Wednesday, June 26, 2013

Subject: Rule of Evidence #701-C

In the thread titled "Claims, Arguments and Evidence" there has been a LONG debate over the correct interpretation of Rule 701c in the federal Rules of Evidence.


An Anthrax Truther has argued that if Dr. Bruce Ivins had been brought to trial, FBI Special Agent Darin Steele would not have been allowed to testify to decoding the hidden message in the anthrax letters sent to Tom Brokaw and The New York Post because Agent Steele was not a certified cryptographer.  The Anthrax Truther uses his personal interpretation of Rule #702c as the basis for his arguments.  He claims that Rule #701c says no one can testify about a scientific, technical or other specialized field UNLESS he is a certified expert in that field.  A quote from the Anthrax Truther:
Lay witnesses are explicitly prevented from testifying in scientific/technical areas by 701c

My interpretation follows what the experts say: Agent Steele's testimony is what he rationally perceived as part of the FBI's investigation of Dr. Ivins, it's obviously relevant to determining Dr. Ivins guilt or innocence, and thus it is fully admissible under Rule 701 for "Opinion Testimony by Lay Witnesses."  Rule 701c merely says that IF Agent Steele had decoded the message as part of his job as a cryptographer, then he would have had to testify as an EXPERT witness.  Agent Steele was not a cryptographer, therefore it was okay for him to testify as a LAY witness.  There is no rule that says he cannot testify to what he foundIn other words:
Experts in a field who testify to what they found as experts using their expertise are explicitly prevented from testifying as lay witnesses by 701c and MUST testify as expert witnesses
Lay witnesses who testify to what they rationally perceived, even if it is in a technical area, are NOT prevented from testifying by rule 701c 


Click HERE to view the entire Rules of Evidence.  Below are Rules #701 and #702 with 701c highlighted in red:

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
The best explanation of Rule #701c that I've been able to find so far is HERE.  That article says:
Rule 701 now provides that any part of a witness' testimony that is based on scientific, technical, or other specialized knowledge must comply with the standards of Rule 702 and the expert disclosure requirements. Specifically, a new subsection (c) was added which provides that for testimony to be admissible under rule 701, the testimony of a lay witness is limited to opinions or inferences "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The effect of this change is that if testimony could qualify under 702, then it cannot qualify under 701. The focus of the amendment is on the subject matter of the testimony, rather than whether the witness is a layperson or an expert.
There are other interesting discussions of Rule 701c HERE, HERE, HERE, HERE, HERE and HERE, which may contain what is needed to resolve this question, but there is a lot of legalese to dig through, and it's too easy to post a finding and have it disputed because of a disagreement over the meaning of a single word.  


Rule #701c was added to assure that no expert witness testimony which could qualify under Rule #702 is made instead under Rule 701 as lay witness testimony.  The focus is on the subject matter of the testimony, not on who is giving the testimony.  For example, if the testimony is "the product of reliable principles and methods" and "the expert has reliably applied the principles and methods to the facts of the case," then the testimony must be given by an expert witness.  It cannot be given by a lay witness.  Agent Steele was NOT an expert testifying about principles and methods used to decode the message, so neither Rule #702 or Rule #701c would apply to him, and thus he could testify as a lay witness about what he did. 

It is also important to note that Rule #701c was added in the year 2000.  Was it okay prior to 2000 for Agent Steele to testify as a lay witness, and after 2000 would he no longer be able to testify at all?  That implies a MAJOR change in who can testify.  Rule #701c was merely added to prevent lawyers from putting experts on the stand as lay witnesses to avoid any challenges to their expertise and to avoid having to disclose during Discovery what each expert witness is going to say.   

The questions now are: How do we determine who is right?  Would Agent Steele have been able to testify to what he found?  Or would he have been prevented from testifying by Rule #701c as the Anthrax Truther claims?

I'm going to look for other web pages which discuss Rule #701c, but I suspect that the Anthrax Truther will continue to believe what he wants to believe, no matter what I find.  


Monday, June 10, 2013

Subject: Discussion Impasse

There is no hope for an intelligent discussion to resolve a disagreement when one side merely wants to make speeches and discuss personal beliefs.

The only hope for a resolution to a disagreement is when there is a reasonable way to find out who is right and who is wrong.

The FBI and DOJ have presented a mountain of evidence showing that Dr. Bruce Ivins was the anthrax mailer.  Those who disagree, not only fail to present better evidence to support their beliefs, they often present no evidence at all on key issues.  They present only questions or opinions.

For example, there is solid evidence that Dr. Ivins had full access to the "murder weapon,' i.e., flask RMR-1029 which contained "morphs" identical to the "morphs" found in the powders in the anthrax letters. Ivins helped create the contents of the flask and controlled who had access to it.

Those who believe Dr. Ivins was innocent, however, have no evidence that someone else took a sample from flask RMR-1029, grew more bacteria from the sample, and then used it in the anthrax letters.  All they have are endless "possibilities" which have not been disproved.  Instead of proving that their own suspects sent the anthrax letters, those who disagree with the FBI attempt to shift the burden of proof to the FBI to prove that their suspects could not possibly have made the powders and sent the anthrax letters.

Asking the other side to prove themselves wrong is not a reasonable way to resolve a disagreement.

Some issues in dispute should be easily resolvable.  For example, R. Rowley (in an email) CLAIMS that the misspelled word "PENACILIN" in the media letters is a deliberate attempt to appear "foreign."   The FBI, on the other hand, agrees that the misspelling is deliberate, but they provide compelling evidence that it was part of a coded message Dr. Ivins put in the media letter.  (Click HERE for details.)  They CLAIM that the misspelled word is part of a coding technique explained in the book Godel, Escher, Bach, which Dr. Ivins was observed throwing away after a search of his home.

Mr. Rowley's CLAIM is just a CLAIM, without evidence. (Unless you have a confession, there is no way to prove that the writer deliberately misspelled a word in order to appear foreign or semi-literate.)  And Mr. Rowley refuses to accept the FBI's evidence-supported CLAIM, bizarrely arguing his new CLAIM that the FBI's evidence wouldn't be allowed in court because the FBI agent who deciphered the hidden message was not a certified cryptographer.

That last CLAIM seems like it could be resolvable.  But, even if enough facts were found to convince Mr. Rowley that there would be no problem with the FBI agent presenting his findings in court though he is not a certified cryptographer, Mr. Rowley would just argue that it doesn't make any difference, he's still going to believe what he wants to believe about who sent the anthrax letters.

So, at this point in time, it appears that the only real question worthy of discussion is: Is there any way to get someone who refuses to compare facts and evidence to stop making baseless claims and to argue only whose evidence makes a better criminal case proving who sent the anthrax letters?


Monday, June 3, 2013

Subject: Claims, Arguments and Evidence

Here are the Google definitions of three important words everyone should know:

CLAIM  /klām/

State or assert that something is the case, typically without providing evidence or proof.

An assertion of the truth of something, typically one that is disputed or in doubt.

AR·GU·MENT  /ˈärgyəmənt/

1. An exchange of diverging or opposite views, typically a heated or angry one: "I've had an argument with my father".

2. A reason or set of reasons given with the aim of persuading others that an action or idea is right or wrong.

EV·I·DENCE   /ˈevədəns/

The available body of facts or information indicating whether a belief or proposition is true or valid.

Be or show evidence of.

Examples of claims:

From the Department of Justice: Dr. Ivins perpetrated the anthrax letter attacks

From "Anonymous": "Amerithrax represents the greatest counterintelligence failure in the history of the United States."

From Mr. Rowley: "The multiple Hebrew elements [in the Amerithrax documents] all but preclude someone who ISN'T thoroughly familiar with the Hebrew alphabet as being the printer."

From Ed Lake: "The facts say a child wrote the anthrax letters and addressed the envelopes."

Arguments come when someone disagrees with or fails to see any reasoning or proof behind any of the above claims.

Arguments resulting from the three claims above:

The claim by the Department of Justice is disputed by various "Anthrax Truthers," who each seem to have a unique theory about who did it, and they only seem to agree on one thing: The government is wrong.

The claim by "Anonymous" is disputed by the FBI and the DOJ which concluded that Bruce Edwards Ivins was the anthrax mailer, and thus there was no "counterintelligence failure" involved in the case.

The claim by Mr. Rowley is disputed by Ed Lake (and probably by everyone else) because there is no discernible evidence to support such a claim.

The claim by Ed Lake is disputed by "Anonymous" because "Anonymous" doesn't believe the claim.

Examples of supplying evidence to support a claim:

The evidence supplied by the Department of Justice begins with the 92 page Amerithax Investigative Summary, which is supported by 2,720 pages of detail documents HERE. Additional documents related to the scientific aspects of the case may be obtained in the form of a CD from the National Academy of Sciences.

The evidence supplied by "Anonymous" in support of his claim seems to consist of just 2 undisputed facts: (1) al Qaeda had a motive for the attacks, and (2) al Qaeda was considering an anthrax attack upon America before the actual attacks.  He has supplied no meaningful evidence that al Qaeda actually carried out the attacks.  Click HERE to view what "Anonymous" considers to be "evidence."

Mr. Rowley has presented no meaningful evidence to support his claim.  He mostly just points to more of his claims while arguing over words and interpretations.

The evidence supplied by Ed Lake HERE consists of 12 indisputable facts (and more can be presented if needed) which point to only one logical conclusion: A first grader was used to write the anthrax letters and to address the envelopes.

Current results:

The evidence supplied by the Department of Justice showing that Bruce Ivins was the anthrax mailer is generally accepted, but is highly disputed by people who continue to have their own unique theories about who "really did it." 

"Anonymous" doesn't accept or believe any of the evidence which the FBI found to prove Ivins' guilt.  "Anonymous" continues to believe Islamic militants were behind the anthrax attacks.  He appears to argue possibilities instead of facts: It's possible that that the FBI is totally mistaken, it's possible that Islamic militants obtained a sample from flask RMR-1029 somewhere, and it's possible that unidentified Islamic militants wrote and mailed the anthrax letters.

Mr. Rowley continues to believe in his theory and seemingly argues that his claims are evidence.  He doesn't accept the FBI/DOJ's findings because (apparently) he believes they are just covering up a failure to find the right person (e.g., Mr. Rowley's "suspect").

"Anonymous" continues to argue that "There is no support for [Ed Lake's] theory."  "Anonymous" refuses to discuss the facts presented by Ed Lake or even to comment on them.


Some people on this blog need to understand that a CLAIM is just an unsupported opinion or belief UNLESS it can be successfully ARGUED against other opinions by using valid, acceptable, unbiased EVIDENCE.