Rules and Roles

RULES AND ROLES:

WHY, WHY, WHY?

Why does every ballot challenge fail? Why is the "evidence" not compelling? Why is each hearing different, but results in the same conclusion: that Barack Hussein Obama is on the ballot of each state?

Here on TheFogbow.com, our crack team of attorneys and birther-watchers has an unblemished record predicting Birther failures. What do they know that birthers don't? Why does it matter? For this Special Report, two of our members looked at the Indiana Election Comission Hearing on February 24, 2012 and wrote these guides. Comments and questions welcome here.

Rules of Evidence: A Guide for Birthers and Others Who Don't Know What "Evidence" Means
It was a Trial! It was a Hearing! It was a Cereal Topping! A Guide for Birthers and Others Who Don't Know the Difference Between a Trial and a Hearing

Rules of Evidence:

A Guide for Birthers and Others Who Don't Know What "Evidence" Means

By: Woodworker, Attorney

I thought it might be helpful to actually discuss the criteria that are applied when seeking to introduce evidence and how they arise in connection with the requirements for a person to be eligible to be POTUS, which is, after all, the issue at hand in this matter.

Requirements to be Eligible to be POTUS

A. The basic requirements to be eligible for POTUS are set forth in the Constitution, in relevant part as follows: the person:

shall be a natural born citizen of the United States;
shall be at least thirty five years of age; and
shall have been fourteen Years a resident within the United States.

Those three elements are the sole requirements to be eligible to be POTUS. A person does not need a social security number (valid or invalid), does not need to have filed or released their tax returns and does not need to have released their college, travel or any other records. A person could be under criminal investigation, under indictment, a convicted felon, can be of any sexual orientation, race or religion and possess any characteristics of any sort provided that they satisfy those three criteria.

Those three criteria constitute the entire universe of the requirements for a person to be eligible to be POTUS.

I don’t believe that anyone doubts that President Obama is at least 35 years old and that he has resided in the US for at least the last 14 years. Therefore, the only criteria that could possibly be an issue is whether he is a “natural born citizen” (an “NBC”).

B. Being a Natural Born Citizen is a mixed question of fact and law.

Addressing the legal issue first, every court that has reviewed the issue has determined that a child born on US soil and subject to the jurisdiction of the US (excepting children of diplomats, etc.) is an NBC. Despite the birthers’ arguments about Minor v. Happersett, 88 U.S. 162 (1875), this is pretty much settled law. Therefore the sole issue remaining is whether or not President Obama was born in the United States (for purposes of this discussion I am not including the argument that President Obama would be an NBC solely as the result of his birth to Ms. Dunham as the majority of birthers don’t even try to make that argument).

So, after all of the foregoing strum und drang, we have one question: was President Obama born in the United States? Now we can look at the material sought to be introduced by Ms. Taitz, et al. and analyze if any of such material is admissible in connection with this sole issue: was the President born in the United States?

Admissibility of Evidence

The basic requirements for admissibility are (a) relevance, (b) materiality, and (c) competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, e.g., hearsay, it is admissible. Cal. Evid. Code § 351; Fed. Rules Evid. 402. (citations are to California Evidence Code and Federal Rules of Evidence) (this is not intended to be, and is not, an exhaustive or complete discussion of the rules of evidence).

A. Relevance

Evidence is relevant when it has any tendency in reason to make the fact that it is offered to prove or disprove either more or less probable. Cal. Evid. Code § 210; Fed. Rules Evid. 401. Presenting evidence that one has/does not have/has a fraudulent social security number may be relevant to whether or not they have a valid social security number, but, as will be discussed below, it is not material to the case.

B. Materiality

Evidence is material if it is offered to prove a fact that is at issue in the case. If having a social security number is not a requirement to being eligible to be POTUS, then any evidence relating to having/not having/having a fraudulent social security number is not and is therefore not admissible. Under both the California and federal rules, the concept of materiality is included in the concept of relevance. Cal. Evid. Code § 210; Fed. Rules Evid. 410.

C. Competence

Evidence is competent if the proof that is being offered meets certain traditional requirements of reliability. The preliminary showing that the evidence meets those tests, and any other prerequisites of admissibility, is called the foundational evidence. Cal. Evid. Code § 402, 403. When an objection is made that an answer to a question, a document, or a thing lacks a proper foundation, what the objector is really saying is that a showing of competence, or of another prerequisite of admissibility, has not yet been made.

Application of Rules of Admissibility to Evidence Sought to be Admitted

As discussed above, the sole factual issue that could arise in connection with the only three criteria for President Obama to be eligible to be POTUS is whether or not he was born in the United States. Accordingly, for any evidence to be admissible it has to be relevant and material to that issue, even before considering whether or not the evidence is barred by some other rule, e.g., the hearsay rule the application of which is not limited by some exception (which will be discussed below). So, let’s review the various categories of evidence that Ms. Taitz, et al., seek to introduce.

A. Evidence Regarding the Social Security Number

As discussed above, a person does not need to have a social security number to be eligible for POTUS. A person could be using a fraudulent, stolen and/or invalid social security number, or not using one at all, and it is irrelevant, immaterial and not admissible. The entire meshuga megilla relating to the social security number does not address the issue of where President Obama was born – therefore NOT ADMISSIBLE.

B. Evidence Regarding President Obama’s Education and Life in Indonesia

It is clear from the evidence presented by Ms. Taitz, et al., that Ms. Dunham took President Obama to Indonesia when he was a child and a significant period of time after his birth. Therefore, any information relating to his time in Indonesia cannot shed any light on whether or not he was born in the United States, which is the sole potential issue. President Obama’s educational background, where he was educated and where he lived after Ms. Dunham and he moved from Hawaii do not address the issue of where President Obama was born – therefore such information is NOT ADMISSIBLE (this same analysis applies to his high school, college, law school, nursery school and similar records).

As a side note, I am not addressing the argument that President Obama gave up his citizenship when his mother moved him to Indonesia as it is long settled law that a minor child does not give up their citizenship unless and until they reach the age of majority and affirmatively act to give up their citizenship and no evidence has ever been produced or sought to be produced to that effect.

C. Evidence Regarding President Obama’s Tax Returns and Other Records

President Obama’s tax returns and other records do not provide any indication of where he was born – therefore NOT ADMISSIBLE.

D. Evidence Regarding Where President Obama was Born

Finally, we get to a category of evidence which may be relevant, evidence directly relating to where President Obama was born. This category includes two principal sub-categories: evidence attempting to prove that President Obama was actually born somewhere else, e.g., Kenya, and evidence attempting to show that he was not born in Hawaii.

Evidence President Obama was born elsewhere.

This is the really easy one to address (as opposed to the just easy one later one). There have been attempts to establish that President Obama was born in Kenya or elsewhere using both (A) documentary evidence, e.g., the Kenyan birth certificate, and (B) testimonial evidence, e.g., his grandmother allegedly said he was born there. I will discuss below why all of this evidence is not admissible for, amongst other issues, hearsay reasons, but as Ms. Taitz and her fellow challengers are not asserting these claims anymore, the issue is moot for this challenge.

Evidence that President Obama was not born in Hawaii. This is also easy to address.

1. In support of his birth in Hawaii we have, amongst other evidence, (A) a self-authenticating Certificate of Live Birth issued by the State of Hawaii, (B) statements by the director of the Department of Health of Hawaii and the Governor of Hawaii attesting to the accuracy of the information set forth in said Certificate of Live Birth and (C) newspaper announcements of President Obama’s birth in Hawaii, printed contemporaneously with such birth.

2. As evidence against his birth in Hawaii all we have is an argument that the Certificate of Live Birth is a forgery (remember that all of the evidence relating to the tax returns, flattening thereof, etc. is inadmissible because it does not relate to the issue of where President Obama was born). The sole evidence relating to a potential forgery of the Certificate of Live Birth is an affidavit of a person, who purports to be an expert in forensic document analysis, that the online image of the Certificate of Live Birth is a forgery. Said “expert’s analysis” is not admissible for several reasons, including that said expert was never qualified and could not be qualified. Said expert has never worked as a forensic document examiner, has never taken any specialized instruction as a forensic document examiner, is not certified as a forensic document examiner, has never testified as a forensic document examiner and does not satisfy the criteria required to be an expert witness. Ms. Taitz never properly attempted to qualify, and certainly did not succeed in qualifying said person as an expert witness and therefore any testimony relating to whether or not the Certificate of Live Birth is a forgery is NOT ADMISSIBLE. And Ms. Taitz, et al., have not presented any other evidence to argue that President Obama was not born in Hawaii.

3. Authentication, Best Evidence and Hearsay. As discussed above, we have demonstrated that none of the evidence sought to be introduced by Ms. Taitz, et al., is admissible because it either does not related to the sole potential factual issue, i.e., whether or not President Obama was born in the United States, or because the “expert” was not qualified as an expert. But, as we were forced to do in law school, let’s assume for the sake of argument that all of the “evidence” discussed above is relevant and, unless otherwise barred, admissible. The evidence sought to be introduced falls into two basic types: documents and testimonial.

a. Documents. With documents you can have authentication, “best evidence” and hearsay issues.

i. Authentication. Authentication basically means that the document being introduced is really that document and not another document. Some documents are self-authenticating, e.g., the Certificate of Live Birth with an original embossed seal on it. Similarly, documents such as certified copies of public records, official documents, newspapers, periodicals, trade inscriptions, acknowledged documents to prove the acknowledgment, certificates of the custodians of business records, and certain commercial paper and related documents are, to one extent or another, self authenticating under either California law or the federal rules. Cal. Evid. Code § 1450 et seq., 1530 et seq., 1562; Fed. Rules Evid. 901, 902. However, most documents, e.g., printouts from the internet and foreign birth certificates, are not self-authenticating and need to be authenticated by extrinsic evidence. A foreign birth certificate would need extrinsic evidence to establish that the document being introduced is really that document.

ii. Best Evidence. The best evidence rule generally provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Cal. Evid. Code § 1500 et seq.; Fed. Rules Evid. 1002. In California, testimonial and other secondary evidence of the document's content is also generally forbidden. Cal. Evid. Code §§ 1500, 1508. Despite Ms. Taitz’s numerous complaints that the best evidence rule applies to the Certificate of Live Birth, it does not. The best evidence rule is not applicable to the Certificate of Live Birth because the Certificate of Live Birth is not a copy of another document – it is an original self-authenticating document all by itself. Each time it is produced it is a new document, not a copy of another document. As such the best evidence rule does not apply to it. However, the best evidence rule could apply to any documents sought to be introduced by Ms. Taitz.

iii. Hearsay. The infamous “hearsay rule,” long may it bedevil persons taking the bar (and how in the world did Ms. Taitz pass Evidence? It must not have been on the bar exam when she took it!!!). Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. Evid. Code § 1200(a); Fed. Rules Evid. 801(c).

This is always really confusing, so let me clarify this a little. When someone (A) attempts to introduce in court evidence of a “statement” (which I will discuss in a moment), (B) which statement was not made in court and (C) which statement is being introduced to “prove the matter stated,” it is hearsay. First off, a “statement” does not need to be verbal. For example, the reference to President Obama’s name on the Indonesian school records as “Soetoro” is a “statement” that Barack Obama’s name was Soetoro. The statement was made on the Indonesian school records and therefore is clearly not made in court. This leaves the question of whether or not the “statement” is being introduced to “prove the matter stated.” If so, then it is hearsay. So, lets look at the reason that Ms. Taitz is seeking to introduce the Indonesian school records – to prove that Barack Obama went by the name Soetoro. In other words, to prove the matter stated and, QED, hearsay. If she was introducing the school records to prove that Barack Obama went to school in Indonesia, it would not be hearsay. Unfortunately, the fact that he went to school in Indonesia is not relevant to anything at issue in the case, so it wouldn’t be admissible in the first place.

Now, there are numerous exceptions to the hearsay ban, but Ms. Taitz would have to show that an exception applied and she has not, and in most cases, can not show an exception to the ban.

b. Testimony. (I am getting tired so I am going to cut this very short). The same problems arise with testimony sought to be introduced by Ms. Taitz, especially with regards to hearsay. Every time that Ms. Taitz attempts to “testify” or introduce testimony from someone else, the issues arise. They refer to documents that are not authenticated and, in the event that they could possibly be authenticated, they are hearsay. She had Susan Daniels testify that President Obama’s social security number was fraudulent based on online searches. Ms. Daniels was attempting to testify that the information she retrieved established that the social security number being used by President Obama was fraudulent. Let’s see: out of court “statement” (the information in the online search) being introduced to prove the matter stated, that the number was fraudulent – bingo, hearsay.

Conclusion

Okay, I am tired now and am going to stop. But my basic point is that the members of the hearing committee gave Ms. Taitz, et al., a “fair” hearing and gave her “evidence” the appropriate consideration due under the law. If Ms. Taitz wanted more, she should have done a better job (which given the underlying facts would be difficult). Her "evidence" was not admissible and as a matter of law they could not consider it.

To everyone (and anyone) who read this all the way through, mas tequila.

It was a Trial! It was a Hearing! It was a Cereal Topping!

A Guide for Birthers and Others Who Don't Know the Difference Between a Trial and a Hearing

By: A Legal Lohengrin, LLD

The difference between a judicial trial and an administrative hearing is critical. It may be masked by the fact that when appropriate, the two types of hearing sometime adopt what look like similar procedures, but the goals of the procedures are different.

A trial is a formal contest between two parties, where the goal is to vindicate the rights of the parties before the court, the plaintiff as well as the defendant. The effect on the world at large is basically irrelevant. Anyone with a dog in the hunt had best lawyer up and get involved, or waive their rights. Rules of procedure are strict and enforced upon the demand of a party whose rights are infringed by a failure to adhere to procedure. In theory, this is supposed to lead to "justice." In reality, it usually does, at least when both parties are adequately represented. This may not be the case when one side is a huge corporation with 20 lawyers and the other side is a pro se defendant. However, I'll argue social justice in civil litigation another time. The most important issue for this discussion is that a trial is something occurring before part of the JUDICIAL branch, which decides controversies between parties.

An administrative hearing is a hearing by a part of the executive branch, generally an administrative agency. The executive branch does not generally make binding determinations as to what the law is. The job of the executive branch is to DO. Unlike the relatively helpless judiciary, the executive branch has people who go out and DO things, build buildings, administer programs, and even, in the case of resistance, send out guys with guns to eliminate the resistance and THEN do things. The purpose of inviting public comment and participation does not reflect a core purpose of resolving disputes of rights between private parties, but reflects a general desire that the public participate in carrying out the law. It is not the job of the executive branch to question what the law is, but to carry it out.

This dichotomy is reflected in this way in these kinds of hearings. To initiate a civil trial, one must have standing and some reason your name should be on the caption. You generally won't get a trial if you sue for your next-door neighbor to be compelled to wear suspenders, because you think he'd look better that way. By comparison, an administrative hearing is about an executive agency carrying out its duties. Often, there is a compulsory hearing (like the Indiana Election Commission hearing) to allow the public to comment and state its views. Anyone interested can show up. Usually, that is people within the jurisdiction who have opinions. The very basis of allowing challengers and public comments at an Election Commission (at least one constituted as Indiana's is) is to allow public commentary by the very public (Indiana voters) who are impacted by the Commission's decisions. (Needless to say, Moldovan Communists are not among this public.)

Notably, many administrative hearings these days, such as benefits hearings, do actually involve substantive rights. I won't go into this in any detail, but just repeat my reference that Judge Friendly's works on due process in the administrative realm are the core of modern thinking on the subject, and while I am personally considerably more liberal than Friendly, I'd say start there if you're actually interested in the subject. [Henry Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975)]

However, this Election Commission hearing is not, basically, about deciding substantive rights. It's about the Secretary of State carrying out its statutory duty to put together ballots so the citizens of the state of Indiana can vote. Everything about how this happens is tailored toward a single goal: putting out a bunch of pieces of paper or these days electronic ballot files to be loaded into voting machines, so that on election day, people can cast votes. There is no particularized right of any individual to have a ballot they like looking at.

Now, the content of a ballot does reflect many rights. It reflects the rights of the candidates to appear on the ballot, which is why candidates are so often named parties in contests over the ballot. The right to appear on the ballot is essentially the implementation of the core right, which is the right to run for office, which is meaningless if your name does not appear on a ballot. Not appearing on a ballot, in most cases, is the death-knell of a political campaign. In primaries, the rights of political parties are represented by having their certified candidates listed on the ballot. Political parties themselves are composed of individual voters, like me, and here is where my rights come in. I have the right to vote in my party's primary for the candidate of my choice, and collectively, my fellow party members have that right.

Then, there is a right of people in general to have a working democracy. This is generally not sufficient to confer standing in a court of law, but is sufficient for appearing before an administrative body to state an opinion.

Here's another major distinction.

A judge has an absolute obligation to be impartial, not to reach an opinion beforehand, only to make a decision based on evidence of record admitted based on what parties have submitted, stipulated, or otherwise put in the record, subject to challenge by any other party.

An administrative agency may very well have already decided to do what it is going to do. It has no obligation to be impartial. It has the obligation of carrying out the law, whether that involves sending out excavation equipment to drain a swamp, sending out guys with guns to stop someone from draining a swamp because it is now protected wetlands, or otherwise doing the business of the state. While hearings may have the trappings of court proceedings, in effect, anything that goes on in these hearings is a public comment period, not a trial. The administrative agency has the job of doing something, in this case, putting together a ballot and putting it in front of the snoots of the voters on election day. Not putting that ballot below the appropriate snoots on election day is Not An Option.

The impatience of this particular Election Commission is not because it was "biased," and that accusation is not only wrong, but stupid. They have a short deadline to do their jobs. They are entirely open to improving the ballot by removing joke candidates and those clearly ineligible. They are entirely willing to hear arguments on arguable challenges to candidates and to create a record for further review.

However, as the Chair noted repeatedly, clearly understanding the difference between an administrative agency and a court, there are some matters that are only appropriate for review in a court. Unlike many administrative agencies, the Indiana Election Commission conscientiously preserved the record for judicial review in even Orly's case, not that these churlish curs even appreciate that.

Basically, Orly was demanding the Commission break the law and remove Obama from the ballot based on no evidence at all, when the law demands that a party's certified candidates appear on the primary ballot. Even if the pile of garbage she submitted, much of which is completely unintelligible, were "evidence," it would not justify the Commission breaking the law, which is what Orly demanded.

It is the job of the Election Commission to decide issues nearly immediately and take them to completion before a HARD deadline. If they fail to do that and get ballots in front of voters on election day, not getting reappointed is the least of their problems. Around here, torches and pitchforks would not be an unrealistic outcome.

Only a court could go further and, after weighing admissible evidence, go further and do things like enjoin the certification of signature petitions, delaying an election.

Delaying a statutory deadline would be absolute anathema to an Election Commission. By comparison, disrupting things like that is something courts do all the time. The "stay" that Orly constantly demands (not having the slightest clue what a "stay" is and why you would want one) is a perfect example of judiciary power. It is basically a court saying "stop whatever the hell you're doing and wait until we decide." While an executive agency has the power to bulldoze your house and put up a sewage plant, the judiciary lacks that power. However, it has the power to stop the executive from doing that until it decides otherwise.

Here's my conclusion. Orly has been treated with something resembling respect by the judiciary, which has the job of resolving disputes between private parties. None of her "plaintiffs" had standing. Now, she is attempting to meddle in the business of political parties by challenging the process by which they choose their own candidates. Even Republicans are big on political parties having the right to choose their own candidates.

Yesterday, she chose to piss in that bowl of cornflakes publicly, and got what she deserved. Period.