Expert’s Remote Participation: Advantages
There are several advantages to the process just described.
Obviously, remote participation of an expert saves travel costs and time. In several DANY investigations, the retained expert avoided a 600 mile round trip from his business office to DANY, and one or two nights in a hotel. This process also freed up 48 to 72 hours in the expert’s schedule that he could use for other business matters.
More importantly, such a process enables the forensic document examiner to observe the event, critical to the expert’s evaluation of the exemplars. The exemplars can be viewed in the context they were written and against the subject’s demeanor.
Because the taking of handwriting exemplars usually lasts approximately 60 to 90 minutes, it is customary to take breaks as needed or requested by the subject. A break provides the expert with an opportunity to revise direction and/or the instructions given during the process, just as the expert would be able to do if physically present. This is especially important in situations where subjects may deliberately try to distort their handwriting.
It is well established that the prosecution can introduce evidence that a defendant intentionally disguised his or her handwriting when providing the exemplars. To establish this fact, it is vital that an expert observe any interruptions in the formation of the letters or the numerals made by the subject, any unusual hesitations, any awkward starts and stops in the writing, or any obvious changes in the skill of the subject. These are critical factors in determining whether the subject sought to disguise or distort his or her handwriting.
Moreover, remote participation enables the expert to administer the handwriting process in its entirety. In some circumstances, the fluidity of obtaining the exemplars is essential, requiring the expert to modify the instructions as the subject is actually providing the handwriting exemplars. For example, it may be necessary for the expert to direct the subject to punctuate the word content or write on different forms.
As a collateral benefit, the audio/video recording gives the expert an invaluable resource in preparing the report. The expert can review the taking of the exemplars as many times as necessary instead of relying on notes and memory. The recording can be referenced in the expert’s conclusions and used during the trial for the expert to explain his or her methodology in arriving at an opinion.
Although the report containing the expert’s opinion is usually prepared shortly after the exemplars are obtained, the charts used to demonstrate the expert’s methodology often are not made until shortly before the expert’s testimony. In fact, if the expert does not testify in the grand jury, the demonstrative charts may not be prepared until shortly before the trial date, which may be many months or even a few years after the expert wrote the report. Having the audio/video recording to review would be extremely helpful in preparing these charts at a later date.
There are several other trial advantages. The audio/video recording would assist the prosecution in responding to objections raised about the process of taking the exemplars. It would also be available for use during the prosecutor’s summation. The trial court could also review the recording to (a) rule on any objections raised by the defense regarding the process, (b) decide in limine motions submitted by either party, and (c) craft relevant jury instructions. Moreover, the recording could aid the jury during deliberations to address any fact issues, such as the manner in which the exemplars were taken, the length of time it took, or if the process corresponded with the explanation given by the expert.