The Latest in Examination of Electronic Signatures

Signatures that are signed on a signature pad or a tablet have become more prevalent in today’s world of business.  People are being asked to sign our name in several places from the grocery
store, home improvement store to important documents such as a stock transfer and insurance policy transactions.  Medical records are now moving to a digital format. As the use of electronic signatures increases in the retail industry, it is inevitable that there will come a time when one or more of the parties in a transaction will question the authenticity of an electronic signature. 
In 1999, the Uniform Electronic Transactions Act (UETA) addressed electronic signatures stating: “In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.” The UETA recognizes electronic records and signatures solely on the ground of the media in which information is presented.
When the authenticity of the electronic signature was questioned in a Daubert Hearing, the US Federal Court judge upheld expert testimony supporting the authenticity of the signature in question. The Daubert Standard stated that a party seeking to introduce expert testimony must show
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case. A Forensic Document Examiner from Phoenix Arizona provided the expert testimony, which was affirmed by the judge’s order.
In order for the Document Examiner to conduct a proper and thorough examination, the examiner needs the raw signature data from the signature pad or tablet.  From this raw signature data, the examiner should be able to determine the time it took to execute the signature, the exact sequence of strokes and rapid versus slowly drawn strokes.  These are observable features that a document examiner needs to make in any signature examination.
The raw signature data may also provide additional details that a visual examination of the signature may not divulge.  The raw signature data is enclosed in the signature file that can be downloaded from the signature pad or tablet.  Once the examiner is in possession of the data file for the signature, it is recreated in the form of data points on an “x” and “y” axis in a spreadsheet. 
If you encounter a case with an electronic signature that has to be examined, the raw signature data file is essential to a complete and thorough examination. 


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Reasonable Scientific Certainty 
The Criminal Justice Section of the American Bar Association (ABA) recently released a report to their House of Delegates addressing the common term “Reasonable Scientific Certainty.” This term or a variant of the term has been used frequently in many expert reports and many who use our expert reports have called this term a requirement. However, the ABA report recommends that this phrase be avoided because it has no scientific meaning. 
The ABA report calls this term ambiguous and it appears to be used to measure the degree of confidence of the expert in his or her conclusions.  This ambiguity can cause the expert’s conclusions to be misinterpreted by anyone that reads the expert report. 
Different courts that have required this term in expert reports have been quite surprised to hear in testimony that there was a wide gap in the interpretation of the term Reasonable Scientific Certainty; i.e. possible versus probably or identification. 
The ABA report speaks about Federal Rule 401 and states “there is no requirement in the Federal Rules of Evidence that the expert’s opinion be expressed in terms of “probabilities.”  In a case United States vs. Cyphers, the defense attempted to exclude expert testimony because the expert did not express their opinion to a reasonable degree of scientific certainty.  The Seventh Circuit, in that case, ruled that there was no such requirement. 
There are many variations that are used for the term reasonable scientific certainty.  We have heard “reasonable degree of forensic certainty,” and “reasonable degree of document certainty” and, in the ballistics field, “reasonable degree of ballistics certainty.”  These variations have likely originated from the term “reasonable medical certainty” which some interpret as more likely than not that it occurred. The ABA report expresses some concern that a jury would translate “scientific certainty” as “more likely than not.” 



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