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what cross

their may include.

on

cross-exami

A. I cannot express an opinion permissible to cross-examine them on that. I am no expert in hand- as to their experiwriting.

ence and competen- examination Q. I hand you another photo- cy, as to graph, and ask you if you can tell methods of investigation, and to the which in there are genuine signa- reasons for the opinions they extures of Lewis Adams and which press, as to the peculiarities of the are not?

questioned writing and the differA. I cannot express an opinion ence, in this respect, between it and on that.

the genuine writing, as to the dif Q. Would you say that any of ferences between his opinion and them were the genuine signatures that of other experts who have tesof Lewis M. Adams?

tified in the case, and other subjects A. I would not undertake to say. that will throw light upon weight Q. Would you say that they are

to be given to his testimony. Innot the genuine signatures of Lewis deed, the scope and

limit of such cross

Appeal-ruling M. Adams? A. Mr. Smith, I am not an expert

examination must nation of hand

writing expert. on handwriting.

be left largely to

the discretion of the trial court, Q. When I tell you that two of

whose ruling will be rarely disthese signatures are the same as the word "Adams" in the will,

turbed.

In Browning v. Gosnell (1894) would that change your opinion in

91 Iowa, 448, 59 N. W. 340, there any way?

was given to an expert in handA. No sir.

writing several signatures, some of We are of the opinion that the

which were genuine and some writtrial court committed no error in

ten by other persons, and the witpermitting the questions to be asked

ness was asked to point out the and answered. The

genuine signatures in order to test Witness-crosswitnesses qualified

his knowledge, and this was permithandwriting

ted. The court said: “We think as experts and were expert. permitted to give

it is proper, when a witness testifies their opinions as such, and the con

to the genuineness of a handwrittestants had the right to test their

ing or signature, to test the value of qualifications as experts, and to

his evidence thoroughly, and for measure their capacity to give reli

that purpose he may be asked to able opinions, and the questions

give his opinion as to the genuinepropounded were directed to that

ness of signatures which are preend. A very wide

pared for that purpose, and in the

handwriting of any person. Opinscope should be given to the cross-ex

ions as to the genuineness of handamination of experts on handwrit

writing are, at best, weak and un

satisfactory evidence, and every ing. They come into the case with no actual knowledge of the genuine

reasonable opportunity should be

afforded, on cross-examination, to handwriting, but professing, by

test the value of the opinion of the their skill and knowledge of writ

witness, and we know of no better ings, to be able to compare a ques

way than was resorted to in this tioned writing with a genuine one,

case.” and tell whether the questioned

In Hoag v. Wright, 174 N. Y. 36, writing is genuine or spurious. 63 L.R.A. 163, 66 N. E. 579, spuriThere is much room for fraud or

ous signatures were shown to the mistake, and great temptation to witness, along with the genuine, in form opinions favorable to the par- order to test the skill and capacity ty calling the witness. Hence it is of the witness. It was there said:

examination of

-scope of crossexaminationtrial.

Witness-im

(- Va, -, 122 S. E. 126.) "It tended to cast doubt upon the tended to impeach a witness by a credibility of the witness and his prior inconsistent statement, the skill as an expert. It suggested the foundation should be laid by first question whether, if the witness calling the attenwas at fault as to the spurious sig- tion of the witness peachmentnatures, he was not at fault as to to the alleged in

foundation. the signatures in question. It made consistent statement and inquiring a direct attack upon the value of his whether he made it. Gordon v. opinion. .. Owing to the dan- Funkhouser, 100 Va. 677, 42 S. E. gerous nature of expert evidence 677. It is claimed by the propoand the necessity of testing it in the nents that this rule was violated in most thorough manner in order to the instant case. We cannot go inprevent injustice, we are disposed to the details, but it sufficiently apto go farther and to hold that where pears that the questions and ana witness makes a mistake in his swers given on a former trial were effort to distinguish spurious from in nearly every instance read to the genuine signatures, and he does not witness, and he was asked whether acknowledge his error, it may be or not he had so testified. shown by other testimony. The test sought to be applied in this case

In one instance the question as

sumed this form: was one of the most practical and conclusive that can be employed to

Q. At the last trial you said you determine whether the witness is

talked with him two days before he really an expert or not. It bears

died, about making a will. At this not only upon his competency to ex

trial you say that is not so. Which

is correct? press an opinion, but upon the value of his opinion when expressed. While this question was not in

The good sense of the trial approved form, still in each injudge will confine it within proper stance the witness was fully apbounds and prevent an unnecessary prised of the fact that his testimony consumption of time. It is better

.

at the former trial would be used to take a little time to see whether to contradict his present testimony, the opinion of the witness is worth and he had abun

-impeachment anything, rather than to hazard dant opportunity to by testimony on

former trial. life, liberty, or property upon an explain his testiopinion that is worth nothing. The mony at the former trial and any evils and injustice arising from the apparent inconsistency between it use and abuse of opinion evidence and his present testimony, and this in relation to handwriting are so

was all the law requires. No unfair grave, that we feel compelled to de- advantage was taken of the witpart from our own precedents to

ness. some extent and to establish fur- It is assigned as error that the ther safeguards for the protection expert witness on handwriting of of the public. As the hostility of the contestants was asked to make witnesses to a party may be shown

his comparisons of the writings as an independent fact, although it "not only from the original writprotracts the trial by introducing a

ings in evidence, but from the phonew issue, so, as we think, the in- tographs which he had made.” The competency of a professed expert witness made the photographs himmay be shown in the same way and self and testified to their correctfor the same reason; that is, be- ness.

Some of the photographs cause it demonstrates that testi- were enlarged, and he used several mony, otherwise persuasive, cannot copies, and could thus place before be relied upon.”

the jury the characteristics of the It is well settled that if it is in writings and the reasons for his

-testimony

opinions far better than he could whether or not the signature to the

by the use of the will was the genuine signature of from photo

original papers on- Lewis M. Adams. Under such cirgraphs.

ly. There was no cumstances, the contestants had the error in the ruling of the trial court right to test the value and accuracy in this respect.

of that opinion, and the mode The ruling of the trial court adopted was legitimate. The anwhich has met with the most ear- swer that they could not tell in nest opposition of counsel for the whose handwriting the word "Adproponents is that admitting in evi- ams” was simply demonstrated the dence exhibits A. S. 0. No. 2 and limit of their knowledge on the subA. S. O. No. 1.'

ject. They were what may be called A. S. O. No. 2 is an enlarged pho- practical experts, and the relative tograph of the word "Adams," a weight to be atpart of the signature. There are tached to their tes- Trial-question eight of them in the picture. We timony and that of weight to be have hereinbefore stated the objec- the scientific

given expert

ex- testimony. tion to the use of this photograph perts was a queswith nonexpert witnesses on cross- tion for the jury, but the contestexamination. The primary object ants had the right to put before the of the photograph was to enable the jury evidence tending to show the contestants' expert witness to point limited extent of their knowledge of out more plainly its peculiarities, the handwriting, and the consethe formation of the letters, the quent value of their opinions. spacing, the angularity, the infirm- Exhibit A. S. 0. No. 1 consisted ative line or hesitation, and other of a book of photographs of writpeculiarities,—and to compare the ings of Charles M. Adams and Lewwritings of Charles M. Adams with is M. Adams, admitted or proved those of Lewis M. Adams, in these to be genuine, and many of them respects. The photograph having already in the cause. It contains been shown to be a correct picture

twelve or fifteen pages. Some of of the word "Ad- the pictures are enlarged, others Evidence

ams" in the genuphotographs of

are of natural size. Some of the signatures

ine handwriting of originals were written with pen and admissibility.

one of the parties, ink, others with a pencil. In some its admission in evidence was prop- of the photographs a word from one er. Johnson v. Com. 102 Va. 927, writing, a sentence from another, 46 S. E. 789, supra. The right to and a part of a sentence from ancross-examine adverse expert wit- other, are grouped together in juxnesses to ascertain the extent and taposition and photographed. The accuracy of their knowledge as ex- originals of all writings of which perts was legitimate on the prin- the whole or any part was photociples already discussed. See also graphed were before the court and Hoag v. Wright, supra. The chief jury for inspection. The photoobjection was to the cross-exami- graphs were shown to be correct nation of bank officers who were copies of the originals, and no quessaid to be only quasi experts, and tions is raised as to this. The phonot expected to be observant of such tographs were not offered as origipeculiarities as they were asked nal evidence, nor as substitutes for about. But they were introduced original evidence, but "for the puras experts by the proponents of the pose of demonstrating the reason will, and, with no previous knowl- for the opinion which Mr. Osborn edge of the handwriting of Lewis had expressed." Mr. Osborn was a M. Adams, were asked, upon a com- scientific expert on handwriting inparison of the genuine signature of troduced by the contestants. The Lewis M. with his name signed to objection to the book of photothe will, to give an opinion as to graphs was not because of any use

- Va. -, 122 S. E. 126.) of it on the cross-examination of sought to point out and emphasize proponents' witnesses, but because by the use of photographs. of the grouping and the character It seems to be conceded that the of the grouping, and to the use of jurors, with the originals before it by Mr. Osborn, who made it, be- them, could have made these groupcause of the undue prominence ings and comparisons for themthus given to his testimony, and selves, and if need be might have the tendency "to minimize other used a microscope for that purpose; testimony and other writings in the but this could only be done by one case,” and because of undue sur- juror at a time, and by looking at prise.

one paper and then at another and The first page of the book con- by carrying the mental impression sists of three sheets about the size from one to the other. This was of a sheet of letter paper, and they well-nigh impossible. To compare are placed edge to edge on the side, several writings with each other to and fastened at the sides, so as to determine the identity or dissimidisplay all three sheets equally well larity of their author, they must be at the same time. The center sheet placed side by side so that all can be is a photograph of the will, the seen at once. This can be best done sheet on the right is the photograph by a photograph in which the eye of certain writings admittedly in can take in the whole group at one the handwriting of Charles M. Ad- time. ams, and the sheet on the left is a In the instant case, there were a photograph of a ledger account of number of these photographs used, Lewis M. Adams in his handwrit- so that the jurors could have the ing, containing several of his genu- picture before them while the exine signatures. These are in pencil. pert pointed out the peculiarities On the same page there is a writing and explained the reasons for the in pen and ink in the handwriting opinions which he expressed. This of Lewis M. Adams. All three had a marked advantage, in a pages are photographed in natural search for the truth, over a fresize. As indicated, the picture on

quent reference to different papers the right is the genuine handwrit

and a comparison of them with the ing of Charles M., that on the left disputed will. These photographs the genuine handwriting of Lewis

were shown to be correct repre

sentations of the originals, and the M., and that in the middle is of the

object of their introduction was not disputed will. Other pictures are

to substitute them for the originals, made for a different purpose. For

but to bring the originals into juxexample, to show the peculiar for- taposition so that they might be mation of the letter "r," or of the

seen, inspected, and compared at letter "g," or the capital “M.” the same time with a single mental Again, the object was to show the effort, which was impossible with infirmative line, or the "hesitation," the originals. One of the originals as peculiar to the handwriting of was a merchant's book of accounts only one of the parties, or the tend- containing many pages, some writency to print or separate the let- ten by Lewis M., some by Charles ters of a word, as done by one and M., and others containing the writnot by the other. The angularity ing of both. The other writings of the writings or particular letters, were numerous. Moreover, the isespecially of capitals beginning sue involved not merely a comparsentences, was a matter of impor- ison of signatures, but of the gentance to be shown if there was a eral handwriting, of the formation difference in this respect between of certain letters, of their angularthe writings of the parties. These ity, and other questions that could were differences mentioned by the be best visualized by placing them witness Osborn, and which he in juxtaposition and photographing them, thus giving an instantaneous ticularly untrustworthy. In other perception of the peculiarities of the cases instructions that such evi. writings so grouped. If this group- dence should be received with great ing, and the testimony of the expert caution have been approved. In in connection therewith, whereby still other cases expert testimony he pointed out the peculiarities of is commended and held not propthe different writings as a reason erly subject to deprecating refor his opinion, had the effect of marks in the court's instructions, giving prominence to his testimony or else is declared to be entitled and tended to "minimize other tes- to the jury's unbiased considEvidence-photo- writings

31 A.L.R.-90.

timony and other eration, free from the court's prejugraphs of

in the dicial remarks either in its fagrouped writings.

case,” it

was no vor or against it. The discredit so

fault of the photo- often attached to expert testimony graphs. The photographs were an is traceable particularly to the fact aid to the jury in ascertaining the that it consists of conclusions and truth, and were properly received opinions which are often uncertain in evidence,

at best, and in which one may be There was some criticism of the swayed one way or the other by bias use of a part of a sentence or a or interest, without conscious dissingle word in some of the photo. honesty, and that by one existing graphs. Where the object is to practice the experts are selected and compare the formation of a single paid by one of the parties and their letter, it is immaterial whether a use as witnesses necessarily depends single word is used or a whole sen- on their forming an opinion favortence in which the letter appears. able to that side."

It is said in the argument for the We have no decision in this state proponents that Mr. Osborn made on the admissibility of evidence of an unfair selection of a word in the character hereinbefore referred which the letter "g" appears in a to-exhibit A. S. 0. No. 1,-nor peculiar form, and that "it is very have we found sufficient authority unfair and misleading to select and elsewhere to be able to speak of the photograph one 'word' where a let- weight of authority; but for the reater 'g' of Lewis is not exactly like sons given we are of opinion that the the one in the will, and let the jury trial court committed no error in take it as evidence, when there are admitting exhibit A. S. O. No. 1 for many, very many, 'g's' of Lewis the purpose for which it was used, like in the will, in the store book in and that such use was legitimate evidence."

and proper. If this statement is correct, the In 2 Wigmore, Ev. 2d ed. 797, p. proponents had but to show the fact, 106, it is said: “When the original and it would not only have disproved is produced, but it is desired also the testimony of the witness on the conveniently to collate specimens by subject, but have tended strongly photographic groupings (as by placto discredit him as a witness.

ing many specimens in juxtaposition There has been a great difference on a single sheet) the original is not of opinion among the courts as to literally unavailable ($ 1192), in the the weight and value of expert tes- sense of being tangibly beyond protimony. This difference is well ex- curement. Nevertheless, there are pressed in 11 R. C. L. 587, with a still lacking and unproduced to infull citation of authority. It is stantaneous perception, the minute there said: “In some cases the resemblances and differences which courts have severely criticized ex

appear upon close juxtaposition and pert evidence in general as biased, fade from memory in the operation mercenary, and almost worthless, of passing from one document to the such evidence as to handwriting others. Hence, the photographic having been considered as par- juxtaposition does, in strict sense,

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