dunstvangeet is under the strange impression that dunstvangeet’s interpretation of the phrase “in any form“, from the FRE Public Records hearsay exception Rule 803(8), constitutes “proof” that “in any form” must be understood to include verbal statements. The dictionary defines “proof” as “1. The evidence or argument that compels the mind to accept an assertion as true 2. The validation of a proposition by application of specified rules, as of induction or deduction, to assumptions, axioms, and sequentially derived conclusions. 3. Law: The result or effect of evidence; the establishment or denial of a fact by evidence.” As dunstvangeet has provided no evidence, specified rules, or compelling argument for his interpretation I am not persuaded by his so-called “proof” and shall offer a counter-proof:

1 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). The dictionary defines “form” as “1. shape and structure 2. body or outward appearance 3. manifestation “. Spoken words do not have a physically apparent shape, structure, body, or outward appearance; consequently “in any form“, with regard to FRE hearsay exception 803(8), cannot be defined to include verbal statements, because the term “form” in the Federal and Hawaii Rules of Evidence connotes “physical form”, with the shape, structure, body, manifestation, and outward appearance of a tangible object; here applying the canons of “ejusdem generis“, meaning “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar to those enumerated by the specific words” (Washington Dep’t of Social Services. v. Keffeler, SCOTUS, 2003) and “noscitur a sociis“, meaning “a word is known by the company it keeps… This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words“. (Gustafson v. Alloyd, SCOTUS, 1995) The canons are applied by grouping all the objects in a series by commonality and using the general term in that sense: i.e. encompassing only statements in physical form when, for example, there are no data compilations without physical form. Thus “in any form” would not intend “any and no forms” over “any and all forms” because “any and no” negates the word “form” and makes the word “form” and the series meaningless and superfluous.

2 US Code, Title 44, Chapter 33, Section 3301 http://tinyurl.com/USC-44-33-3301

US Code 44-33-3301 declares that “ ‘records’ includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government…”

The dictionary definition of “regardless” is “heedless; taking no regard or heed of; discounting; irrespective of; without reference to; notwithstanding; unmindful; unheeding; marked by or paying little heed or attention” with the sense of giving little or no regard to something which is actually present to be heeded“. The word “regardless” modifies and clarifies the “physical form or characteristics” of the intended objects of the series, it does not exclude, negate, or eliminate all “physical form or characteristics“; here understood on the basis of the canons “ejusdem generis” and “noscitur a sociis“. This applies to every instance cited below.

3 Hawaii Rules of Evidence Rule 1001 Paragraph 5 http://tinyurl.com/HRE-1001-p5

HRE 1001 declares that “A ‘public record’ means any writing, memorandum, entry, print, representation, report, book or paper, map or plan, or combination thereof, that is in the custody of any department or agency of government …This rule [HRE 1001] is identical with Fed. R. Evid. 1001, except that paragraph (5), [in] defining “public records,” is original … It was adapted from Hawaii Rev. Stat. §92-50 (1976), which defines “public records” for public inspection purposes. The present definition is broad enough to include any document that is in the custody of a public agency.”

4 Hawaii Uniform Information Practices Act (UIPA) §92F-3

Hawaii UIPA §92F-3 declares that “ ‘Government record’ means information maintained by an agency in written, auditory, visual, electronic, or other physical form.”

5 The following is a representative sample of state laws defining “public records” (all 50 agree):

California Government Code Section 6252(e) “ ‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

Revised Code of Washington 40.14.010 “…’public records’ shall include any paper, correspondence, completed form, bound record book, photograph, film, sound recording, map drawing, machine-readable material, compact disc meeting current industry ISO specifications, or other document, regardless of physical form or characteristics…”

North Carolina North Carolina General Statutes § 132-1(a) ” ‘Public record’ or ‘public records’ shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics…”

Florida Statutes Title X Chapter 119.011(12) “ ‘Public records’ means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received…”

Illinois General Provisions State Records Act. Ch. 116, par. 43.5 Sec. 2 “ ‘Record’ or ‘records’ means all books, papers, digitized electronic material, maps, photographs, databases, or other official documentary materials, regardless of physical form or characteristics, made, produced, executed or received…”

6 Federal Rules of Evidence and FRE Advisory Committee Notes

Advisory Committee Note to Rule 803(8) “Justification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. … (a) Cases illustrating the admissibility of records of the office’s or agency’s own activities are numerous. … Treasury records of miscellaneous receipts and disbursements … General Land Office records… Pension Office records. … (b) Cases sustaining admissibility of records of matters observed are also numerous … letter from induction officer to District Attorney … affidavit of White House personnel officer … Weather Bureau records of rainfall …map prepared by government engineer”

FRE Rule 901(b)(7) Requirement of Authentication or Identifcation Public records or reports “Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”

7 Conclusion: In accordance with dictionary definitions and the canons of statutory interpretation, no federal or state law nor any federal or state agency defines “records” as including verbal statements: “form” always connotes “physical form”. No other definition operates in any law or agency; if dunstvangeet knows of any other definition in official use please link to it – otherwise the counter-proof is established and conceded.

“…you’re telling me…the spokesman for a public agency is not a public officer?” dunstvangeet

Politifact’s article uses the words “told” and “said” and “says” about their interview with Okubo, which means spoken communication. Okubo didn’t make a public record of her conversation with Politifact (unless dunstvangeet can link to it), the Politifact journalist did (i.e. the published article), but he is not a public officer in terms of FRE 803(8). It should be recalled dunstvangeet originally wrote in late August that “the statement of the COLB being ‘a valid Hawaii State Birth Certificate’ would be admitted [under FRE 803(8)], even if Janice Okubo wasn’t called to the stand.” How can spoken words be admitted into evidence unless Okubo were called to the stand to repeat them? Certainly not under HRE-FRE 803(8), which only admits records etc. in a physical form. A verbal statement (Okubo’s spoken words) or journalist’s article (Politifact) admitted under FRE 803(8)? That has never happened and will never happen, because it can’t happen. Unless dunstvangeet can show otherwise.

“…there is an argument that her statement has the full backing of the Hawaii Department of Health…you never really cared about statements anyways…Fukino issued a press release…stating point blank that Obama was born in Hawaii.” dunstvangeet

a) Someone who didn’t care about statements wouldn’t go to the trouble of writing about them as I do.

b) Dr Chiyome Fukino in her statement in July wrote that she had seen “vital records…maintained on file…verifying” that Obama was born in Hawaii; Fukino did NOT say that she, Chiyome Fukino, had verified that Obama was born in Hawaii. Furthermore, the usage “maintained on file” in high probability has a technical meaning within DoH that Fukino is not sharing with the American public. Given that in defiance of Hawaii law DoH are withholding from the American public the DoH regulations that would explicate the meaning of “maintained on file“, it most probably denotes a pending registration application file that has not been accepted into the official record i.e. Obama was never officially registered by DoH as born in Hawaii.

c) No one, and I do mean NO ONE, at DoH has made or is likely to make any statement, either written or verbal, acknowledging the online images of Obama’s CertificATION as genuine, or even that they sent a COLB out to Obama on request. It’s gotten so bizarre that Okubo said to Politifact in the interview: “When we looked at that image you guys sent us, our registrar [Onaka], he thought he could see pieces of the embossed image through it.” DoH and Registrar Onaka had no clue that a CertificATION had been sent out to US Senator Obama or were unable to connect the COLB they were supposed to have sent with its purported online images? Fukino in her July statement had the opportunity to acknowledge Obama’s online COLB as genuine, but she didn’t, never has, and never will; it cannot be on account of privacy, because Obama’s own site posted an alleged CertificATION image, and DoH are by law permitted to devise their own regulations concerning privacy. If DoH authorites are not willing even verbally acknowledge Obama’s online CertificATION as genuine, the chances of authentication with a non-routine certification and handwritten signature for admission as evidence into court are slim to vanishing.

“You cannot deny that FRE 803(9) is either a record, or a data compilation, in any form [etc....so] your statement is wrong.” dunstvangeet

With regard to a CertificATION and FRE’s vital records hearsay exception Rule 803(9): how does Obama as proponent prove to a court (as he must) that this electronic abstract of a vital record (COLB) is what he claims it to be, a copy of an original record held in official custody? The CertificATION must be authenticated under the Rule for electronic data compilations and certified copies of public records, 902(4), which requires a non-routine comparison check between the COLB database and COLB printout certified with a handwritten signature to confirm their exact match.

Following dunstvangeet’s own literal approach to FRE quoted as above, “you cannot deny” Rule 902(1) is not applicable to certified copies and data compilations, and does not concern itself with non-routine comparison checks and ensuing attesting handwritten signatures, so 902(1) cannot prove that an electronic abstract of a vital record is what it claims to be. Consequently were Obama’s COLB (if it exists) to be authenticated under Rule 902(1) it would not assure such fidelity to the record as to be probative or admissible under 803(9). Again, following dunstvangeet’s own approach to FRE, dunstvangeet can have Rule 902(1) OR Rule 803(9) but not both; and still following dunstvangeet’s own approach to FRE, online images purporting to show Obama’s CertificATION reveal it has not been authenticated via Rule 902(4), so clearly Obama has not proved his eligibility to the Presidency. Indeed, this means neither dunstvangeet, nor any Obama loyalist, has ever been able to claim that by posting COLB images “Obama has done all he needs to do” to prove his eligibility. These corollories to dunstvangeet’s own approach to FRE remain true at least until dunstvangeet renounces that approach.

“803(12). COLB…still would be admitted under [803(12)]” dunstvangeet

The “ancient writing” hearsay exception in FRE-HRE is Rule 803(16). It only applies to documents that are more than 20 years old. Obama’s CertificATION (if it exists) was printed in 2007: it cannot qualify for admission into evidence through 803(16) until sometime after 2027. The second requirement under 803(16) is that “the authenticity of [the document] is established“. The authentication standard for 803(16) is Rule 901(b)(8) which requires “no suspicion concerning…authenticity.”

Given that Hawaii DoH in response to a UIPA request have confirmed it holds no documentation or vital record for Obama before August 10, 1961, two days after Obama’s birth was allegedly registered; and given that in defiance of Hawaii law DoH refuse to issue in response to UIPA requests index data (name, age, sex) corresponding to the 1961 CertificATE serial number referenced in Obama’s purported COLB, only an extremely prejudiced mind would claim this creates “no suspicion” about the CertificATE and the CertificATION it originates.

“I could go on and on about your legal flaws.” dunstvangeet

Surely “flaws in my legal reasoning“? And isn’t that why we’re here? To get to the truth?

“Put your money where your mouth is.” dunstvangeet

I seriously counsel dunstvangeet to seek family or professional advice before putting large amounts of cash at risk with angry and impulsive gambling.

1. Yes, she did answer that as part of her job. What happened was Politifact emailed the Hawaii Department of Health the image, asking to confirm it. Janice Okubo, being the spokesman for the Hawaii Department of Health, answered back, “It’s a valid Hawaii state birth certificate.” If Bob Barker was the spokesman for the Hawaii Department of Health, he would have answered back. It was part of her job to answer those emails, just as it’s part of Robert Gibbs job to give press briefings for the White House. What you’re wanting us to believe is that Janice Okubo was contacted individually, outside her job, and asked if this was genuine. That’s simply not the case.

As it is her job to speak for the Hawaii Department of Health, there is an argument that her statement has the full backing of the Hawaii Department of Health. As such, it is a statement put forth by the Hawaii Department of Health. Now, statements can be oral, or verbal. However, you never really cared about statements anyways. I mean, Dr. Cherome Fukino issued a press release (both written and oral) to the Press stating point blank that Obama was born in Hawaii.

2. FRE 803(8) does apply to verbal statements. To say that it doesn’t doesn’t mean diddly squat, and any lawyer would tell you oth erwise. Nowhere in FRE 803(8) does it say that it excludes verbal statements. And in fact, the exact text of the FRE is “Records, reports, statements, or data compilations, in any form…“. Last I checked, verbal statements were a form of statements. That again is disproven.

And then you’re telling me that the person hired specifically to be the spokesman for a public agency is not a public officer? Do you truly expect me to buy this load of crap that you’re trying to sell?

3. The certification is actually covered by FRE 803(9). FRE 803(9) says: “Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.” You cannot deny that FRE 803(9) is either a record, or a data compilation, in any form. it’s of births, and it was made pursuant to the requirements of law. Again, your statement is wrong.

4. Birth certificates are specifically mentioned. Oh, and by the way, even if you want to argue that it’s a dataset of 1961, check out another interesting exception to the hearsay rule, found under 803(12). “Statements in a document in existence twenty years or more the authenticity of which is established.” So, if you’re arguing that the COLB is just reporting statements in a document that was 49 years ago, it still would be admitted under the anchiet documents records.

I could go on and on about your legal flaws. I’m not saying that I haven’t made them myself. However, to state that a verbal statement is not covered under “statements … in any form” is redicilous.

Again, my offer still stands, WhoAreYouKidding. If it ever gets to the stage where documents are being included and excluded, if the COLB is specifically excluded, you get $100,000. If the document is admitted into evidence, you pay me $10,000 dollars. Put your money where your mouth is. If you’re so confident in your assessment, it should be the easiest $100,000 you make.

In an earlier comment I quoted and linked to works by distinguished law Professors where they write that Article IV of the US Constitution does not apply to state laws nor the administrative records of public agencies. Common sense and accepted practice suggests that a contrary view should be supported by links and–or quotations citing authorities of equal worth. Sue has given nothing but an opinion. Readers may draw their own conclusion.

The administrative records of one state are admitted into evidence in other states by way of local statutes which parallel (often word for word, as with Hawaii) the Federal Rules of Evidence. Depending on the type of administrative document or record involved, the appropriate Rule in Chapter IX will effect authentication and the appropriate Rule in Chapter VIII will permit a hearsay exception. Article IV of the US Constitution and its enabling statute are not used for these purposes.

“Okubo…issued this statement as part of her job in the Hawaii Department of Health…Just as Dr. Cherome Fukino’s statement…It qualifies [as a 803(8) exception] under that [part of her job].” dunstvangeet

There are a numerous errors in dunstvangeet’s explanation.

1 Okubo did not “issue a statement as part of her job” confirming Obama’s COLB was genuine. If she had then doubtless dunstvangeet would have linked to the official written statement. Okubo’s remarks were only a verbal response to a question put to her in a Politifact interview. In the same interview [ http://tinyurl.com/PF-Ok-Jn08 ], after Okubo made her initial remarks, upon reflection she then said, “I don’t know that it’s possible for us to even say beyond a doubt what the image on the site represents.” In subsequent media interviews, when asked directly, Okubo has refused to acknowledge Obama’s “online COLB” as genuine [ http://tinyurl.com/WND-Ok-Ag09 ] and “repeatedly responded by noting that she is not the registrar, and that she does not have the authority to verify certificates.” [ http://tinyurl.com/24a-Ok1-09 ] Okubo has nowhere at any time issued an official written statement of the kind dunstvangeet has attributed to her, thus Okubo could never have made a statement (quoting dunstvangeet) “just as Dr. Cherome Fukino”.

2 FRE-HRE Rule 803(8) does not admit verbal statements into evidence. The Rule limits itself explicitly to “Public Records” in the form of documents and files; no verbal utterance by a public officer to someone who is not a public officer is a public record. By definition something said to a journalist is not a public record because some essential requirements of 803(8) have not been fulfilled: “first, the person [journalist] making the record [must have] observed the matters contained in the record firsthand pursuant to a duty imposed by law; second, the record is prepared pursuant to a duty imposed by law; and third, the documents and surrounding circumstances indicate trustworthiness [i.e. employment within a public agency].” (US v. Central Gulf Lines, US, Fifth Circuit Appeals, 1984.) No journalist could even remotely meet these requirements and Okubo’s media interviews certainly do not. Fukino’s two public statements were issued in written form under DoH letterhead and do qualify under 803(8). Let’s hope this settles the matter; after all, dunstvangeet did admit “I could be wrong.”

“…the record number, or anything else within the document is not Hearsay within Hearsay [and] it would be covered under the Public Record exception…” dunstvangeet

The CertificATION is not covered by the Public Record exception Rule 803(8) because “the person making the record [COLB]” has not “observed the matters contained in the record firsthand” nor does “the document and surrounding circumstances [family member who supplied the registration information in 1961] indicate trustworthiness [employment within a public agency].” The CertificATION could only be admitted into evidence as hearsay via the Vital Records exception Rule 803(9) (if deemed to be a genuine vital record). Any other elements of hearsay within the COLB can only be admitted into evidence if they satisfy another exception. If they do not, then the CertificATION is inadmissible. As shown in this and my previous comments, Obama’s purported COLB contains hearsay within hearsay not admissible by any FRE exception.

“…the only relevant thing is not the health record number…” dunstvangeet

The CertificATION was printed in 2007. It is impossible for the COLB dataset in its own right, or the officials currently employed at DoH, to legitimately record something that happened decades before COLBs existed or these officials ever worked there. The FRE-HRE Rules concerning best evidence (106 and 1002) absolutely require the original writing (the 1961 CertificATE) to be brought into evidence, therefore only the original 1961 CertificATE is “truly relevant” and has real evidentiary value – that’s why DoH place its reference on the CertificATION’s first line, even though the 1961 CertificATE itself has not been brought into evidence. By definition this is hearsay within hearsay.

“The document is hearsay. The data within it is not hearsay.” dunstvangeet

Consider the counter-example of “Person A” from March 2009 given in my previous comment. The application for permanent residence was hearsay. The appeal court in that case decided that statements (data) within the application were hearsay within hearsay. Appeal Court Principle 1- an official document can be hearsay i.e. an out-of-court statement asserted to be relevant and true: this dunstvangeet concedes for the Certific>b<ATION. Appeal Court Principle 2 – a hearsay document may contain data that is hearsay within hearsay i.e out-of-court statements asserted to be relevant and true: this dunstvangeet does not concede for a COLB. Appeal Court Principle 3 – Inadmissible hearsay within hearsay is recognized inside a document when a statement (data) is asserted for its relevance and truth but the assertion (data) has not been authenticated and cannot satisfy a hearsay exception: this too dunstvangeet does not concede for a COLB. I prefer the judicial authority of three federal judges and will proceed on that basis; which is to say, we should examine a document (COLB) and ask of each internal statement (data): is this an assertion that claims to be relevant and true? has this assertion been authenticated? does this assertion individually meet a hearsay exception?

Whatever hearsay exception is applied to an authenticated document only applies to the document itself (US v. Hajda, US Seventh Circuit Appeals, 1998); under FRE-HRE Rule 805, for any unauthenticated, hearsay statements (data) within the document “to be admissible there must be an exception for that layer also” (Court Opinion, “Person A” Appeal ).The first line of the CertificATION reads “CertificATE No. 151 1961 014641″, so plainly and unambiguously the CertificATION is saying that everything which the originating CertificATE says to substantiate the CertificATION is to be found where the CertificATE says it is to be found: at the place where Birth Registration page 10641 of Birth Registration Volume 151 lies stored in the vaults of the DoH archive. However, in defiance of Hawaii law, DOH refuses to provide on public request the index data corresponding to the CertificATE serial number that would prove the CertificATE’s existence; neither has the 1961 CertificATE ever been placed in the public domain and authenticated by any DoH official under FRE-HRE Rules; which means there is nothing in evidence to prove that a CertificATE truly exists and is to be found at the location of Volume 151 and on Registration page 10641, as the CertificATE claims, or that all the statements of CertificATE No. 151 1961 014641 are truly reflected by and relate to the registrant of the CertificATION.

Given Obama’s CertificATION (offering no witnesses, no signatures, and no circumstances) is nothing without the originating 1961 CertificATE , in court, hypothetically, there might be the CertificATION seeking admission into evidence by way of vital records exception Rule 803(9), while out of court would be the unathenticated CertificATE, asserting as true unexaminable and untestable statements (data) simultaneously about, in, and through the CertificATION: this defines hearsay within hearsay.

In the “Person A” case, there was nothing in evidence showing that the claims (data) made by “Person B” in the application regarding “Person A”’s birthplace or citizenship had been authenticated; furthermore, these hearsay within hearsay assertions (data), contained within an application claiming to be relevant and true, did not satisfy a hearsay exception. In the “Person A” case, when the appeal court judged that the hearsay within hearsay statements (data) of “Person B” in the application were not admissible through FRE Rules 803(6) or 803(8), because “Person B” was not fulfilling a public service or business duty when the assertions were made, then the entire document offered by the government as evidence against “Person A” became worthless. Similarly, given Obama’s COLB (if it exists), references the 1961 CertificATE and its assertions (data), but neither satisfy FRE-HRE Rules 803(6) or 803(8) because the original source of the information (family member) was not fulfilling a public service or business duty when the birth registration were made, then the COLB is also worthless. In both cases when the “only part of the document truly relevant” fails, then the entire document fails. Nobody can force dunstvangeet to make sense of this if dunstvangeet cannot make sense of it; but dunstvangeet’s unfortunate misunderstandings and mistakes about Okubo’s statement and its admissibility as hearsay under FRE-HRE Rule 803(8) should be factored into the analysis.

“The COLB is persumed to be authentic under FRE 902(1).” dunstvangeet

To prove Obama’s eligibility to the Presidency dunstvangeet will get nowhere by clinging to the meagre hope of a lighter touch from FRE 902(1). For Obama’s COLB (if it exists) to do what dunstvangeet wants it to do (prove Obama eligible to the Presidency) it must be an officially certified copy of a vital record. Why must Obama’s COLB be a certified copy of a vital record? There is no other way of proving COLBs as the vital records they purport to be. The only Rule which can authenticate a COLB as a certified copy of a vital record is FRE-HRE Rule 902(4), the Rule for certified copies of public records. Rule 902(4) requires a non-routine comparison check between the COLB dataset in the DoH database and its printout, with a written attestation to that effect certified by a handwritten signature. For Obama’s attorneys to seek the admission of his COLB into evidence under Rule 902(1) would be to concede that it is not a certified copy of a vital record. If Obama’s COLB is not a certified copy of a vital record then it cannot be admitted into evidence under the vital records exception Rule 803(9), the only route into evidence for Obama’s COLB. dunstvangeet can have Rule 902(1) OR Rule 803(9) but not both. The fact that Obama’s CertificATION has not been authenticated via Rule 902(4) means that right now Obama has not proved his eligibility to the Presidency. The problem is that nobody at DoH will acknowledge the images of Obama’s online COLB as genuine, much less certify it with their handwritten signature.

“The COLB is admissible in any form.” dunstvangeet

Given that the phrase “in any form” is used in FRE-HRE hearsay exceptions 803(6), 803(7), 803(8), 803(8), 803(9), and elsewhere in FRE-HRE Rules 901(7), 901(8), 902(4), and 1005, it’s not very practical to suggest any and all of these Rules admit evidence “in any form” regardless of authenticity or content and however inadmissible in terms of other Rules. The purpose of the law (including FRE and HRE) is to exclude unreliable evidence (hearsay etc.) except under strictly prescribed conditions, not to ax out backdoors in the Rules for inadmissible evidence which effectively destroy those conditions and the law. No court will apply the Rules of Evidence in the way suggested by dunstvangeet.

“There is absolutely no difference between a ‘certificate’ and ‘certification’.” dunstvangeet

A CertificATE has witnesses’ signatures and place of birth etc., a CertificATE does not refer to any document outside itself to substantiate itself (unless amended), a CertificATEs is by definition officially recorded and “ACCEPTED” by DoH while a CertificATION (apparently and uniquely one such as Obama’s) can be “FILED” pending official acceptance. To claim these are not differences is…not consistent with the facts.

“Even Sharon2 admits that it is admissible…” dunstvangeet

I have seen no authorities cited by Sharon2 to support her opinion.

“I’ll give you $100,000…this will be the easiest money you ever made.” dunstvangeet

Curious the way some minds work. On past performance I strongly advise dunstvangeet not to pledge any money in such wagers.

“My Administration is committed to creating an unprecedented level of openness in Government.” [not like the Bush Administration]

http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/

You totally missed the point Bob was trying to make. All Presidents have frivolous lawsuits filed against them. The President does not waste his time and energy responding to these frivolous lawsuits and the DOJ handles these lawsuits on their behalf. This has absolutely nothing to do with transparency.

“I don’t know how else to explain the fact that plaintiffs would have a chance to examine the COLB before making a challenge.”

I think the point that you are missing is the fact that the plaintiffs challenged/claimed forgery regarding the online FactCheck photos of the COLB that was provided by President Obama’s HQ.

However, IF the certified COLB was obtained directly from the Hawaii DOH,(subpoena) the plaintiffs would have no basis to challenge that document based upon Article IV, Section 1 of the Constitution. All State issued birth certificates are backed by this clause in the Constitution. If this was not the case, no one would accept a certified COLB.

Example: If I had my certified COLB sent directly to a court of law, why on earth would anybody challenge that document? Contrary to what has been alleged, there is not one shred of credible, admissible evidence to support the claim that Hawaii issues fraudulent, foreign born Hawaiian birth certificates with Hawaii stated as the place of birth. Now, I’m sure Orly would try but I do not believe Judge Carter would grant her request.

Besides, this is all hypothetical and I suspect the chances of discovery being granted by the court, any court, is slim and none.

________

“My Administration is committed to creating an unprecedented level of openness in Government.” [not like the Bush Administration]

http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/

- If an examination is requested and if the examination shows no evidence of forgery, then it is admissible a self-authenticating document.

If it is excluded from evidence for any reason, I’ll give you $100,000.

- I would like to get in on this. Of course, it is not enforceable (no consideration), but I’ll take you at your good word.

“FRE 803(8) admits into evidence the records, reports, statements, and data compilations from ‘public offices and agencies’, not individuals speaking as individuals. No room for (Okubo) verbal hearsay.”
And the public office is the Hawaii Department of Health. Janice Okubo is the spokesperson for the Hawaii Department of Health. She issued this statement as part of her job in the Hawaii Department of Health. Her job is to speak for that. So, the fact that she put out a statement as part of her job, would put that into that category. Just as Dr. Cherome Fukino’s statement would be admitted because of her role as director of that agency. The statement of “It’s a valid Hawaii state birth certificate.” wasn’t done as an individual. It was done as part of her job. It qualifies under that.

I could be wrong that I’m reading it too broadly, but I do not think so (that the spokesman from the Hawaii Department of Health isn’t covered under the “Statements” exception), but I do not think so. Just because I did not respond to you doesn’t mean that I agree with you, and it doesn’t mean that you’re right.

Now, onto your argument.

1) The hearsay within hearsay of COLB’s first and most important line is not covered by FRE-HRE Rules 803(6) or 803(8) because the original supplier of Obama’s registration information (family member) was not employed by Hawaii DoH and was not constrained by a public service or business duty to be reliable and trustworthy, as Rules 803(6) or 803(8) demand. It should be remembered that “…the burden is on the proponent [Obama] to produce evidence [by a preponderance] of trustworthiness” (US v. Hancho C. Kim, US Appeals D.C.,1979.)
The reason that was hearsay within hearsay is because of the statement.

1. No, the record number, or anything else within the document is not Hearsay within Hearsay. Furthermore, even if it was, it would be covered under the Public Record exception to the Hearsay rule.

2. No, the only relevant thing is not the health record number. The relevant things in this case would be the following parts of the COLB: “Place of Birth: Honolulu”, “Island of Birth: Oahu”, and “County of Birth: Honolulu”. Those would be directly relevant to proving the place of birth. Again, not hearsay within hearsay. And even if it was, it’s still covered under the Public Records Exception of hearsay. The document is hearsay. The data within it is not hearsay.

3. The COLB is persumed to be authentic under FRE 902(1). Obama has met his burden of proof. He’s proven that he was born in Hawaii. Read it. The COLB is a self-authenticating document under the Federal Rules of Evidence. So, unless you have direct evidence putting the COLB into doubt, it solves it.

Oh, and by the way: the Hearsay exception is 802(9) that it falls under: “Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.”

The COLB is admissible in any form.

2) The only part of Obama’s CertificATION of Live Birth (if it exists) “truly relevant here” is the first line, reading “CertificATE No. 151 1961 014641“. The CertificATION’s first line significantly does not read “CertificATION No. [etc.]“. Obama’s purported COLB is a CertificATION (hearsay allegedly exempted by Rule 803(9)), referencing a birth CertificATE not in evidence and its serial number: by definition hearsay within hearsay. Given Obama’s CertificATION of Live Birth (if it exists) draws its evidential value exclusively from the original birth CertificATE of 1961 (which is not in evidence), the COLB by itself proves nothing and has no possibility of proving anything, since it was created over 40 years after Obama’s birth. To “solve” this problem DoH has ensured that Obama’s CertificATION of Live Birth references the 1961 CertificATE containing the witnesses’ signatures etc.; unfortunately for Obama this creates a new problem of hearsay within hearsay. As we saw from the real-life example given above, this hearsay within hearsay is inadmissible under FRE-HRE Rules 803(6), 803(8), or 803(9).

Actually, you’re quite wrong. There is absolutely no difference between a “certificate” and “certification”. Many judges have directly said this in Birther cases. The Hawaii Department of Health has directly said this.

Furthermore, as I said above, there are other direct statements that are relevant here. 1: “City of Birth: Honolulu”, “Island of Birth: Oahu”, and “County of Birth: Honolulu”. The file record number is actually the least relevant thing on the document (other than maybe race of parents.

Even Sharon2 admits that it is admissible, WhoAreYouKidding. You are really out on an island all by yourself.

However, I’ll tell you what. I’ll put my money where my mouth is. If this ever comes to it, and the COLB is presented as evidence. If it is excluded from evidence for any reason, I’ll give you $100,000. If it’s admitted into evidence, you give me $10,000. Deal? If you’re right, this will be the easiest money you ever made.

- So you feel the same about TRSoL? Accept my apologies.

I don’t know how else to explain the fact that plaintiffs would have a chance to examine the COLB before making a challenge.

“Typically a party propounds discovery asking the opposing party to list all evidence that supports a claim/defense. The opposing party would disclose that information. Then the original party would request to examine the original so it may be inspected by an expert.

This would all happen during the discovery phase, prior to a trial or even a summary judgment motion.”

I am hoping that Bob will clarify his comment above. However, I do not believe that a certified certification of live birth that was obtained directly from the Hawaii DOH would require inspection by an expert based upon Article IV, Section 1 of the Constitution.

http://www.law.cornell.edu/constitution/constitution.articleiv.html
“Article IV
Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

“As for Politijab, I didn’t insult the site by my comment. You insulted this site by yours. If you claim another site is where the respectable people are, then it is obvious you have no respect for this site. Your purpose here is for your amusement, as you have often said. My purpose for coming to this site is to comment on Phil’s posts. You and some others are here for agitprop.”

My comment regarding Politijab has nothing to do with Phil’s site nor is it meant to be an insult to Phil’s site. I would appreciate you not adding meaning/words to my comments that are clearly not there.

My comment:

“The Politijab forum is absolutely one of the most unbiased forums I have ever had the privilege to be a part of. The members on this forum call each other out for providing less than factual information and always cite their sources.”

Do you see RSOL/Phil mentioned anywhere in my comment above?

“dunstvangeet really ought to confer with better lawyers.”

Based upon the “birther lawyers” track record to date, I believe the “birthers” not only need to confer with better lawyers, they also need to hire/donate to better lawyers.

Follow this:

(Sharon 2 says:
October 23, 2009 at 2:37 pm)

- It seems like the COLB would have to be presented ahead of time to allow a reasonable challenge. That it is being challenged would be evident when the parties meet under the discovery rules. (meaning if the case proceeds) The paper COLB has obviously never been presented to the plaintiffs.

Bob says:
October 23, 2009 at 2:43 pm

It seems like the COLB would have to be presented ahead of time to allow a reasonable challenge. (quoting me)

Typically a party propounds discovery asking the opposing party to list all evidence that supports a claim/defense. The opposing party would disclose that information. Then the original party would request to examine the original so it may be inspected by an expert.

This would all happen during the discovery phase, prior to a trial or even a summary judgment motion.

As for Politijab, I didn’t insult the site by my comment. You insulted this site by yours. If you claim another site is where the respectable people are, then it is obvious you have no respect for this site. Your purpose here is for your amusement, as you have often said. My purpose for coming to this site is to comment on Phil’s posts. You and some others are here for agitprop.

It’s very amusing to have my understanding of hearsay questioned by dunstvangeet, when in late August I had to correct dunstvangeet’s own understanding of the hearsay Rules. dunstvangeet wrote:

“ ‘It’s a valid Hawaii state birth certificate.’ Statement that Spokesman Janice Okubo told the Press. …Rule 803, Paragraph 8 covers the Hawaii Department of Health. That means that the statement of the COLB being ‘a valid Hawaii State Birth Certificate’ would be admitted, even if Janice Okubo wasn’t called to the stand. That means it’s not Hearsay. It’s admissible evidence.”

To which I replied:

“FRE 803(8) admits into evidence the records, reports, statements, and data compilations from ‘public offices and agencies’, not individuals speaking as individuals. No room for (Okubo) verbal hearsay.”

It is presumed that dunstvangeet accepted there was a mistake in dunstvangeet’s understanding of both hearsay and the Rules of Evidence as no dissent from this correction was forthcoming.

To the substance of the argument: a counter-example to dunstvangeet’s example, only this time from real case in a real court earlier this year.

Person A is convicted of a serious crime in the US; the US wants to deport him; the US introduces as evidence that A is foreign born an official application for permanent residence (from 30 years ago) prepared on behalf of Person A by Person B, who claimed to be A’s natural father. In the application B states that A was born in Country C. The application is one level of hearsay, the statement as to birthplace is hearsay within hearsay. Is the statement that A was born in C admissible evidence? No, said the US Ninth Circuit Appeals Court in March 2009:

“[A]…asserts that the district court erred when it admitted the Application…under the public records exception to the hearsay rule. See Fed. R. Evid. 803(8). We agree. …the Application can be said to document the activities of a governmental agency and to document the observations of a responsible government officer to some extent. That would allow admission of the document [under Rule 803(8)]…However, the only part of the document truly relevant here is [B]’s hearsay statement that [A] was born in and was a citizen of [C]. [B], of course, had no governmental duties whatsoever. The government’s contention that the Application is admissible under the business records exception [803(6)] contains the same flaw. In either case, there is at least one more layer of hearsay, and to be admissible there must be an exception for that layer also … However, the government made no attempt…to argue that the statements of [B] are admissible as a result of some other hearsay exception [therefore] we are constrained to find error in the admission of the statements of [B]. Moreover, the error was prejudicial…the Application was the only evidence admitted at trial which tended to show [A was foreign born and] absent the improperly admitted hearsay, [A] would not have suffered a conviction… Thus, we must reverse… ” [emphasis applied] http://tinyurl.com/US-9thCA-MP

Three parallels with Obama’s COLB:

1) The hearsay within hearsay of COLB’s first and most important line is not covered by FRE-HRE Rules 803(6) or 803(8) because the original supplier of Obama’s registration information (family member) was not employed by Hawaii DoH and was not constrained by a public service or business duty to be reliable and trustworthy, as Rules 803(6) or 803(8) demand. It should be remembered that “…the burden is on the proponent [Obama] to produce evidence [by a preponderance] of trustworthiness” (US v. Hancho C. Kim, US Appeals D.C.,1979.)

2) The only part of Obama’s CertificATION of Live Birth (if it exists) “truly relevant here” is the first line, reading “CertificATE No. 151 1961 014641“. The CertificATION’s first line significantly does not read “CertificATION No. [etc.]“. Obama’s purported COLB is a CertificATION (hearsay allegedly exempted by Rule 803(9)), referencing a birth CertificATE not in evidence and its serial number: by definition hearsay within hearsay. Given Obama’s CertificATION of Live Birth (if it exists) draws its evidential value exclusively from the original birth CertificATE of 1961 (which is not in evidence), the COLB by itself proves nothing and has no possibility of proving anything, since it was created over 40 years after Obama’s birth. To “solve” this problem DoH has ensured that Obama’s CertificATION of Live Birth references the 1961 CertificATE containing the witnesses’ signatures etc.; unfortunately for Obama this creates a new problem of hearsay within hearsay. As we saw from the real-life example given above, this hearsay within hearsay is inadmissible under FRE-HRE Rules 803(6), 803(8), or 803(9).

3) Obama’s attorneys (for reasons known only to Obama) are not expected to submit any registration document except a CertificATION of Live Birth to a court to prove Obama’s birth in the US, and Obama’s attorneys would be expected to offer his COLB as the sole basis for a court’s decision. “Even if the proponent suggests a nonhearsay use or appropriate exception, the court can still exclude the statement if a jury is likely to misuse it as hearsay — as proof of something it asserts if no exception applies…Misuse of evidence is a classic instance of “unfair prejuduce” under FRE 403..” (Evidence, page 1031, Mueller and Kirkpatrick, http://tinyurl.com/Google-Evidence )

Words of hearsay within hearsay in Person A’s application; words of hearsay within hearsay in Obama’s COLB. Putting aside the operation of the Best Evidence Rules 106 and 1005, on the basis of these parallels Obama’s case must fail on the inadmissibility of the unreliable, untrustworthy, and unauthenticated hearsay within hearsay in Obama’s purported COLB (in terms of FRE-HRE Rules 803(6), 803(8), and 805) and this hearsay within hearsay’s incontrovertibly decisive and prejudicial effect on the outcome of a suit. Whether in terms of Obama’s self-interest in substantiating his claim and prevailing in a lawsuit, or the unavoidable option of the Best Evidence Rules 106 and 1005 available to opposing attorneys , Obama must bring into evidence the authenticated long form 1961 CertificATE referenced as hearsay within hearsay inside the COLB or, again, his case must fail.

“I’ve confirred with multiple lawyers” dunstvangeet

dunstvangeet really ought to confer with better lawyers.

Sharon 2,

I never said the COLB could not be challenged; however, and I believe Bob will agree with me on this, to challenge the COLB, the plaintiffs would have to present credible, admissible evidence to the court before the court would allow the COLB to be challenged. So far, the plaintiffs have not provided any credible, admissible evidence to the court to support their claims of forgery.

“Because of your expressed view of Politijab, it is clear that you are not HERE for honest debate.”

Based upon your previous comment on this forum, you have never visited the PJ forum, correct? Therefore, just what do you base your above statement on regarding PJ and PJ’s members?