Is correct provenance of documents important for obtaining a correct opinion in a forensic document examination analysis?
Forensic document examiners are asked to authenticate documents. Often this authentication requires examination of signatures and handwriting to determine whether the writer of the known documents also wrote the document in question.
An issue arises whether it is important to know the source, or provenance, of the documents being examined. Is there a difference in knowing the provenance of known documents versus the provenance of the questioned documents?
On page 51 of the book The Hunt for History author Nathan Raab wrote, “But ironclad provenance isn’t necessary for authentication of documents, which can prove themselves.” This statement got me thinking about the necessity of knowing the provenance of our questioned documents. How can a document prove itself?
A forensic document examiner may start with a hypothesis that a document is authentic. The document examiner seeks to falsify that hypothesis by seeking evidence for the alternate hypothesis document is not authentic. When evidence supporting the alternate hypothesis cannot be found, the document examiner fails to reject the no hypothesis, and thus document proves itself.
For signature identification document examiner may extend the examination to include validity of the ink and paper on which the signature appears. The document examiner may determine whether the fonts used on the paper existed when the document was allegedly printed. More important, the document examiner will compare this signature (questioned signature) with signatures known to have been written by the person (known signatures) who allegedly wrote the questioned signature.
The question of provenance is whether the origin of the document in question matters and the origin of the known documents matters.
Origin of the questioned document
For a document examiner, the provenance of a questioned document is not important. The document examiner is retained to determine the authenticity of a document. Knowledge about the provenance of the questioned document can induce cognitive bias into the document examiner’s work. Cognitive Bias is bias at the subconscious level. Often a person does not realize these biases. If a document examiner is told a person found a relative’s will at the bottom of the pile of papers, the document examiner may be inclined to discount this will as being authentic. If the will is notarized and lodged at the courthouse, the document examiner may be inclined to give credence to the authenticity of the will.
An example where this occurred is several years ago I was retained to determine whether a holographic will was signed by the decedent. The decedent’s son found the will in the back of a book while he was going through his father’s belongings after his death. His sister challenged the authenticity of the will. After a thorough analysis, I showed that the handwriting in the signature were authentic.
In another case they will was notarized and lodged with the court. The will allegedly contained an original ink signature. Upon visual inspection the signature appeared to be legitimate. Upon inspection with a microscope the signature was exposed to be a photocopy. There was no way to authenticate the will because it is so easy to lift a signature from one document and place it onto another. The created document is then printed and passed off as an original. Here, my client was surprised to learn the signature was not an ink signature.
In both cases, the source of this document was not important. The ability to authenticate the document was important.
Origin of the known documents
Knowing the provenance of the known documents is necessary. Where the subject is alive, a good way to know the provenance of the known documents is to show the documents to the person and ask whether they are authentic. As the person whether they signed the document if it is a signature case. If it is a handwriting case ask the person whether they wrote the document. Where a person is suspected of having altered a document, ask them whether they made the changes on the document.
In a recent criminal case a question arose whether the judge signed a wiretap order. The signature looked highly unusual relative to the known signatures of the judge. Then I was given additional exemplars that did not comport with the known signatures of the judge. To learn whether all the signatures were legitimate signatures of the judge I approached him at a location where he was giving a talk. Without telling him which signatures were allegedly legitimate and which were questioned, I asked him whether the signatures are all legitimately his. He answered affirmatively that they are all his signatures. Based upon this I had to inform my client that the questioned signature was a legitimate signature.
In another case, I showed all the documents used for examination to the attorney’s client. The purpose was to learn which documents are questionable and which are legitimate. For each document I asked him, “is this your signature?” Had he answered, “no” to any of the exemplars or “yes” to any of the questioned documents, this would have changed the focus of my analysis and opinion.
This also goes to the concept of hearsay. An opposing attorney could challenge the documents and using as exemplars if there is no way to authenticate those documents.
An example is Estate of Zahau v. Shacknai Case No. 13-cv-1624-W(NLS), (S.D. Cal. Mar. 13, 2014). After the first day of my testimony for the plaintiff, the defense challenged the foundation of the exemplars used. The reason was I was comparing printing by Rebecca Zahau on documents. That evening I had to compare the known signatures of Rebecca Zahau with the signature on each document containing the printing. The next day during redirect, plaintiff’s attorney Keith Greer asked me to authenticate the signature on each document. The known signatures of Rebecca Zahau were authenticated by her sister. Her sister was familiar with Rebecca’s signature. California Evidence Code §1416 states, “a witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of the supposed writer if the court finds that he has personal knowledge of the writing of the supposed writer.” Rebecca Zahau’s sister personally knew of Rebecca’s signature. This evidence laid the foundation for admitting the known documents. The provenance of the known documents allowed my testimony to continue.
In the early nineteen eighties diaries were found allegedly handwritten by Adolf Hitler. Two highly respected document examiners compared exemplars allegedly written by Hitler with the handwriting of diaries. Both document examiners authenticated the diaries. The exemplars were written by the same person who forged the diaries. The examiners were correct in their opinion they were written by the same person. The problem was the exemplars were not written by Hitler. The provenance of the known writing was incorrect.
Similar to the signature and document collector, knowledge of the provenance of a questioned document is unimportant to determining its authenticity in a forensic questioned document case. There is a possibility that a document lodged with the court and notarized is not an authentic document.
The provenance of exemplars is imperative to ensure the questioned writing is being compared with the writing of the person who allegedly wrote it. Therefore, a document examiner may arrive at an incorrect opinion regarding the author of questioned document.
The signature and document collector can save the document prove itself because of their familiarity with other documents of the subject. Just because a document has been allegedly the handed down through generations of the family does not in itself authenticate a document. It is possible a family member could fabricate a document for financial gain. In a similar manner document in signature collector’s knowledge of the subject’s handwriting, type of paper, and ink used in documents of the era when the documents allegedly written, the forensic document examiner becomes intimately familiar with the intricacies of the subject’s handwriting.