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.
They can try that, but it won't work. This is so bad, it's the equivalent of Alien Autopsy. If a bunch of blog writers can dissect them in two hours, CBS can't evade its responsibilities by claiming it was duped. What they did could have affected who the leader of the free world is, and they ought to pay a heavy price for putting out a story based on easily-discerned bunkum.
I heard they came from Texas Veterans for Truth(!), a Democrat 527.
See 22, below.
Plus, who cares about the documents any way?? I mean what is the big deal?? Rather is going to lose a lifetime of work over a pos story.
John
"Although I lied my ass off, I was parenthicly correct." Or some such crap.
-the Democrats cooked up these cheesy forgeries
-knowing they would soon be exposed
-it's now a front-page scandal (Washington Post A-1 tomorrow, I hear)
-this keeps "Bush National Guard service questionable?" meme in the spotlight (it was amazing hearing how this is being reported on ABC radio - they spend 60 seconds describing what the memos purport to show and then at the end there's some vagueness about how "some are questioning the authenticity" of them...
-Dems did this knowing that "National Guard 1970s" being on the front pages - whatever the details - just isn't good for Bush.
Just think about it.
I wonder if Koppel will soft-pedal this: "Although CBS made significant misteps in judgement in this limited case, the truthfulness of George W Bush in the ANG affair remains in serious doubt."
The problem with that theory is that it makes CBS, one of their natural allies, look like total fools.
More like, "the question remains: why did the young Lt. Bush feel that he had to forge these documents?"
Somewhere, at this very moment, a CBS supply clerk is trying to locate an IBM Executive typewriter to try and make more realistic "originals".
Co Conspirator with whom. The Kerry Campaign, or MoveOn.Org.
The cover-ups always worse than the crime. Danny Boy needs to come clean and apologize. The DNC might quit doing his job for him, but they'll come back. Back with lots of stuff for him to report on...
I have no problem with that assumption. ;-)
Well, yeah they ARE fools. But I wouldn't expect the Kerry campaign to set out to make them look bad on purpose. CBS might retaliate with something radical, like reporting the actual news instead of the "news that will elect Kerry."
I'd like someone in authority at CBS to say that under oath.
And, I'd like him to be jailed immediately after for lying to the court.
Most people do not know the large number of deliberate design decisions that go into making a commercial typeface, and the fact that designers are typically very much aware of how corresponding decisions have been made in competing typefaces. All those specific characteristics and design decisions are on display in the CBS documents, much like in a fingerprint.
It will be easy to locate expert witnesses who spent a decade or more or designing and editing fonts for major manufacturers, who can testify to the history of fonts in office equipment, and the design characteristics that distinguish them.
After listening to the MSM whining that the internet didn't have an editor to fact-check things, I'm really starting to learn a lesson in how the editor function really works. I used to think the MSM took their news directly from DNC press releases. But now I'm learning that they really do have reporters and "sources". Ain't it great??
"...Sandy Berger's pants?"
My adult beverage was spraying out my nose and mouth at the
same time. See what you've done to my keyboard? (LOL,still)
"Somewhere, at this very momemt, a CBS supply clerk is try-
ing to locate an IBM Executive typewriter to try to make
more realistic originals."
Or, they could produce the "final" in the series of docu-
ments in question, from the same computer. It will state
something like "Disregard previous memos and pay no mind
to the man standing behind the curtain."
When asked if the names of the experts were Shemp, Curly, Moe or Larry, CBS responded NO COMMENT
"All the news that WE THINK IS fit to print."
Fact checkers? We don't need no stinkin' fact checkers.
Long live the blogosphere!
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