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118 Chapter 5 the rules relative to questioned document examination, the procedure that kicks in place when litigating parties deny authorship or signature of a document presented to them. In the case of electronically signed documents , the updated rules now state that the judge begins the procedure by ascertaining whether the signed document meets the conditions required for the presumption of trustworthiness. However, “when an electronic signature is presumed trustworthy, it is the prerogative of the judge to determine whether the elements under his consideration are sufficient to rebut this presumption.” By simply refusing to acknowledge an electronic document, parties could automatically call the judge’s inner conviction to the rescue. In the end, even when confronted with technologies claimed to possess extraordinary powers of conviction, judges continued to enjoy significant latitude in considering the evidence presented to them. Conclusion The process of carving out a place for electronic documents in French evidence law thus repeatedly stumbled on a tension: should the appraisal of their evidentiary qualities belong to the realm of the (Cartesian) arithmetic of preconstituted proof, or to that of the (subjective) inner conviction of the judge? Behind this question looms a larger one: can there be a technology whose material characteristics and whose evidentiary qualities are so exceptional that it may be said to utterly compel the conviction of the parties and judge, indeed, to be “non-repudiable”? An historical look at the organization of paper-based written proof and the evaluation of its forensic qualities by French courts suggests that in fact, these never relinquished their power to rule to the formal qualities of evidence. In his overview of the development of handwriting analysis in the French system, Ken Alder points to a curious fact: a legal system founded on the primacy of written evidence relied on and accommodated a dubious forensic science of handwriting analysis. Indeed, common-law legal scholars have often marveled at the exceptional career of handwriting expertise in France, when its vague scientific basis and demonstrated unreliability have afforded it a much more limited purview in other legal systems. Alder suggests that the choice was primarily pragmatic in that “there was often no other way to superintend script culture.” That is, “insofar as the French state sought to earn its legitimacy by acting as the Written Proof 119 guarantor of the stability of the social order, it also sought to assure its citizen-subjects of the reliability (and enforceability) of written contracts,” and handwriting expertise provided a key element of that reliability.57 Indeed, even though the methods of handwriting expertise never matured sufficiently to garner the respectability due to a properly scientific forensic method, this was not in and of itself a fundamental problem. Most of the time, handwriting analysis worked well enough, “If by ‘worked’ one means that it bolstered judgments from the magistrate’s bench by appealing to the impartiality of science (without necessarily offering any of the public accountability or reproducibility that the term “science” usually implies). For this reason, the experts’ reports were a powerful tool which the magistrates kept under their discretionary control—to confirm judgments they sought on other grounds.”58 For this reason, the failure of handwriting experts to meet modern scientific criteria did not disqualify it as a useful adjunct to the judicial process, insofar as it served to reinforce that most essential element of a judge’s decision: its legitimacy. It is of course tempting to impute this to just another example of “junk science,” the historical failure of the legal process to require and match the exacting standards of the scientific method, perhaps combined with a case of, you know, “the French . . . ” This is indeed a position adopted by some scholars: It is not surprising that the foundations of today’s “science” handwriting analysis came out of 19th century Continental thought. Western Europe was then a hotbed of extreme rationalism on the fringes of science, where theories were spun out to satisfyingly mystical complexity and experience was expected to conform or be damned. The same intellectual climate that gave us phrenology, Lombrosian physiognomy and, as previously noted, “graphology,” gave us “chirography,” or handwriting identification as a “science.”59 Yet dubious but widely accepted forensic sciences are not exclusive to the French: the lie detector has enjoyed a successful career in American courts (and in the public imagination), despite a similarly dubious scienti fic foundation.60 In the final analysis, just like handwriting...

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