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Hi, this is Bart Baggett. I’m driving back from San Bernardino as I write this. Actually, I’m dictating this.
Today I went to San Bernardino to testify in a probate case where there was a handwritten will of an 80-year old woman, but in my opinion, was forged. I didn’t get to give that opinion because the opposing attorney had some very clever moves up her sleeve. Now, by clever moves I don’t mean that she was able to get me disqualified or make me look silly on the stand. She was able to not let me on the stand. After sitting for an hour while she offered a settlement to my client, she then finally asked the judge to continue the case for another month. The judge said, “Well why should I give you a continuance when the expert witness is sitting right here? It cost $1,000 to bring him back.” She responded to the judge, “Well, you let him have a continuance last month. You owe me a continuance.” And I’ll be darned if the judge didn’t grant her a continuance, send her expert witness away, and thus I was not allowed to testify today.
The back story is that the handwritten will was one of the worst forged wills I’ve ever seen. In fact, I discovered today that the writer of the forged will was in the courtroom. Her ex-husband looked at the will and said, “I recognize my ex-wife’s handwriting. She wrote the will…not the dead lady.” Now that, combined with my testimony, would have been quite strong if, of course, I was able to take the stand.
The one reason my client might decide to settle without calling me back is that he is not an attorney. He could not afford an attorney, and since it’s a civil case the state doesn’t give him one. So out of his own pocket he’s paid my company over $1,800 so far to prove the will is forged…which it is…and he risked the prejudice of the court ruling against him because he may not know the protocol to get an expert witness accepted, get evidence into admission, or even function normally in a trial. If you are an aspiring expert witness, realize that if your client is a pro se attorney, you are risking your credentials unless you are very experienced on the witness stand. I actually watched a seasoned, veteran expert witness get slaughtered because the pro se attorney was unable to ask basic questions such as, “What do you do?” … “Tell me how your training occurred.”… And “Why do you consider yourself an expert?” He was unable to articulate those questions and thus the expert was severely discredited because the pro se attorney was so inarticulate.
One of the things that you also need to be wary of with any testimony–especially expert witness testimony with a pro se attorney– is the Federal Rules of Evidence. You might want to familiarize yourself with the Federal Rules of Evidence 702 through 705 which talk about the admissibility of evidence that the expert witness relies on. In general, they give wide discretion on the judge allowing evidence into the court if the expert witness relies on that evidence. The problem is: If the evidence is “inadmissible” in another area, such as ‘the gun was found in the apartment but the search warrant wasn’t properly executed, so the gun is inadmissible’, but the opinion of an expert relies on the gun, the judge still may have that expert testify as to his opinion, but he may choose not to allow him to talk about the gun, because the jury would be tainted. So there’s a lot of room in the world of evidence for that.
In the case of expert witness, if you relied on the document to bring into the courtroom, you may have to produce that document a week ahead of the trial. Then, if you fail to produce that document on time for the opposing attorney to inspect, the judge may decide not to let you talk or render an opinion on it. Now, this is not common, but it has happened to me. When I went to court three weeks ago, the exhibits that I prepared were not allowed into evidence because the opposing attorney said he didn’t get them the night before. That’s silly, since that’s usually when I make my exhibits…the night before. But once in a while at trials, the exhibits aren’t allowed because the attorney didn’t follow the proper protocol. So as an expert witness you’ve got to be very wary of these things going wrong, and if you have a pro se client you have to do extra-careful mentoring to make sure he has the right questions.
In this case we actually sent our pro se client an e-mail, listing questions for him to ask: What is your name? What is your career? What do you do? How did you get trained? What are your credentials? Have you been on TV? This list of questions was in sequence for him so that he wouldn’t get up there and get tongue-tied. Unfortunately, he never got to ask those questions because the continuance was granted. So if he calls me back on the witness stand in a month, he would have to pay another $1,000.
To make the long story a little bit longer, or at least to wrap up this trial, the nice man who spent money because the caregiver of his sister decided to fake a will, will probably end up getting what is rightfully his. He’ll get the house, and he’ll get the car, and he’ll get other material items. The attorney showed up today with a settlement agreement which essentially admitted that they are willing to exclude the will. They didn’t admit to forging it, but they agreed to excluding it. Of course, the estate would go back to the will on file which was properly prepared and executed at an attorney’s office in 2004. Of course, that is fair, but in negotiations the caregiver, or the woman living with the decedent, wants the two dogs, the dishwasher, the couch, a lamp and all her clothes. Really, all her clothes and the two dogs!!! That is what they are negotiating and settling in the judge’s chambers at the courthouse as I speak.
So in conclusion, the life of this expert document examiner is very interesting. Sometimes it’s sad to see a woman that handwrites a will and signs a dead woman’s name to not get prosecuted for perjuryor forgery, and walks away with the two dogs…. but so is life.
“I totally recommend the International School of FDE to anyone who wants a new career in the field of forensic document examination.”
— Topanga Bird
D.C. Appeals Court Upholds Use of Handwriting Evidence
Handwriting analysis will continue to be admissible as scientific evidence in local courts, the District of Columbia Court of Appeals ruled in an opinion (PDF) published this morning.
A handwritten note discovered at the crime scene played a major role in the trial of Robert Pettus, who was convicted of first-degree murder in 2008. On appeal, Pettus argued that a 2009 report by the National Research Council of the National Academies cast new and serious doubts on the reliability of the forensic sciences, including handwriting analysis.
Senior Judge Michael Farrell, writing for the three-judge panel, acknowledged that Pettus and the D.C. Public Defender Service, which argued the case as an amicus party, made “a spirited attack” on the acceptance of pattern-matching analysis.
However, the court found that the report failed to detail specific problems with handwriting analysis – as opposed to the forensic sciences as a whole – and that the methodology behind handwriting analysis is “well-established and accepted in the forensic science community generally.”
Pettus’ attorney, solo practitioner Thomas Heslep, said this morning that he was still reviewing the opinion, but expected that he would petition for a rehearing before the whole court. A representative for the Public Defender Service did not immediately return a request for comment, and U.S. attorney office spokesman William Miller declined to comment.