EVIDENCE AS TO HANDWRITING
Illustrative Cases--Handwriting Experts
At one time the only evidence that was allowed to be given as to
handwriting was that of the writer himself, or of someone who had seen the
writing done, or was well acquainted with the handwriting in question.
Examples of evidence of this kind are numerous and occur in many of the
cases mentioned in other parts of this book, such as the trial of Spencer
Cowper in 1699, or of that of the Perreaus in 1775.
In the trial of Spencer Cowper (1699) an important part of the defence was
that the girl had drowned herself in a fit of depression, and letters
written by her were put forward to prove this view.
A gentleman named Marshall produced letters that he had received from her,
and a man named Beale gave evidence that he believed it to be in her
handwriting, having seen her write and holding a receipt of hers.
The jury declared they were satisfied with the evidence, but the judge
(Baron Hatsell) remarked that they might ask the mother to say whether it
was her daughter's handwriting.
Sarah Stout's brother was also questioned.
_Mrs. Stout._--How should I know! I know she was no such person; her hand
may be counterfeited.
_The Judge._--But if it were written in her more sober style, what would
you say then?
_Mrs. Stout._--I shan't say it to be her hand unless I saw her write it.
_Mr. Stout._--It is like my sister's hand.
_The Judge._--Do you believe it to be her hand?
_Mr. Stout._--No, I don't believe it; because it don't suit her character.
The judge in his summing up remarked that if the jury believed that the
letters were in the handwriting of Sarah Stout there was evidence to show
that although she was a virtuous woman a distemper might have turned her
brains, and discomposed her mind.
The history of the admission of expert evidence on handwriting in this
country is a curious one, and shows that opinion has long been divided as
to its value.
In a trial that took place in 1836 a bank inspector was put in the box to
give an opinion as to the genuineness of a signature and the judge refused
to admit this as evidence. The point was carried to the Court of Appeal,
but was still left unsettled, an equal number of judges being for and
against the admissibility of such evidence.
Mr. Justice Wills, in his standard work on _Circumstantial Evidence_,
relates that Lord Denman pronounced that evidence as to handwriting might
be regarded as an expunged chapter in the book of evidence. In spite of
this dictum, however, the evidence of the handwriting expert was made
legal in Civil Cases in 1854, and eleven years later it was also legalised
in Criminal law.
Long before a witness was permitted in this country to give his opinion
upon writing which he had not actually seen written, or with the author
of which he was unacquainted, expert evidence of this kind was admitted in
the laws of different countries in Europe and in many of the American
States.
HANDWRITING EXPERTS.
A good deal has been heard of late of the shortcomings of the handwriting
expert, and owing to a mistaken idea as to the nature of his evidence, the
view has been strongly expressed that such evidence should no longer be
admissible.
The present feeling against evidence on handwriting is partly due to an
exaggerated importance having frequently been attached to the conclusions
of the expert, so that as soon as it could be shown that he had made a
mistake, no further trust was to be placed in his opinion; and partly to
the dogmatic attitude of certain experts in the past.
As Lord Brampton pointed out in his _Reminiscences_, the judges in
mid-Victorian days were afraid to trust their own judgment in matters of
handwriting, and powers almost occult were ascribed to the expert, who,
after all, only uses ordinary scientific methods.
The true function of the handwriting expert is to act as a sign-post to
the jury. His observation has been trained to notice minute points of
resemblance and difference, and he is thus in a position to point out in
what respect and to what extent two handwritings resemble one another or
differ, and it is then for the jury to draw their own conclusions from the
facts laid before them.
It is now no uncommon occurrence for a judge in summing up a case to the
jury to emphasise the point that the evidence of the expert is only a
matter of opinion, and that the real decision rests with them. In this way
it is possible for the judge to correct the too decided statement of
opinion which the expert is sometimes, under stress of cross-examination,
forced to give.
Netherclift, who was the chief expert in the days when Lord Brampton was
at the bar, had such faith in his methods that finally he came to believe
that he could never make a mistake.
This belief received an amusing check in a case in which he was under
cross-examination by Lord Brampton (then Mr. Hawkins).
Netherclift had claimed that his system gave infallible results, and had
further stated that his son, whom he had trained, made use of the same
system.
"Then," said the wily advocate, "your son working on your system is as
good as you are?"
"Yes," replied the father with some pride in his voice, "he is."
"That is to say, he, too, is infallible?"
"Yes," again replied the witness.
"Well, now, Mr. Netherclift, was there ever a case in which you and your
son appeared on opposite sides?"
Netherclift tried to evade the question, which, he complained, was an
unfair one, but on being pressed was forced to admit that on a certain
occasion he had given evidence on one side and his son upon the other.
Swift came the unanswerable retort, "How comes it then that two
infallibles appeared on opposite sides?"
Netherclift's dogmatic manner rendered him peculiarly liable to fall into
traps like this, and many were the occasions on which he was found
tripping.
Readers of Lord Brampton's book will recall another amusing instance in
which the expert was "put in a hole" by his opponent, who tells the story
in these words: "When I rose to examine I handed to the expert six slips
of paper, each of which was written in a different kind of handwriting.
"Netherclift took out his large pair of spectacles, magnifiers, which he
always carried. Then he began to polish them with a great deal of care,
saying as he performed that operation, 'I see, Mr. Hawkins, what you are
going to try to do--you want to put me in a hole.' 'I do, Mr. Netherclift,
and if you are ready for the hole, tell me--were those six pieces of paper
written by one hand about the same time?'
"He examined them carefully, and after a considerable time, answered: 'No;
they were written at different times, and by different hands.'
"'By different persons, do you say?'"
"'Yes, certainly.'"
"'Now, Mr. Netherclift, you are in the hole! I wrote them myself this
morning at this desk.'"
The feeling of distrust with which the evidence of the expert in
handwriting is often regarded by the legal profession is illustrated by a
capital story that was told recently by Sir Edward Carson in a letter to
the _Times_. An Irish counsel in a now forgotten case began his
cross-examination of a handwriting expert with the curious
question--"Where's the dog?"
"What dog?" said the bewildered witness.
"The dog which the judge at the last assizes said he would not hang upon
your evidence."
How closely two distinct handwritings may resemble one another was shown
in a celebrated case in which handwriting experts were proved to be
utterly mistaken. This was the trial of Sir Francis Truscott, a former
Lord Mayor of London, at the Old Bailey in 1879.
It was asserted that the defendant had sent a post card to a friend named
John Kearns, who had at one time served with him upon the City Council,
accusing him of a criminal offence and warning him that he was being
watched by the police.
At the trial evidence was given in the most positive manner by a lady who
was acquainted with Sir Francis Truscott to the effect that the moment she
had been shown the card she had recognised the writing as his.
This opinion was supported by Charles Chabot, an expert in handwriting,
who stated in the witness-box that he was certain that the writing on the
post card had been done by the same individual who had written certain
letters of the defendant which he had examined. The similarities between
the two writings were, he asserted, too close not to have been the work of
one individual.
Evidence of the same character was then given by Netherclift, who swore
that from a minute comparison of the libellous post card with letters in
the admitted writing of the accused there could be no doubt but that they
were written by the same person.
The defence was opened by a witness named Smith being put in the box. He
stated that he knew both Mr. Kearns and Sir Francis Truscott, and was
aware that the friendship between them had ceased. He was then shown the
post card and asked whose was the handwriting upon it.
"I wrote the post card," he said. "It is my own writing."
Answering further questions, this witness stated that he had been abroad
when the charge was brought against Sir Francis Truscott, and that as soon
as he learned what had happened he had made an affidavit that the writing
was his.
The father of this witness produced post cards written by his son and
stated that the libellous post card was in the handwriting of his son and
not in that of Sir Francis. Evidence was also given by another witness who
knew both Sir Francis and Mr. Smith, and who had no doubt but that the
post card was in the handwriting of the latter.
At this stage the jury intimated that they had heard sufficient, and
brought in a verdict of "Not guilty."
Mr. Justice Wills records a case in which a bank clerk being shown a
forged signature swore positively that he had written it, while he was
doubtful as to the authenticity of signatures that were undoubtedly his.
Another instance of the way in which writing may be so skilfully imitated
as to deceive even the man whose writing it purports to be is afforded by
the trial of a solicitor named Shaw at the Derby Assizes in 1861.
He was accused of having forged a mortgage, and at the trial a client of
his named Abel went into the witness-box and in all good faith swore that
his genuine signature upon a document was not his, while he recognised the
forged signature as his genuine writing.
It was proved conclusively, however, at a subsequent action that was
brought three years later, in connection with the forged deed, that Abel's
signature upon it had been forged, and the convicted solicitor was brought
into court to give evidence that he had himself signed the document.
Another curious example, also cited by Wills, of the uncertainty of
evidence as to writing was that of a trial in which a deed that was
produced bore the signature of Lord Eldon. The solicitor in the case had
no doubt as to this being a genuine document, and yet it was positively
stated by Lord Eldon that he had never witnessed any document in his life.
The cases of wrong conclusions as to handwriting have been as numerous as
those of mistaken identity of person, and have had as tragic consequences.
The notorious case of Beck will occur to everyone as an instance of a man
being not only wrongly identified, but of being also the unfortunate
possessor of a handwriting that had a close resemblance to the writing of
someone else.
The two false identifications combined were sufficient to send an innocent
man to prison, and it was long before it was established that the
witnesses upon whose evidence he had been convicted had been utterly
mistaken both with regard to his identity and his handwriting.