“If, after discovery, a jury or judge could be persuaded that the Kenya BC was more credible than the HI vital records, a jury or judge might find Obama to have been born in Kenya. Judge Carter doesn’t allow for the possibility of a Kenya BC “win”.”
No. No. No. No. A thousand times no. (Why is it that laypeople would never attempt to question the nuances of a surgical procedure but have no problem questioning the nuances of the law?)
Carter allows for the possiblity of a “win” for a fully certified and vetted Kenyan Birth Certificate presented to the court properly under the Federal Rules of Evidence. Anything is possible with evidence.
The conjecture you are hung up on is that if a certified Hawaiian birth certificate is presented along with a certified Kenyan birth certificate, the tie will most likely go to the document produced by Hawaii. Why? Because the Rules presume that certified and authenticated US government documents are valid.
In the scenario of two certified documents - one from Hawaii and one from Kenya - the presumption is with the defendant. The burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid.
Orly and her followers have no concept of the burden of proof and it is maddening. She has to prove that the Kenyan document is valid. Then she has to prove that any Hawaiian document is invalid. I’m sorry. But them’s the breaks.
All of this is moot by the way. Because she presented a worthless piece of paper to the court. She did absolutely no legwork and asked the court to try to validate it for her.
“In the scenario of two certified documents - one from Hawaii and one from Kenya - the presumption is with the defendant. The burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid.”
Thank you for pointing out that the tie goes to the defendant. Judge Carter seemed to me to be saying the tie goes to the US document, but I can see that by your logic he was stating that in the event of a tie in this case, the win goes to the defendant who happens to have a US authenticated document.
You say that Orly's two BCs (Lavender and Smith) are worthless, but this was not an evidentiary hearing and the provenance, in a trial on the merits, could have been proved up in discovery including an authentication by a Kenyan authority, but Judge Carter precluded that.
You say the “burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid” but there has never been a certified HI BC document entered into evidence in a US court. The Factcheck COLB is also “worthless” until “proved up” at trial.
Judge Carter, by granting the motion to dismiss, precluded discovery of the original HI vital records, which in my understanding is “best evidence” under the FRE of the source record for the Factcheck short-form COLB.
Thus Judge Carter precluded Taitz from the possibility of being able to authenticate the Kenyan BC. Taitz was denied the possibility of submitting evidence that the Kenya BC was more credible than the HI vital records, records which may well contain amendments that undermine credibility.
That is what discovery is supposed to establish through evidence obtained and submitted under the FRE.
To recap: Carter presumed that the best case for Taitz, even with discovery, was a tie and I say that was an error! Clearly, the best case for Taitz was to undermine the HI vital records and show that the Kenya BC was more reliable. To justify his Rule 12(b)(6) grant of dismissal Carter was required to anticipate the best outcome for the plaintiff and dismiss only if that outcome couldn't prevail. Carter was required to anticipate the best outcome for Taitz, and he didn't do that, not that she as a lawyer could have pulled it off or that any Kenyan official authentication would be forthcoming, but that wasn't the issue at the Oct. 5 hearing.
“In the scenario of two certified documents - one from Hawaii and one from Kenya - the presumption is with the defendant. The burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid.”
Thank you for pointing out that the tie goes to the defendant. Judge Carter seemed to me to be saying the tie goes to the US document, but I can see that by your logic he was stating that in the event of a tie in this case, the win goes to the defendant who happens to have a US authenticated document.
You say that Orly's two BCs (Lavender and Smith) are worthless, but this was not an evidentiary hearing and the provenance, in a trial on the merits, could have been proved up in discovery including an authentication by a Kenyan authority, but Judge Carter precluded that.
You say the “burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid” but there has never been a certified HI BC document entered into evidence in a US court. The Factcheck COLB is also “worthless” until “proved up” at trial.
Judge Carter, by granting the motion to dismiss, precluded discovery of the original HI vital records, which in my understanding is “best evidence” under the FRE of the source record for the Factcheck short-form COLB.
Thus Judge Carter precluded Taitz from the possibility of being able to authenticate the Kenyan BC. Taitz was denied the possibility of submitting evidence that the Kenya BC was more credible than the HI vital records, records which may well contain amendments that undermine credibility.
That is what discovery is supposed to establish through evidence obtained and submitted under the FRE.
To recap: Carter presumed that the best case for Taitz, even with discovery, was a tie and I say that was an error! Clearly, the best case for Taitz was to undermine the HI vital records and show that the Kenya BC was more reliable. To justify his Rule 12(b)(6) grant of dismissal Carter was required to anticipate the best outcome for the plaintiff and dismiss only if that outcome couldn't prevail. Carter was required to anticipate the best outcome for Taitz, and he didn't do that, not that she as a lawyer could have pulled it off or that any Kenyan official authentication would be forthcoming, but that wasn't the issue at the Oct. 5 hearing.