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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.

Solved: The Mystery of the Missing Motion

You know how it is in Orly Taitz land. Everybody is out to get her and to sabotage her cases. The most recent report from her blog says that the court deep-sixed her latest brief in Taitz v. Colvin, and not only that: When she tries to call the court, her call is disconnected! The article is titled: “So far MD District Court did not docket my reply with the complaint about prior documents disappearing from the docket. what is going on? A complaint will be sent directly to Judge Hollander. I need your assistance in calling the court and asking to docket the reply and exhibits ASAP. Every time I call the court at  (410) 962-2600, I am being disconnected[.]” [Link to Taitz site]

What is her solution?

  1. Write a blog article about it!
  2. Ask her readers to call the court for her!
  3. Promise to complain to the judge!

To put this in perspective, Orly wrote this desperate plea for help yesterday and the court received her paperwork [wait for it] yesterday. If Taitz had let the dust settle until today, all would have been made clear.

I am not a lawyer, but just nosing around I have found this legal principle that says the movant gets the last word. For example:

  • Plaintiff: Mommy, Tommy hit me!
  • Defense: Did not!
  • Plaintiff: Did too!

At this point, the dispute would be “fully briefed.” Tommy has had his say in the matter. Now Tommy might want to say something else, but he has to get permission first:

  • Mommy, can I please say something else?

Should Tommy’s mother give permission for something else to be said, that would be called a “surreply” and then another response to that could be made.

  • Defense: Did not!
  • Plaintiff: Did too!

In Taitz v. Colvin we have docket entries as follows on a Motion to Dismiss/Motion for Summary Judgment:

ECF # Date Description
28 1/30/2014 MOTION to Dismiss the Second Amended Complaint or, in the Alternative, for Summary Judgment by Carolyn Colvin Responses due by 2/18/2014 (Attachments: # 1 Memorandum of Law, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Loucks, Allen) (Entered: 01/30/2014)
31 2/19/2014 RESPONSE in Opposition re 28 MOTION to Dismiss the Second Amended Complaint or, in the Alternative, for Summary Judgment filed by Orly Taitz. (Attachments: # 1 Exhibit 1, # 2Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(aos, Deputy Clerk) (Entered: 02/19/2014)
32 3/2/2014 REPLY to Response to Motion re 28 MOTION to Dismiss the Second Amended Complaint or, in the Alternative, for Summary Judgment and Response to Plaintiff’s Motion for Summary Judgment filed by Carolyn Colvin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Loucks, Allen) (Entered: 03/02/2014)

 

So Defense’s Motion to Dismiss has been fully briefed.  Orly then files a “Reply in support of a motion for summary judgment in favor of plaintiff” only there was no such motion that I can find (however, see update below). Here’s how the court sees Orly’s last brief, in an entry docketed today indicating Taitz’ brief would be returned to her:

image

Update:

An attorney commenting on this article points out that Taitz had attempted to make a motion for summary judgment piggy backed on another motion (a practice the courts frown on and may disallow). I do not know the process through which the Court discovered what Taitz was trying to do, but later yesterday, the court docketed her brief.

Taitz in a new article today [link to Taitz web site] and speaking of herself in the third person, describes the appearance of the docket entry as “miraculous” and goes on to take attorney Scott Tepper and unnamed web sites to task for assassinating her character. So here’s the best I can do by way of apology:

Orly, what you did in filing your brief in Taitz v. Colvin was not completely inept as I first thought, but just procedurally confusing and contrary to best practices. You’ll still lose the case.

For everyone’s reading pleasure, here is the brief and the attached exhibits:

And now for something completely different:

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