More forensic solutions to help attorney in litigation
By: Erich J. Speckin
Consider the following situations involving forensic experts:
Pages were removed from medical chart and pages were added with exculpatory
language to provide a better defense and to shift the blame. The information
from the original page, which is missing, was forensically recovered -
even though the page was not.
An employer's minute book regarding contributions to the employee benefit
plan had about 200 pages and at least 69 pages that were rewritten as
late as four years after the fact. Two pages were written to replace pages
that were already rewritten. The case, which had been in litigation for
four years, settled three days after the forensic expert's deposition.
* A corporate minute book was alleged to have had the minutes from 1992
rewritten. The inks were chemically dry, the paper was correctly date
coded, and the impressions were all aligned correctly and in the proper
order - evidence of genuineness.
* Three photocopies of letter were supposedly mailed to a bank regarding
a loan extension. The bank contended it never received any of the letters.
The originals were mailed and the copies were supposedly made at the time
the letters were sent. Through a legal search of defendant's office, the
age of the photocopies could be established. They were made on the copier
in the office, but not at the times suggested. Rather, they were made
after the lawsuit began and at approximately the same time, and not over
a period of months, as suggested by the dates on the letters.
These are scenarios in which forensic chemists/experts have helped litigate
cases. Sometimes when a printed form is used, the information can be obtained
without the use of an expert at all, as in the case of a title to property.
For example, in one case, the title company at the top of the form was
not in existence when the signature was supposedly executed.
In addition, forensic chemists can perform other examinations that do
not fall into any specific categories, but are useful in litigating cases.
Consider the following examples.
I was approached by an attorney in a product liability case in which the
plaintiff alleged that a product was manufactured, packaged and sold without
the proper warning labels. The first test was performed on a known adhesive
to determine at which wavelengths it would luminesce. When the questioned
product was examined, no luminescence was present at these wavelengths.
However, when the questioned area was examined under the beam of a nickel-cadmium
laser, the mastic that was originally there was clearly present and the
evidence of an attempt to chemically wash the product of the mastic's
existence was apparent.
A defense attorney once came to me with an EKG strip that was six or seven
years old. The attorney said he couldn't read it, but that it was crucial
to the defense of the case and, without it, he would probably lose. The
first step was to find an infrared wavelength that made the thermal markings
on the paper easily visible. Once that was accomplished, the next hurdle
was to find a manner in which the results of the examination could be
"packaged" so that the defense's medical expert could review and evaluated
the strips. This was accomplished by recording onto video cassette from
the camera head of the imaging device. The videotape could then be sent
to the attorney's expert for review.
An attorney received a copy of a microfilmed fetal monitor strip that
had writing on the reverse side. It was assumed that the information could
not be recovered because the original strips had been destroyed. But I
traveled to the hospital to examine the strips anyway. I found there was
an offset that occurred on the thermal paper from the friction of writing
while the paper was folded. This was enhanced by over-exposing a photograph
of the microfilm reading machine. The negative was reversed in the printing
process for an easily legible rendition of the disappearing text.
An attorney received a document that contained certain portions obliterated
with a marker. The underlying writing was believed to be critical to the
case but was not readable. A solvent key for the marker was discovered
without harming the underlying photocopy toner. The marker was chemically
removed and the photo copied text which had been obliterated could now
be easily read. This tuned out to be dispositive to the case.
A simple photocopy machine can transport a person's signature to another
document - but only a photocopy will exist and no original. Several examinations
can be done to determine the authenticity of the signature. But if no
original can be produced, it should always raise a red flag in the mind
of any attorney.
In one case where the original was "lost" and all that was available was
a facsimile copy, the defendant was instructed to make an acetate overlay
of the signature of the fax and use this as a model to look through all
the correspondence sent to the plaintiff. After searching about 1,000
documents, I received a call that defendant found what was thought to
be the model and was sending it to me for verification. It was indeed
the model - and it was shown to be a manufactured document. After this
information was released, the plaintiff's attorney withdrew from the case
and it disappeared.
In yet another case, the entire signature block was transferred to the
new document because the signature intersected the typewritten name and
one could not be transferred without the other. The model was never found,
but the signature block was made with a different typewriter than the
text of the document and was not it correct spatial alignment. Specialized
glass grids proved it was not parallel.
Through modern instrumentation and technology, the author of anonymous
or harassing letters can also be determined. Several different methods
and techniques are used and the rate of success is high. In one case,
a social security number, address, name and bank account number were determined
from the harassing note. In another case, the manufacturer of the paper
led me to a person's office over 1,000 miles away. The person was later
identified as a suspect and a fingerprint examination was conducted to
determine authorship.
Michigan Lawyers Weekly
Volume 9, Number 42
August 28, 1995
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