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Handwriting Analysis and the Law

August 17, 2011

Handwriting Analysis and the Law

Handwriting analysis, also known as graphology, is the study of handwriting to determine a person’s personality. Graphologists study script characteristics such as pressure, continuity, letter proportions, the length and angle of strokes, and the slope of the writing to create a profile of the writer. The use graphology is estimated to be used by 70% of companies in France during the hiring process and has become more common in the U.S. in recent years. The rise in the usage of graphology in the U.S. can be partially attributed to the passage of the Employee Polygraph Protection Act of 1988 (“EPPA”). The EPPA prohibits private employers from submitting future or current employees to lie detector tests. This has led employers to turn to other methods to assess the characteristics of an individual’s personality.
However, many groups, such as the American Civil Liberties Union, scientists and scholars consider graphology to be a pseudoscience with little reliability and compare it to practices like palm reading or astrology. It should be noted that this form of handwriting analysis is separate from forensic science, where writing is studied to determine the authenticity of documents or to connect a handwriting sample to a crime suspect by examining the materials used and comparing previous writing samples. In neither of these instances are any predictions made concerning the writer’s psychological profile.
Inadequate testing and dependability concerns have been the basis of arguments by groups against the use of graphology in employment decisions. Likewise, many fear that such opposition may result in successful claims against employers who use handwriting analysis. Possible causes of action include defamation, invasion of privacy, and discrimination under fair employment practice statutes or the Americans with Disabilities Act. In the U.S., testimony based on graphology is usually inadmissible, as courts have routinely expressed uncertainty in its accuracy. Similarly, despite the notion that handwriting analysis can be useful in preventing negligent hiring claims, it is typically unhelpful as the majority of hiring suits are linked to employee violence, which a graphological study is not designed to predict.
Furthermore, the Supreme Court’s holding in Daubert v. Merrell Dow Pharmaceuticals (1993) created the Daubert standard. Under this standard, federal judges must consider if a practice has been tested, whether it has been subject to peer review, as well as its purpose and accuracy. Moreover, handwriting analysts are held to the same professional standard as a psychologist or psychiatrist, which often requires them to prove the scientific validity of their work. Graphologists are frequently unable to do so due to the inherent difficulty in proving the consistency and reliability of such a prediction. Comparably, in United States v. Salee (2001), a federal court concluded graphology to be lacking in merit and completely subjective.
In Tennessee, Rule 702 of the Tennessee Rules of Evidence regarding expert testimony is different from the federal rule. Although, each allow properly qualified forensic document examiners to testify in regards to subtle differences or similarities in writings and consider conclusions about the writer’s personality to be unfounded. The federal rule holds that the scientific, technical, or specialized knowledge must “assist” the trier of fact, whereas the stricter Tennessee rule requires an expert to “substantially assist.” However, because state courts often use the same factors as federal courts during their evaluations and because handwriting analysis has historically been accepted in Tennessee, there is a predisposition to allow it. Consequently, it is important to investigate recent judicial decisions, as well as the training and professional affiliations of a handwriting expert if one must be retained. It should also be expected that any testimony by a handwriting expert to be limited to the comparison of the similarities and differences between several writings.
Is Handwriting Analysis Legit Science?
Tennessee Rules of Evidence
Posted By: Eston Whiteside