Gathering Evidence Remotely for Trial

“Necessity is the mother of invention.” — Plato, The Republic

This axiom has never been truer than in our current circumstances. To help contain the spread of COVID-19, governments have placed strict limitations on socialization and mobility have and required all non-essential workers to stay at home. While law enforcement is an essential function, much of the work of prosecutors’ offices has necessarily moved online. While it does not take a global pandemic for prosecutors to appreciate the advantages of collecting evidence remotely for admission at trial, we have a unique opportunity to evaluate its practicality and to accelerate its application.

Prosecutors already have several techniques to gather evidence remotely. For example, well before our current crisis, the New York County District Attorney’s Office (DANY) utilized technology to enable a forensic document examiner to participate remotely in obtaining court-ordered or consensual handwriting exemplars. The methodology, described below, and its resulting benefits underscore the utility of gathering evidence remotely for admission at trial. Such an option, critical in the coming months, will remain viable when the crisis subsides. This technique and other iterations should become routine in our new normal world.

Handwriting Exemplars: Overview

The comparison of handwriting exemplars is a form of forensic evidence used in criminal cases to identify the author of particular written content, thereby establishing, inter alia, the participation of that individual (the subject) in a pertinent transaction or proving the subject's knowledge or awareness of a relevant fact. The correlation between the designated handwriting and the subject may be primary evidence or powerful corroborative evidence.

Contrary to the opinion of some, manual handwriting is still prominent in our electronic age. Manual signatures are required on many legal documents such as deeds, trusts, wills, contracts, driver's licenses and passports. Handwritten on various documents are initials or notations, such as the name of the payee, the notes in the memo field on the front of a paper check, or the endorsement on the back of a check. It is not uncommon to find handwritten notebooks with the details of a company's financial transactions that are not recorded electronically on the company's official books. Handwritten diaries and journals contain evidence that may bear on a number of issues, including mens rea and motive.

Authenticating handwriting has been material in solving and proving a wide array of crimes, particularly to identify the author of (a) a ransom note in a kidnapping case; (b) communications between accomplices in arranged murders; (c) forged and/or falsified documents filed with government agencies; (d) anonymous notes containing admissions; (e) signatures and notations on financial instruments in theft and fraud schemes; and (f) day planners, calendars and lists used to plan and commit crimes. It is also material in a host of civil matters, including bankruptcy cases (e.g., connecting an individual to an undisclosed asset), contractual matters, (e.g., establishing awareness of critical clauses or terms), and estate matters (e.g., proving the authenticity of a decedent's signature).

New York law permits the admissibility of evidence that "[compares] disputed writing" (called the "questioned document") "with any writing proved to the satisfaction of the court to be handwriting of the person claimed to have made the disputed writing" (called the "known document"). In criminal cases, original exemplars used as the known documents for comparison to the subject's handwriting on the questioned document can be acquired from a variety of sources, including public filings or hard-copy documents seized pursuant to a court-ordered search warrant. However, original exemplars can also be obtained directly from the subject. In such circumstances, the presence of a forensic document examiner while the subject provides handwriting exemplars is advantageous, as illustrated below.

New York law permits the prosecution to make an application to obtain nontestimonial evidence after the filing of an indictment, a superior court information, a prosecutor's information, or a misdemeanor information. Handwriting exemplars are a form of nontestimonial evidence. Even prior to the filing of such a designated accusatory instrument, a subject can be compelled to provide handwriting exemplars if the prosecution can establish (a) probable cause to believe that the subject has committed a crime, (b) a clear indication that authentication of the handwriting is relevant evidence, and (c) the safety and reliability of the method used to secure the handwriting exemplars.
 

Expert’s Remote Participation: Procedure

Ordinarily, in a criminal case, when seeking to obtain handwriting specimens, the subject is directed to appear at a given location, with counsel (if the subject chooses), to provide cursive and/or printed words or numerals in the presence of a forensic document examiner and/or a law enforcement officer. However, forensic document examiners often do not live locally and have tight work schedules, making their physical presence both costly and sometimes difficult to arrange. To complicate matters, any last-minute cancellation when the expert is en route, caused by severe weather conditions or a change in the schedule of the subject’s counsel, may increase the costs and unnecessarily waste the expert’s time.

In response to these concerns, some prosecutors have opted to obtain handwriting exemplars from the subject in the absence of a forensic document examiner. In such circumstances, the expert reviews the questioned documents in order to prepare the forms that the subject will use to provide the handwriting exemplars. After consultation with the expert, the forms are administered by a law enforcement officer. At the completion of the process, the handwriting specimens are sent to the expert for preparation of a report and any demonstrative charts. It is important to note, however, that the absence of the forensic document examiner during the process of obtaining the exemplars may diminish the effectiveness of the examination and have a bearing on the strength of the expert’s testimony in any court proceeding.

DANY devised a means for the remote participation of a forensic document examiner while the subject is providing exemplars. The handwriting process is conducted in a conference room equipped with internet access and a laptop with Skype capability. Through this audiovisual connection, the expert hears the instructions that the law enforcement officer gives the subject and observes the subject writing the exemplars. More importantly, the expert can participate in the process, if and when needed.

With the addition of a single camera, an audio/video recording can be made, which preserves the entire process as evidence. After panning the room to record the attendees, the camera is fixed on the hand of the subject as the specimens are being written. However, the camera does not capture the facial expressions of the subject or other individuals in the room. A copy of the audio/video recording and the original exemplars are sent to the expert electronically within hours of the completion of the process; the originals are later delivered to the expert’s office. Another copy of the audio/video recording and the exemplars are also available to the defense within 24 hours, as part of the discovery process.
 

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.
 

Pushing the Envelope

There are many more opportunities to gather evidence remotely in both criminal and civil cases. Some will require legislative action to expand the rules of evidence.

For example, in many trials, custodians of records are required to testify in person to authenticate business records from financial institutions or vendors of goods and services. In addition, government employees, such as employees of state motor vehicle departments or labor departments, are often called to explain administrative processes. Livestreaming the testimony of such witnesses in the courtroom would be a beneficial option.

Livestreaming would significantly reduce the financial burden to the party calling the witness, eliminate any personal inconvenience to the witness, and minimize the operational disruption to the witness's employer. Often, these witnesses travel great distances, requiring the calling party to incur the costs of transportation, overnight accommodations, and witness fees. And if the witness resides outside of the trial court's jurisdiction, state and local prosecutors are required to file applications to compel the witness's testimony through the domestication of a trial subpoena.

The testimony of such witnesses usually consists of a short series of foundation questions for the admission of documents, or a brief explanation of government procedures. Not requiring witnesses to testify in person simply to authenticate documents or explain routine processes would shorten trials and enable counsel to introduce testimony in a more cohesive manner for the trier of fact. Furthermore, the credibility of such a witness is usually not an issue of contention for the opposing party, and evaluating the witness's credibility is not difficult for the trier of fact.

Permitting the introduction of remote testimony is consistent with the rapid procedural changes that have already been implemented in response to the national pandemic. In New York City, arraignments and bail hearings are successfully conducted remotely with all of the participants in different locations. In fact, remote testimony by a witness in one location with all of the other participants in the courtroom would be a simpler process than the one that we are currently utilizing.
 

Conclusion

The current health crisis presents an opportunity to expand our ability to gather evidence remotely for introduction at trial, and to use our ingenuity and technology not only to meet today’s challenges but also to improve our standard operating procedures.
 

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