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Are the Honolulu newspaper birth lists admissible in court as evidence of Obama’s place of birth?

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.

I am not a lawyer and the legal information you get from may may be worth no more than you paid for it. Your mileage may vary. Not responsible for items left in your car. If problems arise, consult your doctor. May contain forward-looking statements. Sold by weight, not by volume. Image enlarged to show details. May contain peanuts.

1This article assumes that President Obama is a defendant and in a position to offer his birth certificate as evidence.

Kapi’olani digging

So Rambo Ike asked me over at Birther Report (before I gave it up for Lent) just when was the earliest reference to Obama being born at Kapi’olani hospital. Of course I wasn’t going to kick over a hornet’s nest and mention the birth certificate, which in all fairness didn’t see the light of day until 2011. I had to do a little digging, and here’s my reply:

The earliest Kapi’olani reference is a really good challenge. Most of my interest started with the birthers, and my knowledge of pre-birther history is pretty light. But let’s see what I can do.

The earliest Kapi’olani reference I know of without looking is the one in the Honolulu Advertiser from November 9, 2008, citing “family sources.” You can read about that here:

That’s the interview that contains Tong’s comment;

“We don’t have plans to do anything,” said Kapiolani Medical Center spokeswoman, Claire Tong, when asked how the center plans to commemorate the soon-to-be 44th U.S. president, who, according to Obama’s family and other sources, was born at that hospital on Aug. 4, 1961.

“We can’t confirm or deny it — even though all the information out there says he was born at Kapiolani Hospital. And that’s because of the HIPA (sic) law.”

Tong acknowledged that the center has received daily inquiries from news agencies far and wide asking for confirmation of Obama’s birthplace. Much as she wishes she could do it, Tong said it’s not possible.

“Our hands are tied,” she said.

David Maraniss, who would later write a Biography of Obama, wrote of Obama’s birth at Kapiolani in an article in the Washington Post August 24, 2008. Maraniss doesn’t give a source

The Honolulu Star Bulletin article: “Punahou left lasting impression on Obama” from February 8, 2007 says Kapiolani.

Another article from the Star Bulletin from March 21, 2004 also lists Kapiolani as Obama’s place of birth. That article was copied, mentioning Kapiolani, at the Free Republic forum also in 2004, so we can be pretty sure it wasn’t changed.

FR - Kapiolani 2004

That’s as far back as I can find.

Speculation on the Hayes report


Is handwriting analysis a science?

One of my favorite anecdotes regards the emperor of China. So the story goes, a controversy arose as to the length of the emperor’s nose, a question hard to answer because no one outside the court had ever seen the emperor, and those who had seen the emperor were forbidden to speak of the emperor’s visage. So it was decided that the people of China would be polled to decide the question. Untold millions were asked the length of the emperor’s nose and the results were tabulated, giving a final figure precise to 7 decimal places.

Since Mike Zullo, the only one besides Reed Hayes who is reported to have seen his report on Obama’s  birth certificate, isn’t sharing it, and has reportedly even copyrighted it, I feel a little like one of those Chinese subjects surveyed about the emperor’s nose when talking about the Hayes Report.

Unlike the emperor’s nose, we have a little bit to go on, some comments by Reed Hayes on a notorious murder case noted by a commenter1 here.

I was not a follower of the JonBenét Ramsey murder case but a little boning up at the Wikipedia (they need money by the way) yielded the necessary background. A central element of the story was a handwritten ransom note left at the Ramsey home. Speculation abounded as to who had written the note. A grand jury determined that sufficient evidence existed to charge the parents of child abuse leading to death, but the district attorney refused to sign the indictment (this only learned in 2013), and there remains unmatched DNA evidence pointing to an unknown male (along with an unmatched palm print and a pubic hair).

The ransom note had to be a magnet for every graphoanalyst and graphoanalyst wannabe and Reed Hayes proved no exception and here we get into the question of whether handwriting analysis is a science, because if it is a science, its results should be repeatable. Consider this little vignette from The Rocky Mountain News:

A well-known national handwriting expert said Monday he is 99.9 percent certain John Mark Karr wrote the ransom note found near the scene of JonBenet Ramsey’s murder. … Curt Baggett, the Texas-based co-founder of the School of Forensic Document Examination [said comparing the ransom note to a high school yearbook signature] “That there are so many similarities pushes the odds up into the seven digits.” …

One person who could find himself on the other side from [Baggett] … is Honolulu document examiner Reed Hayes, author of a textbook on forensic handwriting analysis.

"I do see a few similarities between the writing in the yearbook and the so-called ransom note, but not enough that I would identify him as the writer.

"In fact, I would lean more toward him not being the writer."

Ronald Morris, who spent 23 years as a document expert with the Secret Service said both where getting ahead of themselves, criticizing conclusions based only on copies.

Hayes later told CNN, “there`s a problem here in that my colleague seemed to be reaching these strong conclusions of identification based on improper comparison material. You know, we`re looking at…” (the clueless reporter didn’t let him explain), but by Hayes own statement, an analysis has to be based on proper comparison material, and that should be a factor considered when and if we see the actual Hayes report. I do not think Hayes has any original documents.

Hayes didn’t give a percentage, but he has an opinion as to who wrote the Ramsey ransom note, reports the Honolulu Star-Bulletin :

[Hayes] makes it clear that he is not working on the case in an official capacity, but says the note is a ruse, basing his opinion on copies of the note and handwriting samples sent to him by fellow graphonanalysts. He says Ramsey’s mother Patsy was the likely note writer, although no consensus has emerged among his colleagues.

Hayes said then that handwriting analysis is 80-90% accurate, and this from someone who is reportedly saying now that Obama’s birth certificate is a 100% forgery.

A handwriting expert will say that their conclusions are base on experience and training, but a discipline that yields unrepeatable results and relies heavily on personal judgment is not solid science. The National Science Foundation on study on Forensic Science stated:

Although there has been only limited research to quantify the reliability and replicability of the practices used by trained document examiners, the committee agrees that there may be some value in handwriting analysis.

The other thing we can conclude about the Hayes Report is that it must be based on faulty analysis because it is wrong. The document he claims is a forgery is about as well-authenticated as any document you’re likely to ever see.

1Commenters provide valuable contributions and in a sense this blog is “crowd sourced.”

Pen spills ink, makes mess

One of the more unpleasant tasks in running this web site is wading through very long articles full of of misdirection, misinformation, rhetorical fallacies, plain stupidity and bald-faced lies. They offend my sense of honesty, insult my intelligence, and I feel obligated to comment on all of the misinformation — a tedious and tasteless task particularly with a long article. Case in point: FINAL REPORT: Obama’s Birth Announcements Fail To Indicate “Natural Born” Status by Penbrook Johannson on The Daily Pen blog.

Here’s the short form story of the birth announcements to set the context: Two competing Honolulu newspapers carried birth announcements from the Hawaii Department of Health. The DoH released the lists to the Hawaii News Service Newspaper Agency, who in turn provided them to newspapers. This process was described in a Honolulu Advertiser article in November of 2008 and the Health Department confirmed that the newspaper listings came from the State Department of Health, who got them from the hospitals (the Hawaii Newspaper Agency is no longer operating and Honolulu Advertiser is no longer publishing). The announcements show that a son was born to Mr. and Mrs. Barack H. Obama on August 4 [1961].

Such vital statistics, however, were not sent to the newspapers by the general public but by the Health Department, which received the information directly from hospitals, [DoH spokesperson Janice] Okubo said.

Now how does that simple story gets spun into this?

A new investigation of Obama’s birth announcements appearing in Hawaii’s two primary newspapers in August, 1961 shows, conclusively, they were the result of a registration record taken by the municipal health authority, not a medically verified “Live” birth documented as occurring at a Hawaiian hospital, per an officially defined “vital event” by the U.S. Department of Health, National Vital Statistics Division protocols.

The overall framework of the article is a straw man argument that attempts to impugn the newspaper announcements by saying that the newspapers didn’t verify the list of births from the Department of Health, that they were not “medically verified”. However, no one has claimed that the Health Department announcements in the newspaper were independent verifications by the newspaper, only that they were contemporary proof that the Health Department reported the birth in 1961, and didn’t just fabricate it when Barack Obama decided to run for President. The Heath Bureau Statistics are not newspaper announcements at all, but are rather Health Department announcements carried by the newspaper.

What follows in Johansson’s article can only be described as a recipe for converting hot air into bullshit. I’ll select comments from the article in quotes, and add my reply in bold type.

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