1) I have named no individual from the link because it has been the experience of several commenting at the site that they cannot acquire from Hawaii DoH the administrative rules to enable them to determine which and how DOH rules are being applied. 2) I wrote of the fact that sincere people were describing their experiences of DoH obfuscation and deception at the link given: perhaps to Bob they are insignificant nobodies, all of them mad and deluded about these experiences, but really, that would be just too improbable and too convenient (for Bob) to be true. 3) As for Bob’s left-field concern about the probity of internet “legal sources”, it is quite revealing that Bob has not extended this to the online sources of the various images of an alleged legal paper which he believes supports Obama’s Presidential eligibility i.e. Daily Kos, Polifact, and Annenberg Political Fact Check, each of whom published technically irreconcilable and thus fantasy images of the “same” purported COLB.

“Another opinion of Miss Tickly, not a fact.” Bob

The fact is that Hawaii DoH has refused to release data to the public that Hawaii statute mandates should be made available on public request. The fact is that DoH PRO Okubu misled inquirers by writing that DoH were not in control of, and thus could not make available for public inspection, decades of divorce records (including Obama’s parents) when they actually were and definitely could. The fact is that DoH have repeated the mantra “prohibited by law from releasing or acknowledging” vital records when Hawaii law gives almost complete discretion to DoH to operate under whatever rules they care to devise in relation to their handling of vital records, except in the cases of recognition or rejection of paternity, adoption, sex change, or witness protection – which we have been assured do not apply to Obama. The fact is that Hawaii DoH did not make any reference to amendments to Obama’s vital records, which do not figure as such on his purported COLB and are not privileged by law, until Fukino was placed in a legally untenable position by TerriK. These are not “opinions of facts”, these are on-the-record facts implicating Hawaii DoH and which they cannot deny. For Bob to take on the duty of repudiating these sordid implications on their behalf goes beyond any understanding based on known facts.

“Polarik doesn’t have the experience he claims he had; he fact lied about his experience. Under oath, even; that’s perjury.” Bob

Bob surely must have observed that mention of Polarik’s experience was very clearly put within “quotation marks and italicized“, by long custom indicative of the words of someone other than the writer. Those were the self-descriptive words of Bob’s provider of evidence, Dr Ron Polarik, about himself, which Bob now dismisses with utter contempt. Readers will be amused that Bob has to resort to Polarik, a man Bob characterizes as a “liar” and “perjurer under oath“, as the only source of the evidence Bob claims proves Obama’s COLB legitimate. Given Bob paradoxically alleges that Polarik does not have the decades of experience he claims and that Polarik went to extraordinary lengths to manufacture evidence against Obama that is (for Bob) both criminal and worthless in the extreme, it defies good sense that Bob should imagine readers would be so foolish under those circumstances to treat as probative any evidence for which Polarik is the only source and witness. The answer to Bob’s small opinion of readers is to be found in the fact that to support his complete faith in Obama’s online COLB Bob cannot provide any better evidence than COLB images which have always been in the exclusive possession of someone Bob considers “a liar“, “a perjurer“, and a “manufacturer of evidence”; which to any reasonable person establishes the alternative as true, that there is no known probative example of an officially registered Hawaii birth which has been recorded as “FILED” rather than “ACCEPTED“, as I wrote in a previous comment.

Simply: Polarik is the “perjurer” and “manufacturer of evidence” Bob accuses him of being and Obama’s COLB is a fake or Polarik’s evidence genuinely is what he says it is and worthy of readers’ serious consideration and Obama’s COLB is a fake. Either way Obama’s purported COLB is a fake. One major difference between Ron Polarik and Bob is that Polarik does not confine himself to sniping with one-liners: that’s smart, because cases are won by coherent arguments: one-line snipers will always lose.

“DoH can’t violate HIPAA” Bob

No explanation from Bob as to how DoH management of vital records is covered by the Health Insurance Portability and Accountability Act of 1996. If Bob had an explanation he would have shared it with readers; no explanation = doesn’t have an explanation.

“FRE 803(9) includes records and data compilations in any form.” Bob

Perhaps Bob has never really encountered the meaning of the word “form” or bothered with the finer subtleties of the English language, otherwise he must be a “legal” anarchist to propose that the phrase “in any form” in Rule 803(9) actually means the colloquial “in any form whatsoever “. This revolutionary development would admit, for example, vital records which are without witnesses’ signatures, without seals, without certifications,and without the tedious authentications required under other Rules of Evidence etc. etc. Bob is advised to consult a dictionary and ponder the meaning of the word “form“: “shape and structure – body or outward appearance – mode in which a thing exists – procedure as determined or governed by regulation – fixed order of words or procedures – method of arrangement – manner of coordinating elements – a mold“. If Congress had intended with FRE 803(9) that the words “in any form” were to mean the colloquial “in any form whatsoever ” it would never have qualified the words “records and data compilations” with the phrase “in any form”. Under the canons of statutory interpretation the phrase “in any form” must have a specific meaning and purpose, and that meaning can be none other than its commonly accepted dictionary meaning (“A statute’s plain meaning must be enforced…” US Nat’l Bank of Oregon v. Ind. Ins. Agents, SCOTUS, 1993), where “form” stands in opposition to “content“, and so the intended purpose of Congress must be that vital records of birth, marriage, and death, are to be admitted under differing shapes, structures, outward appearances, co-ordinated elements, and methods of arrangement but should continue to adhere to their traditional content or essence, and therefore always be compliant with long-established law, particularly the law as codified in the Federal Rules of Evidence in relation to hearsay.

The purpose of the law is to exclude hearsay except under prescribed conditions, not to open up revolutionary backdoors to hearsay which effectively negate those conditions. Rule 803(9)’s “in any form” could not possibly be interpreted by a judge to mean that if something can be remotely described colloquially as a vital record “in any form whatsoever “, regardless of content and however inadmissible under any other hearsay exception, it can “always be admitted” to a welcoming evidential home in court via Rule 803(9); neither could it possibly be interpreted by a judge to mean that, if otherwise admissible under 803(9), a vital record (colloquially) “in any form whatsoever ” would be “immune to any other hearsay exception” that would ordinarily apply. Given that the phrase “in any form” is also used in FRE hearsay exceptions 803(6), 803(7), 803(8), 803(10), and elsewhere in FRE Rules 901(7), 901(8), 902(4), and 1005, is Bob seriously asking us to believe that all these Rules similarly admit evidence “in any form whatsoever ” regardless of content and however inadmissible? That’s not how the FRE work, that’s not law, that’s not rational: that’s “legal” anarchy, if not worse. As there is no logic or precedent for Bob’s revolutionary suggestion it might be thought that Bob may admit he is wrong, but this is unlikely. Obama’s COLB is all Bob has to “prove” Obama’s eligibility. As there is no possible argument to sustain Obama’s COLB as admissible, Bob will either ignore the rebuttal or fumble at a one line snipe – thereby conceding the rebuttal.

“…no problem authenticating the COLB.” Bob

The Hawaii COLB has been designed to contain inescapable and inadmissible hearsay: in the case of Obama’s alleged COLB, it contains statements made in 2007 which reference a birth certificate and a serial number recorded in 1961. This makes Obama’s COLB inadmissible hearsay under FRE Rules 803(6) or 803(8). The proof that Obama’s COLB (if it exists) is inadmissible as evidence and was designed with full knowledge of its inadmissibility is for all to see on the COLB itself: Obama’s purported COLB states it is only “…evidence of the fact of birth…” The COLB does not state” it is …evidence of the fact-S [plural, i.e. circumstances] of birth“.

This disclaimer from Hawaii DoH assures inadmissibility under hearsay exceptions 803(6), 803(8), or 803(9) because DoH are saying they know perfectly well that a COLB which spits out the edited, reduced, and abstracted dataset of a birth prior to 2001 is by definition not a certified copy of the original birth certificate. No witnesses to a birth on a COLB = no circumstances of birth on a COLB = saving references of inadmissible hearsay on a COLB = COLB not a certified copy of a vital record = not a genuine vital record and inadmissible = the prominent disclaimer on Obama’s purported COLB to that effect. It is the built-in inadequacies of Obama’s COLB as a legal instrument that makes it stumble over inadmissibility whichever way it turns. DoH knew that pre-2001 COLB datasets could only derive their legitimacy from the originating paper documentation, but they knew they wanted the convenience and reduced costs of printing out an electronic COLB dataset and foisting it on an unsuspecting public as a “genuine certified copy”. DoH also knew that any reference to a pre-2001 birth certificate in a COLB was ever more likely to be inadmissible hearsay the farther back in time the birth, and DoH also knew that not alluding to this in some way might have legal implications, so DoH contrived the never-seen-before-in-any-certified-copy-of-a-Hawaii birth-certificate disclaimer hidden in plain sight on the lower front edge of the COLB. This means Obama’s COLB is worthless in or out of court and that’s what Hawaii DoH’s disclaimer says in their customary serpentine fashion.

“…based on whether there was a sufficient amount of qualified signatures.” Bob

Bob seemingly didn’t notice that Tokaji wrote “there was no doubt as to the state court’s ability to entertain a challenge to a presidential candidate’s qualifications … a comparable state-court lawsuit could be filed to challenge a presidential candidate’s constitutional qualifications to serve … 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.” There is no warning to be seen anywhere from Tokaji that litigants ensure any challenge is confined to “an insufficient number of qualified signatures” or it must fail. Challenges with regard to a candidate’s eligibility is the precise subject of that part quoted from Tokaji’s article – as anyone could see who had honestly consulted Tokaji’s article – entitled “The Justiciability of Eligibility“, and not as Bob mischievously took it to mean, “The Justiciability of Not-Having-A-Sufficient-Amount-Of-Qualified-Signatures.”

“If Obama’s nomination papers state he meets the qualifications for the office of president…” Bob

Do we really believe that Bob is unaware that Obama’s nomination papers in 49 states (except Hawaii, which has a dedicated statute) made no reference to Obama being qualified to serve as president? http://tinyurl.com/CFP-NP-49p1 Look at the word which Bob uses to begin his comment: “IF Obama’s nomination papers…”. Here’s my big IF: it is a fact that 49 of Obama’s nomination papers in 2008 made no reference to Obama being qualified to serve as president, and we can be sure that IF Obama’s nomination papers are filed in 2012 once again there will be with no reference to Obama’s legal eligibility and then he will find himself susceptible to challenges – but it’s much more probable that Obama won’t run at all.

Facts? That’s the opinion of Miss Tickly, who actually says nothing on the subject. (And when did Miss Tickly become a legal source?)

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.

Another opinion of Miss Tickly, not a fact. And when will Miss Tickly get around to filing that lawsuit?

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.

Donofrio’s opinion. Hawaii’s responses are remarkably consistent with the governing privacy and confidentiality laws it cites. And when will Donofrio get around to filing this (pointless) lawsuit?

is the only source and witness for the “Michele COLB”

No one is disputing the accuracy of the Michele COLB; what is so hard to believe about that?

A “computer-media expert with 30 years experience“, Dr Polarik in an affidavit under penalty of perjury

Polarik doesn’t have the experience he claims he had; he fact lied about his experience. Under oath, even; that’s perjury.

And Polarik’s “analysis” has been refuted by real people with actual experience.

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…”

Obama’s birth is listed in Hawaii’s index. But the DoH can’t violate HIPAA and release the birther wish list.

federal judges are there to make sure the Rules are applied as Congress intended

And a federal judge would have no problem authenticating the COLB under FRE 902(1). (And FRE 902(4) would just require a signature; a housekeeping issue.)

There is no provision in Hawaii law for DoH to issue anything other than a certified copy of a vital record.

COLB.

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.

FRE 803(9) includes records and data compilations in any form.

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

…based on whether there was a sufficient amount of qualified signatures.

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

If Obama’s nomination papers state he meets the qualifications for the office of president, then he’s conformed with the law. That kind of suit will go exactly nowhere, fast. (This is really just a Keyes v. Bowen rerun.)

But as birthers can’t resist either a frivolous lawsuit or losing in court, it’ll be par for the course. Just pray Taitz still has her license by then.

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.

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.

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.

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.

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".]

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.

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.

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.

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

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.

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).

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).

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:

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?