Posted on 09/09/2004 8:28:43 PM PDT by John Jorsett
In modern civil trial practice, authentication of documents — proving up that they are genuine, that they are what they purport to be, that signatures are authentic, that photocopies are identical to the original versions from which they were made, and the like — is rarely an issue. In twenty-four years of active civil trial practice, I'd guestimate that I've had occasion to challenge, on any basis, the authenticity of only a tiny fraction of one percent of the documents I've dealt with — and I'm talking quite literally about millions of pages of documents. And I've never yet had occasion to hire a forensic documents examiner.
Indeed, it's now common practice in both state and federal courts that documents will be conclusively presumed to be authentic, and not subject to objection for failure to prove up their authenticity, unless the party opposing a document's admission into evidence on that basis has challenged it before the trial. (See, for example, Local Rule 44.1 of the United States District Courts for the Southern District of Texas.) The goal, of course, is to streamline trials and avoid wasting the time of the judge, jury, and parties, in going through rote steps of authenticating each document in the overwhelming majority of instances when no party seriously disputes the document's authenticity.
But if a timely objection is made, it's still the burden of the proponent of a document — the party who relies on that document and wants it to be admitted into evidence and considered to have credible weight — to prove up its authenticity.
The blogosphere has aggressively — and persuasively — challenged the authenticity of the four documents produced by CBS News in its "60 Minutes II" program last night that purport to bear on President Bush's National Guard service in 1972-1973. The arguments raised to cast doubt on those documents' authenticity have multiplied throughout the day. I won't attempt to marshall those arguments here, but refer you to the updates to my post from last night and the many links provided there. Probably the best single source compiling those arguments is a thread on the Power Line blog that already has over 300 trackbacks to it evidencing links from other bloggers, now supplemented by at least three new threads for breaking developments.
Either in logic or in law, the burden is squarely on CBS News to respond to those arguments — and to do so immediately. So far, there's no credible suggestion that CBS News has been actively complicit in forgery, as opposed to unwitting (and witless) dupes who've passed on forged documents given to CBS News by others who, at present, remain unidentified. But with every minute that passes without a substantive response by CBS News, their involvement in the fraud grows — and yes, at some point in the very near future, they will become co-conspirators in any fraud by virtue of their deliberate cover-up.
I speak in an ethical, logical, moral, and practical sense in terming CBS News and Dan Rather as potential "co-conspirators," not a legal one. But their obligation is nevertheless clear and indisputable. This problem cannot be ignored, nor postponed. And let me be clear: I'm not insisting that CBS News concede that the documents are forged. But I'm insisting — and the rest of the mainstream media, and indeed all of America, should insist — that CBS respond to these objections in detail, now.
Update (Thu Sep 9 @ 9:10pm): InstaPundit passes on a media contact's report that "ABC'S Nightline [is] doing the forgeries tonight, and their experts say most likely forgeries. CBS had serious meetings this evening over this." If there's anything that might help overcome the mainstream media's torpor and intrinsic bias, it might be competitive pressure from within (and from without from sources like the blogosphere and talk radio). Let's see how good a job ABC does — heck, they could do far worse than to simply read aloud from some blogs!
But! Kevin Drum reports:
For what it's worth, I spoke to someone a few minutes ago who's familiar with how the documents were vetted, and the bottom line is that CBS is very, very confident that the memos are genuine. They believe that (a) their sources are rock solid, (b) the provenance of the documents is well established, and (c) the appearance of the documents matches the appearance of other documents created at the same place and time. In addition, people who knew Killian well have confirmed that the memos are genuine.
Update (Thu Sep 9 @ 10:20pm): WaPo's ubiquitous Michael Dobbs is questioning the CBS docs in tomorrow's edition. (That's great, but — Mr. Dobbs, shouldn't you be working on the missing documents from Kerry's private archives and records?) WaPo generally references "several independent experts," and quotes two experts, including Dr. Phil Bouffard, whose opinions were first developed at the request of, and quoted in, INDC Journal. As for CBS' position:
CBS officials insisted that the network had done due diligence in checking out the authenticity of the documents with independent experts over six weeks. The senior CBS official said the network had talked to four typewriting and handwriting experts "who put our concerns to rest" and confirmed the authenticity of Killian's signature.
I see. And what 1972-era typewriter did those experts say could have generated these documents, CBS? That would be a good place to start in putting our concerns to rest.
Become?????
Well, of course! That was the idea! They APPEAR to be the same. But the details regarding the fonts, spacing, sperscript, etc., give the lie to the "appearance."
Yeah, that's a real good way to authenticate documents. They look ok to us! Let's go with them!
Wouldn't it be lovely if not only they turned out to be fraudulent, but where they come from is found out?
Now just WHERE could those false docs smearing Bush have come from?
If the DNC is behind this, Kerry is toast.
What that quote neglected to mention is that "the same place and time" the other documents were created is George Soro's secretary's office, early September 2004.
RatherGate!
Yeah, that is the next big question - Where did the documents come from. Sandy Berger's pants? Ketchup stains on the documents? Gordon Liddy moonlighting? Pelicanos working for the Clinton's again? Are Joe Wilson and his wife thinking about who will play them in the movie?
The tabloids will play this for a long time.
um...thats not Dan Rather in the pic. It's Ted Koppel.
Either I'm missing something or someone needs to fill in
Igoramus
I just think it's so amazing that the new media is forcing the OLD media to work harder now. First the Swiftees, now Rather-gate. Neither story would ever have appeared in the MSM if not for blogs, Fox News and Free Republic!!!
A new day is dawning, and on that day, Dan Rather is unemployed (wearing a turkey suit?)
Well, CBS's strategy is clear. They are going to blame whoever gave them the documents. They are going to play the victim. They have no choice. Firing Dan Rather would be like the Catholic Church firing the Pope.
John
"In addition, people who knew Killian well have confirmed that the memos are genuine."
I don't think the people who knew Killian were closer to him than his widow and son and they say the memos are fake.
CBS is just throwing out stuff to cover up their incredibly stupid story.
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