Handwriting
Handwriting comparisons may be made by witnesses, the jury, or the court
Prerequisites for admission of handwriting comparisons
Conflicting evidence concerning handwriting comparisons
Obtaining a handwriting exemplar and its relationship to the privilege against self-incrimination
Obtaining a handwriting exemplar and its relationship to the defendant’s right to counsel
Handwriting comparisons may be made by witnesses, the jury, or the court
• In a proceeding before a court or judicial officer of Indiana in which the genuineness of the handwriting of any person is involved, any admitted or proved handwriting of the person is competent evidence as a basis for comparison by:
(1) witnesses; or
(2) the jury, court, or officer conducting the proceedings;
to prove or disprove the genuineness of the handwriting.
Prerequisites for admission of handwriting comparisons
• Before evidence of comparison may be given, the genuineness of the handwriting serving as the standard of comparison must be established.
Gardner v. McClusky, 647 N.E.2d 1, 4 (Ind. Ct. App. 1995), reh’g denied, trans. denied(citing Huspon v. State, 545 N.E.2d 1078, 1082 (Ind. 1989))
• To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
• The following are examples only, not a complete list, of evidence that satisfies the requirement: . . . A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
• For more information about authenticating evidence, please review Authentication.
• One need not be an expert to give his opinion as to the genuineness of the handwriting of a person if he is familiar with such person's handwriting and has seen the person write. Anyone who is familiar with a person's writing from experience, having seen him write, or having carried on correspondence with him or from the opportunities of having frequently handled and observed the person's handwriting, is competent as a nonexpert to give an opinion as to the genuineness of his signature or handwriting.
Spencer v. State, 147 N.E.2d 581, 583 (Ind. 1958)
• [The defendant] concedes that lay witnesses are permitted to examine the exhibits and give their opinion as to the authenticity. Here, [the witness] testified that she was familiar with [the victim’s] handwriting because she taught him English. Because [the witness] did not acquire her familiarity with [the victim’s] handwriting for purposes of this litigation, her opinion was proper.
Lockhart v. State, 671 N.E.2d 893, 902 (Ind. Ct. App. 1996)(citing Evid. R. 901(b)(2))
• The defendant, by his brief, seeks to argue that the exemplar used for the handwriting was not conclusively shown to have been written by him. . . . It is clear, however, that this argument would apply only to the weight of the evidence and not to its admissibility.
Fair v. State, 364 N.E.2d 1007, 1013 (Ind. 1977), reh’g denied
Conflicting evidence concerning handwriting comparisons
• [T]he evidence regarding the validity of the receipt was conflicting. While Father's handwriting expert testified that in his opinion the signature on the receipt was Mother's, he could not testify to the authenticity of the receipt itself because it was a photocopy. Mother testified that she did not execute the receipt . . . . Further, Mother's expert testified that the signature on the receipt was not Mother's. . . . Here, the conflicting evidence concerning the handwriting comparison goes to the weight and credibility of the evidence, which is solely the province of the trial court.
Garcia v. Garcia, 789 N.E.2d 993, 997 (Ind. Ct. App. 2003)(emphasis added)
Obtaining a handwriting exemplar and its relationship to the privilege against self-incrimination
• The right against self incrimination protects the accused only against testimonial compulsion. It does not protect against complusory submission to purely physical tests such as fingerprinting, body measurements, handwriting and voice exemplars.
Hutchinson v. State, 477 N.E.2d 850, 854-55 (Ind. 1985)(citing Frances v. State, 316 N.E.2d 364, 366 (Ind. 1974))
See Kalady v. State, 462 N.E.2d 1299, 1310 (Ind. 1984)(citing State ex rel. Keller v. Criminal Court of Marion Cnty., 317 N.E.2d 433, 437-38 (Ind. 1974))(“It is well-settled that although self-incrimination protects a defendant from testimonial compulsion, it does not protect against compulsory submission to purely physical tests such as fingerprinting, body measurements, handwriting and voice exemplars.”)
See also Allen v. State, 428 N.E.2d 1237, 1239 (Ind. 1981)(citing Frances v. State, 316 N.E.2d 364, 366 (Ind. 1974))(“The privilege against compulsory self-incrimination does not shield a defendant against a court-ordered submission to a ‘purely physical’ test such as body measurements, handwriting, fingerprinting and voice exemplars.”)
See also Hollars v. State, 286 N.E.2d 166, 168 (Ind. 1972)(citing Schmerber v. California, 384 U.S. 757, 760-61 (1966) & Gilbert v. California, 388 U.S. 263, 266-67 (1967))(“The 5th Amendment privilege against self incrimination has been held to reach only compulsion of the accused's communications and responses which are also communications, that is evidence in the form of testimony or that which is testimonial in character. It does not shield against compulsory submission to tests that are merely physical or produce evidence that is only physical in nature, such as fingerprints, measurements, voice or handwriting exemplars, or physical characteristics or abilities.”)
• Defendant argues the handwriting exemplars in question were testimonial, and therefore violative of his Fifth Amendment rights, because he wrote names, things, and places dictated to him by the officer taking the exemplars. . . . The fact defendant here was asked to write names and things which were identical to those written on the forged instruments does not make the exemplar testimonial. The substantive content of the exemplars was not communicative in any sense. The exemplars were used strictly for purposes of identification of the physical characteristics of defendant's writing and comparison with the forgeries.
Kindred v. State, 524 N.E.2d 279, 296-97 (Ind. 1988)
Obtaining a handwriting exemplar and its relationship to the defendant’s right to counsel
• The taking of handwriting exemplars from a defendant is not a critical stage of the criminal proceedings entitling defendant to assistance of counsel. There is minimal risk that the absence of counsel might derogate a defendant's right to a fair trial.
Kindred v. State, 524 N.E.2d 279, 297 (Ind. 1988)(citing Gillie v. State, 465 N.E.2d 1380, 1386 (Ind. 1984))
See Miller v. State, 693 N.E.2d 602, 605 (Ind. Ct. App. 1998)(citing Gillie v. State, 465 N.E.2d 1380, 1386 (Ind. 1984))(“The right to counsel attaches only to critical stages of criminal proceedings. An administrative procedure such as the taking of a handwriting exemplar is not a critical stage; accordingly, counsel does not have to be present.”)
See also Hollars v. State, 286 N.E.2d 166, 168 (Ind. 1972)(“With reference to the 6th Amendment right to counsel claim, it was held in Gilbert v. California that although the [defendant] was in custody, the taking of the handwriting exemplar was not a ‘critical’ stage of the criminal proceedings entitling him to counsel in view of the minimal risk that the absence of counsel might derogate from his right to a fair trial.”)