152 Comments »

• Who Are You Kidding says:

  October 18, 2009 at 8:03 pm

  [DoH administrative rules have been removed from public access.] “To say that is hard to believe is an understatement.” Bob

  Just the facts: DoH administrative rules which should describe how “FILED” and “ACCEPTED“ are used on birth certificates have been removed from public access by DoH. ( http://tinyurl.com/TK-MT-wp ) In response to public inquiries about vital records data held by DoH, and required by law to be made available to the public, DoH has consistently misled and misdirected the public, contrary to their lawful duty. ( http://tinyurl.com/NBC-TKp2 ) The Hawaii Attorney General is flouting Hawaii law by refusing to make public the advice he gave to DoH Director Fukino concerning her July 2009 statement on Obama’s vital records. ( http://tinyurl.com/NBC-HAG-cp )

  Once is happenstance, twice is coincidence, three times is who are you kidding.

  “There’s no dispute around the Michele COLB, but plenty around Polarik’s ‘analysis’.” Bob

  It’s by comparing Obama’a COLB with the “Michele COLB” that Dr Ron Polarik claims to prove that Obama is a criminal fraudster – and Bob has no dispute with that? Polarik, derided by Obama loyalists as a “liar and conman”, from whom Bob undoubtedly withholds all trust, is the only source and witness for the “Michele COLB” – and Bob has no dispute with that? Quoting Bob, “to say that is hard to believe is an understatement.” A “computer-media expert with 30 years experience“, Dr Polarik in an affidavit under penalty of perjury offers detailed evidence that claims to show, for example, there is no genuine, physical seal on Obama’s “faked” COLB and if Obama had a COLB with a genuine seal he would have no need to fake one; although Bob is relying on that alleged “seal” to authenticate Obama’s purported COLB under Rule 902(1). If Bob has no dispute with Dr Ron Polarik’s evidence then Bob is conceding that Polarik’s analysis is indisputable – and therefore Dr Polarik was right all along when he said Obama’s COLB was a criminal forgery. (In the alternative Bob is asking us to swallow the equivalent of “Yes, I agree the stolen jewels were found in my safe-deposit box with my fingerprints and my DNA all over them but…it’s not what it seems.“)

  [Nothing prevents DoH releasing any information regarding Obama’s file] “Say hello to HIPAA“. Bob

  Disclosure of records of vital events to, from, and within DoH is not forbidden by HIPAA. As I wrote previously, DoH can do just about whatever it likes with Obama’s vital records. DoH lied about that. DoH Director Fukino October 2008: “State law (Hawai’i Revised Statutes §338-18) prohibits the release etc. etc.”

  The Practical Guide to HIPAA Privacy and Security Compliance, Kevin Beaver and Rebecca Harold, Auerbach Publications, 2004:

  “HIPAA is the Health Insurance Portability and Accountability Act of 1996…The overall goal of HIPAA is to provide insurance portability, fraud enforcement, and administrative simplification for the healthcare industry … HIPAA mandates protection of various forms of confidential health information referred to as protected health information (PHI). PHI is considered any oral or recorded information relating to any past, present, or future physical or mental health of an individual, provision of healthcare to the individual, or the payment for the healthcare of that individual…. There are three main categories of covered entities (CEs): Healthcare provider…Health plans…Healthcare clearinghouses … What Does Healthcare Mean? … the services and supplies related to an individual’s health are all considered healthcare…[and] as discussed in the HIPAA regulations, include[s]: [a] A preventive, diagnostic, rehabilitative, maintenance, or palliative care, and counseling service, assessment, or procedure with respect to the physical or mental condition or functional status of an individual or that affects the structure or function of the body [b] The sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription … A CE may disclose PHI for public health activities and purposes to: A public health authority authorized by law to collect or receive PHI…[whose] activities include, but are not limited to…vital events such as birth…”

  It is apparent that for Bob HIPAA is little more than a name.

  [COLB [is] evidence under Rules 902(1) and 803(9)…only IF Obama’s COLB is what they claim] “Which won’t be difficult at all, since it is.” Bob

  When Congress enacted the Federal Rules of Evidence, after much consideration, they intended every Rule to have precise meaning and force. “As the [FRE] were enacted by Congress, this Court must interpret them as it would any statutory mandate … as a statute, we begin with the text … if the language of the statute is reasonably definite, it must be regarded as conclusive.” (US v. Houlihan, US District Court Mass., 1994) The unambiguous intention of framing a distinct Rule – 902(4) – for certified copies of public records and electronic files was to apply it specifically to certified copies of public records and electronic files; federal judges are there to make sure the Rules are applied as Congress intended, even when it inconveniences Obama or angers Bob.

  There is no provision in Hawaii law for DoH to issue anything other than a certified copy of a vital record. To convince America that Obama is eligible to be President loyalists promote his COLB as a DoH certified copy of his birth certificate; however if Obama’s COLB is a certified copy of a vital record it can only be authenticated under Rule 902(4) – that’s what Congress intended and that’s what a judge must apply.

  Only if it’s not a certified copy of a vital record can Obama’s COLB be admitted into evidence under another FRE 902 Rule, as Bob devoutly wishes; but if it’s not a certified copy of a vital record then it cannot be admitted as hearsay under Rule 803(9), which is reserved for certified copies of vital records, and copies must be certified because we have no other way of proving them the genuine vital records they purport to be. As explained in an earlier comment, Obama’s COLB is not admissible under any other hearsay exception, so without any example to the contrary, trying to sneak Obama’s COLB into evidence under what Bob has decided is the “less exacting” Rule 902(1) renders it completely inadmissible under Rule 803(9).

  Obama’s COLB has yet another glitch which makes it inadmissible as evidence. Even assuming hypothetically that Obama’s COLB might be a legal, certified copy and possibly admissible under hearsay exception Rule 803(9), there still remains another layer of hearsay which renders it completely inadmissible. Obama’s COLB makes hearsay statements in the form of its dataset and it also makes a hearsay statement when it references an alleged birth certificate index number on its first line. Onaka’s machine-stamped “signature” and “certification” only claim to “authenticate” the hearsay statements from the COLB dataset i.e. “This…abstract ” — but Obama’s alleged 2007 COLB printout states in effect on its first line “take my word for it, there’s a birth certificate in the DoH archive from 1961 which I say has this recorded number (151 1961 014641) and it says everything I’m saying and more,” and that’s a second layer of hearsay (about the existence and serial number of another alleged vital record [1961]) which must be evaluated by a judge separately from the first layer (the alleged vital record itself [COLB]). Some problems to be addressed in the judge’s evaluation: a real certified copy of a vital record does not need to make secondary hearsay statements which point beyond itself to establish the truth about itself; known genuine birth certificates from Kapiolani Hopsital dated August 1961 do not have index numbers which correspond in form to the alleged index number in the COLB’s hearsay statement; and Onaka’s machine stamped “signature” and “certification” do not make any claim to “authenticate” either formally or practically the alleged 1961 birth certificate and its index number, only “This…abstract ” of the COLB dataset.

  Another hearsay exception must be found to admit this second layer of hearsay, and that can only be 803(6) for business records, or 803(8) for public records. Obama’s difficulty is that neither Rule can be applied because 803(6) only admits statements made around the time the information was recorded and 803(8) only admits statements made by someone who had firsthand knowledge of the events recorded. Given a) Hawaii’s COLB database only started officially in November 2001; b) Obama’s COLB (if it exists) was allegedly printed in June 2007; c) the alleged birth certificate and its index number were recorded in 1961; and d) no authority currently employed at DoH was there in 1961; then e) forty(-six) years is far too distant in time to satisfy either 803(6) or 803(8). Consequently, as hearsay, there is no FRE exception or combination of FRE exceptions which admit(s) Obama’s purported COLB (if it exists) into evidence. Obama’s COLB (if it exists) proves nothing, and will never prove anything, about the circumstances of Obama’s birth or his eligibility to the Presidency; that is why no jury will ever be allowed to see it.

  [Candidate challenges not subject to lack of standing] “…it would be helpful if you actually cited a specific law.” Bob

  Glad to see I finally convinced Bob just how important cites, links, and quotes are:

  “In 2004…registered voters in Pennsylvania filed suit in state court, seeking to have the names of independent candidate Nader and his running mate Peter Camejo excluded from the ballot….there was no doubt as to the state court’s ability to entertain a challenge to a presidential candidate’s qualifications in the course of determining whether to deny that candidate access to the state ballot…It is conceivable that a comparable state-court lawsuit could be filed, in Pennsylvania or another swing state, to challenge a presidential candidate’s constitutional qualifications to serve. There is no requirement that a plaintiff in a state-court lawsuit meet the Article III or prudential requirements for standing. Further, the federal political question doctrine does not bar state-court litigation seeking to exclude a presidential candidate from the ballot on the ground that he or she is ineligible.”

  The Justiciability of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji, Michigan Law Review First Impressions (2008) http://tinyurl.com/Tokaji-MLR-JE

  Here are three more examples of states providing for eligibility challenges, starting with New Hampshire:

  “RSA 655:47 Presidential Nominations. Declaration of Candidacy. The names of any person to be voted upon as candidate for president…at the presidential primary shall be printed on the ballots upon the filing of declarations of candidacy with the secretary of state in the following form and signed by the candidate: ‘I…declare…that I…meet the qualifications for the office’…” [emphasis applied] http://www.sos.nh.gov/rsa655.htm

  “RSA 665:6 Ballot Law Commission. The ballot law commission shall have jurisdiction…[after] the nominations at the primary…[to receive a] written objection to their conformity with the law…filed with the secretary of state within 3 days of the date of publication of the results… If written objections are filed, the secretary of state shall forthwith notify the ballot law commission of such filing. The ballot law commission shall then meet as provided in RSA 665:5 in order to hear and decide all the objections. The decision of the ballot law commission in such cases shall be final as to questions both of law and fact, and no court shall have jurisdiction to review such decision.”
  “RSA 665:11 Evidence. In any hearing, the commission shall not be bound by the technical rules of evidence; but its findings must be supported by reliable, probative, and substantial evidence.
  RSA 665:12 Subpoenas; Oaths. The commission shall have power to subpoena witnesses and administer oaths in any proceeding before it and to compel by subpoena duces tecum the production of any checklist, tally sheet, or other document or thing of any kind whatever.” [emphasis applied] http://www.sos.nh.gov/rsa665.htm

  To save space I will merely link to similar provisions of Indiana law available here http://tinyurl.com/IndC-3812 (Indiana Code 3-8-1-2) and here http://tinyurl.com/Ind-CG-Obj (2008 Indiana Candidate Guide), and the provisions of Kansas law here http://tinyurl.com/KS-25-308 (Kansas Statute 25-308) and here http://tinyurl.com/KS-SoS-ChIV (Kansas Election Standards 2007, Chapter IV, Candidates)

  New Hampshire and Kansas have no limitation on who may file an objection; the only requirement that Indiana sets is for the challenge to be made by a registered voter. Standing is not an issue. If Obama is running from the law now, and it doesn’t catch up with him by 2012, he assuredly won’t place himself at it’s mercy in seeking re-election.
• Bob says:

  October 14, 2009 at 4:00 pm

  Absent this courtesy, readers may credit Bob’s unsupported word (perhaps memory) or ignore his claim, depending on how objective and trustworthy they judge Bob has shown himself to be.

  You can lead a horse to water, but you can’t make it think.

  must be what the record’s proponent claims or it cannot be admitted into evidence.

  No competent evidence that it isn’t.

  inappropriate and mispelled platitude.

  Neither inappropriate nor misspelled (note the correct spelling of “misspelled”). The refusal of her request does not imply that such records exists, as saying such records exist would violate the very privacy concerns that govern the refusal. Proptor hoc. TerryK needs to get off the Internet and actually file her case if she’s so sure that there’s some secret amendment out there.

  Nothing in Hawaii law prevents DoH from releasing any information they want regarding Obama’s file to whomever they want.

  Say hello to HIPAA.

  I know many will find this hard to believe, but the administrative rules that DoH apply, which would enable us to officially know the difference between “FILED” and “ACCEPTED“, have been removed from public access.

  To say that is hard to believe is an understatement.

  Until DoH co-operate, or concerned citizens themselves force out the details, a good parallel is with IRS records: “FILED” means a return has been supplied, is under scrutiny, and may be rejected, while “ACCEPTED” means officially recognized for all administrative and legal purposes.

  Not only is it a lousy parallel, it is also unsubstantiated as well.

  Yes, agreed, let us admit Polarik’s “Michele COLB” into the discussion as a genuine Hawaii COLB…. and let us similarly admit the “Michele COLB” as proof of Polarik’s analysis that Obama’s COLB is a photoshopped confection.

  Easy with the leaps of logic. There’s no dispute around the Michele COLB, but plenty around Polarik’s “analysis.”

  If Obama’s attorneys try to admit his purported COLB into evidence under Rules 902(1) and 803(9) they can only succeed IF they persuade the judge that Obama’s COLB is what they claim it to be: a genuine vital record accepted as such by Hawaii DoH.

  Which won’t be difficult at all, since it is.

  Such challenges are not subject to dismissal on account of lack of standing.

  If you are going to cite the law, it would be helpful if you actually cited a specific law.
• Who Are You Kidding says:

  October 10, 2009 at 11:49 am

  “I can’t make it appear in digital form.” Bob

  If Bob has access to the volume, and it supports what he says, then Bob has been welcome to make the effort, out of respect for readers’ intelligence and sincerety, to transcribe the relevant passage(s) by hand, as I do. Absent this courtesy, readers may credit Bob’s unsupported word (perhaps memory) or ignore his claim, depending on how objective and trustworthy they judge Bob has shown himself to be.

  Bob should understand that the discussion has moved on. Whether or not certified copies of public records, such as vital records, are admissible or inadmissible under FRE 902(1) is a theoretical issue that readers by now have decided for themselves. What is indisputable is that a certified copy of a public record, speculatively presented for admission under FRE 902(1) or 902(4) or 803(9), must be what the record’s proponent claims or it cannot be admitted into evidence. My previous comment outlined why Obama’s COLB (if it exists) can never be what Obama’s attorneys and loyalists claim and why nobody at Hawaii DoH will ever put a handwritten signature to anything that would certify Obama’s purported COLB. Bob’s objections are easily dismissed.

  a “Proptor hoc” [In response to "If Hawaii Vital Records refuse public access to amendment(s) made to a vital record, rather than deny the existence of the amendment(s), under Hawaii law this confirms such amendment(s) exist.]

  Post hoc ergo propter hoc, or “correlation is not causation”. Had Bob actually visited and read information at the link provided he could not have misunderstood what I wrote and treated us to an inappropriate and mispelled platitude. The link reproduced extensive communications that a concerned and astute citizen, TerriK, had with the Hawaii Office of Information Practices Staff Attorney Linden Joesting, who guided TerriK through the intricacies of submitting requests to Hawaii DoH under Hawaii’s open records law (Uniform Informarion Practices Act) using OIP Rules. http://tinyurl.com/OIP-R-27113 Essentially Hawaii DoH have four options when replying to a request for a record: i) supply the record, ii) declare no record exists, iii) refuse to supply the record, or iv) ask for clarification. By law refusal to supply a record can not be deemed to imply the record does not exist. When DoH refused to supply, rather than deny the existence of, information about the amendment(s) made to Obama’s vital records on file at DoH this action confirmed beyond all doubt that such amendment(s) existed. UIPA also mandates public access to all documents consulted prior to agency decisions, actions, and statements, thus encompassing Fukino’s two public announcements relating to Obama’s vital records, for which (according to OIP Opinion Letter 90-40 http://tinyurl.com/OIP-OL-9040 ) the statutory exceptions to public access “such as for personal privacy and for frustration of legitimate government function are inapplicable.” Statutory provision for recourse to the courts of Hawaii will expeditiously disgorge these documents, should that be necessary. If Bob does not believe this to be an accurate summary of the law and TerriK’s experiences he is welcome to correct the discrepancies.

  b “Answering the question would violate privacy interests.” [In response to "When directly questioned Hawaii have not denied such amendment(s) exist in Obama's vital records, and have refused public access."]

  Nothing in Hawaii law prevents DoH from releasing any information they want regarding Obama’s file to whomever they want. The statute that fully permits disclosure is HRS 338-18, which reads in part “…it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records…except as authorized by this part or by rules adopted by the department of health.” Whatever administrative rules Hawaii DoH invent and apply to itself alone determine “privacy interests” and no other consideration. Furthermore, the list of parties to whom DoH can supply information contained in vital statistics records is inclusive not exclusive: the statute as written does not prevent DoH from supplying information to any persons outside that list if it so chooses (for example, providing for “persons with a direct and tangible interest in the record,” such as responsible voters). Bob is welcome to correct any perceived errors.

  c “Occam’s Razor: There are no amendments.” [In response to "Under Hawaii law such amendement(s) must be included in the vital record, but there are no separate amendments listed on Obama’s COLB, so amendment(s) must lie within or constitute the COLB itself."]

  When answering requests for public access to any specific amendment(s) made to Obama’s vital records Hawaii DoH, obedient to Hawaii’s open records law (Uniform Informarion Practices Act), have the options of permitting access to the amendment(s), declaring the non-existence of the amendment(s), or denying access: Hawaii DoH chose to deny access to the amendment(s); by doing so DoH confirmed the existence of amendment(s). Given such amendments must be printed on any COLB whose underlying record has been amended, and we see no such amendment(s) on Obama’s purported COLB, I’ll leave it to Bob to imagine an alternative to the amendment(s) lying within or constituting the COLB itself. On the other hand, Bob may not want to go there.

  d “Cite the applicable Hawaiian law defining the difference between these two terms.” [In response to " 'FILED' as opposed to the standard 'ACCEPTED'."]

  Well, see it’s not a question of “applicable Hawaiian law“, more a case of applicable Hawaii DoH admistrative rules, and this is where it gets really fascinating. I know many will find this hard to believe, but the administrative rules that DoH apply, which would enable us to officially know the difference between “FILED” and “ACCEPTED“, have been removed from public access. Some ostensible reasons among others are (reviewing the DoH website) that Registrar Onaka has withdrawn the applicable rules concerning Chapter 120 (Foreign-Born Persons Adopted in Hawaii) and Chapter 123 (Names of Natural Parents on Birth Certificate of Adopted Person) because they are being revoked to allow the introduction of new administrative rules. Nobody knows what the current administrative rules are or what the new rules might be, although Hawaii law requires these rules should be publicly available. In the midst of this seeming disorder, very curiously, no official at DoH is willing to help and enlighten the public about the difference in meaning between the terms “FILED” and “ACCEPTED“, and nobody can explain this reluctance (at least rationally). Certainly comparing Hawaii vital records procedures with those of other issuing entities supports the conclusion that “FILED” and “ACCEPTED” connote distinct categories: that is, “pending” and “recorded”. Until DoH co-operate, or concerned citizens themselves force out the details, a good parallel is with IRS records: “FILED” means a return has been supplied, is under scrutiny, and may be rejected, while “ACCEPTED” means officially recognized for all administrative and legal purposes. But I think the best way to answer the question of what the difference between “FILED” and “ACCEPTED” might be is the fact that DoH appear not to want citizens to know the difference, and that can only mean one thing: there is a world of difference — the kind that IRS would act on, however much Bob might try to convince them to the contrary.

  e “The Michele COLB.” [In response to "no example of a genuine Hawaii COLB where an officially registered person has a registration status designated as "FILED" rather than "ACCEPTED".]

  We have no information as to the circumstances of birth or registration of the “Michele COLB” individual and the image has most of its dataset removed. As to provenance, Bob is citing as a genuine COLB a Polarik-owned COLB (Bob himself links to Polarik’s own uploaded image) for which Polarik is apparently the only source and witness. This is the same “Michele COLB” that Polarik claimed was proof in several ways that Obama’s COLB was a fake. Bob is seriously offering Polarik’s own “Michele COLB” as being sufficiently probative to establish Obama’s COLB as a genuine vital record? Yes, agreed, let us admit Polarik’s “Michele COLB” into the discussion as a genuine Hawaii COLB…. and let us similarly admit the “Michele COLB” as proof of Polarik’s analysis that Obama’s COLB is a photoshopped confection. If Bob declines this arrangement on the basis that Polarik and the images he uses cannot be trusted then, for the purposes of this discussion and to spare Bob further embarrassment, we may discretely forget Polarik’s “Michele COLB”.

  If Obama’s attorneys try to admit his purported COLB into evidence under Rules 902(1) and 803(9) they can only succeed IF they persuade the judge that Obama’s COLB is what they claim it to be: a genuine vital record accepted as such by Hawaii DoH. Given that a genuine vital record is never composed of not-recognized, not-accepted, and (probably) rejected amendment(s), Obama’s COLB (if it exists) can never satisfy Rules 902(1) or 803(9) even if it had a hundred machine-stamped Onaka signatures. The chances of Onaka or any DoH official putting a real signature on a set of pending and probably rejected amendments are precisely zero. Anyhow, I would be interested in Bob’s thoughts on how evidence which is not what its proponent claims is admissible under Rules 902(1) or 803(9).

  “See you in 2012.” Bob

  Bob should be made aware that there are states that allow challenges during a short period of time after a candidate his filed to be included on the Presidential ballot. Such challenges are not subject to dismissal on account of lack of standing. Bob can be assured that if Obama does file in 2012 challenges are guaranteed and no technicality can prevent them. Obama will never be more than a one-term President, and if the truth continues to be prised from Hawaii DoH’s weakening grip, perhaps not even that.
• Bob says:

  October 8, 2009 at 12:17 pm

  It was to be hoped that shame would have been sufficient motivatation for Bob to help other readers (plural) by troubling to link to or transcribe at least one source which might support his argument.

  Salzburg’s treatise exists. I can’t make it appear in digital form. Either you can be bothered to read it, or not; your willful ignorance is telling.

  Salzburg says the limiting FRE 902(1) to original documents is wrong; an exact transcription doesn’t alter that.

  So says Bob.

  So says the 4th Circuit.

  what does Bob imagine Professors Meuller and Kirkpatrick mean when they write that using Rule 1005 (as cited by Bob) to introduce certified copies of public records requires the application of Rule 902(4)?

  Like the title of the rule says: Public documents not under seal.

  What does Bob think admitting an unexamined vital record under 902(1) is designed to achieve, if not the mistaken attempt to sneak through a vital record without proper examination and authentication?

  The seal and signature is sufficient authenticity; your own source says that.

  an official record of his birth (and consequently admissible under a hearsay exception).

  FRE 803(9).

  If Hawaii Vital Records refuse public access to amendment(s) made to a vital record, rather than deny the existence of the amendment(s), under Hawaii law this confirms such amendment(s) exist.

  Proptor hoc.

  When directly questioned Hawaii have not denied such amendment(s) exist in Obama’s vital records, and have refused public access.

  Answering the question would violate privacy interests.

  Under Hawaii law such amendement(s) must be included in the vital record, but there are no separate amendments listed on Obama’s COLB, so amendment(s) must lie within or constitute the COLB itself.

  Occam’s Razor: There are no amendments.

  “FILED” as opposed to the standard “ACCEPTED“.

  Cite the applicable Hawaiian law defining the difference between these two terms.

  There is no example of a genuine Hawaii COLB where an officially registered person has a registration status designated as “FILED” rather than “ACCEPTED“.

  The Michele COLB.

  Obama’s file will remain stuck at pending because the amendment(s), which may comprise the entire file, cannot be verified. Therefore Onaka is never going to put a hand-written signature on anything which certifies Obama’s paper COLB (if it exists) as a genuine vital record.

  Since it isn’t “pending” (more made up nonsense), it would be no problem. And, hey, Fukino could do it.

  Remember the Constitution does not say a Presidential candidate is eligible if “probably” a natural born citizen or that it would be “nice” if the candidate were a natural born citizen. Article 2(1)(5) reads “No person except a natural born Citizen…shall be eligible” and, as Bob well knows, “No person…shall” = “must be without any doubt“.

  And there’s no reasonable doubt, just tortured reading, overly parsed statements, and wishful speculation.

  See you in 2012.
• Who Are You Kidding says:

  October 8, 2009 at 1:04 am

  1 “It is not my fault…” Bob

  It was to be hoped that shame would have been sufficient motivatation for Bob to help other readers (plural) by troubling to link to or transcribe at least one source which might support his argument. As we clearly observe, there is not much chance of Bob experiencing any shame. Simply, as far as other readers are concerned, Bob doesn’t care; and if Bob doesn’t care about other readers, why should we expect him to care about the legitimacy of our government.

  2 “…your ‘education’ is limited…[etc. etc.]…” Bob

  I doubt there is one reader who is impressed or persuaded by Bob’s anger, but some are certain to be asking “What makes Bob so angry?” I would not anticipate reasonable people being persuaded to believe anything which emanates from an angry person who doesn’t care about them.

  3 “…they who are wrong.” Bob

  So says Bob.

  4 Bob leaves so much unanswered: Is Bob of the opinion that vital records are not certified copies of public records? If vital records are public records issued only as certified copies, what does Bob imagine Professors Meuller and Kirkpatrick mean when they write that using Rule 1005 (as cited by Bob) to introduce certified copies of public records requires the application of Rule 902(4)? What does Bob think admitting an unexamined vital record under 902(1) is designed to achieve, if not the mistaken attempt to sneak through a vital record without proper examination and authentication?

  5 Mistaken attempt? Even if a judge were prepared to countenance a submission that Obama’s COLB should be authenticated under Rule 902(1), to have his COLB admitted thus Obama would have to demonstrate that it is what he claims it to be: an official record of his birth (and consequently admissible under a hearsay exception). This tactic will fail, because Obama’s COLB (if it exists) is not what he claims it to be.

  a If Hawaii Vital Records refuse public access to amendment(s) made to a vital record, rather than deny the existence of the amendment(s), under Hawaii law this confirms such amendment(s) exist. http://tinyurl.com/NBC-TKp2

  b When directly questioned Hawaii have not denied such amendment(s) exist in Obama’s vital records, and have refused public access.

  c Under Hawaii law such amendement(s) must be included in the vital record, but there are no separate amendments listed on Obama’s COLB, so amendment(s) must lie within or constitute the COLB itself.

  d That such amendment(s) lie within or constitute the COLB itself, and have not been officially verified and accepted into DoH records, is shown by the indication Obama’s COLB gives of its status: “FILED” as opposed to the standard “ACCEPTED“. http://tinyurl.com/TK-MT-wp

  e There is no example of a genuine Hawaii COLB where an officially registered person has a registration status designated as “FILED” rather than “ACCEPTED“.

  f Conclusions: Either i) it cannot be presumed that Onaka himself personally certified Obama’s COLB as a genuine vital record under Rule 902(1), given that information it contains refers to a file which is unverified and pending (COLB itself indicates “FILED“); or ii) if it is presumed that Onaka did personally certify Obama’s COLB then it is not admissible as hearsay under Rule 803(9) because it is not a genuine vital record, given that information it contains refers to a file which is unverified and pending.

  g Hawaii DoH Director Fukino has never said that she has physically seen Obama’s records or filing, merely that she has seen they are maintained on file.

  As I commented at TRSoL on August 2:

  “If Fukino had actually said that she had verified that Obama “was born in Hawai’i ” this would have meant that she had investigated and verified the facts and details behind the records of Obama’s birth. Fukino very studiedly did not say anything remotely like that. Fukino said that the “vital records…on file” verified that Obama “was born in Hawai’i”. But what verifies the vital records? ”

  Obama’s file will remain stuck at pending because the amendment(s), which may comprise the entire file, cannot be verified. Therefore Onaka is never going to put a hand-written signature on anything which certifies Obama’s paper COLB (if it exists) as a genuine vital record. Admission under Rule 902(1) or Rule 803(9), given Obama’s COLB is not what his attorneys and loyalists claim, will never happen.

  6 Remember the Constitution does not say a Presidential candidate is eligible if “probably” a natural born citizen or that it would be “nice” if the candidate were a natural born citizen. Article 2(1)(5) reads “No person except a natural born Citizen…shall be eligible” and, as Bob well knows, “No person…shall” = “must be without any doubt“.

  [Correction to previous comment: "only one copy in an academic library in my state".]
• Bob says:

  October 6, 2009 at 2:11 pm

  There are people who, for varied reasons, cannot go to a library. Furthermore, as far as Bob’s “citation” is concerned, even if they could, there is no copy of Saltzman in any public and only one academic library in my state, with one other in the Law Library in the State capital.

  It is not my fault that there is no version of the treatise online. Nor is my fault your “education” is limited only to that you can find online. Seek knowledge or curse the darkness; your choice.

  Professors Mueller and Kirkpatrick’s considered opinion is that “Rule 902(1) authenticates only original public documents and records.”

  And other experts state they’re wrong. Moreover, their own citation to this assertion is a 4th Circuit that proves them wrong. They chide the court for getting it wrong, when it is in fact they who are wrong.

  The legal term “certified copy” has been in use in America for at least two hundred years.

  Undisputed. You keep adding in the word “original” to FRE 902(1) when it isn’t there.

  If not, then the ESI will not fall under the purview of Rule 902(4), and as a result, will not be self-authenticating.”

  The COLB is self-authenticating because it is under seal, as required by FRE 902(1). Neither of your sources were discussing documents under seal.

  There is apparently so much dissembling and legerdemain at Hawaii DoH the probability is that if pressed nobody will put a signature to anything

  There’s no such probability; Hawaii issued the COLB, if required to so certify, an employee would. A routine occurance for those who have experienced life beyond browsing google books.
• Who Are You Kidding says:

  October 5, 2009 at 10:36 pm

  “You’ll have to go to actual library…” Bob

  Out of respect for readers I always prefer to link to a quote that readers can check for themselves or I transcribe relevant passages from non-online sources with a full citation. Otherwise how is anyone to decide for themselves what is the truth of the source cited? We must be concerned that Bob is not showing readers at TRSoL that respect. There are people who, for varied reasons, cannot go to a library. Furthermore, as far as Bob’s “citation” is concerned, even if they could, there is no copy of Saltzman in any public and only one academic library in my state, with one other in the Law Library in the State capital. Consequently Bob’s indifference is hardly democratic or fair and doesn’t inspire trust in the sincerety of his argument. Unless Bob quotes his citations, readers have every right to ignore them.

  1 “FRE 902(1) doesn’t require an “original” document.” Bob

  Professors Mueller and Kirkpatrick’s considered opinion is that “Rule 902(1) authenticates only original public documents and records.” Deciding between the two opinions is hardly a tough call.

  2 The legal term “certified copy” has been in use in America for at least two hundred years.

  3 Black’s Law Dictionary (1891 onwards) defines “certified copy” as a “copy of a document or record, signed and certified as a true copy by the officer to whose custody the original is intrusted.” http://tinyurl.com/BLD-CC-p187 Webster’s New World Law Dictionary defines “certified copy” as a “copy of a document to which a statement, ususally by the person who issued or is keeping the original, affirming or swearing that the copy and the original have been compared and that the copy is an exact reproduction of the original.” http://tinyurl.com/WLD-CC-p99

  4 6,422 different entities in America issue birth certificates: all use and have always used the legal term “certified copy” to describe the birth certificates they issue to the public; all their original registration certificates are public records authorized by law.

  5 FRE Rule 902(4) was devised to particularly admit into evidence “certified copies of public records…authorized by law to be…recorded or filed in a public office.”

  6 The FRE Advisory Committee’s Note to Rule 902(4) reads: “The common law and innumerable statutes have recognized the procedure of authenticating copies of public records by certificate…the certification procedure here provided extends only to public records, reports, and recorded documents, all including data compilations, and does not apply to public documents generally…documents provable when presented in original form may not be provable by certified copy.” No COLB can be proved in original form, because that form is a file stored in electronic form on a hard-drive inside a Hawaii DoH server rack; quoting Judge Grimm: “Rule 1005 describes how to prove the contents of public records, since it is obvious that something other than the original must be used.” When Judge Grimm links Rule 1005 and public records Bob automatically thinks “902(1) !” But as Professors Mueller and Kirkpatrick write:

  “An “official record” under FRE 1005 should be given the same interpretation as an “official record” under FRE 902(4) … [Under FRE Rule 1005] When a public record is proved by a certified copy, the certification must comply with FRE 902(4)…” [emphasis applied]

  7 In an article published in the Akron Law Review this year Judge Grimm describes how “something other than the original” public record stored in electronic form is authenticated:

  “The primary purpose of Rule 902(4) is to make it unnecessary to remove original records from their official custody for litigation, for modern copying methods and the integrity of those certifying the copies offer some assurance against the possibilities of mistake or fraud [citing Mueller and Kirpatrick]. Also, Rule 902(4)’s reference to ‘data compilations in any form’ has been interpreted to include electronically stored or recorded data and computer output…. [so] when relying on Rule 902(4) when self-authenticating ESI [electronically stored information] — as required by Rule 902(4), a proponent of ESI must still obtain a certificate of a custodian in order to ensure the information is true, accurate, and was properly recorded. If not, then the ESI will not fall under the purview of Rule 902(4), and as a result, will not be self-authenticating.” [emphasis applied]

  Back To The Future: Lorraine V. Markel American Insurance Co. And New Findings On The Admissibility Of Electronically Stored Information, Hon. Paul W. Grimm, Michael V. Ziccardi, Esq., Alexander W. Major, Esq., Akron Law Review 2009, 42 Akron L. Rev. 357.

  Judge Grimm et al do not secondarily advise (although Bob would encourage us to believe) that via Rule 1005 certified copies of public records not authenticated under Rule 902(4) can be “re-classified” to sneak through authentication under 902(1). Judge Grimm’s opinion is in full conformity with that of the US Deputy Assistant Attorney General who writes:

  “Under Rule 1005, an otherwise admissible…printout of an electronic record…may be proved in two ways: by certification in accordance with Rule 902, and by comparison with the original by a witness who attests [in court] to its faithful reproduction. Rule 902(4) permits authentication of ‘[a] copy of an official record etc. etc.’ ”

  Not the whiff of a suggestion by the DAAG that a “printout of an electronic record” can be “re-classified” to facilitate authentication under 902(1).

  Three authoritative opinions that a public record stored in electronic form is authenticated “as required by Rule 902(4)“, otherwise it “will not be self-authenticating.” Judge Grimm, the DAAG, and Professors Mueller and Kirkpatrick take one side of the argument, Bob holds to another. Again, not a tough call.

  8 “missing…an actual signature. So? ” Bob

  Right now Obama’s COLB (if it exists) has proved nothing concerning his US citizenship and eligibility to the Presidency. There is apparently so much dissembling and legerdemain at Hawaii DoH the probability is that if pressed nobody will put a signature to anything, just as they refuse to acknowledge Obama’s purported COLB as one of their own.
• Bob says:

  October 1, 2009 at 5:53 pm

  Courts sometimes erroneously cite this provision [Rule 902(1)] where the public documents received are copies rather than originals

  A statement flatly contradicted in Federal Rules of Evidence Manual (Saltzberg, et al.). You’ll have to go to actual library to find a copy, rather than trying to teach yourself the law through browsing google books.

  Look at FRE 902(1): Do you see the word “original” in it? No. FRE 902(1) doesn’t require an “original” document. (Which is why Magistrate Grimm wrote, “Rule 1005 describes how to prove the contents of public records, since it is obvious that something other than the original must be used.”)

  Given it has been found in discussion below that the only hearsay exception that can possibly apply to Obama’s COLB (if it exists) is 803(9), simple logic establishes that only Rule 902(4) has the scope to authenticate Obama’s purported COLB.

  And under FRE 902(4), all that is missing is an actual signature. So? That’s a housekeeping matter. If Obama wanted to introduce his COLB into a court, and the court required an actual signature, obtaining one from Hawaii is the matter of a little footwork.

  Even assuming Obama’s COLB (if it exists) is “original”, where is Bob’s evidence that the document (Obama’s purported COLB) was examined by Onaka prior to someone putting it through the machine which stamps facsimile signatures?

  Read your own source; it is presumed.
• Who Are You Kidding says:

  September 30, 2009 at 9:09 pm

  “A COLB is an original document.” Bob

  Bob betrays his position by referring to “a COLB“: something that takes the grammatical indefinite article cannot be the original. We cannot talk about “an” Obama COLB dataset purportedly held in “a” COLB database located on Hawaii DoH servers. There is only the original dataset, if it exists. “Original” is defined as “preceding all others in time, not derived from something else, the source from which a copy is made.”

  Hawaii law does not permit DoH to release originals.

  The COLB has on its face the disclaimer “This copy…”

  Bob assumes Onaka’s certification of a “TRUE COPY OR ABSTRACT to be a genuine statement.

  Now let’s refer to Mueller and Kirkpatrick again, as Bob concedes their reliability and authority:

  “Courts sometimes erroneously cite this provision [Rule 902(1)] where the public documents received are copies rather than originals….FRE 902(4) provides for the self-authentication of copies of official records or reports, or documents recorded or filed pursuant to law in a public office…When a public record is proved by a certified copy, the certification must comply with FRE 902(4)…”

  In the Federal Rules of Evidence the only Rules specific to evidence “authorized” to be “recorded or filed pursuant to law” are Rules 901(b)7, 1005, and hearsay exceptions 803(8) (for public records of “matters observed…pursuant to duty imposed by law“), and 803(9) (for vital records “pursuant to requirements of law“). Rules 901(b)7 and 1005 defer to Rule 902(4).

  Given it has been found in discussion below that the only hearsay exception that can possibly apply to Obama’s COLB (if it exists) is 803(9), simple logic establishes that only Rule 902(4) has the scope to authenticate Obama’s purported COLB.

  The only way that Bob can exclude Rules 902(4) from being the Rule which might authenticate Obama’s purported COLB, and see 902(1) applied instead, is to somehow convince us that vital records are not “recorded or filed pursuant to law“, that DoH issues originals contrary to law, that Obama’s COLB (if it exists) doesn’t claim that it’s a copy, and that Registrar Onaka didn’t “certify” what he believed was a copy – in essence, that none are or do what they say. Experience shows this is very complex: if Bob wishes to persuade, some available independent references to chaw on, rather than familiar assertions of unsubstantiated opinion, would be much appreciated.

  “And then it [Mueller and Kirkpatrick] goes on to say fascmilie signatures are perfectly acceptable for this purpose.” Bob

  Even when some particular document is original, and not a copy of a public record filed pursuant to law , it only becomes authenticated pending admission after having been examined and then certified. Even assuming Obama’s COLB (if it exists) is “original”, where is Bob’s evidence that the document (Obama’s purported COLB) was examined by Onaka prior to someone putting it through the machine which stamps facsimile signatures? How could anyone find out? Ask? Okubo and company at DoH have been repeatedly asked to confirm that they sent out a COLB to Obama and all have refused to confirm Obama’s purported COLB as one of theirs, and both DoH Director Fukino’s statements concerning Obama did not confirm his purported COLB as genuine. When reflecting upon whether Obama’s COLB might be admitted as hearsay evidence under 803(9) (eg “Is this entity a genuine vital record?”) Hawaii DoH’s refusal to confirm Obama’s COLB should be taken into consideration:

  “Although the trial judge must use the preponderance standard [50%+ probability] in ruling on [admissibility concerning] hearsay issues, the judge is not bound by the rules of evidence in making the ruling, and may rely upon inadmissible evidence.”

  Trial tactics, Stephen A. Saltzburg, 2007, American Bar Association http://tinyurl.com/TT40-SAE
• Bob says:

  September 30, 2009 at 12:02 pm

  “Rule 902(1) authenticates only original public documents and records. Authentication of copies of public records is addressed by FRE 902(4).” [emphasis applied]

  A COLB is an orginal document. Your authority is refering to a copy of the COLB.

  “FRE 902(1) has [an] express requirement…[that] the document must bear ‘a signature purporting to be an attestation‘…attestation means that the signer examined [the document] after the fact and found it to be a genuine public document or record (as any appropriate form of words accompanying the signature should suffice to convey).” [emphasis applied]

  And then it goes on to say fascmilie signatures are perfectly acceptable for this purpose.

  How is a court going to make the requisite finding that Obama’s COLB satisfies hearsay exception 803(9) by the preponderance of the evidence [50%+] when that COLB is not lawful and genuine?

  Because it a COLB is “record or data compilation, in any form” as required by FRE 803(9), and it is authentic under 902(1), your attempts to add requirements that aren’t in the rules notwithstanding.
• Who Are You Kidding says:

  September 30, 2009 at 2:30 am

  1 FRE 902(1) = “Domestic public documents” and FRE 902(4) = “Certified copies of public records“.

  Given Obama’s purported COLB says on its face “This copy“, and on the reverse Registrar Onaka “certifies” it as a “TRUE COPY OR ABSTRACT” [caps original], and given Bob has accepted and cited my source (page 1451 Mueller and Kirkpatrick, a recognized authority in law schools and federal courts) as reliable, Bob may wish to ponder how the following from Mueller and Kirkpatrick (page 1452) supports his view:

  “Rule 902(1) authenticates only original public documents and records. Authentication of copies of public records is addressed by FRE 902(4).” [emphasis applied]

  Bob wishes us to share his belief that “Once the COLB is authenticated under FRE 902(1)…” etc. etc., but our problem is we can see plainly where Obama’s purported COLB itself states that it is nothing more than a copy (front) and the facsimile signature of Alvin T. Onaka “certifies” nothing more than a copy or abstract (back).

  Just so there is no room for ambiguity, Bob’s citation in support of his view (page 1451, Mueller and Kirkpatrick), which Bob chose not to quote, reads:

  “The originals of many official documents bear only stamped or machine-made ‘facsmile signatures’…”

  but it’s indisputable that Obama’s purported COLB does not claim to be an original and Onaka does not “certify” an original.

  I can’t understand how Bob can have missed this. I also don’t understand how he can have missed on the previous page (1450):

  “FRE 902(1) has [an] express requirement…[that] the document must bear ‘a signature purporting to be an attestation‘…attestation means that the signer examined [the document] after the fact and found it to be a genuine public document or record (as any appropriate form of words accompanying the signature should suffice to convey).” [emphasis applied]

  Unless Bob can demonstrate that it is routine for Vital Records Registrar Onaka to examine every COLB printout before releasing it to the applicant, I see no evidence that Registrar Onaka personally and non-routinely examined Obama’s purported COLB “after the fact” of its printing and gave the order to run it through the facsimile signature stamping machine to attest the printout. The fact is nobody at Hawaii DoH has ever gone on the record and confirmed that DoH sent the COLB whose purported images were placed online by Obama’s campaign, and Okubo and others were bemused when confronted with those images. If, having personally examined Obama’s COLB “after the fact” of its printing, Registrar Onaka had subscribed his actual handwritten signature to the COLB, then we might be assured that he had at least read it. Unfortunately, with a facsimile signature, we don’t even have that minimal assurance. Even should we have that assurance, it still would not authenticate Obama’s purported COLB under 902(1), because Registrar Onaka would only have “attested” to something much less than an original document. That’s all Hawaii DoH offer to the public from their website, as many Obama loyalists intone. The original is in the COLB database located on a hard-drive contained in a DoH server rack. Now how would that be authenticated?

  I think we’ve figured out that Obama’s COLB (if it exists) is not eligible for authentication under Rule 902(1) and, even if it were more than what claims to be, there is no evidence that Obama’s purported COLB has been authenticated under Rule 902(1) – unless Bob knows different.

  2 “…hearsay contained in the COLB (the data) is admissible under the FRE 803(9) [vital records] exception.” Bob

  I’m sure Bob would concede that it’s axiomatic that only vital records are admisible under 803(9). If Obama’s purported COLB is not a vital record then, quite clearly, it is not admissible under the vital records exception. Is Obama’s Certification of Live Birth (if it exists) a vital record?

  a Canon of statutory interpretation: The meaning of questionable words or phrases in a statute may be ascertained by reference to the rest of the statute.

  Vital records of birth, marriage, and death are always designated as “certificates“. A certificate is defined as “A document testifying to the truth of something.” A certification is defined as “the act of certifying, the state of being certified, confirmation that some fact or statement is true.” A certificate is an irreducible, original, testifying document recording the truth of an event through the signatures of witnesses. A certification is not irreducible, original, witnessesed, or testifying because it points to something else. A certificate is that something else. These usages are in complete accord with Hawaii law: there is not one instance in state legislation where any word other than “certificate” is used to describe a vital record.

  Obama’s COLB itself contains the statement that it is evidence only of the “fact of birth“, not of the “fact–S [plural] of birth” ; the COLB is explicitly stating it is not evidence of the circumstances of Obama’s birth. Irreducible, original, and witnessesed birth certificates or their duplicates make every claim to be evidence of the circumstances of someone’s birth; a Certification of Live Birth has a prominent disclaimer explicitly denying that it is such evidence, thus corroborating its own name and status.

  b Canon of statutory interpretation: A statute cannot go beyond its text. (“Hooray for that.” Justice Scalia.)

  Obama’s Certification of Live Birth “certifies” nothing except that a birth certificate, whose reference number occupies the first line of the Certification, exists separately and distinctly in DoH archives, while claiming to effect that “certification” with a facsimile signature. Given there is no express statutory or administrative provision, as is required in Hawaii law, that allows DoH or Vital Records to use facsimile signatures, then a “certification” issued by Hawaii is not a genuine vital record. Obama’s purported COLB is not just a printout that needs to be certified as authentic, it is a printout that can never hope to be genuine because, with the multiple levels of hearsay involved (database installers, dataset inputters, database maintainers – all probably outsourced – dataset printout clerk, facsimile signature applier, Registrar Onaka’s facsimile signature itself), there is no way for a court to know whose hearsay it is being asked to exempt on the basis of a non-lawful, machine-stamped facsimile signature applied by an unknown person. To put it another way, it’s as if the non-lawful facsimile signature isn’t even there and, being absent, consequently relegates Obama’s purported COLB to not being a genuine vital record. No refuge is available in the seal (assuming it’s there) alleged to be seen on Obama’s COLB (if it exists): Obama’s COLB can never amount to more than a copy of a public record, and requires non-routine handling and a handwritten signature to be authenticated, well before it can be assessed as hearsay.

  How is a court going to make the requisite finding that Obama’s COLB satisfies hearsay exception 803(9) by the preponderance of the evidence [50%+] when that COLB is not lawful and genuine? When only a real, handwritten signature is acceptable in federal law to establish a genuine vital record, Hawaii DoH for its own financial and other convenience and by way of administrative fiat, have unnecessarily (duplicates served well until very recently) gone beyond state legislation and common sense to make Obama’s COLB ineligible as hearsay. It would be nice to think that Bob doesn’t want to see non-lawful, non-sense records admitted under Rule 803(9).
• Bob says:

  September 28, 2009 at 3:10 pm

  If authenticating electronic records or files such as Obama’s COLB dataset were as simple as printing it out and using Rule 902(1) to admit it into evidence, as Bob suggests, then Judge Grimm would not have to write a 101-page opinion and the DAAG would not have to issue an opinion to a federal agency on the problem of authenticating electronic records or files. In neither instance did Rule 902(1) figure as the “simple solution” to the problem.

  Because neither of them were dealing with public records under seal. A public record under seal is relieved from the authentication issues those authors were facing.

  Obama’s COLB (if it exists) is an original document authenticated under Rule 902(1). An original document admissible under 902(1) is certified by receiving a signature and a seal. A COLB dataset in the COLB database in the DoH server rack is the true original because it was there before a paper COLB was ever printed.

  You are mixing up the rules. The paper COLB is self-authenticating under FRE 902(1). The hearsay contained in the COLB (the data) is admissible under the FRE 803(9) exception.

  A facsimile signature is seen on Obama’s COLB (if it exists in the form purported online) and facsimiles are not acceptable under Rule 902(4) or 902(11).

  A facsimile signature is acceptable for FRE 902(1): your own source says so on page 1451. Once the COLB is authenticated under FRE 902(1), it is not required to be further authenticated under FRE 902(4) or 902(11).
• Who Are You Kidding says:

  September 27, 2009 at 6:47 pm

  1 If authenticating electronic records or files such as Obama’s COLB dataset were as simple as printing it out and using Rule 902(1) to admit it into evidence, as Bob suggests, then Judge Grimm would not have to write a 101-page opinion and the DAAG would not have to issue an opinion to a federal agency on the problem of authenticating electronic records or files. In neither instance did Rule 902(1) figure as the “simple solution” to the problem. Bob says: what problem? Hmmmm.

  Let’s figure it out: Bob says Obama’s COLB (if it exists) is an original document authenticated under Rule 902(1). An original document admissible under 902(1) is certified by receiving a signature and a seal. A COLB dataset in the COLB database in the DoH server rack is the true original because it was there before a paper COLB was ever printed. Obviously, as the FRE Advisory Committee, Judge Grimm, and the DAAG have observed (unlike Bob), an electronic file or record on a hard-drive inside a server rack doesn’t have the ability to receive a signature and a seal, so 902(1) cannot be applied (literally). Some alternative rule is necessary to authenticate an electronic record or file, and only 902(4) or 902(11) are available – the latter designed for hearsay. A paper COLB can only be deemed a copy and equivalent to an original COLB electronic dataset AFTER it has been authenticated by a non-routine comparison with the dataset. That non-routine comparison check and its subsequent necessary, on-the-record, verifying, detailed, and hand-signed certification precisely connotes Rule 902(4) or 902(11). Bob is unable or refuses to understand that before authentication, by way of a non-routine comparison check and special attestation, a COLB is a non-probative (worthless) scrap of paper in a federal court. Bob must cite something other than his own belief, (for instance, something from Judge Grimm or another legal opinion) which permits an original electronic record or file and its paper copy to be authenticated by simple recourse to 902(1).

  2 Obama’s COLB still has to satisfy a hearsay exception: for example, Rule 803(9) for Vital Records. A facsimile signature is seen on Obama’s COLB (if it exists in the form purported online) and facsimiles are not acceptable under Rule 902(4) or 902(11). (Evidence: Christopher B. Mueller and Laird C. Kirkpatrick, various editions. http://tinyurl.com/Google-Evidence – also real signatures required for declarations in accord with 28 U.S.C. Sec. 1746 ie 902(11).) Facsimiles are not provided for in any statute concerning Hawaii DoH or Vital Records, nor in the Hawai‘I Rules Of Civil Procedure, so Obama’s COLB is not even admissible in Hawaii courts. Consequently there cannot be a genuine “vital record” in evidence when the “certifying” facsimile signature is not permitted in law and so cannot authenticate the so-called “vital record”. Nor can we have a genuine “vital record” of the circumstances of Obama’s birth in evidence when the so-called “vital record” declares on its face that it only serves to record that an individual was born alive. No genuine birth certificate from Hawaii or elsewhere has ever contained the disclaimer that it testifies exclusively to the “fact of birth“. No genuine birth certificate from Hawaii or elsewhere has ever had been reverse stamped with the statement that it is merely an “abstract of the record on file“. The new-fangled COLB has both. To illustrate, no passport which contained the disclaimer that it witnessed only to the holder’s “fact of birth” or that it was an abstract of the real passport held someplace else would gain that person admission to the US. That useless passport and Obama’s worthless COLB are very clearly stating “Only very slightly trust this document and do not subject to official scrutiny.”

  “[Bourjaily v. US, SCOTUS, 1987] establishes that a trial judge who is called upon to rule on a preliminary question concerning hearsay must make the requisite finding that an exemption or exception is satisfied by the preponderance of the evidence [50%+]. The preponderance standard [50%+] is higher than the standard for authentication…” [emphasis applied]

  Trial Tactics, Stephen A. Saltzburg, 2007, American Bar Association http://tinyurl.com/TT40-SAE

  Obama’s COLB has not been properly authenticated. Obama’s COLB does not satisfy any other FRE hearsay exception (see my prior comment below). And there is no admissible, preponderant evidence (50%+) that Obama’s COLB (if it exists) legitimately testifies to the circumstances of his birth and eligibility to the Presidency (absent the original 1961 record).

  3 If Bob’s response is the predictable loyalist mantra that Obama “by producing his COLB” has done as much as he would ever need to do to prove his eligibility then Bob and Obama loyalists are in for a rude awakening.

  Bob gives the impression that he does not understand that self-authenticating documents (as US v. Hampton, First Circuit Appeals, 2006 and US v. Mateo-Mendez, Ninth Circuit Appeals, 2000 remind us) are documents that may not require a testimonial witness in court to authenticate them but do still require authentication by a hand-signed, detailed certificate before they can be admitted in to evidence.

  “The foundation for business records has commonly been established through the testimony of a custodian or other qualified person testifying that the records were regularly made and maintained, at or near the time of the transactions or occurrences, by persons with both personal knowledge of the events being recorded and a duty to make that recording. Alternatively, the foundation for the business records exception can now be laid by a certification under Fed.R.Evid. 902(11), requiring the same information in writing. The latter method is classified as self-authentication“. [p239, emphasis applied]

  Electronic Evidence: Law And Practice, Paul R. Rice, 2005, American Bar Association, Section of Litigation. http://tinyurl.com/EE-PR-90211

  The Texas Rule 902 gives a classic example of what is expected in such an affidavit:

  “Before me, the undersigned authority, personally appeared ________, who, being by me duly sworn, deposed as follows:

  My name is _______, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

  I am the custodian of the records of _____. Attached hereto are ___ pages of records from _____. These said ___ pages of records are kept by _____ in the regular course of business, and it was the regular course of business by ____ for an employee or representative of _____, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. [Affiant's signature, notary's signature.]” [emphasis applied]

  Unfortunately for Obama loyalists, even then…

  “Self-authentication has its limits. Extrinsic evidence of authenticity may be dispensed with under Fed. R. Evid. 902, but it is only for the preliminary judicial determination of admissibility under Fed.R.Evid.104a. As previously discussed, authenticity is an issue of conditional relevance. Consequently, evidence that falls within one of the 13 delineated categories under Rule 902 only ensures admissibility by satisfying the prima facie standard. This initial presumption of authenticity does not guarantee that the jury will agree. Parties should present additional evidence of authenticity to satisfy the preponderance standard that the jury will be instructed to use, particularly when the opposing party has challenged the authenticity presumption.” [p248]

  Electronic Evidence: Law And Practice, Paul R. Rice, 2005, American Bar Association, Section of Litigation. http://tinyurl.com/EE-PR-90211

  “It is not enough for a party to show that evidence might be what it is purported to be. Rather, the party offering evidence must demonstrate an evidentiary basis for the jury to find that it is what the proponent claims… To satisfy the authentication requirement, a party must have admissible evidence and that evidence must be placed before a jury, not just before the judge. Thus, if a judge holds an in camera hearing on disputed evidence and rules that it is admissible, a party offering the evidence must be certain to put sufficient authentication evidence before the jury and not be content to rely upon the fact that a judge heard it at a hearing.”

  Trial Tactics, Stephen A. Saltzburg, 2007, American Bar Association. http://tinyurl.com/TT40-SAE

  Is it surprising that Obama won’t allow his COLB (if it exists) anywhere near a courtroom?
• Who Are You Kidding says:

  September 27, 2009 at 5:06 pm

  1 If authenticating electronic records or files such as Obama’s COLB dataset were as simple as printing it out and using Rule 902(1) to admit it into evidence, as Bob suggests, then Judge Grimm would not have to write a 101-page opinion and the DAAG would not have to issue an opinion to a federal agency on the problem of authenticating electronic records or files. In neither instance did Rule 902(1) figure as the “simple solution” to the problem. Bob says: what problem? Hmmmm.

  Let’s figure it out: Bob says Obama’s COLB (if it exists) is an original document authenticated under Rule 902(1). An original document admissible under 902(1) is certified by receiving a signature and a seal. A COLB dataset in the COLB database in the DoH server rack is the true original because it was there before a paper COLB was ever printed. Obviously, as the FRE Advisory Committee, Judge Grimm, and the DAAG have observed (unlike Bob), an electronic file or record on a hard-drive inside a server rack doesn’t have the ability to receive a signature and a seal, so 902(1) cannot be applied (literally). Some alternative rule is necessary to authenticate an electronic record or file), and only 902(4) or 902(11) are available – the latter designed for hearsay. A paper COLB can only be deemed a copy and equivalent to an original COLB electronic dataset AFTER it has been authenticated by a non-routine comparison with the dataset. That non-routine comparison check and its subsequent necessary, on-the-record, verifying, detailed, and hand-signed certification precisely connotes Rule 902(4) or 902(11). Bob is unable or refuses to understand that before authentication, by way of a non-routine comparison and special attestation, a COLB is a non-probative (worthless) scrap of paper in a federal court. Bob must cite something other than his own belief, (for instance, something from Judge Grimm or another legal opinion) which permits an original electronic record or file and its paper copy to be authenticated by simple recourse to 902(1).

  2 Obama’s COLB still has to satisfy a hearsay exception: for example, Rule 803(9) for Vital Records. A facsimile signature is seen on Obama’s COLB (if it exists in the form purported online) and facsimiles are not acceptable under Rule 902(4) or 902(11). (Evidence: Christopher B. Mueller and Laird C. Kirkpatrick, various editions. http://tinyurl.com/Google-Evidence ) Facsimiles are not provided for in any statute concerning Hawaii DoH or Vital Records, nor in the Hawai‘I Rules Of Civil Procedure, so Obama’s COLB is not even admissible in Hawaii courts. Consequently there cannot be a genuine “vital record” in evidence when the “certifying” facsimile signature is not permitted in law and so cannot authenticate the so-called record. Nor can we have a genuine “vital record” of the circumstances of Obama’s birth in evidence when the so-called record declares on its face that it is not a record of anything except that an individual was born alive. No genuine birth certificate from Hawaii or elsewhere has ever contained the disclaimer that it testifies exclusively to the “fact of birth“. No genuine birth certificate from Hawaii or elsewhere has ever been reverse stamped with the statement that it is merely an “abstract of the record on file“. The new-fangled COLB has both. To illustrate, no passport which contained the disclaimer that it witnessed only to the holder’s “fact of birth” or that it was an abstract of the real passport held someplace else would gain such an individual admission to the US. That useless passport and Obama’s worthless COLB are very clearly stating “Only very slightly trust this document and do not subject to official scrutiny.”

  “[Bourjaily v. US, SCOTUS, 1987] establishes that a trial judge who is called upon to rule on a preliminary question concerning hearsay must make the requisite finding that an exemption or exception is satisfied by the preponderance of the evidence [50%+]. The preponderance standard [50%+] is higher than the standard for authentication…” [emphasis applied]

  Trial Tactics, Stephen A. Saltzburg, 2007, American Bar Association http://tinyurl.com/TT40-SAE

  Obama’s COLB has not been properly authenticated. Obama’s COLB does not satisfy any other FRE hearsay exception (see my prior comment below). And there is no admissible, preponderant evidence (50%+) that Obama’s COLB (if it exists) legitimately testifies to the circumstances of his birth and eligibility to the Presidency (absent the original 1961 record).

  3 If Bob’s response is the predictable loyalist mantra that Obama “by producing his COLB” has done as much as would ever need to do to prove his eligibility then Bob and Obama loyalists are in for a rude awakening.

  Bob gives the impression that he does not understand that self-authenticating documents (as US v. Hampton, First Circuit Appeals, 2006 and US v. Mateo-Mendez, Ninth Circuit Appeals, 2000 remind us) are documents that may not require a testimonial witness in court to authenticate them but do still require authentication by a hand-signed, detailed certificate before they can be admitted in to evidence.

  “The foundation for business records has commonly been established through the testimony of a custodian or other qualified person testifying that the records were regularly made and maintained, at or near the time of the transactions or occurrences, by persons with both personal knowledge of the events being recorded and a duty to make that recording. Alternatively, the foundation for the business records exception can now be laid by a certification under Fed.R.Evid. 902(11), requiring the same information in writing. The latter method is classified as self-authentication“. [p239, emphasis applied]

  Electronic Evidence: Law And Practice, Paul R. Rice, 2005, American Bar Association, Section of Litigation. http://tinyurl.com/EE-PR-90211

  The Texas Rule 902 gives a classic example of what is expected in such an affidavit:

  “Before me, the undersigned authority, personally appeared ________, who, being by me duly sworn, deposed as follows:

  My name is _______, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

  I am the custodian of the records of _____. Attached hereto are ___ pages of records from _____. These said ___ pages of records are kept by _____ in the regular course of business, and it was the regular course of business by ____ for an employee or representative of _____, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. [Affiant's signature, notary's signature.]” [emphasis applied]

  Unfortunately for Obama loyalists, even then…

  “Self-authentication has its limits. Extrinsic evidence of authenticity may be dispensed with under Fed. R. Evid. 902, but it is only for the preliminary judicial determination of admissibility under Fed.R.Evid.104a. As previously discussed, authenticity is an issue of conditional relevance. Consequently, evidence that falls within one of the 13 delineated categories under Rule 902 only ensures admissibility by satisfying the prima facie standard. This initial presumption of authenticity does not guarantee that the jury will agree. Parties should present additional evidence of authenticity to satisfy the preponderance standard that the jury will be instructed to use, particularly when the opposing party has challenged the authenticity presumption.” [p248]

  Electronic Evidence: Law And Practice, Paul R. Rice, 2005, American Bar Association, Section of Litigation. http://tinyurl.com/EE-PR-90211

  “It is not enough for a party to show that evidence might be what it is purported to be. Rather, the party offering evidence must demonstrate an evidentiary basis for the jury to find that it is what the proponent claims… To satisfy the authentication requirement, a party must have admissible evidence and that evidence must be placed before a jury, not just before the judge. Thus, if a judge holds an in camera hearing on disputed evidence and rules that it is admissible, a party offering the evidence must be certain to put sufficient authentication evidence before the jury and not be content to rely upon the fact that a judge heard it at a hearing.”

  Trial Tactics, Stephen A. Saltzburg, 2007, American Bar Association. http://tinyurl.com/TT40-SAE

  Is it surprising that Obama won’t allow his COLB (if it exists) anywhere near a courtroom?
• Bob says:

  September 25, 2009 at 10:35 pm

  Since when have once inadmissible, dubious online images (of Obama’s purported COLB) now become admissible, probative evidence?

  Read what Judge Land actually wrote; it is undisputed that the COLB released indicates Obama was born in Hawaii. Judge Land did not make an evidentiary ruling as no COLB was presented in that case.

  “If…it is determined that the electronic evidence constitutes a statement by a person that is offered for its substantive truth…then the evidence is hearsay, and is inadmissible unless it qualifies as one of many hearsay exceptions identified by Rule 803.”

  And lookie there: FRE 803(9) is the exception that would apply (“Records or data compilations, in any form, of births….).

  i “if otherwise admissible” means if not hearsay, and if deemed hearsay (because claimed by its proponent to be true) cannot be admitted under Rule 1005, but is only admitted under a hearsay exception.

  FRE 803(9) is that hearsay exception.

  ii “proved by copy” means an electronic record must be authenticated under Rule 902(11) or 902(4).

  The COLB is a paper document, self-authenticating and admissible under 902(1). No one would be trying introduce electronic records.

  803(9): A COLB is not a vital record: as its name (Certification) implies, it is not “a report made TO a public office” or its duplicate, but is merely an official notification FROM a public office that such a report was previously made.

  The vital statistics are reported to the state; the COLB is compilation of the data that has been reported.

  Furthermore, there is no provision as required in Hawaii law for DoH or Vital Records to use facsimile signatures.

  And? Are facsimile signatures inadmissible?

  807: The original birth records from 1961 incontrovertibly are procurable and more probative than Obama’s COLB.

  FRE 807 is an additional, residual exception to hearsay; it is not an exception to the exception; FRE 803(9) still governs.

  The inevitable conclusion must be that Obama’s COLB is not admissible evidence in a court of law and proves nothing about the circumstances of his birth or his eligibility to the US Presidency.

  The only inevitable conclusion is you have no idea how FRE 803(9), 902(1), 1005 all work in tandem to make exactly these kinds of documents admissible. You need to reread your “authorities” again; both of them would have no problem admitting the COLB. The drafters of the evidentiary code did not write the rules in such a way to exclude such commonplace documents.

  Full Faith and Credit is concerned with judicial records and final judgments, not public acts or administrative agencies and their records.

  Quoting 28 U.S.C. sec 1739: “All nonjudicial records….” A birth certificate is a nonjudicial record.

  People have discovered this when they have tried to get their marriage certificates naming same-sex partners

  There is an public policy exception for marriage certificates, but not for birth certificates. I cited you a 10th Circuit where Oklahoma was forced to accept birth certificates with two same-sex parents, its state law regarding such adoptions notwithstanding.
• Who Are You Kidding says:

  September 25, 2009 at 6:50 pm

  1 If dunstvangeet had read other contributions of mine at this blog you would know that my position is that Obama was not a British citizen IF he was born in Hawaii because a) under the British Nationality Act 1948 Section 32(2), British citizenship by descent only transmitted to legitimate children, and b) under the British Kenya Marriage Act 1902 Obama Sr.’s marriage to Kezia Grace Aoko in 1957 was a lawful marriage, his Hawaiian marriage to Ann Dunham in 1961 was bigamous in British law, which made Obama Jr. illegitimate in British (but not Hawaii) law, and therefore Obama was not a British citizen IF he was born in Hawaii. Conversely, that Obama was legitimate in Hawaii law means that IF he was born outside the US he was not born a US citizen by descent: his mother hadn’t enough residency.

  2 If it is claimed by Obama loyalists that the heritage of English common law informed our legal definition of who was a natural born citizen, ie someone born within the sovereign territory of the United States, then it must be conceded that common law contained no provision for dual nationality and consequently there was nothing in US law which gave a natural born citizen the legal “status” of a dual national. This was the understanding and practice of US authorities right into the 20th century: for example, in 1915 in Mackenzie v. Hare SCOTUS upheld the termination of US citizenship, even here at home IN AMERICA, for any female citizen who married a foreign citizen. dunstvangeet’s blather about the tenuous French or German antecedents of various natural born elected Presidents cannot alter these facts, and mischievously clouds the issue, allowing some tattered cover for Obama’s unprecedented withholding of his personal documentation and Obama’s apparently irrational fear of any judicial hearing regarding his status.

  3 brygenon and dunstvangeet cannot reject precedent as being irrelevant to Obama’s eligibility to the Presidency, and then introduce Chester Arthur as a precedent which confirms Obama’s eligibility, on the basis that neither had a US citizen father at birth. This is illogical, and if also illegal cannot be a precedent. As SCOTUS noted in Walz v. Tax Comm’n of the City of New York, SCOTUS, 1970: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence, and indeed predates it.”

  4 “We got a decision just last week from a federal court…the Court noted, ‘a “short-form” birth certificate has been made publicly available…” brygenon

  The court also noted in relation to a purported Kenyan birth certificate that “the alleged document is unreliable due to counsel’s failure to properly authenticate the document.”

  Since when have once inadmissible, dubious online images (of Obama’s purported COLB) now become admissible, probative evidence? On the basis of leisurely surfing to the “publicly available” Daily Kos and Factcheck websites? (We shouldn’t expect a straight answer, given that on September 18 brygenon crowed: “I’m in this to debunk, not debate.“) Anyhow, my analysis of the total inadmissibility of any Obama COLB is below.

  5 “a magistrate’s denial…a government attorney['s opinion]…are not “authoritative” ” Bob

  At the very least “authoritative” in the sense that we can trust their opinions infinitely more than we trust Bob’s. To further his own pre–judged view, Bob would like us to trust him more than a US Deputy Assistant Attorney General and a US Chief Magistrate Judge. Hmmmm. Not to be advised when, for example, Bob offers merely the ONE single and unrepresentative reference to Rule 1005 from Grimm’s entire 101-page Opinion to support his view, a view which fails or declines to comprehend the meaning of Rule 1005. A lot of readers must have been warned about individuals like that in Bible class.

  First, Obama’s COLB (if it exists) is hearsay:

  “Electronic Fingerprints“, Adam Wolfson, Michigan Law Review, Vol. 104, No. 1 (Oct., 2005)

  “In essence, computer-stored records are human assertions stored in an electronic format. These records constitute “assertions” because they are ‘the by-product of a machine operation which uses for its input “statements” entered into the machine by out of court declarants.‘ …If the document is introduced because its proponent claims that the information contained therein is true, it is the written equivalent of an oral assertion and must therefore meet a valid hearsay exception. …Almost all federal courts [except USAF Court of Criminal Appeals and USN-Marine Corps Court of Military Review] and many state courts, regard all computer records as hearsay… Computer-stored records…are deemed the electronic equivalent of handwritten documents. Since they are created or maintained by a human, they are considered statements and must therefore satisfy a hearsay exception in order to be admitted…”

  Which brings us to:

  Memorandum Opinion issued May 4, 2007 by Paul W. Grimm, Chief United States Magistrate Judge, Lorraine v. Markel, US District Court, Maryland. http://tinyurl.com/LvM-Opinion

  “If…it is determined that the electronic evidence constitutes a statement by a person that is offered for its substantive truth…then the evidence is hearsay, and is inadmissible unless it qualifies as one of many hearsay exceptions identified by Rule 803.”

  Memorandum Opinion issued by US Deputy Assistant Attorney General May 30, 2008, “Admissibility In Federal Court Of Electronic Copies Of Personnel Records“ http://tinyurl.com/qyskms

  “If a…Record is offered to prove that a statement contained within it is true — e.g., that the employee resided at the address given on the form — it will be considered hearsay.”

  Computer Records and the Federal Rules of Evidence, Orin S. Kerr, March 2001, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice.

  “When a computer record contains the assertions of a person,…the record can contain hearsay. In such cases, the government must fit the record within a hearsay exception.” http://tinyurl.com/6cn8c

  The implications of this will be considered below. Meantime, Bob seems quite devoted to Rule 1005 and believes that the US Deputy Assistant Attorney General’s Opinion supports Bob’s view that Obama’s paper COLB, if it exists in the form purported online, is admissible in federal court. This is wrong on three counts (below): 1005 indicates what may be admitted but not how it may be admitted, which requires another Rule.

  “Rule 1005 Public Records The contents of an official record…if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testifed to be correct by a witness who has compared it with the original. ”

  i “if otherwise admissible” means if not hearsay, and if deemed hearsay (because claimed by its proponent to be true) cannot be admitted under Rule 1005, but is only admitted under a hearsay exception.

  ii “proved by copy” means an electronic record must be authenticated under Rule 902(11) or 902(4). Important differences between Rule 902(11) and 902(4) are that Rule 902(4) has no hearsay exception and that 902(11) must be made explicitly under penalty of perjury. Given 902(4) has no hearsay exception, only 902(11) remains to authenticate Obama’s COLB (if it exists).

  iii “compared it with the original” means that a machine-stamped generic certification is not sufficient: witness testimony or certification under Rule 902(11) must reflect the fact that an actual, unique, physical comparison check between the dataset copy and the originating electronic database by the certifying official found that both were identical and is so certified under penalty of perjury with a hand-written signature. None of this is observable in any online Obama COLB image.

  6 However authentication is not a COLB’s real problem, because it should not even get that far. Here are the Federal Rules’ relevant hearsay exceptions abridged to their pertinent parts:

  803(6) “A…record…of…events…made at or near the time by, or from information transmitted by, a person with knowledge [performing business duties] in the course of a regularly conducted business activity.”

  803(8) “Records…of public offices or agencies, setting forth…the activities of the office or agency, or…matters observed…as to which matters there was a duty to report…unless the sources of information or other circumstances indicate lack of trustworthiness.”

  803(9) “Records of vital statistics…Records or data compilations, in any form, of births… if the report thereof was made to a public office pursuant to requirements of law.”

  807 “A statement not specifically covered by Rule 803…but having equivalent circumstantial guarantees of trustworthiness, is not excluded…if…the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.”

  902(11) The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration…certifying that the record…was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

  Here are the problems Obama’s COLB has with each hearsay exception:

  803(6):Obama’s COLB dataset was not “made at or near the time” of his birth, nor was it made by a person with first-hand knowledge of the events (of his registration), neither was the supplier of the registration information (family member aka informant) performing business duties “in the course of a regularly conducted business activity.” (FRE Advisory Committee’s Note on 803(6) : “…the observer or participant furnishing the information to be recorded [is expected to be] acting routinely, under a duty of accuracy, with employer reliance on the result, or in short ‘in the regular course of business.‘ If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail.“)

  803(8): Obama’s COLB dataset concerns activities or matters at Hawaii Vital Records which were not the firsthand knowledge of whoever entered, maintains, or supervises the dataset. (US v. Chu Kong Yin, Ninth Circuit Appeals, 1990: “government offered no evidence demonstrating that [certifications offered under 803(8)] were prepared or signed by persons with first-hand knowledge [of the events recorded]“).

  803(9): A COLB is not a vital record: as its name (Certification) implies, it is not “a report made TO a public office” or its duplicate, but is merely an official notification FROM a public office that such a report was previously made. Hence the inclusion of the original certificate’s reference number. A COLB’s own denial that it is a vital record is prominently displayed in its printed testimonial statement that a COLB is evidence only of the “fact of birth“, not of the “fact–S [plural] of birth”, which is to say, not evidence of the circumstances of (Obama’s) birth. Furthermore, there is no provision as required in Hawaii law for DoH or Vital Records to use facsimile signatures. In consequence only the original 1961 records are admissible under this Rule.

  807: The original birth records from 1961 incontrovertibly are procurable and more probative than Obama’s COLB.

  902(11): A COLB is not admissible under 902(11) if inadmissible under 803(6), and Obama’s COLB dataset was not “made at or near the time” of the event it records.

  The inevitable conclusion must be that Obama’s COLB is not admissible evidence in a court of law and proves nothing about the circumstances of his birth or his eligibility to the US Presidency. Hawaii’s reported new policy of re-dubbing Certifications as “Certificates” is simply the latest twist in a history of “legal” trickery about COLBs.

  7 Black Lion claimed that Full Faith and Credit is accorded to Hawaii COLBs in any court by virtue of the US Constitution, and that Obama’s COLB was certified in accordance with the Full Faith and Credit statute 28 USC Section 1739. Neither statement is true, however much Bob might want them to be. Just compare the procedure outlined in 28 USC Section 1739 with the online images of Obama’s purported COLB: it’s very obvious that the purported COLB and 28 USC Section 1739 do not agree. Nor could they: contrary to Black Lion’s and Bob’s thinking, Full Faith and Credit is concerned with judicial records and final judgments, not public acts or administrative agencies and their records. People have discovered this when they have tried to get their marriage certificates naming same-sex partners, or their concealed-carry permits, recognized in certain other states. The only correct procedural route for trying to get electronic records (eg COLBs) admitted as evidence into a federal court is the Federal Rules; real COLBs that is, not dubious online images purporting to be COLBs; notwithstanding, Obama’s COLB (if it exists) is demonstrably inadmissible.
• Bob says:

  September 24, 2009 at 4:17 pm

  There was no discovery and no call for discovery related to the motion to dismiss.

  And Taitz, in a moment of clarity, said, “we live in a real world,” noting the “connection between the interrogatory to members of congress and this motion is very tenuous.”
• brygenon says:

  September 24, 2009 at 4:11 pm

  I think the argument in the article is now moot. The Court stayed discovery except for any needed to oppose the motion to dismiss. The motions opposing dismissal are in, and the time to file them has past. There was no discovery and no call for discovery related to the motion to dismiss.
• American says:

  September 24, 2009 at 1:48 pm

  Objections would have needed to be in writing. Cheney as chair, having received no written objections, had no need to ask if there were any. Standard procedure.
• dunstvangeet says:

  September 24, 2009 at 1:34 am

  And Seizethecarp, Bayard’s interpretation of the law was directly refuted by U.S. v. Wong Kim Ark.

  The letter is evidence that Hinman knew that Arthur’s father was not naturalized before Arthur was born. It has nothing to say about Bayard.

  I again ask you a question. Why would Hinman ask Bayard if that was a situation when researching an attack book, if Hinman didn’t already know of Arthur’s father? And do you know how many pages Hinman wrote on the theory of Vattel defining Natural Born Citizen? 0 pages. Out of a 100-page attack book on Arthur, setting out to prove that Arthur was not a Natural Born Citizen, there was not one mention of your pet theory of de Vattel. Seems awfully strange that he would not do that, when he knew about that. Yet, he spent almost all of this book arguing that Arthur was born in Canada.

  So, we agree that by 1881 (January 10, in fact), some of Arthur’s enemies knew that Arthur’s father was not Naturalized before Arthur was born. We also know that they confirmed with a powerful member of the senate then that Arthur would not have been a Natural Born Citizen once his father Naturalized, if he wasn’t before.

  Furthermore, there’s actually evidence that the world knew about it as well. An 1881 Russian, St. Petersburg newspaper article had in it, “…Arthur even refrains from making comments on English home affairs–the Irish rebellion, for instance, which is agitating millions of American citizens, who are also born Irishmen like the President.”

  So, people knew that Arthur’s father was Irish, and that Arthur was born an Irishman in 1881!

  For someone who lied his way into the Presidency, he sure did a lousy job of keeping it a secret that he was ineligible…
• Seizethecarp says:

  September 23, 2009 at 11:47 pm

  Dunst:

  Donofrio refuted the Hinman letter in this extract from my previous post:

  “The evidence comes from the August 23, 1894, issue of The Nation magazine which states:

  In 1885, Secretary Bayard decided that ‘the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ’subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States’ “.”
• dunstvangeet says:

  September 23, 2009 at 10:40 pm

  Seizethecarp, you just don’t understand.

  The question is why would Hinman ask the question on whether the Naturalization of the Father made the children Natural Born Citizens, if he didn’t already know about Arthur’s father? He was hired simply to conduct opposition research on Arthur. His main tact was to find out if Arthur was eligible for the Presidency.

  If Hinman knew of the Naturalization of Arthur’s father, then at least some people knew that Arthur’s father was Naturalized well after Arthur’s birth.

  Hinman was trying to say that Arthur wasn’t eligible for the President. He brought up things that were not substantiated by fact, such as him being born in Canada, and smuggled across the border to Vermont. Don’t you think that if it mattered, Hinman would have used something that had actual fact behind it, rather than just trying to spread rumours that Arthur was Canadian Born?

  I seriously doubt that Hinman was that incompetent that he wouldn’t have used something that would have mattered.

  Seizethecarp, the Bayard letter isn’t proof that Bayard knew of Arthur’s status. It’s highly suggestive that Hinman knew of Arthur’s status.

  My question to you is why would Hinman have written the State Department a letter that would have generated that response, if he didn’t know that Arthur’s father wasn’t Naturalized until after Arthur’s birth? Isn’t it much more likely that he wanted to be sure that if Arthur’s father was Naturalized, that Arthur wouldn’t be considered a Natural Born Citizen even if he was born in Canada?
• Seizethecarp says:

  September 23, 2009 at 9:18 pm

  Dr. Conspiracy and Dunst:

  Leo Donofrio has debunked the Hinman letter to Bayard here:

  http://naturalborncitizen.wordpress.com/2009/09/09/us-government-ruling-from-1885-by-secretary-of-state-thomas-bayard-proves-chester-arthurs-british-birth-was-kept-from-public/

  Thomas F. Bayard was a US Senator from Delaware between 1869 and 1885, which includes the Chester Arthur administration. From 1885 to 1889, Bayard was Secretary of State under Grover Cleveland. This is the same Bayard mentioned in Hinman’s book on Chester Arthur. Hinman wrote to Bayard and Bayard’s response has been erroneously cited by those who support Obama’s eligibility. For some reason I have yet to comprehend, they argue Bayard was aware of Chester Arthur having been born a British subject.

  But nothing in Bayard’s letter to Hinman supports that position.

  Regardless, due to a recent find by the UNDEAD REVOLUTION research team, this issue has been settled once and for all.

  The letter written by Bayard to Hinman is from 1884, while Chester was still President. But in 1885, as Secretary of State under Grover Cleveland, Bayard made an official ruling which firmly established his position as to the citizenship of persons born on US soil to foreign parents: they were not considered to be US citizens.

  The evidence comes from the August 23, 1894, issue of The Nation magazine which states:

  In 1885, Secretary Bayard decided that ‘the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ’subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States’ “.

  Here we have an official US State Department ruling from 1885 that people born in the US of foreign parentage are subject to foreign powers and not considered US citizens.

  This provides proof positive Bayard had no idea whatsoever that, at the time of President Arthur’s birth, father William was not a US citizen.
• Dr. Conspiracy says:

  September 23, 2009 at 8:29 pm

  Seizethecarp says:

  Please cite the source of your claim that enemies of Arthur knew his father was not naturalized at the time of his birth. Arthur was suspected of being born in Canada, but he lied about the date of his father’s naturalization and burned his family papers in a likely attempt to hide the truth.

  See Leo Donotrio’s extensive research. Leo claims that he and his sister were the very first to discover that the date of Chester Arthur’s father’s naturalization was after Arthur was born.

  OK, let me try to sort this out.

  First Arthur did not lie about the date of his father’s naturalization. Donofrio does not say this, nor do his biographers. What Arthur did do was to say that he was one year younger than he actually was (which one biographer describes as vanity). It is possible that he also gave an incorrect year for his father’s immigration. But nothing Arthur said would lead to a conclusion as to when the father was naturalized vis a vis Arthur.

  Second, Arthur burned his personal (not family) papers (and this did not include the family Bible through which biographers learned of Arthur’s correct age, nor did it include his father’s naturalization records) shortly before his death, after he had served a term as President and decided (because he was dying) not to run again. There is no plausible document he could have burned that could have hidden the details of his father’s naturalization–as evidenced that Donofrio came up with the document.

  While it is true that Donofrio seems to have rediscovered the fact that Arthur’s father was still a British citizen at the time of Arthur’s birth (and long after), there is strong evidence that the New York lawyer the Democrats hired to get dirt on Arthur (and who contemporary newspaper articles describe as snooping around Arthur’s hometown) did know the fact (and considered it irrelevant). Just a few years earlier, a New York court had commented that people like Arthur were eligible to be president, and stated that this was a UNIVERSAL VIEW. If this is true then Hinman also held the view. In Hinman’s book, he includes a letter from New York Senator Bayard, answering Hinman’s question as to whether a father’s naturalization would make his minor child a natural born citizen, the exact historical situation that fit Arthur. (Bayard’s reply states that native born persons are the natural born citizens, and that the father’s naturalization wouldn’t change that.)

  Given that Hinman was hired to investigate Arthur, that he visited Arthur’s hometown, given that he had access to living witnesses and contemporary documents, given that he dug up enough material for a 100-page book on Arthurs birth and eligibility, given that he raised the exact hypothetical question of the naturalization of a father and its effect on a child, the conclusion is reasonably drawn that Hinman knew the facts of the father’s naturalization. Nevertheless, although Hinman wrote a book about Arthur, he never suggests in it that such a fact mattered (which we know from the New York Supreme Court opinion did not).

  Hinman’s book is here:

  http://www.obamaconspiracy.org/wp-content/uploads/2009/01/HinmanWeb.pdf
• Dr. Conspiracy says:

  September 23, 2009 at 8:01 pm

  I fail to see how what Cheney did or did not do can confer standing on Barnett, nor how it grants jurisdiction to the court to determine presidential eligibility, nor how it makes the controversy magically not a political question. Nor do I see how deposing Cheney will make known anything that isn’t already known. A member of Congress would be hard pressed to claim an objection NOW when they didn’t raise a point of order THEN.

  Scoring a “gotcha” (and I don’t concede that there is one) doesn’t count in court.
• dunstvangeet says:

  September 23, 2009 at 7:09 pm

  Seizethecarp, let me put it this way.

  Basically, there was a guy who was hired to conduct opposition research on Chester A. Arthur by the name of A.P. Hinman. He wrote to the Secretary of State, and asked a very to Grover Cleveland’s Secretary of State asking basically if a person was Naturalized, would that make any children born out of country to be Natural-Born Citizens. He received this response from the Secretary of State.

  DEAR SIR :-In response to your letter of the 7th instant-the term “natural-born citizen,” as used in the Constitution
  and Statutes of the U. S., is held to be a native of
  the U. S.
  The naturalization by law of a father before his child
  attains the age of twenty-one, would be naturalization of
  such minor.”

  My question to you is why would A.P. Hinman ask the question that generated this response if he didn’t know that Arthur’s father was Naturalized after Arthur’s birth? And if he did know this, then why wouldn’t he use it to get Arthur disqualified on the ballot?
• Seizethecarp says:

  September 23, 2009 at 5:12 pm

  dunstvangeet says:
  September 23, 2009 at 2:52 am

  “Who are you kidding, I said that those presidents were entitled to dual citizenship under the laws of the said countries.”

  “Then of course there’s Chester A. Arthur. His father was British. People knew that his father was British at the time of his birth, and in fact, even wrote the secretary of State asking him if a Naturalization retroactively made their children “Natural Born Citizens”?”

  Dunst:

  Being “entitled” to dual citizenship is not the same thing as “being” a dual citizen at birth and “subject to a foreign sovereign”. Also none of your examples match Obama because in none of the examples of prior presidents that you cite was a the father NOT a US Citizen and not even a legal resident.

  Also the founders did not consider children of dual US citizens born on US soil but also claimed to be subjects of the English Crown to be dual citizens or none of them or their immediate heirs could have become POTUS.

  Please cite the source of your claim that enemies of Arthur knew his father was not naturalized at the time of his birth. Arthur was suspected of being born in Canada, but he lied about the date of his father’s naturalization and burned his family papers in a likely attempt to hide the truth.

  See Leo Donotrio’s extensive research. Leo claims that he and his sister were the very first to discover that the date of Chester Arthur’s father’s naturalization was after Arthur was born.
• Black Lion says:

  September 23, 2009 at 9:35 am

  By just looking at the Keyes/barnett v Obama Rule 26(f) filing by Orly you can see her current fishing expedition to see if discovery will allow her to find some legally admissible evidence.

  http://ia301520.us.archive.org/2/items/gov.uscourts.cacd.435591/gov.uscourts.cacd.435591.68.0.pdf

  “Plaintiffs contend that discovery is appropriate and proper and intend on taking the following depositions:

  a. Barack Hussein Obama
  b. Cheryl Fukino
  c. Speaker of the House of Representatives, Congresswoman Nancy Pelosi;
  d. Commissioner of Social Security;
  e. All other Defendants; and, possibly,
  f. Other witnesses found to have relevant information in the future.

  Plaintiffs also intend to subpoena documents including, but not by way of exclusion, the following:

  a. All records in the possession of any bureaucracy in the State of Hawaii pertaining to the birth of Barack Obama.

  b. All records in the possession of any bureaucracy in the State of Washington concerning the presence of Barack Obama’s mother there.

  c. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the actual long-form birth certificate of Barack Obama.

  d. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the passport files of Barack Obama.

  e. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Harvard Law School records of Barack Obama.

  f. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Columbia University records of Barack Obama.

  g. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Occidental College records of Barack Obama, including financial aid Mr. Obama received.

  h. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Punahou School records of Barack Obama, where Mr. Obama attended from the fifth grade until he finished high school.

  i. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Noelani Elementary School records of Barack Obama, where Mr. Obama attended Kindergarten.

  j. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Illinois State Bar Association records of Barack Obama.

  k. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Baptism records of Barack Obama.

  l. All documents in the possession and/or control of Defendant Barack Obama regarding (and including, but not limited to) the Adoption records of Mr. Obama.

  This is of course the birther “Holy Grail” of documents that Berg had come up with last year. And still there is no relevance of any of those documents with the issue of whether or not the President was born in HI. I love the Kindergarten records the best. The lack of relevance with these documents is astounding.
• dunstvangeet says:

  September 23, 2009 at 2:52 am

  Who are you kidding, I said that those presidents were entitled to dual citizenship under the laws of the said countries.

  In the late 18th century, the French Government gave French Citizenship to Huguenots living abroad and their descendents. It wasn’t until 1927 that this citizenship was taken away. Guess who were those descendants of those Huguenots? George Washington, Ulysseus S. Grant, Teddy Roosevelt, William Howard Taft, Franklin Delano Roosevelt, Harry S. Truman, and Gerald R. Ford. They were all entitled to French Citizenship, despite the fact that their parents both were citizens. None of this was through any action of their own, but they were both French and U.S. Citizens.

  Dwight D. Eisenhower was entitled to Prussian/German Citizenship when he was born, since he had German Blood in him, and Germany did a Jus Sanguinus theory of citizenship. By the way, Eisenhower’s ancestors were in this country since before the Revolution. But I have no evidence to suggest that any of their ancestors renounced their Prussian/German Citizenship, so therefore Dwight D. Eisenhower was entitled to it.

  Then of course there’s Chester A. Arthur. His father was British. People knew that his father was British at the time of his birth, and in fact, even wrote the secretary of State asking him if a Naturalization retroactively made their children “Natural Born Citizens”? My question is why would these enemies of Chester A. Arthur and James Garfield ask these questions if they didn’t know that Arthur’s father was Naturalized after the birth of Arthur? Furthermore, once having recieved an answer to this question, why would they publish it in an attack book about Arthur, if it didn’t mean Arthur?

  Not every country in the world prohibits dual citizenship for adults. Italy currently allows citizenship for adults being dual (provided that you haven’t renounced your citizenship).

  Here’s a scenario that’s completely possible. An Italian immigrates to America after the formation of the Italian State in 1917. They then marry and have children, and then Naturalize to become a citizen. Their children, at birth, are Italian citizens, as well as U.S. Citizens. Since neither the U.S. or Italian Citizenship laws require renouncing the other citizenship, their children grow up as dual citizens. They marry other American Citizens, and have children. Now, their children, despite having 2 U.S. Citizen Parents, are also citizens of Italy.

  My question is, are the second-generation Americans Natural Born Citizens? Or does their Italian Citizenship, despite having 2 U.S. Citizen Parents, prevent them from being Natural Born Citizens?

  Now, that you’ve rejected Italian Americans. Let’s also move on.

  Israel considers any person who has any Jewish Blood in them to be Israeli Citizens. Does this mean that no Jew is allowed to run for President?

  See what happens when you start eliminating Dual Citizens from the Presidency. You eliminate people that you don’t realize you’re eliminating.
• brygenon says:

  September 23, 2009 at 12:35 am

  Who Are You Kidding kidded himself into thinking:

  Chester Arthur was never elected President and knowingly and systematically concealed from the public the fact that his Irish-born father only became a US citizen 14 years after his birth.

  The fact that Chester Arthur’s father was not a U.S. citizen was not secret. Proto-birther A.P. Hinman was clearly aware. People simply did not care.
  http://www.obamaconspiracy.org/2009/04/chester-a-arthur-rest-in-peace/

  Furthermore, no Hawaii COLB, and certainly not Obama’s (if it exists), has ever been routinely certified in accordance with 28 USC Section 1739. Read it.

  Incorrect; look more carefully. http://www.factcheck.org/elections-2008/born_in_the_usa.html It has the attestation of the record keeper and seal of the state office. Those are the features specified in 28 USC 1739.

  A federal court decides what Obama needs to present, not Obama or Hawaii. If a court wants to see the Certificates Obama used before 2001 (if they exist) so it shall, unless Obama alleges his dog ate them. If a court decides that it wants to see the best evidence, and not the COLB, then so it shall, as Hawaii law provides. Right now, because Obama’s COLB (if it exists) has not been authenticated in compliance with federal rules, it proves nothing about his eligibility; even more amusingly, in federal court opposing attorneys can go straight past it to the original 1961 record.

  We got a decision just last week from a federal court. The plaintiff challenging Obama’s eligibility exhibited an alleged Kenyan birth record. The Court found the plaintiffs document unreliable. The defense submitted no evidence, yet the Court noted, “a “short-form” birth certificate has been made publicly available which indicates that the President was born in Honolulu, Hawaii on August 4, 1961.”

  http://ia311028.us.archive.org/1/items/gov.uscourts.gamd.77605/gov.uscourts.gamd.77605.13.0.pdf

  You might want to read the whole thing and see the vast difference between what you imagine happening in federal court versus the actual result in the real one.
• MGB says:

  September 23, 2009 at 12:26 am

  Who Are You Kidding: You continue to delight.

  Pat Smith: I share your pain. They run amok.
• Seizethecarp says:

  September 22, 2009 at 11:32 pm

  I had the following exchange with Leo today:

  Seizethecarp Says:
  September 22, 2009 at 11:26 am

  Leo:

  Your current effort to obtain from HI any requests to amend Obama’s vital records are fascinating, but could be mooted by Judge Carter on Oct. 5.

  [Ed. They can't be mooted. Judge Carter has no jurisdiction of Hawaii UIPA requests.]

  Your following comment about Orlys’ case has been affirmed by nearly every lawyer on the blogs that I have read:

  “The underlying case is a loser. The pleadings ramble and they don’t do what pleadings are supposed to do…which is simply make a claim. The pleadings here are used to try the case and they contain so many things the court must ignore and they ignore many things the court must have before it. The plaintiffs have no standing so no pleadings can fix that.”

  However, despite these shortcomings, somehow Judge Carter has managed to describe Orly’s case in a clear articulation of claims regarding both the constitutional question of law as to the meaning of “natural born” citizen and the fact question of whether Obama was born in Kenya.

  Judge Carter said:

  PROCEEDING (IN CHAMBERS): GRANTING EX PARTE APPLICATION FOR LIMITED STAY OF DISCOVERY

  “On January 20, 2009, Plaintiffs brought suit, alleging, in pertinent part, that President Barack Obama (“the President”) does not meet the qualifications required for the Office of the President, as specified by Article II, §1, cl. 5 of the United States Constitution. More specifically, Plaintiffs allege that the President has not shown that he is a “natural born” citizen of the United States. Plaintiffs argue that there is evidence to show that the President was actually born in Kenya, and not Hawaii, thus making him ineligible to be President. Plaintiffs also argue that the President was a citizen of Indonesia and has not gone through the proper immigration procedures to regain his United States Citizenship.”

  [Ed. Isn't it fascinating that Judge Carter does not address the core issue in this paragraph. Judge Carter discusses Obama's BC issues - place of birth, he discusses Indonesia, but the one FACT which is not disputed but is rather admitted by Obama - that at birth he was governed by Great Britain as a British citizen - that fact and its relevance to nbc status is ignored by Judge Carter.

  I told you, they failed to properly plead that issue and the Judge is throwing a sign that he is not considering that issue because it's not included in his summary.]

  I take from this that Judge Carter is cutting Orly slack to which she may not be entitled, but to which the country and the Constitution are entitled, unlike Judge Land, Judge Robinson or even SCOTUS when they declined to hear your case.

  Judge Carter has also made repeated statements in open court that indicate that while he will hear the Motion to Dismiss on Oct. 5 with a judicially proper open mind, he is inclined to hear the case on the merits. This can only mean that Judge Carter, and perhaps Judge Carter alone sees at least one of Orly and/or Kreep’s plaintiffs as having standing sufficient to justify discovery regarding the claims he was able to articulate for Orly and he sees a remedy.

  But which plaintiff could Judge Carter be regarding as having standing? You have stated that Keyes has no standing because had no chance of winning:

  [Ed. You know... if you're not going to be honest and admit Keyes had no chance of winning... then I can't really help you. Maybe another blog is what you are looking for.]

  I fully agree with your assessment of Keyes prospects, but it does seen unfair to any eligible candidate regardless of prospects to have an ineligible candidate dilute possible incremental career benefits of placing higher in a smaller field, not to mention having the ineligible candidate win!

  Were you relying on the following analysis by Tokaji and his reference to the Fulani case in concluding that Keyes has no standing?

  Tokaji:

  “The plaintiff in Robinson, a would-be elector for a minor party candidate, has a somewhat stronger claim of injury than the plaintiffs in the other cases. But while his interest may be somewhat stronger than that of other members of the public, such a plaintiff still has a serious Article III standing problem. The chances of the candidate winning any electors from any state—whether or not McCain is in the race—are exceedingly remote. On occasion, the Court has found an impediment to competition sufficient to establish standing. There is also a Seventh Circuit case, Fulani v. Hogsett, in which a minor-party presidential candidate was held to have standing to challenge the certification of both major parties’ 1988 presidential candidates. In that case, however, the court found that the minor party candidate “could conceivably have won the Indiana election” if she obtained the relief sought. By contrast, Robinson’s preferred candidate Alan Keyes is exceedingly unlikely to win any electoral votes in California, even if McCain were disqualified. Robinson’s claim of injury is thus too speculative and insufficiently imminent to satisfy Article III, as the district court correctly concluded.”

  http://www.michiganlawreview.org/firstimpressions/vol107/tokaji.htm

  While Tokaji agrees with you regarding Keyes, Tokaji does say in that passage:

  “On occasion, the Court has found an impediment to competition sufficient to establish standing.”

  [Ed. I was more inclined to be going under the Newman holding from SCOTUS.]

  Perhaps it is in these “on occasion” cases that Judge Carter has found room to consider Keyes to have standing, and perhaps the fact that Carter is in the Ninth Circuit, not the Seventh Circuit might give him some additional latitude.

  Regardless of the prospects of Orly’s case on appeal for the reasons you have cited, if Judge Carter orders discovery of Obama’s vital records in HI on Oct. 5 and Obama’s HI birth is confirmed to have been witnessed in a hospital by an MD, then way will be clear for the public to focus on the quo warranto NBC issue, correct?

  [ed. True... but if the case is dismissed it may appear as if the nbc issue was dismissed with it. Not accurate. The issue wasn't properly plead and is not technically before the court in my opinion. We shall see if he goes to it.]
• Kevin J says:

  September 22, 2009 at 10:48 pm

  bygeron,

  There you go. You’re spreading the kind of myth and smear Obama organization is fighting. Here’s where you order a COLB, also known as a Hawaiian birth certificate, for $10. http://hawaii.gov/health/vital-records/vital-records/vital_records.html

  Now where is this “long form” for $12 or $15 option?

  Are you kidding me? Why is it a “smear” to ask the POTUS to put some information out there that is verifiable by a single human being other than himself? What corroborating data is on that COLB image…? I’ll answer that NADA!!!! Why can’t we see a copy of his documents that look something like this:

  http://texan2driver.files.wordpress.com/2009/02/hawaii-birth-certificate.jpg

  or this:

  http://passportsusa.com/wp-content/gallery/passportusa/edith_front.jpg

  or this:

  http://nativeborncitizen.files.wordpress.com/2009/03/hawaii-birth-certificate-1963.jpg

  Get the picture? Do you work for the Obama campaign? Why is it a smear exactly? Other POTUS’s are asked for documentation like this all the time, why is it smear to ask for some real documents from the current “One”? I think you are being disingenuous at best. If you can’t see the difference in the COLB image and a real, long-form BC, then you should just “move on”. Obviously there IS nothing for you to see here.

  We know from Obama’s book that as a child he stumbled on a BC, routine math tells me that computers were not widespread back when Obama was a child, so we can assume that BC that he found was not one that was produced by a laser printer, right? Can you explain away that “smear”? GEEZ!!!
• 1Lishell says:

  September 22, 2009 at 10:28 pm

  That’s funny. In law school, they never taught us about the “long firm birth certificates are sufficient evidence of birthplace and COLBs are not” clause of the Constitution. Could you point it out to me?

  Really? Our con law prof covered that clause about the same time as our civ pro prof went over rule 11 discovery.
• Bob says:

  September 22, 2009 at 9:17 pm

  Rule 902(1) only deals with original paper documents.

  And if Obama ever had to provide a court with a COLB, he’d provide the paper version. Under FRE 902(1), 902(4), it would be self-authenticating, as FRE 902(4) includes “data compilations in any form,” and the COLB has the necessary seal and signature. FRE 902(11) simply doesn’t matter, as the COLB is sufficiently authenticated by 902(1).

  Anyhow, dunstvangeet and bob should read the following for the most recent and authoritative judicial and legal opinions

  You should read them:

  Memorandum Opinion issued May 4, 2007 by Paul W. Grimm, Chief United States Magistrate Judge: On page 84: “Rule 1005 describes how to prove the contents of public records, since it is obvious that something other than the original must be used.”

  Guess it wasn’t obvious enough. (And that case was about the legality of an electronically transmitted arbitration agreement between private parties, not any sort of public record dispute.)

  Memorandum Opinion issued by US Deputy Assistant Attorney General May 30, 2008: On the first page (right at the top!): “Federal official personnel and civil service retirement records that have been converted from paper to electronic format should be admissible in evidence in federal court under the Business Records Act, 28 U.S.C. § 1732, and should also qualify as ‘public records’ admissible under Rule 1005 of the Federal Rules of Evidence.”

  Pages 7 to 9 contain an entire discussion about how these are public records that satisfy the so-called “Best Evidence Rule.” FRE 1005 also contains the same “data compilations in any form” language contained in FRE 902. This memo concludes that such electronic records are admissible; oddly, you think it supports your position.

  (And, as an aside, a magistrate’s denial of a summary judgment motion and an an opinion by a government attorney are not “authoritative”.)

  Furthermore, no Hawaii COLB, and certainly not Obama’s (if it exists), has ever been routinely certified in accordance with 28 USC Section 1739. Read it.

  If Obama ever had to provide a court with a COLB, it would be no problem to have the COLB duly certified; that is a housekeeping matter.

  Even Reynolds and William Richman’s reference, which you link to, acknowledge how easy it is to get out-of-state documents recognized in state and federal courts. (And here’s a law review article about a case that touched upon the Full Faith and Credit Clause and birth certificates.)

  Given that no witnesses have come forward to Obama’s alleged birth in Hawaii

  And that’s why birth certificates were invented; they are a recording of those who did witness the birth.

  With legal presumptions or prima facie evidence, the burden of going forward is what FRE 301 requires of the planitiff and in federal courts that is satisfied when ANY evidence is produced which permits a reasonable person to draw alternative logical conclusions to the technical presumption.

  Except there is no competent evidence, just wild speculation, rumor, and innuendo. Reasonable people believe that when the State of Hawaii says Obama was born there, he was born there.

  A federal court decides what Obama needs to present, not Obama or Hawaii.

  A court can only rule on what is before it; it does not tell the parties what evidence to present.

  To believe anything else is a desperate fantasy.

  Oh, the irony. Such birth certificates are routinely admitted into evidence.
• Who Are You Kidding says:

  September 22, 2009 at 6:35 pm

  “…a black man ran, and won the Presidency…” dunstvangeet

  What accounts for dunstvangeet’s outrageous presumption that I am not African-American?

  dunstvangeet’s mischief-making about the citizen parentage of all our previously elected Presidents (other than those excepted in Article 2) is meant to confuse by conjuring bizarre divisions among Americans which those who supplied the information claim to be fighting. Some facts :

  Ford: father Leslie Lynch King, Sr. born July 25, 1884, Chadron, Nebraska; mother Dorothy Ayer Gardner born February 27, 1892, Harvard, Illinois.

  Eisenhower: father David Jacob Eisenhower, born September 23, 1863, Pennsylvania; mother Ida Elizabeth Stover, born May 1, 1862, Mt. Sidney, Virginia.

  Grant: father Jesse Root Grant born January 23, 1794, Greensburg, Pennsylvania; mother Hannah Simpson born November 23, 1798, Horsham, Pennsylvania

  Truman: father John Anderson Truman, born December 5, 1851, Jackson County, Missouri; mother Martha Ellen Young, born November 25, 1852, Jackson County, Missouri

  Johnson: father Samuel Ealy Johnson, Jr., born October 11, 1877, Buda, Texas; mother Rebekah Baines born June 26, 1881, McKinney, Texas.

  Need I continue?

  Two Presidents had mothers who were not American-born (Wilson and Hoover, England and Canada): both became citizens on their marriage to US citizens prior to their son’s birth.

  One President had a US citizen father who was not American-born (Buchanan, Ireland): Buchanan’s father became a US citizen before Buchanan was born.

  Chester Arthur was never elected President and knowingly and systematically concealed from the public the fact that his Irish-born father only became a US citizen 14 years after his birth.

  It is unprecedented that a President has been elected and one of his parents was not a US citizen at his birth; in these unprecedented circumstances Obama refuses to put documentation in the public domain with unambiguous facts about his own birthplace and citizenship which might prove eligibility; that he has not sought to resolve the issue of his eligibility through the law has caused widespread incredulity and suspicion. Unprecedented: see Walz v. Tax Comm’n of the City of New York, SCOTUS, 1970 (below).

  The problem dunstvangeet now faces is that by hiding the truth using misdirection readers become extremely wary about trusting anything emanating from dunstvangeet’s direction.

  “Who are you trying to kid?” siseduermapierda

  Out of keeping with the name, siseduermapierda really has lost this one and must have dozed off when skimming the contributions elsewhere at this blog, otherwise a meaningful argument rather than unimaginative humor would have been attempted. Maybe some other time.

  “The COLB, according to the Rules of Evidence is an Original…Rule 902(1)…” dunstvangeet

  “Look at FRE 1002, 1005, and try again. Bob

  Been there, done that elsewhere at TRSoL. Hmmmmm.

  1 An unauthenticated COLB printout is not the original COLB record. A COLB is a copy of an edited and abstracted digital dataset held in the Hawaii DoH COLB electronic database. This dataset is not the original record of a birth registered before November 2001, that original is the paper record from, say, August 1961. That is why a COLB is called a CERTIFICATION: it refers to something other than itself, and that other thing has its reference number included within the COLB dataset – that is, the original birth CERTIFICATE… from, say, August 1961.

  2 Rule 902(1) only deals with original paper documents. Obama’s COLB (if it exists) is an electronic record or file held on Hawaii DoH servers which cannot take a seal or signature and thus requires authentication. This authentication can only be accomplished under a hearsay exception because the COLB dataset, created and maintained by humans, contains statements made outside a court of law purporting to be facts. Therefore authentication must be in accordance with Rule 902(11), which requires a declaration made explicitly under penalty of perjury with a handwritten signature. Facsimiles are not acceptable. None of this is visible within the online images of Obama’s COLB (if it exists).

  3 Rule 1002 requires the original record, meaning the original, original record, especially when there are no witnesses to the event recorded. Rule 1003 allows a duplicate “by the same impression…or matrix…or by other equivalent techniques…[which] accurately reproduces…the original” unless there is “a genuine issue as to the authenticity of the original, or the circumstances indicate that it would be unfair to admit a duplicate in lieu of an original“. A COLB obviously does not duplicate the original 1961 record. The Advisory Notes to Rule 1003, Federal Rules of Evidence read:“…reasons for requiring the original may be present when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party….with the expectation that the courts would be liberal in deciding that a ‘genuine question is raised as to the authenticity of the original.’ [emphasis applied]

  4 Given that no witnesses have come forward to Obama’s alleged birth in Hawaii, that Obama’s COLB (if it exists) is not a duplicate of the original 1961 record of Obama’s birth, that there is a “genuine issue as to the authenticity of the original” 1961 record, and that it certainly would “be unfair to admit [a COLB printout which is not even] a duplicate in lieu of an original“, attorneys opposing Obama in court would have every right to require the original paper record from 1961. To believe anything else is a desperate fantasy.

  Anyhow, dunstvangeet and bob should read the following for the most recent and authoritative judicial and legal opinions, and if they do manage to find something which is contrary to what is written here then, please, let us know.

  Memorandum Opinion issued May 4, 2007 by Paul W. Grimm, Chief United States Magistrate Judge, Lorraine v. Markel, US District Court, Maryland. http://tinyurl.com/LvM-Opinion

  Memorandum Opinion issued by US Deputy Assistant Attorney General May 30, 2008, “Admissibility In Federal Court Of Electronic Copies Of Personnel Records“ http://tinyurl.com/qyskms

  “The “Full Faith of State records” clause of the Constitution supports the COLB because it is certified and signed by a state official.” Black Lion

  “The Full Faith and Credit Clause itself works no change in the common law; it does not require the courts of one American state to give judicial notice to the laws and records of another state. Rather, it permits the courts of the second or enforcing state to insist on the traditional evidentiary proof of the law and records of the first or rendering state. The full faith and credit statute [28 USC Section 1739] does simplify and make routine the process … [however] the courts have read the statute in accord with its plain meaning as… not applying to…the records of administrative bodies.”

  The Full Faith And Credit Clause: A Reference Guide. William Reynolds and William Richman, Praeger, 2005 http://tinyurl.com/FFCC-R-R

  Furthermore, no Hawaii COLB, and certainly not Obama’s (if it exists), has ever been routinely certified in accordance with 28 USC Section 1739. Read it.

  “Under your theory…” Black Lion

  Precedent is not “my theory“, it is always an element in how SCOTUS interprets the constitution. See, for example, Walz v. Tax Comm’n of the City of New York, SCOTUS, 1970. There is no precedent for a President being elected who does not have two citizen parents, and there is no precedent for a President hiding his documentation from the Sovereign People, other than Chester Arthur. This must be a factor in any judicial decision. If Obama (unlike Chester Arthur) is not afraid of precedent, then what is he afraid of?

  “…burden of proof is always on the plaintiff.” Black Lion

  With legal presumptions or prima facie evidence, the burden of going forward is what FRE 301 requires of the planitiff and in federal courts that is satisfied when ANY evidence is produced which permits a reasonable person to draw alternative logical conclusions to the technical presumption. At which point the presumption is destroyed like a “bursting bubble”. Some people may not want to draw reasonable conclusions in the matter of Obama’s COLB, but then some people unreasonably claim that the Full Faith and Credit Clause encompasses administrative records and Hawaii COLBs. If Black Lion would like to describe another federal application of FRE 301 which is not achieved in terms of Thayer-Wigmore, we shall be treated to a scholarly first, here at TRSoL!

  “…fake Kenyan BC’s…” Black Lion

  The Kenyan BCs have not been authenticated in accordance with federal rules of evidence and neither has Obama’s COLB (if it exists). That is why some are skeptical of one and some skeptical of the other. The solution is very simple.

  “Since the State of HI since 2001 has only issued COLB’s…that is all President Obama needs to present.” Black Lion

  A federal court decides what Obama needs to present, not Obama or Hawaii. If a court wants to see the Certificates Obama used before 2001 (if they exist) so it shall, unless Obama alleges his dog ate them. If a court decides that it wants to see the best evidence, and not the COLB, then so it shall, as Hawaii law provides. Right now, because Obama’s COLB (if it exists) has not been authenticated in compliance with federal rules, it proves nothing about his eligibility; even more amusingly, in federal court opposing attorneys can go straight past it to the original 1961 record.

  “Did previous presidents…” brygenon

  Unprecedented? Yes, because Obama’s election was unprecedented.
• Pat Smith says:

  September 22, 2009 at 6:34 pm

  It is very sad that this excellent website has been taken over by the OBots.
• keokuk says:

  September 22, 2009 at 6:04 pm

  The law to which I refer is called the Constitution, and it’s the SUPREME law of the land, in case you are unfamiliar with it.

  That’s funny. In law school, they never taught us about the “long firm birth certificates are sufficient evidence of birthplace and COLBs are not” clause of the Constitution. Could you point it out to me?
• MGB says:

  September 22, 2009 at 4:57 pm

  Brygenon said, “Where in the law?”

  The law to which I refer is called the Constitution, and it’s the SUPREME law of the land, in case you are unfamiliar with it.

  Bringing up Holocaust deniers is a non sequitur, but from you it’s to be expected. Just another of your backhanded ways of trying to insult people with whom you disagree.
• brygenon says:

  September 22, 2009 at 4:21 pm

  MGB says:

  brygenon: YOU are not fooling anyone. The last refuge of the liberal scoundrel is the race card. Say what you will, I don’t care. I know who I am and what my motives are. You do not know me, so it is entirely insulting for you to personally attack me and suggest that I have racist and/or anti-Muslim motives that inform my point of view. Perhaps you ought to engage in a little self analysis to determine why, instead of debating issues fairly, you resort to stereotypes. How do you know that I’m not black? How do you know my religion? You don’t, but that doesn’t stop you from making assumptions, based upon my viewpoints.

  As I’ve been saying: I don’t know each individual birthers deal.

  What’s behind Holocaust denial? Do we believe Holocaust deniers when they say that their interest is historical accuracy? Does the fact that there exist Jewish Holocaust deniers mean that the theory is not primarily motivated by bigotry?

  You are acting like I didn’t debunk your issues and that’s nonsense. Where in the law is that legal standard you say Obama has not met? Did previous presidents have their birth certificates sent directly from their birth states to a court, as you want to require of Obama?
• siseduermapierda says:

  September 22, 2009 at 1:51 pm

  MGB says:
  September 22, 2009 at 10:06 am
  *So help us to understand your point. If you apply for a driver’s license, when they ask you to show your birth certificate and/or proof of residency, do they “accuse” you of something? Do you tell them to prove that you do NOT qualify, instead of simply providing the documents?*

  No, you missed the point. When you apply for a driver’s license and take your certified copy of your birth certificate, or the designated ID, the state authority at the DMV gives you the benefit of assumption. If the seal and signature on the BC is proper, they would have no reason to question it. Obama’s Hawaiian COLB is prima facie evidence of his birth. No agency would have any reason to question it. Like Black Lion explained, you are not in the position of the state authority in your analogy, you are just someone standing in line at the DMV who says ” He wasn’t born in Hawaii.” And at that instant, the burden to prove it falls on you.
• Black Lion says:

  September 22, 2009 at 11:20 am

  MGB says:
  September 22, 2009 at 10:06 am
  siseduermapierda said: “Judge Land told you why. The burden of proof is not on President Obama, it’s on the people who accuse him. The accused has benefit of assumption, the accuser has the burden of proof.”

  So help us to understand your point. If you apply for a driver’s license, when they ask you to show your birth certificate and/or proof of residency, do they “accuse” you of something? Do you tell them to prove that you do NOT qualify, instead of simply providing the documents?
  _________________________________________________________________
  No it actually works like this. You apply for a drivers license and provide a COLB. Some person on line behind you claims that the license you provided is fraudulent and you are not who you say you are. The DMV accepts your proof and tells the person behind you if you think that he is not who he says he is and his documentation is counterfiet, then prove it. Since you are making the accusation then you have to prove your claim.

  The mistake the birthers make when they make these comparisons is that they put themselves in the role of the governmental agency. No governmental agency as requested or asked President Obama to prove a thing. They have accepted the COLB as suffcient proof. In all of the cases the plaintiff is a private citizen, which is why it is a civil matter. The plaintiff has the burden of proof to prove their accusation. In every scenario you come up with the request to prove who you are is not coming from the gov’t. It is coming from an outside third party.

  Either way everyone is innocent until proven guilty in this country, even the President of the United States. So you need to prove that the President’s documentation is counterfiet, he doesn’t have to prove that it is not. The birthers need to prove that the COLB is a forgery.
• Black Lion says:

  September 22, 2009 at 11:08 am

  bob strauss says:
  September 22, 2009 at 9:43 am
  Phil, have you seen AXJ news? They found Obama-Dunham divorce decree, Obama birth certificate, was page 11, Obama born in Mombassa! Orly has the info. Proof of foreign birth!
  _____________________________________________________________
  Bob, AXJ has been making that claim for about a month now. This is not new news. And they of course do not provide any proof for this so called document. And due to the FRE (Federal Rules of Evidence) if they can get an official of the Kenyan government or the US State department to authenticate the document, then they might be something there. Of course we all know this is not going to happen becasue AXJ doesn’t have an acutal so called Birth Certificate or that it is a forgery just like the one Orly submitted or the one the convicted forger Lucas Smith was pushing.
• siseduermapierda says:

  September 22, 2009 at 10:48 am

  MGB says:
  September 22, 2009 at 10:28 am
  *Whoareyoukidding: Thanks, again. Your astute analyses are very welcome.*

  Astute? he completely misrepresented the federal rule. I encourage you to go read it yourself especially rule 1005.
  http://www.law.cornell.edu/rules/fre/rules.htm#Rule1005

  – Rule 1005. Public Records

  The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. -

  “data compilation in any form, provided by copy, certified as correct” pretty much describes Hawaii’s COLB.
• siseduermapierda says:

  September 22, 2009 at 10:43 am

  MGB says:
  September 22, 2009 at 10:12 am
  *However, if there is no law concerning how a person must prove eligibility, then it devolves to the people to enforce the law, which is the Constitution, the SUPREME law of the land.*

  There’s nothing to enforce because there’s no law that requires a candidate to prove his eligibility. The way to address the lack of law is to work on your representatives to write a law. If you don’t think Obama is eligible, the way to remove him is by impeachment of the Congress, finding someone who can get more votes in 2012 or he will become ineligible under the 22nd amendment in 2016.
• MGB says:

  September 22, 2009 at 10:28 am

  Whoareyoukidding: Thanks, again. Your astute analyses are very welcome.
• MGB says:

  September 22, 2009 at 10:25 am

  dunstvangeet said: “Unfortunently, all the birthers have is logic.”

  We finally agree upon something. Indeed, we do have LOGIC. What do you True Believers have, other than blind faith?
• MGB says:

  September 22, 2009 at 10:19 am

  brygenon: YOU are not fooling anyone. The last refuge of the liberal scoundrel is the race card. Say what you will, I don’t care. I know who I am and what my motives are. You do not know me, so it is entirely insulting for you to personally attack me and suggest that I have racist and/or anti-Muslim motives that inform my point of view. Perhaps you ought to engage in a little self analysis to determine why, instead of debating issues fairly, you resort to stereotypes. How do you know that I’m not black? How do you know my religion? You don’t, but that doesn’t stop you from making assumptions, based upon my viewpoints.
• MGB says:

  September 22, 2009 at 10:12 am

  Practical Kat: The Constitution lays out the qualifications for POTUS. If Obama declared himself eligible and if he is not eligible, then we are talking about another type of crime. However, if there is no law concerning how a person must prove eligibility, then it devolves to the people to enforce the law, which is the Constitution, the SUPREME law of the land.
• Jacqlyn Smith says:

  September 22, 2009 at 10:10 am

  Another intriguing statement from Leo, in response to a comment at his blog – you’ll LOVE this !

  Pat Says:

  September 21, 2009 at 7:25 pm
  Amended records would include if Barrack was adopted by Leo Sottero. His original Birth Certificate would be replaced by an ammended Birth Certificate. That would lead to another set of issues involving adoption and becomming an Indonesian citizen.

  Leo says:
  [Ed. This was not originally an action to reveal his actual BC and personal vital records info...the original requests were for records pertaining to whether he requested his file for the purpose of amending and whether he did amend... the actual contents of his personal vital records are protected, she wasnt asking to see those. She was asking whether he paid any fees to amend them and whether they had been amended... not the contents of the amendments.

  However, I am going to raise the issue that since Fukino made a public statement about his place of birth, then all records viewed by her for the purposes of making that statement are supposed to be made public under 92F-12(15), information required to be made public. Regardless, the other statement she made about him being a natural born citizen involves a whole other can of worms concerning the advice of the Attorney General and it is the AG opinion letter that we are really after and which was denied to TerriK. The statutory and case law indicates that this information MUST be made public. That means we should get an answer as to what definition of nbc Fukino used to make that statement.]

  http://naturalborncitizen.wordpress.com/2009/09/21/pending-litigation-hawaii-confirms-that-obamas-vital-records-have-been-amended/#comment-11512