuit to have addressed the issue has concluded, as on the fingerprint issue, that such evidence is properly admissible. [….] Our analysis of Daubert in the context of fingerprint identification applies with equal force here: like fingerprint analysis, handwriting comparison testimony has a long history of admissibility in the courts of this country. See, e.g., Robinson v. Mandell, 20 F. Cas. 1027 (D.Mass.1868). The fact that handwriting comparison analysis has achieved widespread and lasting acceptance in the expert community gives us the assurance of reliability that Daubert requires. Furthermore, as with expert testimony on fingerprints, the role of the handwriting expert is primarily to draw the jury's attention to similarities between a known exemplar and a contested sample. Here, Currin merely pointed out certain unique characteristics shared by the two writings. Though he opined that Crisp authored the Note in question, the jury was nonetheless left to examine the Note and decide for itself whether it agreed with the expert. To the extent that a given handwriting analysis is flawed or flimsy, an able defense lawyer will bring that fact to the jury's attention, both through skillful cross-examination and by presenting expert testimony of his own. But in light of Crisp's failure to offer us any reason today to doubt the reliability of handwriting analysis evidence in general, we must decline to deny our courts and juries such insights as it can offer.

Id., cert denied, 540 U.S. 888 (2003) (emphasis added); accord, U.S. v. Smith, 153 Fed. Appx. 187 (4^th Cir. 2005) (unpublished) (citing Crisp and noting that “handwriting analysis has the reliability that Daubert requires even if it does not have the status of scientific law”).

A limited number of federal trial courts have excluded the testimony under Daubert, or have only allowed the witness to testify about the similarities and differences in the writing samples without giving a final opinion on authorship. See, e.g., U.S. v. Lewis, 220 F. Supp. 2d 548 (S.D. W. Va. 2002) (testimony excluded where prosecution failed to “offer any evidence of reliable testing and error rates, or of any of the other Daubert factors through Mr. Cawley's testimony”); U.S. v. Oksowitz, 294 F. Supp. 2d 379 (E.D.N.Y. 2003) (witness’s testimony limited to “explaining to the jury the similarities and differences between a known example of Oskowitz's handwriting and a disputed tax return,” but only the jurors would “make a decision on the ultimate question of authorship”).