People v. Kennedy ( 1971 )

V. J. Brennan, P. J.

Defendant was convicted in a nonjury trial of uttering and publishing contrary to MCLA § 750.249 (Stat Ann 1962 Rev § 28.446) and was sentenced to serve 5 to 14 years in prison.

At the trial, it was defendant’s position that he was never inside the bar of the complaining witness and that he never forged the name of “Robert T. Lee” on the back of a stolen check to induce the complaining witness to cash it. Since defendant was an indigent, the court, at his request, appointed a handwriting expert to testify on his behalf. Defense counsel submitted a number of samples to the expert witness, James Hurt, dating back to 1961. Mr. Hurt testified that he could not form an opinion concerning the identity of the person who indorsed the check in question due to the paucity of letters in both the check and the handwriting exemplars. At that point defendant volunteered to write anything the expert might require in order to make a proper comparison. The prosecutor objected to the offer, and the court sustained the objection.

On appeal defendant’s sole assignment of error is that the court erred in sustaining the prosecutor’s objection to the defendant’s offer to submit handwriting samples written in court. We do not agree.

The issue before us is one of first impression in this jurisdiction. It has long been the law in Michigan that a witness may not be compelled to make handwriting samples in court for comparison purposes. First National Bank of Houghton v. Peter Robert (1879), 41 Mich 709. Where, however, the witness consents to make exemplars and there is no objection by opposing counsel, it is clear that the in-court samples may be used. People v. Sturman (1920), 209 Mich 284. The problem at hand is whether it is an abuse of discretion to refuse to allow the making of in-court samples where the defendant consents thereto but the prosecutor objects.

It appears that a majority of courts that have passed upon this issue favor exclusion. See 7 Wigmore on Evidence, §2018(1), pp 227, 228; People v. Rosenbaum (1921), 299 Ill 93 (132 NE 433); People v. Sauer (1958), 163 Cal App 2d 740 (329 P2d 962); Hickory v. United States (1894), 151 US 303 (14 S Ct 334, 38 L Ed 170). The rationale given is that such writings would be in the nature of a self-serving act and would present a unique opportunity for fabrication. We are inclined to agree that there is a high degree of unreliability inherent in allowing a witness to prepare writing samples in court to show that his handwriting does or does not match that on another instrument which has already been inspected by him. Under these circumstances it was not an abuse of discretion to refuse the defendant’s offer to prepare writing samples during the trial. This is not to say that the in-court preparation of exemplars can never be allowed, rather we hold that the evidential value of this procedure is such that, upon objection, the court has discretion not to permit it.

Affirmed.

All concurred.