Burden now on CBS to authenticate its documents, lest it become a co-conspirator in fraud

BeldarBlog ^ | Sept 9, 2004

[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.

[Ursus arctos horribilis]

Umm, did you see the Koppel slime shielding Rather tonight on Night Line? Koppel even suggestted to the DNC stooge that Rove dumped the documents.

[orangelobster]

That was truly frightening to see Ted being chummy with Chris Lehane on Nightline. I am not embellishing when I say I find Lehane to be the most repulsive person in america. Ted wasn't his usual stern argumentative self with Chris. They were like two old bowling buddies.

[Casloy]

Does anyone know, is CBS still planning to run the Bush/Guard story on this Sunday's 60 Minutes?

[CalRepublican]

Yes.

And I hear this one's about the atrocities he committed while he was in the National Guard.

[fuzzy122]

I'm sure that CBS will verify that the documents are NOT forgeries.

It will be alot easier that way. I mean who are you going to believe? Rather or Bush?

Stay Strong,
Fuzzy122

[Solar Wind]

Fuzzy,

I think that you are right. They are in deep denial. They cannot understand what is happening. They have been in control for so long.

Mr sol

[Brilliant]

If true, that should have been disclosed. Certainly, CBS has no reason to keep a fraudulent source confidential. That's like honor among thieves.

[wvromania]

we need to get past this ....this is what the DEMS want..a side track.....EXPOSE KERRY, Bush can defend himself!!!

[DefCon]

bye-see ya

[Robert A Cook PE]

Dan Rather's problem is worse now. This column was written last week, before Nightline even came out with its criticism.

Dan Rather very strongly defended the documents on Friday - And every one of his Friday (9/10) arguments are easily and quickly disproved on a point-by-point basis.

Dan Rather AGAIN strongly defended the same documents on Monday, (9/13) and AGAIN, every one of his argument is easily and quickly either disproven or can be shown to be irrelevant.

Dan Rather has introduced
no evidence irrefutably verifying the documents,
no evidence contradicting clear signs of forgery,
no evidence that the documents are valid,
no evidence that the signatures are valid,
no evidence that the documents were created in 1972 or 1973,
no evidence that the documents were typed on any machine, of any kind, available to Killian,
no evidence that Killian actually typed the documents,
no evidence that the documents were actually typed at all,
no original sources,
no proof that CBS's verified the documents,
no list of verifying experts,
no witnesses (who confirm CBS's interpretation of events),
no original documents,
no "chain of custody" information showing that Killian was ever associated with the documents he supposedly typed.