Two competing Honolulu newspapers, The Honolulu Star-Bulletin and the Honolulu Advertiser, carried the Health Department list of births, showing a son born to the Obamas August 4, 1961. For some, these are the strongest evidence of President Obama’s birth in Hawaii because they are immune to modern tampering.
Strong as they are, would they be admissible in federal court? Are they excluded by the Hearsay Rule?
I believe that they well may be excluded. An important case on the admissibility of old newspapers is Dallas County v. Commercial Union Assurance Co. 286 F.2d 388 (5th Cir. 1961). Here’s a summary of the issue:
A clock tower at the Dallas County Courthouse fell, doing $100,000 in damage. The County filed a claim with the insurance company alleging that the structural failure was due to a lightning strike that happened a few days before. The insurance company countered that the damage was due to an existing structural fault in the building caused by a fire that occurred during the building’s construction in 1901. As proof of the fire, the insurance company offered a newspaper article from 1901 reporting the fire. The newspaper article was admitted, and the jury found in favor of the insurance company. The case was appealed on the question of whether the newspaper article was properly admitted. The circuit court said yes and the lower court was affirmed.
The newspaper article was not among the explicit exceptions to the Hearsay Rule, but was admissible because it was more likely to be reliable than someone’s memory after 56 years and it was unlikely that a better source of information could be found. The court said:
it was properly admissible because it of its necessity, trustworthiness, relevance, and materialness
The newspaper accounts of Obama’s birth are trustworthy, relevant and material. They are not, however, necessary. Obama’s birth certificate is prima facie evidence of where he was born, and the newspaper accounts aren’t necessary to establish that fact.1
Since that 1961 case, Rule 807 Residual Exception has been added to the Federal Rules of Evidence and it expands on the concept of necessity in 807(a) allowing the exception when:
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
Obama’s birth certificate falls under an explicit exception to hearsay, in Rule 803:
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
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1This article assumes that President Obama is a defendant and in a position to offer his birth certificate as evidence.