Case law for  Attorneys and Investigators

CASE LAW : OBTAINING HANDWRITING SAMPLES 

Court cases  have established  that the taking and providing of a handwriting sample for comparison purposes is not a violation of an individual’s right against self incrimination.

Gilbert v. California 388 US 263 (1967)   The court held that even though the defendant’s attorney objected to the admission of requested handwriting specimens provided by his client on the grounds that they violated his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel, the court upheld the lower court’s decision that the specimens provided had not violated his client’s rights. The Court cited Schmerber v. California where the court held that the Fifth Amendment offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or to speak for identification, to appear in court, to stand, to assume a stance, or to make a particular gesture.

U.S. v. Izzi, 427 F.2d 293 (1970) Izzi was charged with Interstate Transportation Of Stolen Property. Izzi went to Pennsylvania and using a fictitious name checked into a motel. The motel registration card and the signature upon it became a significant government exhibit. When the court order for exemplars was granted, Izzi did his part by disguising. The government expert explained the differences that were present in the questioned and standard signatures as disguise. The defense expert intimated that the differences were because a different writer had signed the card. In his appeal, Izzi maintained that the government expert "emphasized the differences...suggesting that he (Izzi) had attempted to disguise...and by so doing had indicated consciousness of guilt." Izzi claimed this was an "implied admission wrung from him in violation of the Fifth Amendment." The appeals court said, "If GILBERT is not to be rendered meaningless, the government must be allowed to explain differences between exemplars and the signature sought to be identified, particularly where the defense points to these differences as evidence of non-common authorship."

Schmerber v. California, 384 U.S. 757 86 S CT. 1826 (1966) Schmerber maintained that a blood specimen taken from him non-voluntarily to determine the amount of alcohol in his blood was a violation of his privilege against self-incrimination. While the Court reiterated that the Fifth Amendment provides protection against an individual being compelled to testify against himself, a blood specimen was not testimony. In addition, the Court stated that the Fifth Amendment offers no protection against compulsion to "submit to fingerprints, photographing, or measurements, to write or speak for identification." The Court relied upon an earlier decision, Holt v. U.S., 281 U.S. 245 (1910), where Holt was required to try on clothing found at the scene of a murder. The fact that a blouse fit Holt was offered into evidence.

Lewis v. U. S., 382 F.2d 817 (1967) In this case the defendant was asked to give, and provided, a requested hand­writing sample before his counsel was present and he was taken to a committing magistrate. The court ruled that his Fifth Amendment rights had not been violated because written words used as a handwriting sample and not for their meaning does not automatically mean that the defendant had knowledge of a particular crime. The sample is relevant only for the shape of the letters and for the direction of some lines and marks, which may identify the writer in the same way a fingerprint or photograph does.

U.S. v. Mara, 10 CR. L. 2235 (1973) In this case a grand jury subpoenaed a witness and directed him to provide a sample of his handwriting and hand printing to be used for identification purposes. The witness, Mr. Mara, refused, citing that compelling him to produce such a sample would constitute an unreasonable search and seizure. He continued to refuse and was held in civil contempt and remanded to the custody of the Marshals. The court ruled that the grand jury directive to provide a handwriting sample did not violate his Fourth Amendment rights because it was not a “seizure~~ his writing was constantly exposed to the public every time he wrote.

 U. S.  v.  Dionisio, 93 S.Ct. 764, 772 (1973).   A U.S. Supreme Court decision. In this case the sample sought was a recording of Mr. Dionisio’s voice. The court upheld the grand jury subpoena for the same basic reason as in the Mara case.

 U.S. v. Nix, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 387-88 (1984) On judge’s instruc­tion to the jury that the defendant’s refusal to provide a court-ordered hand­writing sample could be inferred by the jury as a sign of guilt by the defendant. Under the inevitable discovery doctrine, evidence which is illegally obtained can still be admitted into evidence as an exception to the exclusionary rule when “the information ultimately or inevitably would have been discovered by lawful means.” Thus, a determination of an illegal search does not preclude a separate determination that the exclusionary rule does not apply because of the inevitable discovery doctrine.

         As can be seen in these cases  it is well established that it is not a violation of a person’s rights to provide a requested sample of their writing for comparison purposes. What often is challenged is the accuracy of handwriting identi­fication, its methodology, and whether the opinions of FDEs should be admitted into courts as evidence. See  Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 US 579 (1993)  and Frye v. U.S., 293 F.1013 (D.C.Cir.’23) 

REFERENCES

Crane, A. (1999) “Does the Amount of Handwriting on a Check Constitute a Reasonable Amount of Sample?” Canadian Society of Forensic Science Journal, 32(1).