Report Writing and Opinion Terminology

Ronald N. Morris

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At the conclusion of the analysis phase of an examination and comparison, the Forensic Document Examiner (FDE) writes a report that should be complete, standing on its own without having to rely on the availability of other documents for descriptions. The results of this analysis should be easy to understand. He uses language to accomplish this purpose, but because language is not always precise, the same words can have different meanings, or slightly different meanings, to different people. This is particularly true when he states his conclusions using probability statements. The purpose of this paper is to assist the reader in:

A. Understanding the format of a questioned document report

B. The way examined documents should be described and how the appropriate probability statements are chosen by the FDE

C. The language and terms are chosen to express the conclusions reached in the examination

D. How the language and terms should be interpreted and understood by the reader of the report.

Additionally, the probability statements in this paper are those used by the author and are in accordance with terminology in the American Society for Testing and Materials (ASTM) standard/guideline, Designation: E 1658-04. The probability statements, discussion, and examples in that standard/guideline, are clearly written and easily understood, because they are not complicated.

REPORT FORMAT

The FDE uses a report format he is comfortable with, or one established by the laboratory in which he works. No one format is the only correct and accepted one to use. However, whatever format is used it should incorporate the following basic elements:

A. Questioned: A clearly written, and complete description of all the questioned documents submitted for examination.

B. Known: A clearly written, and complete description of all the known writing, and who wrote it

C. Requested Examinations: A clearly written statement of the examination(s) requested.

D. Examination Results: The use of clearly written and easily understood language and concepts to accurately convey the conclusions reached by the FDE, based on the examination and comparison of the submitted documents. Clarification statements or examples, when used in the report, should only be included to assist the reader of the report in understanding the full significance of the conclusions.

E. Remarks: This section describes the disposition of the submitted documents, and other relevant comments. For chain of custody purposes, the disposition of evidence statements must be clearly written.

Request for additional known writing or other additional evidence can also be included in this section. It can also be a part of the appropriate conclusion statement in the examination results section. Other information such as how much advance notice is required to prepare court illustrations, or other pertinent information can also be included in this section of the report.

WRITING A CLEAR REPORT

In every case the FDE works and report he writes, he uses language to convey information. Information about what he examined, what examinations he performed, the procedures he followed and their appropriateness, and the conclusions he reached based on the examination and comparison process. Because language is not precise, there is the possibility of confusion in the description of documents, requested examinations, results of the examinations, and disposition of the evidence. The confusion can begin as a result of the way the submitter describes what he is submitting, or not really knowing what he wants done in the way of examination and comparisons. All this may be due to the submitterÕs lack of understanding of what the FDE does. He may also not know exactly what capabilities the FDE has in his laboratory, and the services he can provide with those capabilities.

Further complicating the use of language are the legal requirements imposed by the burden of proof and presumption concepts that are part of the rules of evidence. The rules of evidence are jurisdictionally dependent and therefore not uniform. Although an in-depth discussion of the legal requirements topic is too broad for this paper, an overview of the general topic is addressed as it applies to the main purpose of this paper.

Document descriptions must be written with such clarity that the reader of the report has no doubt about what documents were examined. Simply saying one document bearing handwriting or hand printing is not sufficient. For example, if the submitted questioned document is a contract, the first descriptive word or phrase should be, ÒOne original contract,Ó the purpose of the contract can also be given, the date signed, and a brief but complete description of the questioned writing on the document, and the name of the signatories, should be part of the description. For example, Exhibit Q1 Ð A Purchase Contract between SamÕs Metal Shop and United Steel Suppliers, dated January 5, 2005, and signed Mr. Sam Smith, and Mr. John Adams. When described in this way there is little, if any, doubt as to what questioned document the FDE examined.

If the documents examined are known writings, they too should be sufficiently described so the number of items, the person providing the writing, etc., is clearly stated. This is especially true when the known writing is written during the normal course of business. The added burden, of course, is authentication of all normal course of business or collected writing.

Requested known writing is writing obtained from a specific individual by a person who can attest to the fact that the writer wrote certain writings to be used for comparison purposes. Specially designed handwriting specimen forms can be provided for this purpose. Form numbers, what and how many of a particular designated form, the name of the known writer, etc., should be part of the description of the known writing. For example: K1 Ð Five Forms 101, ten Forms 102, and five Forms A, bearing known writing of John Doe.

FDEÕs frequently use a number of qualifying words and phrases when expressing opinions. When multiple qualifying words or phrases are used in the statement of a single conclusion, the reader of the report does not have a clear understanding of what the FDE is saying. For example, if the conclusion is worded: There is evidence to indicate, Òmeaning a strong probability, that ...,Ó such a statement is confusing. Is the FDE saying there are indications that there is a strong probability? Or, is he saying the word indications, as he is using it here, means a strong probability? The way the wording is phrased seems confusing. Without further definition of terms or explanation to assist the report reader as to the exact meaning of the terms, the stated conclusion can have different meanings to different recipients of the report.

As discussed above, the clearest statement of a conclusion is the one that has the fewest qualifying words in the same statement. The statement must contain clearly understood words and phrases. An excellent example of the clearest use of terminology is ASTM standard, Designation: E 1658-04. The brief word usage in the terminology statement, together with the discussion or example given with the probability statement, further clarifies the statement to a nontechnical recipient of the report. The phrases, i.e. "...the known writer wrote..." ."..it is highly probably that the questioned writing was written by..." "... John Doe (K1) probably wrote..." etc., are easily understood statements.

The following examples are concise, yet comprehensive, statements expressing the degree of belief the FDE has reached, based on the result of his examination and comparison. Each employs the terminology of the ASTM standard.

A. It has been concluded that John Doe, K1, wrote...

B. It has been concluded that John Doe, K1, in all probability wrote... The phrase "in all probability" can be substituted with the phrases "very probably wrote," or "it is highly probable" that John Doe wrote...

C. It has been concluded that John Doe probably wrote...

D. There is some evidence to suggest that John Doe, K1, wrote..., or the phrase "...some evidence to indicate..." is used.

E. It could not be determined whether John Doe, K1, wrote the questioned material.

F. With the material available for comparison, no evidence was found to suggest that John Doe, K1, wrote...

G. There is some evidence to suggest that John Doe, K1, did not write…. Occasionally the phrase "...some evidence to indicate..." is used.

H. It has been concluded that John Doe, K1, probably did not write...

I. It has been concluded that in all probability John Doe, K1, did not write…. The terms, "very probably," or "it is highly probable" that John Doe, K1, did not write… are occasionally used.

J. It has been concluded that John Doe, K1, did not write….

DEFINING TERMS:

What do these statements mean? How should the reader interpret and understand them in the context of the results of the examination part of a report? Some explanation is give here, and the reader should also refer to the ASTM standards discussion and example material for additional clarification.

The first statement, (It has been concluded that John Doe, K1, wrote....) is unequivocal. It has been said, ÒThere is no stronger opinion given by a document examiner in a handwriting case than a positive identification.Ói When used, the examiner has no reservation whatsoever about the certainty of his conclusion. He is so certain about his conclusion that for him it is a fact the writer of the questioned and known writing is the same person. Because he can only express an opinion in court, he cannot testify, Ò...it is a fact that the questioned and specimen writings are by the same writer.Óii

What is the standard for such a strong statement of belief? The questioned and known writing must have sufficient class and individual characteristics, qualities, and features in common that when taken collectively, there is no doubt that the questioned and known writing are by the same writer. In other words, there must be complete agreement in all features of writing important for identification purposes with no dissimilarities, irreconcilable or collective significant differences in writing habits. The only permissible differences are those resulting from accepted and observable normal variation in writing.

There are occasions when a difference or dissimilarity is discovered, but its presence in the writing is far outweighed by the agreement in other equally or more significant features. The only allowable differences or dissimilarities are those resulting from normal variation in writing, or that can be explained based on the examined evidence. A complete discussion of normal variation in writing is beyond the scope of this paper. However, normal variation is expected in every personÕs writing and is the result of the writerÕs inability to exactly reproduce identical writing movements every time he writes the same letter or letter combinations.

Additionally, writing can be affected by transitory or permanent factors that impacted the writer of the questioned or known writing at that particular moment in time. The possibility of the occurrence of these factors must also be considered.

The second statement, (It has been concluded that John Doe in all probability wrote….) is used when the evidence falls just short of the requirement for an identification. At times the phrase "in all probability" may be substituted with "very probably wrote," or "it is highly probable" that John Doe wrote….

Regardless of the words used, the FDE has some slight reservation and cannot reach a less qualified conclusion or make a categorical statement. The slight reservation may be transitory or permanent. The reason for the slight reservation may be due to the presence of an unexplainable difference between the questioned and known writing. Additionally, known writing may or may not be of value to the FDE in resolving this situation. If the reason for the slight qualification is determined to be in the questioned and not the known writing, obtaining additional known would not be of value.

The third statement, (It has been concluded that John Doe probably wrote….) is used when the evidence points rather strongly toward the specimen writer, but still falls short of the requirements for a less qualified opinion. The observable evidence in this situation does not rise to the level of that required for a highly probable opinion. Even though there are significant similarities present in the questioned and known writings, there are also irreconcilable differences that are not explainable with the available writing.

These irreconcilable differences may have varying degrees of significance for identification purposes. For example, if the questioned or known writing is a photocopy, and the FDE is not able to accurately determine stroke direction or clearly discern line quality or other characteristics of the original writing, he might express his degree of belief using this statement.

When the word "probable" is used instead of the words "highly probable," there is, by definition, a greater likelihood of someone other than the known writer writing the questioned material. However, in this situation, the evidence is still pointing rather strongly in the direction of the known writer.

Most people believe that when the word "probable" is used, it means a slightly better than a 50% chance of some event occurring or not occurring. That meaning does not apply here.

The Random House Webster's Electronic Dictionary & Thesaurus, College Edition, has this definition for probable: "...having more evidence for than against, or evidence that inclines the mind to belief but leaves some room for doubt."iii The American Heritage® Dictionary of the English Language, Fourth Edition defines probable as: "Most likely; presumably."

These definitions most closely define the meaning of this qualifying term as used by the FDE. It is also consistent with the ASTM language which states: "...the evidence contained in the handwriting points rather strongly toward the questioned and known writings having been written by the same individual; however, it falls short of the "virtually certain" degree of confidence."v

The fourth statement, (There is some evidence to suggest, or to indicate, that John Doe wrote….) is used when there are a few handwriting features in agreement and some may even have more significance than others for identification purposes.

When this opinion is given, the FED is saying: "Keep this writer in mind." Although there is not a sufficient amount of evidence to say he probably wrote the questioned material, there are some qualities and features of the writing in agreement which suggest or indicate he has the skill and ability to write this way. The significance of those features, though, is limited. Later another writer could be "identified" as the writer of the questioned writing, and this is not inconsistent with this degree of belief.

The fifth statement, (It could not be determined whether John Doe wrote the questioned material.) is used when the examiner is not able to determine whether the specimen writer wrote the questioned material.

At the beginning of his analysis, the FDE does not know whether the known writer wrote the questioned writing. He begins his work from a neutral position. The purpose of his analysis, examination, and comparison is to try to determine whether the known writer wrote the questioned material. In most instances the evidence does not support a completely unqualified conclusion. That is why probability statements like the ones just described are so important.

An excellent analogy for the examination and comparison process and the evaluation of the evidence relative to a single known writer writing the questioned material is the seesaw. When the board is parallel with the ground, in this case representing certainty, the weight on each end of the board is equal. When the FDE begins his examination and comparison between the questioned and known writing of a single writer, his starting point is at the fulcrum. Because he has not begun the process of evaluating and assigning weight to the qualities, features, and characteristics of the writing he is examining, the board is in perfect balance.

As he conducts his examination and comparison some weight is applied to the right or left side of the fulcrum. In this example one end of the board represents an identification and the opposite end represents an elimination. As more weight is applied to the right or left of the fulcrum, that end of the board moves up or down. In this case the "weight" is evidence for or against authorship of the questioned writing by a single known writer. If the evidence is not conclusive, but is sufficient to support one of the probability statements previously discussed, then the FDE uses the appropriate probability statement to describe the location of the board relative to certainty. His choice of words also conveys to the report reader which end of the board he is talking about.

Figure 1 (see pdf for Fig. 1)

Is it possible to assign percentages to the weight of the evidence and its relative location on either side of the fulcrum? No. Some nontechnical recipients of the report try to solicit a percentage from the FDE, but he is not able to give one. One reason why the very words the FDE uses such as indications, probable, highly probable, etc. defy the accurate, repeatable, and consistent use of a number to identify an exact location on the board.

When the weight of the evidence is sufficient to support an unqualified conclusion, identification or elimination, that end of this symbolic board reaches the point representing certainty. The weight of the evidence necessary to reach an identification or elimination is based on the totality and combined significance of all the evidence in the examined writings. No single characteristic, quality, or feature of a writing can be said to have so much significance that it alone is sufficient to identify or eliminate a writer.

The language the FDE selects to report his conclusions, his selection of words and phrases, should accurately reflect and summarize the result of his examination and comparison process. Not every examination and comparison will ultimately lead to an unqualified conclusion.

A word of caution must be inserted here. In any instance where the writing of more than one writer is being examined and compared with a questioned writing, if one of those suspect writer's is identified as the writer of the questioned writing that does not mean the other suspect writers are automatically eliminated. Because the example of the seesaw refers to the evaluation of evidence of a single writer, it cannot be said that the position of the board at certainty for that writer means all other writers are automatically eliminated. The reason, one or more of the other writers writing may contain some similar characteristics, qualities, and features as the identified writer. However, their combined significance does not support an identification or elimination. The example of the seesaw is only relevant to the examination and comparison process of one know writer with the questioned writing in an attempt to try and determine the probability that that known writer wrote the questioned material.

There are some occasions when after the completion of his examination and comparison, the FDE still does not know whether or not the writer of the known writing wrote the questioned writing. In other words, he has completed his analysis and there is insufficient evidence present to reach even a qualified statement concerning authorship. In this case, symbolically, he has not moved off the fulcrum.

If the FDE has reason to believe additional known writing would be of value, he is obligated to request it. If he does not believe additional known writing would be of value, he is equally obligated to make that statement. It is not possible for any FDE to reach unqualified conclusions in every case he works. The significance of the collective evidence for or against authorship is not absolute or unequivocal.

The same general principle that applies to reaching an identification also applies to reaching the conclusion that two writings are not written by the same writer. During the examination and comparison process, the FDE must consider both similarities and differences, and he must ultimately determine their combined significance for or against an identification or elimination. Reaching the conclusion that a know writer did not write the questioned writing is harder than reaching the conclusion that two writings are by the same person. The standard for an elimination is meet when the FDE is certain that at no time in the writer's writing history did he have the skill, ability, or did he ever write the specific combination of characteristics found in the questioned writing. This is the basis for eliminating the known writer.

DEFINING LEGAL TERMS

There are legal requirements placed on litigants of a suit concerning the "Burden of Truth" standard they have to meet. Over time, the courts have established these standards as they relate to both criminal and civil litigation. One explanation of the standard is: "The duty of a party in a lawsuit is to persuade the judge or the jury that enough facts exist to prove the allegations of the case. Different levels of proof are required depending on the type of case. The burden of proof always lies on the party who takes the affirmative in pleading."vi

To meet this standard imposed on him, legal council presents evidence to the court establishing his position in an attempt to refute the position of the other party. The evidence submitted falls into two very broad categories relevant to this discussion. They are, "direct" and "opinion" evidence. Direct evidence is: "Direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did."vii Opinion evidence is: "Testimony from persons (expert witnesses) who, because of education or experience, are permitted to state opinions and the reasons for their opinions."viii

Qualified expert witnesses are permitted by the court to present opinion testimony concerning their examination and analysis of evidence. What qualifies them as an expert is determined by their education, experience, and work in their profession and the judge's recognition of their expertise based on their qualifications.

The burden of proof requirement legal council must meet has an impact on expert witnesses. Frequently, council expects the expert witness to state his opinion in language that corresponds to the legal standard applicable to the relevant burden of proof. For example, these standards are:

A. Beyond A Reasonable Doubt

1. The level of proof council must establish in a criminal case, based on all the evidence he presents, must show that beyond a reasonable doubt the things he said happened, happened. "Beyond a reasonable doubt" is "The highest level of proof required to win a case."ix Reasonable doubt is: "The level of certainty a juror must have to find a defendant guilty of a crime. A real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case.

2. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of you affairs. However, it does not mean an absolute certainty."x

In a civil case there are two levels of proof council may be required to meet. They are: "clear and convincing evidence" and the "preponderance of the evidence."

B. The clear and convincing standard

1. "The level of proof sometimes required in a civil case for the plaintiff to prevail. It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt."xi

C. The preponderance of the evidence standard

1. "The level of proof required to prevail in most civil cases. The judge or jury must be persuaded that the facts are more probably one way (the plaintiff's way) than another (the defendant's)."xii

There is a legal phrase used in some judicial jurisdictions of the United States that has no meaning in the scientific community. The statement, "… are you certain to within a reasonable degree of scientific certainty that…" The origin of this statement is found in the legal profession around the early 1900's, and not in science. When a FDE or other scientist is asked to define the phrase "reasonable degree of scientific certainty," or explain what it means in his field, he is at a lost for words to do so. When testifying in court the he may be asked if his conclusions are to within a reasonable degree of scientific certainty. Depending upon how the question is asked, and the witness's stated understanding definition of the word reasonable by the FDE or scientist, the answer to the question may be a simple yes.

The FDE should always use accepted scientific procedures and standards when conducting examinations. He should ask himself, based on the available evidence I have examined does my written conclusion accurately reflect the result of my examination and comparison? Is the language I used in writing my report clearly written, and the technical language and terms used properly defined so they are easy to understand? If the answer to these questions is yes, and the examined evidence yields a result that meets or exceeds the required applicable probability standard as stated in the ASTM standards, then the conclusions reached will certainly exceed the degree of belief standard adopted by the legal profession.

No FDE should ever be required to word a report or give testimony only using legal terms or language consistent with the burden of proof standards, especially when that legal term or language is not acceptable or used in the scientific community. His report language and testimony should consist of well-defined probability statements like those found in ASTM Standard E 1658-04. The statements, definitions, and examples used in this ASTM Standard are, well reasoned, clearly written, and easily understood by the nontechnical recipient of the report. In general, the terms and language in this particular standard are outstanding. While a FDE is not required to use them when writing his report, this writer believes there is certainly no better way of expressing the degree of certainty he has, or the basis for that degree of certainty, than the wording of these particular probability statements. No clearer or more easily understood language can be used.

Many courts are holding that the meaning of the key word in the legal phrase, "reasonable," must be left up to the witness or scientist; and well it should be. Based on president, the FDE is being allowed to define the key word as he understands it, and then explain his understanding of the definition to the court, and why his probability statement meets or exceeds the legal standard. The writer has done this, and one judge liked my definition and statement more than he liked the objection by the opposing attorney.

As a practical matter, the probability statements used by the FDE exceed the legal reasonable degree standard. By allowing the scientist to first define or give his meaning of the key word and the phrase, he then can give an explanation of why his conclusions, based on his examination and analysis of the evidence conforms to his meaning and interpretation of the key word and phrase. Additionally, he can explain why his conclusion exceeds the standard implied by the use of this legal phrase. The language the FDE uses in his report does not have to mirror, nor should it mirror, the burden of proof terminology established by the courts.

Occasionally legal council tries to persuade the expert witness to express his opinion in numerical percentages, using a scale from 1 to 100, or by some other illustrative means. By doing this, council is trying to show that the testimony of the FDE should be given more weight than it probably deserves. The expert witness is, and should be, very cautious when asked to use any numerical analogy. If one is used, he must be absolutely certain the equivalent he uses is reproducible and acceptable in his science. The content of his report and testimony should stand on its own merit as he provides the judge and/or jury with information they need to resolve the issues before them.

The FDE's conclusions and the testimony he gives based on his examination and analysis of the documents is but one part of the whole case. If the totality of the evidence presented by the attorney, including the opinions of the FDE, does not satisfy the applicable legal burden of proof standard, the court or juries final decision based on their understanding of all the evidence presented does not in any way mean the examiner reached the wrong conclusion. The sum total of all the evidence presented is what the courts decision should be based on.

SUMMARY

At the conclusion of his analysis, the FDE should write a clear, concise, and comprehensive report concerning the evidence he examined, what examinations he performed, the results of his analysis, and the disposition of that evidence. When called upon to testify in court, he should remember he is presenting opinion testimony concerning his work and not an advocate for either side. His testimony will either support or not support the position of either side or council. Since he is not an advocate for either side, he should not word his report or testify in any manner that makes it appear that he is conforming to the burden of proof standards. Those standards apply only to all of the evidence presented, not just to his testimony. A competent, qualified, and ethical examiner always remembers the roll he has in assisting the court and jury in reaching a verdict, based on all of the evidence presented.

ENDNOTES

i McAlexander, Thomas V. The meaning of Handwriting Opinions," material on the back of many Secret Service QD Report Form No. SSF 3133 (06/88). Over the years Mr. McAlexander has written numerous papers and articles on this topic. Any commonality between wording in portions of this paper and his works is the result of our association over many years of working together. Where those commonalties exist in this paper, credit for them should go to Mr. McAlexander.

ii Ibed, McAlexander, Thomas V.

iii Random House Webster's Electronic Dictionary & Thesaurus College Edition, Copyright 1992, Reference Software International.

iv The American Heritage® Dictionary of the English Language, Fourth Edition. Copyright 2002, 2000 by Houghton Mifflin Company. Published by Houghton Mifflin Company. All rights reserved.

vAmerican Society For Testing and Materials (ASTM) in Designation: E 1658-96, page 2.

vi The Lectric Law Library™ Reference Room, at http://www.lectlaw.com/ref.html on the INTERNET, date of search 10/22/98, topic, "Burden of Proof,"

vii The Lectric Law Library™, "Evidence, Direct."

viii The Lectric Law Library™, "Evidence, Opinion."

ix The Lectric Law Library™, "Beyond a Reasonable Doubt."

x The Lectric Law Library™, "Reasonable Doubt."

xi The Lectric Law Library™, "Evidence, Clear and convincing."

xii The Lectric Law Library™, "Preponderance of the evidence."

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