Legal definition of writing
Definitions for questioned document examiners
Federal and states codes offer a legal definition of writing. Forensic document examiners often are retained to authenticate writing.
According to the Scientific Working Group for Forensic Document Examination (www.swgdoc.org), “The forensic document examiner conducts scientific examinations, comparisons, and analyses of documents in order to: (1) establish genuineness or non-genuineness, or to reveal alterations, additions, or deletions, …”
Forensic document examiners partner with attorneys for the purpose of determining whether a document is authentic. For this reason it is important to turn to legal definitions when describing the work of forensic document examiners and interpreting the description stated by SWGDOC.
Federal Rules of Evidence §1001 offers several important definitions including a legal definition of writing.
- 1001(a) offers a legal definition of writing. “A writing consists of letters, words, numbers, or their equivalent set down in any form.” According to this definition the book you are reading is a writing, regardless whether the format is hardcopy or digital. Document examiners work with documents created on computers then printed on a variety of printers. These documents may be signed. All aspects of the document are writings.
- 1001(a) defines original. “An original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An original of a photograph includes the negative or a print from it.”
- 1001(a) defines duplicate. “A duplicate means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.”
The difference between an original and a duplicate appears to be the intent of use. As an example,
- A person sends a contract to a client by email.
- The client signs the contract
- The client scans the signed contract to a PDF
- The client sends the PDF to the original person
- The person accepts the signed PDF as a negotiated contract.
- The PDF is printed contract is stored in a file cabinet
Based on the definitions of original and duplicate the printed contract placed into the file cabinet is probably the duplicate while the PDF is an original for the recipient. The contract signed by the client is and original and the PDF is a duplicate for the client.
California Evidence Code
State jurisdictions offer terminology that is important for forensic document examiners. Many of the terms are similar to those in the Federal Rules of Evidence. Often the federal definitions are elaborated in the state definitions. The following definitions are from the California Evidence Code. Check your state’s code for local definitions.
According to California Evidence Code §1400, “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is of (b) the establishment of such facts by any other means provided by law.”
California Evidence Code §1418 defines “The genuineness of a writing, or lack thereof, may be proved by comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by a party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.”
California Evidence Code §250 states a legal definition of writing: “’Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”
Although California Evidence Code §250 is more detailed than Federal Rules
Written documents are not always on common writing materials. Reading the legal definition of writing provides guidance on this topic. They may be graffiti written on walls. Some documents are created with mechanical printers, such as an ink jet or toner laser printers and photocopy machines. A document examiner needs to be able to distinguish among different forms of mechanical printing.
When a document is written on paper, the document includes the paper, ink by which the words were written, the toner or ink used by the mechanical printer and any other marks on the page. All these can offer clues to the authenticity of a document.
When authenticating handwriting, document examiners need many samples of the suspected writer’s writing. The samples are called “exemplars.” In many cases, 20 or more samples of a person’s writing are needed.
The definition of writing in both Federal Rules of Evidence and California Evidence Code states that writing takes many forms not normally considered by most people. The legal definition of writing shows that writing takes many forms.
- It is electronically stored on a computer’s hard disc drive
- It is electronically stored in a computer’s memory
- It is printed on paper
- It is presented in three e-book formats
Each of these forms is a writing. The forensic document examiner must have the skill to determine the authenticity of both hard copy and electronic documents.
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