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33. Should the court permit the proposed comparison of the handwriting specimens by the jury?
A defendant was tried on multiple counts of bank fraud for a scheme in which he allegedly made withdrawals from the bank accounts of others by using false identification cards and forging signatures on checks. A codefendant, who had assisted the defendant in 5 of the 75 transactions for which the defendant was being tried, testified that he was present and saw the defendant endorse 5 of the checks. Thereafter, the prosecutor moved for admission of all 75 checks that the defendant had allegedly endorsed, arguing that a comparison by the jury of the signatures on the checks identified by the codefendant with those on the other 70 checks would demonstrate that they were all signed by the defendant.
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After a lay witness has authenticated the handwriting, FRE 901(b)(3) allows for an expert witness OR a trier of fact to compare the authenticated specimen with another sample and determine the genuineness of the latter.
C is correct. After the prosecution called the co-defendant to testify that he witnessed the defendant sign five of the forged checks, the jury could then properly use the co-defendant's testimony regarding those five checks to compare to the remaining 70 checks because a trier of fact may determine the genuineness of a writing by comparing it to other authenticated specimens.
A is incorrect. This is an incorrect statement of the law. FRE 901(b) allows for a trier of fact to determine the genuineness of handwriting as long as it is supplied with the necessary (authenticated) specimens for comparison, which was the case here when the co-defendant testified to the defendant's signature on the five checks.
B is incorrect. This is also an incorrect statement of the law. Under FRE 901(b)(3), such a comparison may, in fact, be done by an expert witness, but it may also be done by a trier of fact, such as the jury in this case. The jury may thus properly compare the authenticated five checks with the remaining 70 checks to determine whether the other 70 are genuine.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The court is not required to first make a preliminary finding as to the authenticity of the remaining 70 checks. After the co-defendant authenticated the five checks he witnessed the defendant sign, the trier of fact (the jury) may then properly determine the genuineness of the remaining 70 checks. No requirement exists that the court must first authenticate the other 70 checks.