Judicial systems vary from place to place. There are two models for hearings in court that predominate, namely the adversarial system where one side challenges another (typified by the UK) and the inquisitorial system where proceedings are focused on establishing ‘the truth’ (typified in much of the rest of Europe). This chapter will tend to focus on issues that relate to the adversarial system, but most of the principles apply to both systems of justice.
In addition, the system in the UK is split into two main subdivisions, namely the criminal and the civil courts. Hearings may take place outside the court's judicial system but the standards of proof almost always are modelled on the criminal (beyond reasonable doubt) or the civil (on the balance of probability) evidence requirements.
The giving of evidence in person is the final stage of the journey from the event to the judicial process of seeking to prove innocence, guilt, exoneration or blame of some kind. Of the many steps along the path, some are outside the control of the forensic expert, but once the evidence is available to examine, the responsibility lies with the expert to make sure that not only are the forensic processes carried out properly but also that the results obtained are made available in a clear and understandable way to the non-experts who need to fully understand them in the court proceedings or hearing that may follow.
For this reason, the importance of good written communication and good oral communication cannot be overstated despite coming as the final chapter of this book that focuses primarily on the forensic methods used in the speciality of document examination. Put quite simply, being expert at the forensic examinations involved and interpreting the results is all well and good, but if the end product (be it a report or giving verbal evidence in person) is incomprehensible or misleading then all that skill will come to nought.
The need to make thorough notes has been stressed throughout this book. The kinds of information needed for various examination types have been discussed when necessary as it is often the case that the details that need to be recorded are not obvious, since it is not practical to make a note of absolutely everything that occurs during an examination. Rather, it is more efficient if the notes contain the observations that are relevant to, and which form the basis of, any conclusions that are to be expressed in a final report.
At the time of making an examination it may not be obvious which observations, results, findings and overall thought processes are the most important for what will eventually go into the report. Hence, notes nearly always contain more information than appears in the final report, since the context of the case will dictate what is relevant and the reader of the report will not understand all of the many specialist, technical components of the notes.
It is therefore certainly true that the notes are primarily for the practitioner as an aide memoire of what was done and what was thought at the time of the examination such that, should it be necessary to give evidence in person at some later time, the essential elements of the forensic case are clear. However, there is perhaps a sense in which the notes are rather more than a personal record and are a public document, in that the evidence forthcoming from an examination is usually in the public domain, so it is wise to ensure that the notes are appropriate and have the potential to be scrutinised by others as being a good and fit for purpose record of the events of the examination – and that the practitioner did not do a superficial job, making inadequate case notes to back up the conclusions expressed.
One aspect of case file management that is important to note is ensuring the pagination of the many sheets of paper, with a note made of the total number of pages present. This enables the completeness and the presence of all material in the file to be demonstrated – missing pages or tampering with the file then become more obvious. Tampering with the file (for example removing or re-writing pages) could well call into question the integrity of the expert if discovered.
Often the case file can become very large, containing pages of notes, findings, perhaps printouts from various pieces of equipment and copies of one or more statements or reports. Given that the case file is the source of all of the relevant information about the case when it comes to court months or years after the examination(s) took place, it then becomes important that the contents of the file are organised in such a way as to ensure that retrieval of details can be done efficiently in the witness box in response to a question. There are many ways of making file navigation as clear as possible depending on the nature of the contents. Some suggestions include:
| Item | Pages in notes |
| AB/2 | 2–4 |
| GH/1 | 6 and 14 |
Inefficient file navigation may not seem all that important to the forensic evidence (and indeed it has no bearing on it at all), but the perception of the court of an expert's competence might be adversely affected if after each question at a hearing there is a shuffling of papers lasting too long, such that the flow of oral evidence is disrupted. When onlookers wonder whether the expert can't keep their file in order, what does that say about the expert?
In those cases where, for one reason or another, the expert is not required to give evidence in person at a hearing, the report or statement is the final product of a forensic practitioner's task. If indeed their evidence is alluded to in a hearing in their absence, then it is crucial that the report's meaning is crystal clear since the expert is not there to correct any misapprehensions about what is being said in it.
It is not necessary for a forensic practitioner's report to be a literary masterpiece. Indeed, it is important that it is straightforward and easy to understand by a non-expert. Some suggestions are:
The value of a well-written report to the reader is obvious, but the expert will also benefit because the likelihood of being called to give evidence in person may be reduced if the meaning of the report is clear to all concerned. In addition, if giving evidence in person, locating relevant findings will be quicker if the report is well structured. The written findings, conclusions and opinions are the basis for the oral evidence.
Perhaps the most important aspect of a report is the conclusions. The ways in which they are expressed have the potential to have a significant impact on how a case will be judged. For this reason, much has been written over the years advocating different views on how this should be done to ensure that those who use the report in their deliberations understand clearly the strength of evidence that is available.
One part of this is the distinction between opinion evidence and factual evidence. The giving of opinion evidence is the territory of the expert witness. Giving factual evidence may also fall within the remit of the expert, but it may also be given by a professional witness whose expertise is in the relevant subject area. The demarcation between opinion and factual evidence is not always clear and legal distinctions between them may be debatable. Many conclusions are a hybrid of factual evidence and opinion evidence, but with some specialities the opinion element is greater than others, none more so than handwriting evidence which relies so heavily on the skill, experience and knowledge of the expert to interpret what are always unique examinations.
Notwithstanding philosophical subtleties, the expert is duty bound to say what he or she thinks the evidence that they have discovered means; simply revealing or describing the evidence without saying what it means falls short of expert evidence as it clearly leaves out any sort of interpretation. The interpretation of evidence is often dependent on the case story and this is why considering alternative explanations for it is so important. It is most certainly not the role of the expert to attempt to provide support for a particular interpretation of the evidence; rather, the unbiased expert will consider reasonable explanations in a given case and (giving reasons) will explain why one or other of the explanations better accounts for the findings than others.
The time lapse between a forensic examination and attendance at a hearing in person may be months or even years. The case file then becomes the starting point for re-acquaintance with the case and the story behind it. Reading the case file is essential and it may well help if it can be established with the relevant authorities which parts of the evidence will be pertinent, since it is by no means unusual for only a part of an expert's evidence to be alluded to during the hearing. In such a situation, the expert can then concentrate on those elements of the case notes and reports that are relevant to the hearing, which is especially helpful if there was a lot of other material examined which is not relevant and can be ignored (or at least briefly skimmed over) in preparation for the hearing.
It may be possible to memorise much of the information in a smaller case, although it is always wise to check with the written notes first before answering questions during a hearing. In larger cases, it may only be possible to memorise a fairly small part of the information, so instead it is a good strategy to remember where various kinds of information are located in the file. If the case file has been constructed carefully (see previous section), then the retrieval of information required for an answer will be less difficult. Obviously, memory is an attribute that varies from person to person, so it is best to use one's own particular memory faculty to the best advantage.
Typically, experts will receive plenty of warning (weeks or months) before being required to give evidence in person, although it is not unknown for an expert's evidence to unexpectedly become relevant during a hearing and then the warning time may be days or hours! The place where the hearing is taking place is usually known well in advance, although again it can change at short notice since by their very nature hearings are unpredictable events and can take much less or much more time than anticipated.
Therefore, it is important to plan travel arrangements and to have a local map so that getting to a hearing is as swift and uneventful as possible. It is also important to have relevant contact details so that if travel is slow those at the hearing can be made aware of your delay. The time that a witness eventually gets to give evidence in person is often difficult to predict at the start of the day, so in most cases it is required that a witness be at the hearing at the start of a day's proceedings. Inevitably, this means that, even for expert witnesses, there is a good chance that there will be several hours waiting to give evidence (and it is not unusual to have to return the next day and even the next). It follows that it is worth having some means of passing the time.
Giving evidence is a generally stressful experience for a witness, even for an experienced expert witness. Some adrenalin is good to keep you on your toes as opposed to the opposite, complacency, which can make you feel over-confident. The impact of the evidence cannot be detached from the personality of the person giving it since we all react to people in different ways. How those at a hearing perceive a given expert witness is difficult to know, but some qualities that an expert might do well to show are:
Those listening to an expert's evidence will almost certainly have expectations of not only the manner in which the expert delivers this but also their behavioural demeanour and appearance. In this sense there is a degree of fulfilling the expectations of others by having a smart appearance and conducting oneself in and outside the hearing in a professional way.
Unfortunately, the one group of people that is often portrayed as being expected to be infallible is the experts. As noted elsewhere in this chapter, such an expectation is completely unreasonable, but experts should be doing everything within their personal capability and that of their speciality at that time (after all science, technology and methods do develop and should improve over time).
There is clearly a difference between an accidental error, an error caused by negligent practice and an error caused by corrupt practice. Errors of the first kind will happen but the likelihood is reduced when the expert is properly trained, keeps up to date with developments in their speciality (usually known as continuing professional development or CPD) and ideally has colleagues who are able to check their work to yet further reduce sources of error.
Errors of the second kind will tend to occur if the expert is not fully competent or has a disorganised and unprofessional approach to casework. While they are unacceptable they are capable of remediation with the help of further training and greater awareness of good practice.
Errors of the third kind, if revealed, should have only one consequence and that is that the expert is not able to practice.
Speaking in public is something that many people find uncomfortable. In most hearings, the ‘audience’ is not especially large (typically 20 to 30 people perhaps) but the fact that the expert is giving evidence means that it is important evidence that requires the scrutiny that comes from clarification and challenge.
The giving of evidence requires that the expert is able to present information in a straightforward and clear way so that non-experts can understand what is being said and what conclusions are being drawn and that there is an understandable and reasonable link leading to the conclusions. To do this orally in front of others is not always an easy task. However, experts are obviously well versed with their subject matter. The more difficult part is using language that conveys the evidence without distorting or misrepresenting it. It is likely that experts will have undergone training in preparation for a career that requires giving oral evidence. From this the expert can build up a ‘library’ of responses to some of the more frequently encountered questions in their speciality. As the expert's experience increases, it is also possible to begin to anticipate which lines of questioning are more likely in a given case.
The pattern of giving evidence will vary from place to place, but often it involves two main stages. First, giving your evidence, which can include clarifying and adding explanations to it, and which also often starts with a general background scoping the speciality and its associated methods. Second, it is common for there to be some sort of challenge to the evidence to test it and justify it so that those listening to it can be reassured as to its quality.
In a sense, therefore, the first stage is usually more predictable and ‘friendly’ in that it is an opportunity for the expert to articulate his or her evidence for the benefit of the hearing so that it is clearly understood; the general principles are outlined and the observations in the particular case are related in such a way as to make a coherent and comprehensible story.
Challenging the evidence is necessary to ensure that the expert's evidence is credible. The challenge can be to the various components of the evidence itself:
The need for forensic specialities to be founded on sound principles was discussed in Chapter 1. Chapters 2–10 contain much of the information that both underpins the speciality of forensic document examination and also describes the kinds of observations and their interpretation for various examination types. Various means have been put forward to reassure users of forensic evidence over the competence of experts and these are also described in Chapter 1.
The expert can expect to be challenged on any or all of these aspects. If the speciality has a long, tried and tested history, then it is unlikely that this will be significantly challenged. If the expert has done his or her job properly and explained things well, then this will make a challenge to the case findings more difficult. Direct ‘attacks’ on expert witnesses are unusual but having some form of external backup to demonstrate competence helps to give confidence to the listener.
Questions that challenge the forensic evidence are often the most difficult to answer. It is always good practice to think carefully before any answer is given since retracting an answer is not easy. This is particularly true if the answer required is not just a simple yes or no, but requires an explanation that is coherent and understandable.
If new material is produced for an expert during a hearing then it is wise to require time to consider it carefully – examinations made in the witness box (such as a new document bearing handwriting and the question ‘Was this written by the same person as the other documents you have seen?’ or some such situation) are generally unwise unless given with the caveat that they are first impressions.
It is often the case that at least some parts of your evidence will be written down manually by people in the hearing as you speak (and all of it will be recorded in some way). This means that if the witness speaks too quickly, those noting your words may ask for an answer to be repeated or a general slowing down in speaking speed. This may sound straightforward enough, but people have a natural tempo for their speech and changing it can be difficult.
The questioner is not usually an expert in questioned documents and so may either inadvertently or deliberately ask questions the meaning of which is not clear to you (and therefore almost certainly not clear to the others at the hearing). It is wise to have the question re-phrased to make sure that you have understood it correctly and at the same time make clear to those listening to your answer the connection between question and answer.
Taking time over answering, especially if the question is either unexpected, or complex or perhaps seems particularly important to your evidence, is a good policy. It is expected that an expert will answer questions with due careful thought when needed. And there is most certainly no requirement that an expert's answer should be constrained by such comments as ‘Just answer Yes or No’ if such an answer is inappropriate.
The single most important guiding rule for expert witnesses is to ensure that nothing they do impedes fairness and justice. In other words, their duty is to the court (and therefore ultimately to society as a whole). This may be a heavy burden to bear given that some of the other players in the judicial system are not averse to suppressing, misrepresenting or slanting evidence. But expert witnesses should seek to take the highest possible moral high ground in the way they conduct themselves in all aspects of their business, from the time that they take on a case to the time they are giving oral evidence.
Dealings with a client fall into two broad categories. There is the forensic side that involves the technical matters about which the expert has been consulted. But there is also the business side in which factors such as cost and timeliness are relevant.
The expert must examine all of the material that they are presented with and must not select evidence that supports their client's (or anyone else's) case – this would be clearly wrong. It may be true that the adversarial system in particular leans towards the mentality of ‘prove it’, but the expert must be above that and must consider all evidence presented to them. Indeed, it is certainly possible that those supplying the evidence may already have selected items for examination that they believe help their cause (and possibly not supplied material that they believe will be detrimental to their case) and that is something that may well not be apparent or known to the expert.
It is often the case that clients will not like the expert's report if it does not say what they wanted or expected it to say. Experts may be asked to re-consider their conclusions, and that can be done, but change can only be justified on the available evidence not because of the client's say so. An expert may be asked to leave out particularly damaging parts of their report and, again, this interference must not be tolerated.
One occurrence that presents especially awkward problems is where an instructing client asks for a particular aspect of a questioned document case to be examined and does not ask for (and potentially will not pay for) other aspects of the document to be examined – either because they are not aware that those other aspects can be examined or because they know what the outcome will be and do not want that revealed. If the expert carries out the requested examination but also notices that an unrequested aspect could be relevant to the case as a whole (although perhaps damaging to the client's case), what should be done? Opinions on this may differ, but if fairness and justice are the primary duty of the expert, then this unrequested aspect must at least be brought out into the open by some appropriate means so that the conscience of the expert is clear even if others choose not to pursue it. It does not help matters when client confidentiality is invoked as a barrier to what an expert can or should do. As noted above, expert witnesses are responsible ultimately to the courts, and they should take the highest possible moral standpoint and behave accordingly and should not be criticised or threatened with legal consequences for doing so.
Experts do have a business side to their jobs and it is right that this too is carried out in a professional way. It is to be hoped that experts that do not deliver their services in a timely way or unreasonably over-charge, for example, will not stay in business.
It may be that experts face some difficult issues over the way in which they charge their clients. It is not unknown for an expert to provide their services for free if the client is clearly unable to (fully) pay and if there is a good reason to believe that there is something of potential importance that needs expert examination. At the opposite end of the spectrum are clients for whom paying is not an issue and who are prepared to pay a premium, especially for a faster service for example. Such business practices are normal, but one that is not to be encouraged is the so-called ‘no win, no fee’, which translates into the expert not charging if the client does not win the case. In such circumstances, the expert would have a vested financial interest in the outcome of the case which could (and almost certainly would be seen by others to) compromise the unbiased nature of the expert's evidence.
It must be remembered that for a variety of reasons experts may be given background information by one or other party to a case and may even be told that, for example, a specimen of handwriting was written by a particular person when in fact it was not. Such background information may be necessary to a case in that it enables the expert to consider the various alternative possibilities, but it may also influence their examination and conclusion along the lines of ‘X has admitted writing the document so it is safe for me to reach that conclusion’ when crucially that conclusion may not be justified on the basis of the evidence available. This tendency (known as cognitive bias) to make the evidence consistent with the ‘known (or believed) facts’ is extremely dangerous, turns the whole forensic process upside down and is quite simply wrong.
Cognitive bias may be difficult to deal with when the investigator has a very strong expectation of an outcome from a forensic examination, and this may be exacerbated if the case has a particularly high media profile often resulting from a major incident. The pressure on the expert to deliver the anticipated or even ‘needed’ result must at all costs be resisted. Rather, the evidence must be evaluated in the normal way using all of the methods and processes required and interpreted according to the normal criteria that would apply to any other case.
This also highlights a drawback to an organisational relationship between the investigator and the expert. If the expert works for the same organisation as the investigator, then there is a danger that either the expert will feel under pressure to occasionally provide the result expected by a particularly keen (but unwise) investigator, or that others will perceive the investigator–expert relationship as too close and will call into question the expert's impartiality no matter how independent-minded the expert really is. This is not calling into question the expert's integrity, but makes the point that others may be sceptical of it.
Cognitive bias can occur when one expert checks another expert's work as there may be a tendency for the checker to only look at the points that led the first expert to their conclusion. This is not a wise approach to quality assurance checking. Having made their own independent examination and formed a conclusion, it is essential that the checker should challenge the evidence of the first expert, looking for errors, inconsistencies, and essentially putting into practice one of the cornerstones of scientific method, namely trying to falsify (or trying to show as incorrect) the reported findings and conclusions. If the checker cannot find reasons to undermine the report's conclusions then it is reasonable to accept them as a fair representation of the evidence.
Experts should neither believe nor disbelieve what they are told by others in a case as people have all sorts of reasons for admitting and denying things, either by deliberately lying or in the mistaken belief that what they are saying is true. Experts have to work on the presumption that some of what they are told is true (such as Person X attended and provided the sample of handwriting submitted) but they must be aware that some of what they are told may not be true and should, if possible, test any such information if the evidence is available. For example, if a person admits all of the handwriting in a diary, but the expert finds clear evidence that there is the handwriting of more than one person present, that has to be made clear in any report even though it may not be possible for the expert to establish which, if any, of the multiple handwritings in the diary were written by the person making the admission.
There are, therefore, many non-technical aspects to the work of the forensic document examiner that are not optional but must be dealt with properly and professionally. These aspects can indeed reflect on the integrity and business capability of an expert and have the potential to cause as much damage to an expert's reputation as competence in the speciality itself. In general, openness, transparency and honesty combined with a clear awareness of where duties lie will be sufficient to avoid the majority of awkward professional situations that can arise.