Art Forensics #3

Introduction

As with Forensic Science in general the concept of handwriting analysis moves in many directions and exists on many levels. Graphology or using a person's handwriting to determine or predict personality and behavior is employed extensively as a corporate tool in France, and infrequently in Britain and the United States. Its scientific stature however is not recognized. Forensic Handwriting Analysis is an accepted evidentiary tool in our legal system. As we shall see in this article it is certainly not without its share of problems. A further handwriting analysis endeavor has to do with education. Dyslexic students can be identified by how they position their handwritten letters - does the loop of the letter d face left or right? Letters facing the wrong way at a particular age is indicative of a problem.

The focus of this article is on forensic handwriting analysis and its use in establishing authorship.

Handwriting Document Analysis

In various investigations by the Fine Art Registry® we were introduced to handwriting analysis in the videos focusing on whether Salvador Dalí authored the signature found on various works. Handwriting analysis also comes into play in provenance issues, especially in documents which predate mechanical text creation. Analysts begin their examination by identifying an exemplar or accepted writing sample of the person whose writing is being examined. Thus, if we are examining a letter allegedly written by Andy Warhol we would first secure other written works confirmed as authored by Warhol and compare the questionable to the authentic.

Handwriting Experts and Their Bag of Tools

Forensic handwriting experts compare questioned documents with authentic by looking at the following:

1. Slant of writing - does the writing lean left or right?
2. Size of letters - do you need a microscope to see the letters or do you have to stand a few feet away from the work to adequately perceive the writing because the letters are so large?
3. Spacing between letters/words - are the spaces between the letters/words large or small?
4. Spelling - do spelling mistakes repeat in the questioned document?
5. Letter matching - does the writer use capitals or lower case letters? Is there a match in letters?
6. Page pressure - does the writer apply great or weak pressure on the documents when he or she writes?
7. Pen lifts - does the writer keep pen to paper without lifting or does lifting occur frequently? Forgers in their copying tend to lift frequently.

Case Studies

Konrad Kujau allegedly found letters written by Adolf Hitler in the wreckage of an airplane. He received $2.3 million for the lot. The London Times called in a forensic handwriting expert who claimed that the works were authentic or from the hand of Adolf. Further investigations revealed that the reason why the documents were deemed authentic was because Kujau created the exemplars used by the handwriting expert to compare the letters sold by Kujau. In point the author was not Hitler but Kujau.

Clifford Irving forged the autobiography of Howard Hughes, the billionaire recluse. Irving also forged exemplar letters from Hughes substantiating that the Hughes autobiography was genuine. Numerous experts examined Irving's forgeries and deemed them authentic. Irving was caught when Hughes himself came out of reclusion and denied that Irving’s work was real.

Mark Hoffman, a convicted document forger, said that forgery materials are easy to obtain. Printing plates, aged paper and ink and a knack for handwriting duplication made Hoffman an expert document forger. What made the forgeries easy to carry out was the fact that those parties buying them had no one to at first question if they were authentic. Hoffman was caught when his car blew up and detectives investigating the explosion found forgery materials and books in his house.

The Courts, Forensic Experts and Handwriting Analysis Evidence

The present state of forensic evidence has moved from the Frye v US (1923) rigid ruling which accepted handwriting evidence but unwillingly, to Daubert which demanded an adherence to Rule 702 of the Federal Rules of Evidence which looked to science to allow experts to present evidence to the Kumho Tire v. Carmichael (1999) which covers all expert testimony, not only that which is scientifically based. In US v. Gricco (2002) the court ruled that expert document examiner testimony was admissible; In US v. Saelee (2001) expert testimony was excluded. In US v. Rutherford (2000), US v. Santillan (1999), and US v. Hines (1999), the courts ruled that expert conclusions about authenticity of authorship were excludable. That is, while an expert may provide points of comparison between questioned documents and their exemplars, expert testimony regarding conclusions drawn from the comparative analysis were not admissible. In US v. Prime (2002) the court clarified the role of the expert document examiner further. It made it clear that forensic document examiner testimony is an expert domain and that henceforth conclusions may be valid regarding analyses of questioned versus exemplar documents.

Forensic Handwriting Expert Status Criteria

From the above cases various standards have been developed regarding what an expert must bring to the court to allow testimony to be given. Note here that, given that over many years of expert testimony and the ambiguity of whether such testimony would be admissible, forensic experts would be challenged by parties - usually defendants charged with a crime - under an in limine exclusion. Here attorneys petition the court to preclude the testimony of a forensic expert due to a failure to satisfy the standards of Daubert. The petition would assert that the expert does not meet the criteria of skill, experience, training and education in his or her field. In US v. Thornton (2003) such standards were made clear.

Thornton sought under an in limine exclusion (an in limine exclusion is a request made by an attorney to have expert testimony be excluded in the case before the court) that Derek Hammond, a forensic document examiner with the Army Criminal Investigation Laboratory, be disallowed to provide testimony that Thornton was the person stealing drugs from a government lab. The court stated that the petition be rejected since the document examiner satisfied the following criteria or standards of allowable expert testimony:

1. Hammond worked as a forensic document examiner for about 13 years.
2. He received formal training in document examination for two years in addition to many workshops and seminars.
3. Hammond has appeared as forensic witness 18 times.
4. He has a certificate of document examination based on education, training, and experience.
5. He has authored nine publications about document examination.

In effect, Hammond satisfied the Daubert standards of skill, experience, training, and education for expert testimony.

The Current Issue

The utilization of forensic science as a methodology in evidence gathering and presentation has been anything but a clear-cut process. While the most up to date cases presented above may allow experts to draw conclusions rather than merely to identify points of comparison, the legal system as it regards the field of forensic science may change quickly and move in another direction. Jump starting forensic science to work well with the legal system has an inherent problem in that the law does not relish being second fiddle to the world of science. There is both a justification for this and an antagonism bred via battle for control of a common turf. The law community especially prosecutors and judges argue that since the legal system is one primed by an adversarial process of prosecution and defense, there is no need to supplant the current system with an alien one - science. This is not to say that there is no room for science, but that science may not dictate what is appropriate to adjudicate. The law rules the roost, not the scientific community.

Using Forensic Handwriting Analysis to Examine your Fine Art Documents

Handwriting analysis of your fine art documents actually begins with the signature of the artist on his or her work. Various authors have compiled artist's signatures (exemplars) in books. Some artists have many different types of signatures on file. The fact that signatures are not always the same does not have anything to do with an artist trying to fool his public but the fact that age, infirmity, situation, drugs, influence how a signature is applied to a work. Your signature at 20 will more than likely be different than your signature at 40. Experts advise that 20-25 exemplars should be used. Provenance documents such as willed works, bills of sale, tax payments on sales, purchases of materials, certificates of authenticity and so on will usually contain handwriting examples which should be compared to handwriting exemplars. The suggested number of samples is five pages of handwriting. These should be from different time periods. Some do's and don'ts are:

1. Do not compare upper case to lower case letters. Upper case should be compared to upper case and lower case to lower case.
2. Do not compare script with printed handwriting.
3. Do not use copies. Try to secure originals.
4. If possible, do not request writing samples since such samples may be disguised by the author to avoid providing evidence supporting guilt.
5. Do ascertain legitimacy of exemplars.
6. Do not use handwriting samples created under abnormal conditions such as drugs, mental incapacity, etc.
7. Do compare size, spacing, slant, spelling, case used, and pressure applied.

Conclusion

The world of forensic handwriting examination is changing legally and scientifically. The courts are demanding that those who present themselves as experts have required experience, skills, training, and education. Science is questioning and challenging the courts to move into a more rigorous approach to what they accept as evidence, and expertise. Document examiners have responded by satisfying both systems through certification schools, standards, and training to the extent that computerization analysis of handwriting is taking place. Handwriting examination of fine art related signatures and documents via the forensic science approach has become a necessity grounded in simple comparative steps easy for the art purchaser to understand and flowing from the requirements of Daubert rulings: Forensic science experts must be able to present their findings to a jury so that they are more probative than prejudicial. The expert will be allowed to testify only if what he or she says makes sense rather than being mere expert babbling.

— by Dr. John Daab CFE, CFC | August 24, 2009