Forensics Case Examples by Specialty

The following types of cases are discussed with real examples given:

– Medical Malpractice
– Intellectual Property
– Employment Law
– Contracts
– Elections
– Securities
– Probate

Speckin Forensic Laboratories has been in business since 1979 assisting attorneys and others in their cases involving documents, inks, crime scenes, computer data recovery, DNA, handwriting, fingerprints, and other forensic issues. We have developed a newsletter that is designed to increase awareness in the scope of work performed at our laboratory, the type of cases we may be able to assist with, and the outcome of notable cases and trials we have been involved in. We anticipate publishing this newsletter at least twice a year in the future. It is our hope that this newsletter will not only assist many in determining cases that forensics may provide insight in litigation but also will be re-distributed and emailed to many others that may not be familiar with our firm.

We have been involved in cases all around the world, from North America, South America, Australia, Europe, Asia and all 50 of the U.S. states to date. Our examiners have presented testimony in over 35 states in the United States, as well as, Israel, Mexico, Japan, Hong Kong, and Canada in Federal Court, Circuit Court, District Court, employment arbitration’s, depositions, Municipal Court, Federal Grand Juries, Detroit Recorder’s Court, and Union arbitration’s on over 1000 occasions.

We employ three document examiners, one fingerprint examiner, a forensic ink dating chemist , a DNA consultant , a trace evidence and impression evidence examiner , two computer forensic examiners as well as support staff. We occupy 6,000 square feet of professional office space where our state-of-the-art instruments are located.

MEDICAL MALPRACTICE

Our firm’s first medical malpractice case dates back to the early 1980’s.Since that time we have examined thousands of sets of medical records for both plaintiffs and defendants. The primary focus of most of these examinations is to determine if there have been any alterations, additions, or rewritings to the records and when they may have been done. We currently examine over 150 such cases a year and have a near perfect mix of 50/50 plaintiff vs. defense cases.

EXAMPLE #1 – State of Ohio

The patient was pregnant, visited the doctor and later died from an internal rupture caused by an ectopic pregnancy. The plaintiff alleged that the doctor did nothing to surmise the problem. The doctor stated that she had written a prenatal prescription for an ultrasound and CBC along with many other things that would have disclosed this condition. We were approached by a defense attorney that had received a report from a plaintiff’s expert that concluded the doctor had altered records and removed documents from the file. The expert concluded documents had been removed from the chart by examining the documents with side lighting and noting the presence of impressions from writings not found in the chart.

When we received the chart, it was first processed on the ESDA instrument. This instrument is designed to electrically detect impressed writings in paper and render them visible on an imaging film. This method is FAR more sensitive and effective than simple optical examinations. The page that contained the “missing impressions” noted by the other expert did indeed contain impressed writings regarding that patient that were not found within the file. However, what was missed by the other examiner was that the impression were from a pre-natal prescription form and of course would not have stayed in the chart but instead left the office with the patient.

The film with the resulting impressions was then compared to other known pre-natal prescriptions written by the same doctor and found to be a “spot-on match”. Based on the other expert’s conclusion, the plaintiff attempted to add a spoliation claim for the “missing documents”. At the hearing, the ESDA film was presented as part of the expert testimony. The ESDA was also brought into court and the page that contained the impressions was processed live in from of the judge. The resulting film was compared to the known pre-natal prescriptions. Based on this evidence and demonstration the judge dismissed the spoliation claim. The case later went to trial and the same live demonstration was performed for the jury. The other expert refused to review the ESDA film and would not concede the ESDA showed nothing wrong or missing with the records. However, this point became obvious to the jury as they returned a “no cause” verdict in favor of the defendants.

EXAMPLE #2 – State of Pennsylvania

A case in Pennsylvania involved a patient devolping major shoulder and hip problems from avascular necrosis. The condition was alleged to have come from an over prescription of steroids. During the deposition of the prescribing doctor, he stated that he should never have given too many refills without first seeing the patient and evaluating progress. Then a prescription form bearing the doctors signature on his pad, written in the writing of the doctor was shown to him that had “6” refills on the form. As this would have been a breech of the standard of care to allow for this many refills without seeing the patient, the doctor stated that he would never had written this number and the patient must have written this number in or altered the number originally placed there by the doctor.

Our firm was contacted by the plaintiff’s attorney to examine the original prescription pad to determine who placed the “6” on the document or if it had been altered from a different number. It was necessary to travel to the pharmacy to examine the original. The store happened to be a long ways from anywhere, but the instruments were flown there and transported for the examination. The examination disclosed several points, first was that the “6” had not been altered and no erasures were present in that area; second, the “6” was similar in formatting to other known “6”’s by the doctor; and third, the ink used to create the “6” was the same formulation and made by the same manufacturer as the doctor’s signature and the text of the prescription. This would mean that for the doctor to have not placed the “6” on that form, he would have had to accidentally left the space for refills blank and the patient would have had to had the same type of pen with the same type of ink to fill in the refill area, which is of course extremely unlikely. The testimony by the other expert was that “no conclusion” could be reached based on the evidence she could examine (she did not do the chemical testing of the ink).

This evidence was presented at trial to the jury with the aid of blow-ups of the testing results. The jury came back with a plaintiff’s award of nearly $2 million, one of the largest if not the largest ever for that county and one of the first awards in years in favor or a plaintiff in a medical malpractice case.

A summary of this case from the law journal can be found on our website.

EXAMPLE #3 – State of Michigan

A man went in for surgery and as a complication from the positioning from surgery developed a nerve problem in the neck/shoulder area. It was not corrected while in the hospital and the nerve was permanently damaged resulting in a claw hand on the patient. The doctor’s defense was based around a post operative note that stated “consult neurology”.

We were contacted by the plaintiff’s lawyer who wanted to determine whether the questioned consult note was written on its purported date or at a later time. An ESDA examination showed that the questioned consult entry was written on top of a progress note that was dated several days after the “consult neurology”. This document would not have been part of the medical file until several days later. Therefore the writing could not have been made until then for the impressions to go through into that page.

This evidence was disclosed at the time of deposition. At the time of trial, the defense had come up with an untested theory about how this page was placed in the file in blank and was there several days before it was used and could have received the impressions contemporaneously. However, the whole theory was based on the fact that upon admission several pages were torn off a pad in blank and put in the chart for possible future use. The doctor testified right before me and stated this theory; I then took the witness stand and was asked if this was an explanation for the evidence. Live on the witness stand it was shown how this could not have been the case, since the pages were torn from different pads and could not have been done in the manner stated by the doctor.

The jury awarded nearly 4X the mediation amount at the conclusion of the trial.

EXAMPLE # 4 – State of Oregon

Another medical malpractice case became much more suspicious to the plaintiff’s attorney when the handwritten progress notes were too perfectly in line with the defense laid out by the doctor.

The plaintiff’s attorney contacted us to determine if the progress notes were genuine or written after the fact. In Oregon (and several other states), the plaintiff must notify the doctor a specified length of time before filing suit. When the entire file was produced for examination, the pre-suit letter from the plaintiff was included in the file. When that document was processed on the ESDA instrument, the impressions from the progress notes were found into the plaintiff’s letter. This means that the progress notes contained in the file were not written until after the letter was received that informed the doctor he was going to be sued. The previous version of the progress notes must have been discarded.

The case went to trial and our firm testified to the results and had the original ESDA film in court. The defense was somehow able to get an opposing expert in the case. In the end, the jury came back with a decision in favor of the plaintiff. The case was upheld on appeal.

INTELLECTUAL PROPERTY

In patent cases especially, it becomes important to determine if documents have been altered or written at a later time then their purported dates. The date an invention was conceived is significant in any patent dispute and it is common for an inventor to create documents that make the date of inception appear to be earlier to strengthen the claims around a patent. It can also be the case that an original sketch or notebook will be added to, in order to broaden the scope of the original patent.

EXAMPLE # 5 – State of California

While this case would take a whole book to detail, a few of the high points will be discussed and only a portion of the evidence that was generated through the forensic examination of the documents produced. Further details of this case are available on our wesite.

A circuit board manufacturer brought forward an infringement suit based on the manufacture and design of circuit boards. As the litigation progressed the plaintiff realized that the notebooks with the original drawings needed to have more detail in order to broaden the scope of the patent. Further in the litigation, the plaintiff fabricated an entire notebook to move the inception date from 1989 back to 1988.

I was contacted to examine the notebooks for alterations and additions. The notebooks had already been copied at the inventor’s deposition. Just before the original notebooks were to be forensically examined, the inventor had a “selective” break-in of his car in which the original notebooks were the only items stolen. After a few weeks, the inventor then produced a day planner that was supposed to corroborate a portion of his story. When the day planner was examined, it was determined that the ink that was used to create the questioned entries was not manufactured until 1994 and therefore could not have been used to create the entries in 1988 as purported. When copies of the second notebook were compared to the set of copies kept by the attorney that prosecuted the original patent, it was discovered that there were MANY additions to the critical pages which greatly broadened the scope of the original patent application.

Through careful examination of the multiple sets of copies of the notebook it was discovered that there were two nearly identical versions but subtle differences existed. It was shown that the was an original draft of the additions and a subsequent version was later added into the notebook, however both versions were inadvertently produced since they were nearly indistinguishable. This fact was later admitted during the litigation.

As an evidentiary hearing approached, the writer of the notebooks decided to get separate criminal defense counsel. Then, miraculously or suspiciously, portions of the 1988 and 1989 notebooks were anonymously mailed back to the writer saying that these papers were found outside and looked important.

When these page fragments were examined, it was found that the ink was not completely dry yet and written in the last three years, there were several critical additions written in a different ink, and the drafts of the additions that were put into the notebook. The additions were found by using the infrared image converter to detect differences in the inks as well as by sequencing the writing from the front and the back side of the page. Through microscopic examination it can be determined if the front side of the page was written before or after the reverse side of the page (obverse-reverse examination). It can also be determined whether the front of a page (or a portion of it) was written before or after the following page, especially in a notebook.

This evidence was all presented to a judge as part of an evidentiary hearing, as well as many other pieces of forensic evidence. The writer of the notebooks pled the fifth amendment and answered no questions (but was remarkably able to still get an expert to say that he found nothing wrong with the notebooks). The judge agreed that the second notebook had many significant additions, the day planner contained additions, and the first notebook was a complete and total fabrication. Based on this discovery misconduct, terminating sanctions were issued and the case was dismissed along with millions of dollars in costs assessed to the plaintiff in favor of our client. The ruling was upheld on appeal by the Federal Circuit Court.

The writer of the notebooks was later prosecuted, found guilty, and sentenced to prison for 17 years. During the criminal case, the other forensic findings by our firm were confirmed by evidence that was disclosed. The award for attorney’s fees and litigation cost (including our fees) was also upheld on appeal in 2006.

EXAMPLE # 6 – State of California

An inventor and patent holder of a dental implant hired USC to perform a clinical trial of the implant and report on the results. During this clinical trial a clash of personalities occurred and the inventor thought that the study was run improperly. Copies of the records, which showed that the implant did not fare well, were produced with information that had conflicts with the films, x-rays, and other evidence.

We were contacted by the plaintiff’s firm to examine the records for alterations and additions. I traveled to California with the necessary instruments to perform the examination. The infrared examination disclosed additions to some of the critical entries and the alteration of dates. The ESDA examination disclosed one of the progress notes had several entries written after their purported dates. This was discovered because the progress notes were written on a document that was not in existence until later in the treatment and was not in the chart at the time the progress notes should have been written. A supplemental ink dating examination showed several more critical entries on different patient’s records were written well after their purported dates. The evidence was presented at trial with the use of large graphs with error bars to demonstrate the ink dating and large full-color, glossy, blow-ups of the ESDA and infrared results.

At the trial, the jury found in favor of the plaintiff, a subsequent phase of the trial will now be held to determine the extent of the damage to the plaintiff.

EMPLOYMENT LAW

There are several different types of cases in the employment law area of practice. The first is in the wage and hourly area where disgruntled employees will produce falsified time records showing the hours worked over a long period of time, which is typically all created years after the fact. The second area is in discrimination/harassment. In this case, what is typically seen is a journal or diary with additions and alterations to bolster the claims made.

EXAMPLE # 7 – State of California

A company was sued by several ex-employees for wage violations. The employees produced time records on paper that they alleged had been kept over a period of years showing the extended hours that they had worked for which they were not properly compensated.

We were contacted by the attorney representing the company. The original records were sent to our office for examination. Several significant results were obtained from the examinations conducted. The ink dating on several of the “time sheets” showed that they were not written on their purported date but much more recently. During the ESDA examination, impressions from a missing page were found. When this page was compared to the next page in sequence, the information contained on the missing page was nearly identical to the next page that was currently there. After careful comparison, the difference that was noted was the year in the date was wrong on the page that was missing. What turned out to be the case was that the writer was writing the time sheets all in a stack and when the writer noticed a mistake was made with the wrong year on one of the pages, the writer simply threw that page away and re-wrote the page. The writer was unaware that the impressions from this “thrown away” page were still present in the submitted evidence.

The plaintiffs settled soon after the report was issued with the findings.

EXAMPLE # 8 – State of Washington

This was a sexual harassment case. The plaintiff (a woman) stated that her boss would harass her in many different ways, some more blatant than others. In order to memorialize these events of harassment, she would write a summary of the details in her day planner along with the other events from that day.

We were contacted by the defense attorney. He felt that the majority of the planner was genuine, but that selected entries had been added to several dates to bolster the claims. When we received the original journal in our office, it was first examined using infrared light. This showed at least 14 different areas that had been added with a different ink, not surprisingly all related to the plaintiff’s claims. In one memorable instance, there was an entry that stated “being asked to work late tonight”, there was originally a period at the end of the statement, then a comma was written over the period with a different ink and the phrase “it is critical to my job” was added to the end of the sentence. My personal favorite part came when the ink in each of the 14 areas (spanning a time of nearly 2 years) were chemically compared with one another using thin layer chromatography (TLC). It showed the same ink formulation from the same manufacturer was used for all the added entries. What are the odds of that if they were done over a 24 month period as purported? The subsequent ink dating analysis was conducted on only four of the questioned entries due to overwhelming evidence already present. This testing showed the question areas were written within six months of the time the journal was submitted for examination and not over 2 years ago as purported.

The case was settled in a very fast and confidential manner VERY soon after the report was issued with the above findings.

EXAMPLE # 9 – State of Vermont

Another sexual harassment case was brought against a company. As part of the claim the plaintiff stated that she had typed out a list of problematic things her supervisor was doing to her that she felt amounted to harassment. She testified that she had typed this list several years before, signed it, and gave it to her supervisor’s boss. She testified further that the boss took the list, read it in front of her, told her that he would do nothing about the items on it, and gave it back to her.

The boss denied ever even meeting with the plaintiff about this issue and further stated that he never saw, read, or handled this list that the plaintiff submitted. Once we were contacted there were three immediate tests that we informed the defense attorney that we could perform.

The first was to process the document for fingerprints. Paper is an excellent source for fingerprints and will retain the prints for a period of years. Even though several people had handled the document, it had never been handled by the boss through the discovery and could have only been handled by the boss if it was it the time it was presented to him by the plaintiff. If his fingerprints were not found on the document, that would be a significant piece of evidence, coupled with a test on known papers to determine how frequently the person left prints on a known set of documents. For instance, if 9 out of 10 times the alleged reader left fingerprints and there were none on the questioned document, that would be highly significant that he never handled the document.

The second test, which did not turn out to be needed or feasible in this case and was not performed, was to examine the hard drive of the computer that was supposed to have created this document to determine when the file was created, if it had been altered, and if it had been recently deleted from the computer to avoid detection.

The third type of test was to perform an ink dating analysis on the ink in the plaintiff’s signature to ascertain whether it dates back several years as it purports or if it was written recently to bolster the claims made in the case.

The results showed that the ink was written very recently and did not date back several years as purported. The fingerprint analysis found many prints on the document, however none were from the boss that allegedly reviewed the list. In the 10 test pages, all 10 tests contained prints from the reader when a sheet of paper was handled and read.

The case then settled before the computer could be located for a forensic review.

GENERAL CONTRACT LAW

There are a range of cases that contract law can be assisted by our laboratory’s forensic solutions. The most common is in the area of signature analysis. This can be to determine whether a person signed their name to a document or who may have forged the signature. Fingerprints and palm edge prints can be extremely useful in determining the person who forged a signature by the palm edge print under the signature and the corresponding fingertips from the other hand holding it down.

EXAMPLE # 10 – State of Michigan

In perhaps my second most favorite case (second to Aptix v. Quickturn discussed above), the most devastating results were found leading to who forged a signature.

A lawsuit was brought forward against a company and a supervisor for a wrongful termination of employment, among other claims. As part of the defense of the company, several unfavorable employee performance reviews were produced that were allegedly signed by the plaintiff affirming knowledge of poor performance at work. The employee that brought the suit forward denied ever seeing or signing the forms. The supervisor testified in deposition that the plaintiff was present, they discussed all the information on the form, and the plaintiff signed the form in front of her.

We were contacted by the plaintiff’s attorney to determine if the employee signature on the evaluation forms were genuine or forged and if possible the person that forged the signature.

The original employee file was flown to our office and accompanied by an attorney for the defendant and an expert for the defense. The signature on the original form in question was examined and compared to other unquestioned signatures within the file. The known signatures were found to be replete with individual handwriting habits and easily identifiable with one another. When the habits present in the known signatures were compared with the habits in the questioned signature, formative spatial, and proportional differences existed that demonstrated the questioned signature was a forgery (which was the opinion of the opposing expert as well). A subsequent comparison of the individual handwriting habits in the questioned signature that did not match the known signatures was made and compared with the handwriting habits of the supervisor that was suspected of the forgery by the plaintiff. There were indications that she was the forger, but not enough evidence was present based on these similarities to arrive at a reliable conclusion as to who the forger was. After both experts completed the examinations of the questioned signature, I reviewed the entire file for any other contents that could be significant. Toward the end of the folder I saw several pages that appeared to be from the diary of the supervisor. When I read the text of the pages, they seemed to have several areas that seemed too perfect and I felt that may have been added with a different ink (this seemed to be a long shot to the others present). The pages were then examined for different inks and for impressions.

The examination disclosed no additions to the diary pages, which was not significant to the case I was told, however on one of the pages of the supervisor’s diary some remarkable impressions were found. The impressions were that of practice attempts to forge the employee’s name. At that moment (which I remember like it was yesterday), I showed the impressions of the practice forgery to the plaintiff’s attorney who was also present at the examination. Although I thought this evidence spoke for itself, it was not something that we had ever discussed finding before since it was such and unbelievable LONGSHOT, so I asked him if he knew the significance of what I was showing him. His response was classic, he stated “I think this means that my kids are going to private schools”. Obviously the forgery had to be done by the supervisor. Interestingly, as the attempts progressed, the quality of the forgery became better and better.

The supervisor was then re-deposed and asked about what appeared to be overwhelming evidence that she was the forger. In the words of the plaintiff’s attorney; she “fell on her sword” and admitted to forging the employee signature with some sort of flimsy excuse.

The case settled soon thereafter.

EXAMPLE # 11 – State of Texas

A family dispute arose between two sisters and a step-mother after the death of a tycoon from Mexico. The three women have been friends some years ago, but then the one married the father of the two sisters. The dispute amounted to money that was supposedly loaned to the step-mother (Anna) in the amount of over $30 million USD. The two sisters wanted this amount paid back after their father’s death. Two documents existed that evidenced the loan, they were both allegedly signed by Anna. She denied signing these documents.

The signatures were examined and compared to other unquestioned signatures of Anna. The conclusion was made to a high degree of probability that it was her genuine signature. After these results were reported, the signatory then changed her story to state that the documents must have been signed by her years ago and kept in her drawer, blank with her signature. Then these information about the loan was typed in at a later point in time around the signature. We were retained by the plaintiff’s attorney that believed the documents were genuine.

The questioned then became when the documents were signed. The examination was conducted on the original document in the courthouse in Monterrey, Mexico. Samples were taken for the ink dating analysis which was conducted in our Michigan office. The examination disclosed that the ink was not from several years earlier, as the “signed in blank” theory required, but signed much more recently as the dates on the documents indicated. The other expert disagreed with this finding to some degree. The judge in Mexico took testimony from both experts and agreed with the position of the plaintiff, that the documents were genuine.

A subsequent trial occurred in Laredo, Texas. Again both experts testified, this time live in front of the jury. The jury found that the documents were genuine and awarded the plaintiff over $100 million USD, one of the largest verdicts in Texas history. Further details of this case are available on our website.

ELECTION LAW

In election law, we have seen several different types of cases. The first is in the area of petition circulation. This can be as simple as a circulator forging the names of voters on the forms or altering the dates that the voters signed the forms to allow for more time to circulate the petitions. Altering the dates will allow someone to start early on the collection of signatures. In order to determine if any alterations have occurred in the dates, it is necessary to examine the original petitions either in our office or at another location if necessary. Forged signatures can be detected in two primary methods. The first is by comparing the signatures to the voter registration form on file, the second is to determine if a large group of signatures were done by one person or a group of people in a “round robin” fashion.

EXAMPLE # 12 – State of Texas

In one seemingly more involved case, actual ballots were altered by filling in the areas on the “bubble sheet” for the hometown candidate after the voter had completed the ballot. These additions occurred to ballots that did not have a candidate filled in for the senate race. These bubbles were then filled in for that race while the ballots were in a stack. The altered ballots were concentrated with ballots that for one reason or another did not properly run through the scanning machine. The alterations were discovered by detecting impressions into the ballots by using side lighting in a darkened room. These areas had to be filled in after the voter had finished the ballot, since there should be no instance in which a voter would have multiple ballots where impressions could go into another ballot. Photographs were taken of the areas of impressions in the bubble sheets and presented at the deposition. Further details are available on our website.

CRIMINAL CASES

A large part of this newsletter has been devoted to documentary evidence. This is to increase awareness and thanks to shows like CSI and Forensic Files, much more is known about forensic science as it relates to criminal investigation. Our crime scene experts have processed some of the biggest crime scenes in the country and collected thousands of pieces of evidence. This consists of examinations including firearms, toolmarks, fingerprints, blood, other body fluids, bloodspatter, bullet trajectory, clothing for distance determination, footwear, tire tracks, DNA, and forensic pathology.

Because of the number of different types of examinations, we will make this area the primary subject of the next newsletter in a few months. However two interesting cases will be discussed below for now.

EXAMPLE # 13 – State of Ohio

A police raid was conducted on a house. Upon entering the residence, the police kicked the doors and used bang flashes. The occupants were told to put their hands up and stay in place. At that moment, a person began to walk down the stairs, the police shot the person with a shotgun containing buck shot and killed him. The story of the occupants was that the person was unarmed and only carrying a cup in his hand and not a weapon. The police officer that shot and killed the man testified that he was holding a gun in his hand and was told to drop it, the man raised it and pointed it toward the police officer, who the shot and killed the man. A handgun was found near the body of the deceased but did not belong to the police. The deceased family sued the police department for wrongful death.

We were contacted to first analyze the cups in the home to determine if the deceased’s fingerprints were on any of the cups found at the scene. The second examination was to look at the gun to determine if there was any way to prove that the deceased was holding the weapon at the time the police officer fired.

The fingerprint examination found that none of the cups had the fingerprints of the deceased or any blood of the deceased on them. This would be an indication that the he was not holding a cup at the time of the shooting.

The examination of the handgun revealed several telling characteristics. The first were several spots of blood in the grips of the weapon and one spot of the slide. A further examination revealed that there was a small crack and depressed area at the end of the slide where it encompassed the barrel of the gun. The blood was first collected and analyzed using DNA comparison and determined to be the blood of the deceased. Obviously this was likely to have been put on the gun from the wounds that bled from the fatal shot.

A large effort was then made to locate the buck shot pellets that were not contained in the deceased. This was on the off-chance that the damage to the end of the slide and barrel was caused by a pellet striking the end of the gun. A pellet was found that had what appeared to be similar markings. A comparison was then made to the gun damage using wax molds and lead strikes. After hours of examination is was concluded that the pellet that was recovered was the cause of the damage to the end of the gun. This showed that not only was the deceased holding the weapon at the time he was shot, but it was pointed at the officer and raised. Otherwise the pellet would not have hit the end of the gun but the side of it, or completely missed it if it was not raised.

EXAMPLE # 14 – State of Michigan

A woman was the victim of a hit-and-run in a shopping mall parking lot. Her purse was stolen and some checks were forged. Due to the collision, the manner in which she was hit and the way she struck the ground, she was killed. However, no suspects were initially identified. As the investigation went on, several suspects were generated, primarily based on vehicle description, and investigated. During the investigation of one of the suspects his car was searched and one unusual piece of evidence was found that the detective thought was out of its element; a silver Tiffany pen from Cunard Cruise Lines.

We were contacted to determine if the pen that was located in the suspect’s vehicle was the pen of the deceased that had been contained in the purse that was stolen at the crime scene. We were given her diary for comparison to the ink in the pen. The ink in the pen was analyzed and was found to be an ink manufactured by Formulabs for Tiffany pen refills. There was also a chemical date tag in the ink that disclosed the exact year of manufacture of the ink which was 1992. A chemical comparison was then made with selected entries from the diary to compare the dyes present in each as well as any chemical date tag that might exist. It was found that the ink in the pen and the ink that was in the diary were exactly the same formulation made by the same manufacturer. They also contained that same chemical date tag. It turned out through further research that Tiffany Company imported about 1000 pens total that could have fit that description of formula, ink manufacturer, and date tag from 1992. The odds that these were independent inks from the same source was EXTREMELY remote at best.

This turned out to be the only piece of physical evidence that linked the suspects to the murder at the trial. The day after the testimony on the ink, one of the defendants pled guilty and accepted the blame for the killing and was sentenced to prison. Further details are available on our website.

SECURITIES

In securities cases, when a dispute arises between a broker and a client, it is common for the parties to create documents to bolster their version of the facts or to accuse the other party of manufacturing their documents.

EXAMPLE # 15 – State of Illinois

A stockbroker was sued by a client who had lost a significant amount of money in the stock market crash of 2001. The broker stated that the investment ideas were those of the client who would call him to place trades and make decisions on buys and sells. The client denied this. The broker then produced his desk journal which contained many entries regarding the trading wishes of the client. The client then alleged that the broker had fabricated the entries in the book and added them later to support his defense after he was sued.

We were contacted to determine if there had been any alterations, additions, or re-writings to the journal. There were several different tests that were run on the questioned entries. The first test was to examine the sequence of the entries written on the front side of the pages with the writing on the back side of the page. This is to determine if the writing on the front of the page was written before the writing on the back of the page was written (typically a span of about one week). If the writing was done before the writing on the back, then it had to be done within about a week and not at a later time after the lawsuit was filed. The questioned entries that were written on the front of the page that intersected with writing on the back all showed that they were written in the normal course of events and not added at a later time as alleged by the plaintiff.

The second type of test was to test the front of the page below the questioned entries for the impressions of the questioned entries. A sequence could then be established between the writing on next page and the impressions from the questioned entries. If the questioned entries were written before the next page was written; the questioned entry would have to have been written within 2 weeks of its purported date. A similar test was performed on the back side of the page to sequence the writing on the back side with the impressions from the back of the next page. In this instance, if the questioned entries on the back of the page were already on the paper at the time the next page was written, than the questioned entry again would have been written within 2 weeks of its purported date and not later. Both of these tests again confirmed that the questioned entries were all made in the proper sequence and on or very near their purported dates and clearly not after the litigation was started.

The final test was an ink dating examination. This test was probably not necessary, but was performed in order to rule out the possibility that the books were created in their entirety. This was extremely remote due to the amount of writing and information contained in them. The ink dating confirmed that the inks in the tested entries were not written recently. The evidence was presented at the arbitration in the form of graphs for ink dating and large glossy blow-ups to demonstrate the sequence of writings.

EXAMPLE # 17 – State of Florida

Another suit was instituted based on losses from the 2001 time frame. In this case the plaintiff had two main claims. The first was that the broker’s assistant would constantly call or take trade orders that were the idea of the broker and the client was unaware of these orders. The broker denied this and stated that these trades were all the idea of the client and produced a day planner that had all the trades in question recorded and the letters “unsol” next to each symbol and amount. The “unsol” was stated to mean unsolicited trade that was initiated by the client. The second claim was that the client was not properly warned of the risks associated with the selected investments. The broker then produced a diary that contained an entry that stated “advised client against current aggressive investment plan, client wants to continue”. The client denies that this conversation ever occurred. The examination task on that entry was to determine if this entry was written on or near its purported date.

When the day planner that contained the phrases “unsol” was examined using infrared light, it was discovered that the symbol and amount in the day planner was in a different ink than the “unsol” in nearly every instance. Each “unsol” was tested and compared to one another for the entire period in question which spanned a period of approximately one year. It was found that the ink in all of the questioned “unsol” entries was the same ink formulation by the same manufacturer. This was nearly certain evidence that the “unsol” portion of the questioned entries were all added later to the trading entries and probably all at the same time with the same pen.

In the examination of the second diary, no intersections existed with other writings as in example #16 above. The examination then shifted to determine if there were any other entries in the diary made with the same ink formulation to use for comparison purposes to the questioned entry. Several other entries in the planner from a period of time within a month were written with the same ink as the questioned entry. This gave the best possible comparison available; the same type of ink, the same formulation, written on the same type of paper, and kept in the same storage conditions. In this type of relative ink age comparison, no difference in the relative age of the ink would be seen if the questioned entry was written within 6 months of its purported date. The ink dating showed significant differences in the relative age of the ink, which meant that the questioned entry was written at least 6 months or more after its purported date.

The evidence was presented at the arbitration using graphs showing the ink dating results and full color glossy blow-ups showing the differences in the inks in the “unsol” entries.

PROBATE LAW

Probate cases were the first type of cases that our firm ever received. Many of the cases above involve unique aspects of forensic science and document examination. We still perform more handwriting examinations than any other firm that I am aware of in the world, on top of all the added services that are touched on within this newsletter. Probate cases typically involve handwriting examinations on wills, trusts, and quit claim deeds. Some cases are to determine if documents were signed in blank, if the signatories were tricked, or if alterations were made to the content of the documents. Other cases are to determine if a signatory was too weak to sign and was assisted by another person, if selected pages within a will or trust have been substituted to change the property distribution, or if signatures were manipulated using a machine copy process to create a document.

EXAMPLE # 18 – State of Michigan

A quit claim deed was filed after a woman’s death leaving her house to one of her children and leaving the other children out of the proceeds. The deed was suspicious because it went in contradiction to the wishes the decedent had expressed previously, and secondly it was supposedly signed very near the date of death and not filed until after the death.

We were originally contacted to examine the signature on the deed to determine whether the signature was genuine or forged. Known signatures of the deceased were collected including signatures of admission to the hospital just before the time of death. The deceased’s signature was very consistent all the way through the last known sample. The questioned signature fell in between the date range of the known writings. The differences existed to the degree that the signature was easily demonstrated to be a forgery. The question the became to determine who forged the signature.

The original deed was then photographed and processed for fingerprints. Several fingerprints were found on the document were found but the two groups of the most significance that were noted were the left hand thumb and forefinger (used to hold the document from moving while writing) and the palm edge print directly under the signature in the exact location a right handed person would have rested the palm in order to sign the deed. Based on this evidence, a court order was obtained granting the production of the fingerprints and palm edge prints of sister that benefited from the deed. It was found that the fingerprints and the palm edge print matched the defendant sister’s prints and the case was resolved soon thereafter.

Example # 19 – State of New Jersey

A document was submitted in a litigation that dealt with the division of assets in a family and specifically with the sale of a radio station and the familial distribution. One side of the family alleged that the signature on page 3 was a forgery. After a signature examination was conducted by both sides and determined that the signature was genuine. After those results, it was alleged that the first two pages of the contract were substituted and not the true intentions of the signatory.

We were initially contacted to perform examinations on other documents related to stock certificates and such. Based on the results of those tests, a deposition was requested. In an unbelievable turn of events, the night before the deposition, I met the client for dinner and asked about the questions in the litigation. I was then told for the first time about the three page questioned document and the page substitution issue. I then examined the document at the dinner table and noticed that the signature of the critical party was impressed into page one of the document. This meant that the first page was present at the time the third page was signed (the document was signed by folding the third page on top of the other two for cushioning). This information was disclosed at the deposition. At the conclusion of the deposition, the document was taken back to the office and processed on the ESDA instrument. The signature was confirmed into page one and also found into page two, even though it could not be seen with the naked eye. The case eventually went to trial, but the critical issue was conceded before trial and the case settled while in trial.

OTHER CASES

Example #20 – State of California

In a highly publicized case Slessinger v. Walt Disney Co., one of the critical questions came up related to the litigation behavior of the plaintiffs. At one point the plaintiffs were accused of using an un-licensed private investigator to steal confidential documents from Disney. The judge ordered the plaintiffs to return all confidential documents to Disney. Some time later in the litigation, documents were produced that were very similar to some of the confidential documents that were turned over earlier but the “newly produced” documents did not have a confidential label on them. One of the documents was a one page answers to interrogatories in table form, the other document was a packet of approximately 200 pages.

We were contacted to determine, among other things, whether the two critical documents were altered from documents that had the confidential label. Thorough several different types of examinations that were conducted in a courtroom in California over a four day period, it was determined that the interrogatory table originally had a confidential label that was removed through the photocopying process. This was determined by finding the model document (which had the confidential label) and matching up a transient damage pattern from the copy machine that could not have been aligned by chance. This was demonstrated in court by using enlargements of a series of 25 known copies showing the movement of the transient damage mark and the perfect alignment with the model document that contained the confidential label.

The booklet was then compared to a confidential version that had been turned over earlier by court order. By damage (primarily staining and tears) that existed to at least 35 of the pages, it was shown that the “new version” was copied from the stolen confidential version that was previously turned over. This was presented at trial using acetate overlays on photographic blowups of the pages.

At the evidentiary hearing, the above evidence was presented with no opposing expert taking the witness stand. The judge ruled that the plaintiff had altered the documents and intentionally removed the confidential labels. At the conclusion, the judge awarded terminating sanctions to Disney for multiple and ongoing discovery abuses. Further details are available on our website.

If you have any cases in your practice that you would like to discuss, please contact our office.