CHAPTER XVI
An Opinion on Expert Opinion
(with special regard to the testimony of Experts in Handwriting)
The law admits opinion evidence by experts under certain conditions. This is doubtless right when such experts qualify as specialists who have prepared themselves by recognized methods regarding some department of science, art, or industry; and when their testimony is confined to stating facts and deductions only, omitting all abstract speculations.
The admission of such testimony is, doubtless, necessary. The fields of science, art, and industry are enormous; and in each, one man during one life can only hope to acquire thorough knowledge of one small part of his particular enclosure. Hence “specialties” have arisen—the one lifework of one man. Specialties represent a movement of “from the general to the particular.” In the field of science, for instance, is the department of surgery; and of all kinds of surgeons is one particular specialist, the dentist. So in art, music is but a little part of all art, and the violinist but a specialist in music. Industry classifies into business and agriculture, each in turn susceptible of innumerable sub-divisions, each a specialty. By this arrangement it is seen that almost every man is to some degree a specialist, or should be one; therefore, when particular information is required it must be sought from the specialist. We seek to appropriate his experience, and naturally turn in our inquiry to those who seem best qualified to supply our wants. The true expert should be, then, a very particular specialist. In the field of industry and art we should require that he be experienced and successful. In science, that he possess definite knowledge—exactness.
So far, no complaint whatever can be made against the employment of experts (specialists). It is a necessary thing; it occurs every day in everyday life, and their testimony is very properly allowed in criminal and other court proceedings. But it is undoubtedly wrong when used unjustly; as, for instance, by the State or a very rich man against an opponent too poor to protect himself—and the testimony of experts in handwriting is often so used. It is especially unjust when an expert on a scientific subject holds no other commission or diploma than one bestowed upon him by—himself—an expert in handwriting has no other.
No one would employ a self-instructed physician, retain a self-taught lawyer, or a chemist who never went to school; in fact, the self-educated are almost excluded from the higher professions.
Consider the formal course of study necessary to become a physician, a minister, or lawyer—schools and all their examinations, the four years in college, and all the examinations pertinent thereto, and then the special post-graduate courses at schools of law, medicine, or divinity. We trust and respect these professions, because we know of their preparation; this is their guarantee. They are tested over and over again to see if they can do their work. Only then do they obtain diplomas. We require this very thing from our engineers, firemen, coal miners, and accountants before they are granted a license. But the handwriting expert passes no examinations, and possesses no diploma. He need not even procure a license.
The expert in handwriting may have your life, liberty, and fortune in his hands; but he comes from—where? Who taught him? Who has tested or examined him as to his knowledge and accuracy? Think of it! The right to swear away the life, or liberty, or property of another is bestowed upon this class of “experts” by themselves. And the law permits it. Where do this class of “experts” study their “science”? What school has classes or lectures on this subject? What college has a chair for the instruction of experts in questions of disputed writings? Is there a university with a department for their training? What does Harvard, Yale, Princeton, Columbia in America, or Oxford and Cambridge in England, have to say on this subject? All scientific things are recognized by these great colleges and universities. The study of questions arising from disputed handwritings is recognized in none of them; hence this study is not, at least as yet, a science. Another reason why this study is not a science, is that it is based on the theory of probabilities; it is mere speculation. For this reason experts in handwriting cannot even agree together on their own specialty. They lack the unity of even a trade. Experts in handwriting have no guild—no society. Why is this? Because this class of professional witnesses can never formulate their conflicting theories; they cannot agree on any one point; they have no common standards, no principles laid down and agreed to, no mutual foundation or basis for their theories to rest upon. Again why? Because they would have to violate them in the very next case into which they might be called. Therefore experts in questions of disputed handwriting are not scientists.
In courts of justice no experts should be allowed to plead (ex-parte) for the side they espouse. Experts in handwriting are notorious for this; and their methods and deductions are always according to the testimony desired by the side retaining them. Their opinions are tinctured by retainers. In many cases where large sums of money are involved in litigation, as, for instance, a disputed “will case,” experts in handwriting appear on each side. The question in such cases often narrows down to the simple proposition: “Is the signature of the last will and testament genuine?” It must be either genuine or forged; and yet we find the phenomena of prominent experts in handwriting holding diametrically opposite views, and giving reasons under oath in support of their opinions. Now it naturally follows that if one side is right, the other side must be wrong, and vice versa; the signature cannot possibly be both genuine and forged. If the testimony of all the experts is in accord with conscience, some experts are—to be charitable—inaccurate.
The expert in handwriting can seldom be coaxed into a position in which he can be proved wrong. Really it is extremely simple. Is the signature of the deceased so exact that no one would dare dispute it? Not he! The expert will declare it a tracing should his retainer dictate; otherwise not; but whichever way he testifies he can never really be proved wrong, at least in this world, since the one who could tell has passed away to another. Under the circumstances, no wonder the expert can afford to be very positive.
In criminal cases these experts affect the side of the prosecution. Is a conviction secured? It is the result of his skill, while in case of an acquittal, he protests that justice has been cheated, and the prosecuting attorney never fails to indorse this view. He dearly loves a forgery case. If retained by the prosecutor, that official will protect the expert, and have witnesses to corroborate his opinion; while, should the defence secure his services, the expert’s opinion will be corroborated by the defendant himself. The only thing which will prove the expert in error would be a confession—an unlikely occurrence.
But disputed writings, disguised, and anonymous communications are his joy, and again it is almost impossible to prove him wrong; and again his work is very simple. In these cases the guilty man, whoever he may be, never comes forward to admit his crime, so that the expert can blame whom he pleases or, rather, whom he is paid to blame. It is simplicity itself—similarities are to be pointed out. It is self-evident that all writings must contain similarities, for were there no resemblances the art of writing would be useless. In fact, that one person can read another person’s writing, is based on this principle. Surely it is just because we all do make the twenty-six letters of our alphabet more or less alike, that we can read each other’s writing at all. In such a case the dissimilarities (and they are in all writing) will be regarded as attempts at disguise. And, since all writings must consist of similarities or dissimilarities, either or both will be argued as proof against a victim of this kind of evidence. To sum up, their art is to offer a theory favorable to the side retaining them, in such a manner that it may be believed or doubted, but which cannot be disproved.
Another question regarding this class of experts is, do they keep their oath, “to tell the truth, the whole truth, and nothing but the truth?” If engaged by the prosecution do they disclose the points favorable to the defendant—no matter how apparent? Never. Although under oath to tell all, they are advocates for one side only. They are always positive, they swear to their opinions; but are they accurate? Suppose they should be tested, examined with writings of known and living persons, and knew nothing of the circumstances of the case, and had no District Attorney to warn and protect—suppose some one tried to fool them—a child could do it!
The law limits all opinion evidence. It is not considered as good as testimony to fact; much has been written on the justice of so doing. Judge Woodward in “The North American Review” for October, 1902, has treated the subject from a legal standpoint. In this article referred to he shows in no uncertain way how the opinions of experts in questions of disputed handwriting are regarded by bench and bar, especially in the higher courts. Moreover, he cites many instances of injustice done by this kind of opinion evidence. Beside this, I believe, there is a justly popular prejudice against this particular kind of expert testimony.
I have tried to show that this opinion evidence—expert testimony in regard to questions of disputed handwritings—is less accurate and has less authority than the opinion of other specialists. If this is true, should it not be limited to a greater extent than all other kinds of expert testimony? And to this end I venture to propose the following: That a commission be appointed to thoroughly and exhaustively examine all so-called public and official experts in handwriting. No thorough and conscientious expert would object to being tested as to his qualifications. Licenses should be issued to the successful candidates. (Few “sheepskins” would be needed.) Such a license should be required before the expert can practise in court.