The Criminal Docket

  A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

December 2005

Volume 1, Number 1

Legal nuggets from the Honorable Ross Klein.

This month: Handwriting Comparisons, with a little Shakespeare thrown in for good measure

 “Alas, Malvolio, this is not my writing,
 Though, I confess, much like the character.”
 Shakespeare, Twelfth Night, Act 5, Scene 1  

Overview:  While Olivia’s speech in Twelfth Night appears to be a self-serving statement, modern-day courts are often faced with a similar predicament: How does a party in a civil or criminal proceeding prove to the trier of fact the identity of a writer when comparing separate handwriting exemplars?  Citing Evidence Code sections 1415 and 1418, Witkin states that a writing may be authenticated by evidence of the genuineness of the maker by either a layman familiar with the writing or by a handwriting expert who compares a questioned writing with one that is found to be genuine. (2 Witkin California Evidence, Documentary Evidence, section 10)

Use of an Expert: Evidence Code section 300 generally provides that the Evidence Code applies in every action before the Supreme Court, a court of appeal or a superior court.  An “action,” as noted in section 105, includes a civil as well as a criminal action. Section 720 defines an expert as one who has special knowledge, skill, experience, training or education so as to be able to testify on a subject related to his special knowledge and experience.   “The qualification of expert witnesses,” writes the Supreme Court in People v. Ramos (1997) 15 Cal 4th 1133, 1175, “rests in the sound discretion of the trial court....Absent a manifest abuse, the court’s determination will not be disturbed on appeal.”  The legal malpractice case of Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal App 3rd 1432, 1442 discussed the court’s allowing the expert to testify: “The determinative issue in each case must be whether the witness has sufficient skill or experience in the field so his testimony would be likely to assist the jury in the search for truth.”  Witkin writes that an expert’s testimony may be required “when the facts from which conclusions are to be drawn are peculiarly within the expert’s knowledge and are not a matter of common knowledge as to which an ordinary witness may competently testify.”  (1 Witkin California Evidence, Opinion Evidence, section 27) 

Use of a Non-Expert:  Section 1416 states that a non-expert may testify whether a writing is that of a particular writer if he has personal knowledge of the writer’s handwriting.  In particular, section 1417 states that the genuineness, or lack thereof, of handwriting, made be made by the trier of fact with handwriting which the court finds to be genuine which was admitted or treated as genuine by the party against whom the evidence is offered or “otherwise proved to be genuine to the satisfaction of the court.”  The trier of fact is defined in section 235 as the jury or the court when the court is trying an issue of fact other than the admissibility of evidence. 

Use by an Opposing Party: The general rule is that if the party provides a handwriting sample for his own use in a court proceeding, the exemplar may not be used comparison by the party making it.  (People v. Najera (1972) 8 Cal 3rd 504.  (The term that courts sometimes use is a  post litem motam exemplar–one made after the commencement of litigation)  People v. Vallarino (1970) 7 Cal App 3rd 56 explains the rationale for limiting the preparation of handwriting exemplars to an opposing party.  If a party sought to admit his own handwriting to corroborate or refute a known sample, it would open up the door to fraud.  The author could intentionally change his writing so as to appear markedly different from the known sample.  The handwriting of a witness may be taken in court during cross-examination, and the party requesting the sample assumes the risk of the results. (People v. Hess (1970) 10 Cal App 3rd 1071)

Not A Violation of the Right Against Self-Incrimination: United States Constitution, 5th Amendment and California Constitution, Article I, section 13, protects a person against compulsory self-incrimination.  As noted in People v. Harper (1953) 115 Cal App 2nd 776, this right against self-incrimination does not prevent the introduction of physical evidence such as a handwriting exemplar.  In People v. Tai (1995) 37 Cal App 4th 990 the defendant claimed that his Fifth Amendment right against self-incrimination was violated because the trial court allowed an expert to testify that the defendant intentionally disguised his handwriting in the provided samples.  The appellate court rejected this assertion, explaining that the right against self-incrimination protects against requiring testimony of the defendant.  A handwriting exemplar was admissible as it was a non-testimonial physical characteristic.  Furthermore, the defendant’s attempt to alter his handwriting may be considered by the trier of fact as evidence of a consciousness of guilt.  This expands upon the holding in People v. Stokley (1968) 266 Cal App 2nd 930 that permitted a prosecutor to inquire as to a defendant’s refusal to even give a handwriting exemplar.  The California Supreme Court has held that an in-custody individual has no right to counsel when the purpose of obtaining handwriting exemplars is to facilitate the handwriting comparison.  (People v. Graves (1966) 64 Cal 2nd 208.

Trier of Fact Making the Handwriting Comparison: In the recent case of  People v. Rodriguez (2005) 133 Cal App 4th 545, the jury, with testimony of a handwriting expert, compared the defendant’s signature on his driver’s license with the signatures on documents.  The jury was the trier of fact.   Pursuant to Evidence Code section 1417, the jury was entitled to examine and conclude that the defendant signed the document in question.  Although the defendant conceded on appeal that the signature on the driver’s license was in fact his, the trial court should have complied with Evidence Code sections 1400 et. seq. and first have made a foundational finding as to the genuineness of defendant’s signed license.  The trier of fact is not limited to using the naked eye in comparing different handwriting samples.  In People v. Turner (1971) 22 Cal App 3rd 174 the jury used a magnifying glass without the knowledge or permission of the judge or the parties.  The appellate court upheld the use of the previously-unknown magnifying glass. It merely allowed for a more critical examination of the admitted evidence.

   

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