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.

THE  ARGUMENTS:

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 

THE FACTS:

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.  

ANALYSES  & INTERPRETATIONS:


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.  

Ed

135 comments:

  1. The idea behind the cartoon I used at the top of this thread is to show the absurdity of Mr. Rowley's belief that the hidden message must be decoded by a certified cryptographer.

    If no one prior to Agent Steele realized that there was a hidden message in the media letter, why would anyone consult a cryptographer?

    Agent Steele had noticed that the first highlighted letters were TTT because he was a also a BACTERIOLOGIST, and DNA coding was part of his work as a bacteriologist.

    Would a cryptographer even think of DNA codons when looking at the media letter? How would he even KNOW about such things if he wasn't ALSO an expert on DNA? How many cryptographers are experts on DNA? Does a cryptographer have to be an expert on ALL codes, even the codes I use to rate movies?

    No cryptographer would be assigned to decode the letter unless it was KNOWN that there was a hidden message in the letter. And no one knew that until Agent Steele fully decoded the message. Then there was no longer any need for a cryptographer.

    A cryptographer wouldn't be able to verify the decoded message without first learning everything Agent Steele knew about codons, about Godel, Escher, Bach, AND about Dr. Ivins co-workers.

    Working as an FBI investigator, as part of his regular job Steele had put two and two together and figured out what Ivins had done. That qualified him to testify as a lay witness.

    The idea that he wouldn't be able to testify in court about such an important find is ABSURD.

    Ed

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    Replies
    1. The idea behind the cartoon I used at the top of this thread is to show the absurdity of Mr. Rowley's belief that the hidden message must be decoded by a certified cryptographer.

      If no one prior to Agent Steele realized that there was a hidden message in the media letter, why would anyone consult a cryptographer?
      ================================================
      In the prior thread Mister Lake, at my prompting, admitted that in the 2001 to 2008 period there were people on the Internet (ie not even law enforcement types) who noticed the Brokaw text highlighting and made various proposals as to what it meant.

      I'm sure 'hidden message' of at least a generic type HAD to have been among the conjectures. So, how can you maintain
      that "no one" had any idea that the highlighting MAY have contained such a message/code?

      And what is this "prior to Agent Steele" stuff?!? Steele was there at USAMRIID photographing one or more Amerithrax texts in October of 2001. He was a charter member of the Task Force and, unlike a number of others, was there to the bitter end. He HAD to have noticed, and noticed early on that there were 3 A's fully highlighted, with other letters partially highlighted. Including, but not limited to T's.

      (Ironically, the more Mister Lake denies that those O's (and other letter BESIDES T's) were partially highlighted, the more incongruous is his claim that Steele never took into consideration a DNA nucleotide-based code possibility:
      'TTT AAT TAT? Nope, doesn't call to mind anything!')
      -------------------------------------------------
      No cryptographer would be assigned to decode the letter unless it was KNOWN that there was a hidden message in the letter.
      -----------------------------------------------
      And why would that be? Wouldn't a cryptoanalyst be in a better position to determine that?!?
      -------------------------------------------
      And no one knew that until Agent Steele fully decoded the message. Then there was no longer any need for a cryptographer.
      ----------------------------------------------
      Oh, yeah, did emergency brain surgery though I'm not an MD, so who needs the sawbones to check up on how I did?

      Mister Lake claims to be an aficionado of the 'scientific method'. An integral part of that is: peer review, and having other scholars do what you did to see whether they get the same results. So, LOGICALLY, Mister Lake should have been the one posting 'Yeah, they really SHOULD have sent it to the FBI crypto office, just to check it out' AND 'Yeah,
      they really should have hired crypto consultants to establish that sound cryptological principles were honored!"

      But none of that scientific stuff for Mister Lake if there's the SLIGHTEST chance the 'amino acid code' would have been the worse for it!
      -------------------------------------------
      Agent Steele had noticed that the first highlighted letters were TTT because he was a also a BACTERIOLOGIST, and DNA coding was part of his work as a bacteriologist.
      -------------------------------------------
      All you require to 'notice' highlighting is: good eyesight, and sufficient resolution/magnification. Steele had those available in October of 2001. There's no reason a bacteriologist wouldn't have noted that TTT would break out to an amino acid. In October of 2001. But there was that OTHER problem: the T's WEREN'T fully highlighted. And there were other NON-nucleotide bases which were ALSO partially highlighted.

      The 'amino acid code' of the REPORT is a result of IGNORING that little problem, without notifying the reader of the AMERITHRAX INVESTIGATIVE SUMMARY that the problem even exists! Mister Lake solved his problem in that regard by developing amnesia about what he himself wrote in the 2001-2005 period: that all 3 (!!) O's were partly retraced.



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    2. R. Rowley wrote: "I'm sure 'hidden message' of at least a generic type HAD to have been among the conjectures. So, how can you maintain that "no one" had any idea that the highlighting MAY have contained such a message/code?"

      You may be sure, but that's just YOUR BELIEF. You have no evidence of it.

      You're also playing word games again. So what if someone wondered if there might be a hidden message IF they didn't do anything to find out because it seemed like a dumb idea to have a hidden message in a threat letter?

      Mr. Rowley's post asks questions that are already answered in my post. He just doesn't read them, much less try to understand them.

      The cartoon shows the problem. Most people had no reason to believe there would be a hidden message in a threat letter, so why would they look for one? The people who wondered what the highlighted characters were all about evidently didn't think it could be a code.

      It wasn't until Agent Steele tried to figure out why Ivins threw away Godel, Escher, Bach that all the pieces suddenly fell together.

      That's the way things happen sometimes. To argue that they should have happened differently is just plain silly.

      Ed

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    3. You're also playing word games again. So what if someone wondered if there might be a hidden message[...]
      ========================================
      If people were doing that on the Internet, they were doing it on the Task Force. In 2001. So your 'account' is ahistorical. A nucleotide-based possible code was a possibility in 2001. Today it remains: only a possibility.
      Hence not reliable as a skein of evidence.
      ---------------------------------------
      It wasn't until Agent Steele tried to figure out why Ivins threw away Godel, Escher, Bach that all the pieces suddenly fell together.
      ======================================
      Ivins threw away that book because:

      1)he was a life-long paranoid who

      2)was being surveilled by the FBI

      3)was being talked about behind his back (eg FBI telling his children that they 'knew' Ivins did it, just like they told the same thing to Hatfill's girlfriend years earlier)

      4)was being purposely isolated by the FBI at work

      5)had just had his house searched
      Etc.

      A 'perfect storm' to unnerve a paranoid. And the Task Force (and subsequently Willman, and Mister Lake) mistook that understandable swelling of paranoid feeling for 'evidence of guilt'.

      So, his most paranoid fear was: on a subsequent search of his house the agents would find his copy of Hofstadter's book and conclude that he had used it to ENCODE something in 2001, whereas all the available evidence suggests he was using it to try to DECODE* the Brokaw highlightings, just like Steele et alia did at some point. Ivins was all too prescient on that score: they gave the worst possible interpretation to his efforts to dispose of the book.


      *In this Ivins was more intellectually honest than the Task Force: he admitted he couldn't figure the highlightings out.

      Delete
    4. R. Rowley wrote: "Hence not reliable as a skein of evidence."

      You are NOT the judge of what is reliable. If the prosecutor thinks it is RELEVANT it is valid lay testimony, regardless whether it is totally reliable or not.

      R. Rowley also wrote: " they gave the worst possible interpretation to his efforts to dispose of the book."

      The prosecutor gives the reason that best fits the prosecutor's case. You REALLY need to at least TRY to understand circumstantial evidence.

      Ed

      Delete
  2. 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
    ===================================================
    What's to stop each and every attorney who wants to have a layman
    testify on subject matter generally left to experts from saying
    'He's just going to testify on what he rationally perceived!'?

    Once again, an ad hoc 'principle' from Mister Lake that would be a gaping loophole if courts were foolish enough to go along with it.
    It would obliterate any true distinction between expert and lay opinion and would bog down court proceedings with a parade of laymen 'perceivers' FROM BOTH SIDES (since what's good for the goose is good for the gander).

    ReplyDelete
  3. R. Rowley wrote: What's to stop each and every attorney who wants to have a layman testify on subject matter generally left to experts from saying 'He's just going to testify on what he rationally perceived!'?"

    There's nothing stopping him if the testimony is relevant.

    R. Rowley also wrote: "It would obliterate any true distinction between expert and lay opinion and would bog down court proceedings with a parade of laymen 'perceivers' FROM BOTH SIDES (since what's good for the goose is good for the gander)."

    Only in your fantasies. In real life it clearly hasn't happened that way.

    There IS a VERY CLEAR distinction between expert opinion and lay opinion on most occasions. So, it's not a problem.

    I added some links to the text at the top of the thread. They show some discussions where lay testimony and expert testimony are defined and how they differ from one another.

    Ed

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    1. R. Rowley wrote: What's to stop each and every attorney who wants to have a layman testify on subject matter generally left to experts from saying 'He's just going to testify on what he rationally perceived!'?"

      There's nothing stopping him if the testimony is relevant.

      R. Rowley also wrote: "It would obliterate any true distinction between expert and lay opinion and would bog down court proceedings with a parade of laymen 'perceivers' FROM BOTH SIDES (since what's good for the goose is good for the gander)."

      Only in your fantasies. In real life it clearly hasn't happened that way.
      ===============================================
      It hasn't happened because your "rational perception" bit isn't the law. It isn't in 701. Or 702. It's something you invented (on the prior thread) to get Steele testifying about the 'amino acid code' in the notional trial of Bruce Ivins, despite the obvious lack of qualifications on Steele's part.

      Delete
    2. R. Rowley wrote: "It hasn't happened because your "rational perception" bit isn't the law."

      Yes, it is. I've provided links to where you can verify what I say.

      Ed

      Delete
    3. R. Rowley wrote: "It hasn't happened because your "rational perception" bit isn't the law."

      Yes, it is. I've provided links to where you can verify what I say.
      ===========================================
      Okay, I stand corrected on that point: the words "rationally perceives" are in 701a.

      But the larger point is: 701a, 701b and 701c are NOT
      'alternate routes' for the admission of opinion testimony by laymen. The (potential) layman witness has to qualify on ALL THREE POINTS (a, b, c) to give opinion testimony.
      The third one (c) is a negative one....

      "Rational perception" as a requirement might exclude psychotics, people under the influence of mind-altering substances (during the testimony and/or when it occurred during the period being testified to), and perhaps claivoyants and others who are claiming 'non-rational perceptions' but it's not going to exclude an awful lot of
      testimony.

      Delete
    4. R. Rowley wrote: "But the larger point is: 701a, 701b and 701c are NOT 'alternate routes' for the admission of opinion testimony by laymen. The (potential) layman witness has to qualify on ALL THREE POINTS (a, b, c) to give opinion testimony. The third one (c) is a negative one...."

      Okay. I have no dispute with that. Agent Steele's testimony WOULD be (a) rationally based on his perception; (b) WOULD be helpful to ...determining a fact in issue (Ivins' guilt or innocence); and (c) his testimony would NOT be based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

      So, he meets all the criteria. You either mistakenly believe that his testimony would SOMEHOW fit within the scope of Rule 702 or you're not looking all of item c.

      Ed

      Delete
  4. There's a lot of relevant information in the links I provide as part of the text at the top of this thread. Here's something:

    Finding the line between expert and lay opinion testimony is not always easy.

    Determining where experience-based opinion falls on this spectrum has proven particularly challenging to the courts. Opinion based on the witness’s unusual experience base does not always fit neatly into either category. In some cases, the court undervalues relevant experience as a basis for opinion, either lay or expert. In others, the court defers too readily to the claim that a witness’s experience qualifies the witness to provide an opinion, often treating experience as sufficient to establish expertise.


    Click HERE to go to the source.

    I think all the answers may be in those links. The problem is finding the right answer for the right question. There's so much to dig through, and it's a waste of time if the answer is somewhat ambiguous and can be mistakenly (or deliberately) misinterpreted.

    Ed

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    1. I wrote: "treating experience as sufficient to establish expertise."

      I've encountered MANY experts in my time who only do the same thing over and over and over and over and don't really have any significant expertise in their field.

      A microbiologist may be considered to be an expert, but if he has only worked with one kind of bug for the past thirty years, he may not have any expertise that would resolve an issue.

      I've seen one microbiologist after another argue in news reports and on blogs that Ivins couldn't have made the anthrax powders. But, if you look at what they BELIEVE, you see that they are always looking at Ivins following routine procedures and they cannot IMAGINE Ivins doing something that does not follow routine procedures, like taking petri dishes out of the trash to make the anthrax powders. Such a thing would never occur to them. So, they may be "experts" but their "expert opinion" is based upon IGNORANCE of all the things that could have been done.

      Ed

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    2. Since a number of persons who read this blog may not have read the prior threads, I thought I'd note here what Mister Lake does NOT contest vis-a-vis the amino acid code:

      1) Mister Lake does not contest that the exemplar in Hofstadter's book
      highlights COMPLETELY the letters it wants to include in the surface text of the code.

      2) Mister Lake does not contest that if the Task Force had done the same they would have ended up with a surface text of AAA.

      3) Mister Lake does not contest that instead of following Hofstadter 'to the letter' they instead took partially-highlighted letters (but T's only) to go with those three
      A's to form their surface text.

      4) Mister Lake does not contest that they did this because they had the preconception that any code had to be an 'amino acid code'

      5) Mister Lake does not contest that this notion was imported into the decryption
      and is not cryptologically testable.

      6) Mister Lake does not contest that the co-solution PAT could stand for thousands of persons throughout the US including Amerithrax addressee Senator
      Pat Leahy, as well as for organizations that bear those initials.


      7) Mister Lake does not contest that the co-solution FNY could stand for dozens of placenames in the State of New York, as well as for the initials of persons, organizations etc.
      ==================================================
      I submit that for anyone who is NOT named Mister Ed Lake the above 7 points tell us a great deal about the reliability of the amino acid code and thus its admissibility:
      ----------------------------------------------------------------------------------------------------------
      Reliability

      For evidence to be admissible enough to be admitted, the party proffering the evidence must be able to show that the source of the evidence makes it so. If the evidence is in the form of witness testimony, the party introducing the evidence must lay the groundwork for the credibility of the witness, and his knowledge of the things to which he attests. Hearsay is generally barred for its lack of reliability. If the evidence is documentary, the party proffering the evidence must be able to show that it is authentic, and must be able to demonstrate the chain of custody from the original author to the present holder. The trial judge performs a "gatekeeping" role in excluding unreliable testimony. The United States Supreme Court first addressed the reliability requirement for experts in the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Court laid out four non-exclusive factors that trial courts may consider when evaluating scientific expert reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; and (4) whether the evidence is generally accepted in the scientific community. Id. at 592-94. Kumho Tire Co., Ltd. v. Carmichael later extended the Daubert analysis to include all expert testimony. 526 U.S. 137 (1999).It bears an effect on the verdict of the court.
      http://en.wikipedia.org/wiki/Admissible_evidence


      Delete
    3. R. Rowley wrote: "Mister Lake does not contest ... yada yada yada."

      Right. I do not contest (1, 3, 4, 5, 6 & 7) because what you write is meaningless. It does not alter the conclusion reached by Agent Steele and what he would testify about in court. I would argue that the pronoun "they" is out of place. The message was evidently decoded by Agent Steele. It's unknown if anyone else made a significant contribution.

      I do not contest (2) because it is just your opinion, and I'd prefer not to argue opinions against opinions.

      R. Rowley also wrote: "If the evidence is in the form of witness testimony, the party introducing the evidence must lay the groundwork for the credibility of the witness, and his knowledge of the things to which he attests. "

      That is a simple matter of having Agent Steele describe his credentials, his years with the FBI, his degrees as a microbiologist, etc.

      The rest of your post is irrelevant since it only applies to EXPERT testimony, and Agent Steele would have been testifying as a LAY witness.

      Ed

      Delete
  5. I wrote: "treating experience as sufficient to establish expertise."

    I've encountered MANY experts in my time who only do the same thing over and over and over and over and don't really have any significant expertise in their field.
    ================================================
    AS FAR AS WE KNOW this was Steele's first decryption, so how does that apply?

    ReplyDelete
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    1. R. Rowley wrote: "AS FAR AS WE KNOW this was Steele's first decryption, so how does that apply?"

      It was just a statement about experts not always being true experts. So, even if some "expert" gives "expert testimony" that Ivins couldn't have done what he did, the "expert" could be an ignorant idiot, and his testimony could be countered by a REAL expert who knows his business.

      Ed

      Delete
  6. Below is some helpful information from page 5 of the pdf file HERE. It explains why clause C was added to Rule 701 in 2000:

    The Federal Rules of Evidence (the Rules) were amended in 2000, adopting specific, more stringent requirements for expert testimony and hardening the line between lay and expert opinion. Expert opinion testimony is now admissible only if based on reliable methodology, whereas lay opinion must merely be rationally derived using everyday reasoning.

    You can't get much clearer than that. LAY OPINION MUST MERELY BE RATIONALLY DERIVED USING EVERYDAY REASONING. Agent Steele used his "everyday reasoning" as an experienced microbiologist and as an FBI agent to rationally derive that there was a hidden message in the media letter. Therefore he CAN testify as a LAY witness to what he rationally found.

    Ed

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  7. There is an explanation of Rule 701 on page 11 of the pdf file found HERE:

    The rule defines four hurdles that lay opinion must clear to gain admission: (1) the witness must speak from personal knowledge; (2) the inferences reflected in the opinion must be rationally based on that knowledge; (3) the opinion must be helpful to the jury; and (4) the opinion cannot be based on scientific, technical, or other specialized knowledge. Thus, every lay opinion rests on a combination of the witness’s experience base, information known to the witness, and a process of rational reasoning. The assurance of reliability lies in these first three requirements. The fourth requirement was added to the rule in 2000 in an effort to better demark the line between expert and lay testimony.

    And, as we all know,

    1. When testifying,Agent Steele would have been speaking from personal knowledge (not hearsay).

    2. The inferences reflected in Agent Steele's opinion would be rationally based on his personal knowledge (not hearsay).

    3. Agent Steele's observations and opinions would be helpful to the jury in deciding the issue of Ivins' guilt or innocence.

    4. Agent Steele's findings were NOT based upon any specialized knowledge about cryptography, and thus he must testify as a LAY witness and NOT as an EXPERT witness.

    That seems pretty clear to me, although I expect Mr. Rowley will probably find some other way to read it.

    Ed

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  8. I found some more clarifications of Rule 701. This is from page 13 of the pdf file found HERE:

    1. Based on the Perception of the Witness

    The lay opinion rule requires that a lay opinion be based “on the perception of the witness.” This reflects a particular emphasis on the personal knowledge requirement that is implicit throughout the Rules of Evidence. A witness who rests her opinion on information from others in addition to her own observations does not comport with the requirements for lay opinion. Whereas an expert can rely on vicarious experience and relayed information, a witness providing lay opinion can call only on personal experience and personally observed facts.

    From pages 14 and 15:

    2. Rationally Based on the Witness’s Perception

    The rule further requires that lay opinion be “rationally based” on the witness’s perception. The court’s job when applying this requirement of the rule is to ensure that the opinion expressed by the witness is one that can be drawn from the witness’s knowledge base using ordinary reasoning. If the witness’s opinion represents too great a leap from the witness’s knowledge base, the court should exclude it as not rationally based.

    3. Helpful

    The rule also requires that a lay opinion be “helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue.” In some cases, the witness uses lay opinion to express information that cannot be conveyed through a bare factual account. Even when the witness can convey the facts without providing opinion testimony, lay opinion may enrich understanding by adding depth and clarity to the witness’s account.

    Nevertheless, an opinion is not helpful if it simply tells the jury what inferences to draw or summarizes the party’s case. The concern that the witness threatens the province of the fact finder may likewise lead to the conclusion that the opinion is not helpful. ...

    Similarly, if the witness’s opinion merely applies everyday reasoning to evidence equally available to the jury, the court may deem the opinion unhelpful. For example, if the witness simply compares the defendant’s appearance with a surveillance photo and opines that the defendant is the person in the photograph, the court may reject the testimony as unhelpful because the witness is no better equipped than the jury to draw that conclusion.

    From page 16:

    4. Not Based on Scientific, Technical, or Other Specialized Knowledge

    In 2000, Rule 701 was amended to stipulate that lay opinion must not be based on scientific, technical or other specialized knowledge. The amendment was intended to harden the division between lay opinion and expert opinion, and to ensure that all opinion based on scientific, technical or other specialized knowledge would be subject to the reliability requirements
    of Rule 702.


    It is difficult to see how any further clarification can make it more clear that Mr. Rowley's interpretation of Rule 701-C is WRONG.

    But, maybe I'll find something better.

    Ed

    ReplyDelete
  9. From page 20 of the pdf file found HERE:

    Evaluating opinion testimony based on experience raises particular questions: What constitutes the “specialized knowledge” that requires an opinion to be handled as expert testimony under Rule 702 and what level of
    special background or experience base is consistent with providing lay opinion under Rule 701? Does the knowledge derived from an especially rich experience base constitute “specialized knowledge” that forces the court
    to evaluate the evidence under the reliability requirements of Rule 702? The courts must differentiate between a lay opinion that rests on an unusually rich experience base and an expert opinion based on experience. The courts should not categorize an opinion as expert merely because the witness possesses an unusual level of experience. Only the application of a reliable methodology — a proven analytical approach beyond mere everyday reasoning — should qualify an opinion as expert rather than lay.


    Once again it would seem that the purpose of Rule 701-C cannot be more clear.

    The courts must differentiate between a lay opinion that rests on an unusually rich experience base (like that of FBI Agent and microbiologist Darin Steele) and an expert opinion based on experience (like that of a cryptographer).

    Only the application of a reliable methodology — a proven analytical approach beyond mere everyday reasoning (like that of a certified cryptographer) — should qualify an opinion as expert rather than lay.

    Agent Steele used his experience as an FBI agent and as a microbiologist to decode the hidden message in the media letter. Therefore he could testify as a lay witness. If he'd have had significant experience as a cryptographer and had decoded the hidden message in the media letter based upon his knowledge as a cryptographer, then he would have been required to testify as an EXPERT WITNESS.

    Either way, of course, he can testify to what he found.

    Ed

    ReplyDelete
  10. The document located HERE explains in detail why the C amendment was added to Rule 701:

    Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng, 57 F.3d 1190 (3d Cir. 1995). By channeling testimony that is actually expert testimony to Rule 702, the amendment also ensures that a party will not evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P.16 by simply calling an expert witness in the guise of a layperson.

    So, as anyone can see, Rule 701-C is NOT added to prevent a lay witness from testifying to what he discovered in a technical area, it was added to prevent an EXPERT witness from testifying as a lay witness in order to "evade the expert witness disclosure requirements".

    Prior to the addition of Rule 701-C, it seems that Agent Steele would indisputably have been allowed to testify to what he found out about the hidden message in the media letter. The addition of Rule 701-C changes NOTHING as far as Agent Steele's testimony is concerned, because he was NOT a certified cryptographer. Rule 701-C would only affect Agent Steele's testimony if he WAS a certified cryptographer, had decoded the hidden message due to his specialized knowledge as a cryptographer, and yet he was being put on the stand as a lay witness. Rule 701-C says that in that situation he could not testify as a LAY witness and MUST testify as an EXPERT witness.

    Either way, he can still testify to decoding the hidden message the Bruce Ivins put in the media letter.

    Ed

    ReplyDelete
    Replies
    1. FYI, I just added the link to the document quoted in the above post to the text at the top of this thread as the 2nd "HERE" in the list of "interesting discussions of Rule 701c."

      Ed

      Delete
  11. In the comment of the 26th you've once again misstated my position:
    -----------
    (Mister Lake)
    -------------
    "The Convincer's" argument is as follows:

    Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c, therefore FBI Special Agent Darin Steele would NOT have been allowed to testify to finding the hidden message Ivins put in the media letter.
    ==================
    Since I 1) don't think there's an amino acid code in the Brokaw text and 2) don't think Ivins WROTE any Amerithrax text, that's an amazing misstatement! What it is is: a COMBINATION of my position with the beliefs of: Ed Lake.

    Here's the rewite:

    Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c, therefore FBI Special Agent Darin Steele would NOT have been allowed to testify
    to any amino acid code he allegedly found in the Amerithrax text(s).

    ReplyDelete
  12. R. Rowley wrote: "Since I 1) don't think there's an amino acid code in the Brokaw text and 2) don't think Ivins WROTE any Amerithrax text, that's an amazing misstatement! What it is is: a COMBINATION of my position with the beliefs of: Ed Lake."

    It is a combination of what you wrote HERE:

    "Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c"

    and my addition below intended to clarify what you've been arguing:

    ", therefore FBI Special Agent Darin Steele would NOT have been allowed to testify to finding the hidden message Ivins put in the media letter."

    You only very recently started mentioning "an amino acid code." It appears that you now realize your arguments have been bogus, and you are trying to squirm out of being shown wrong by changing your argument to be ONLY about the "amino acid code."

    I'll have to go back through all your arguments to show what you were arguing before and how it is different from what you seem to be arguing now.

    Do you now argue that Rule 701C would allow Agent Steel to testify to everything about decoding the hidden message in the anthrax letters sent to the media EXCEPT for the tiny bit about realizing that TTT could be a DNA codon? That would indicate that you no longer argue that only a cryptographer could testify about decoding a hidden message. A cryptographer would not likely know about DNA codons. So, you appear to be now claiming that because agent Steele is a microbiologist he cannot testify to decoding TTT to be a codon.

    That's a pretty hilarious change in position - and still wrong - if that is what you are now arguing.

    I'll be back tomorrow for your answer.

    BTW, I fixed the comment on my web site you complained about.

    Ed

    ReplyDelete
    Replies
    1. R. Rowley wrote: "Since I 1) don't think there's an amino acid code in the Brokaw text and 2) don't think Ivins WROTE any Amerithrax text, that's an amazing misstatement! What it is is: a COMBINATION of my position with the beliefs of: Ed Lake."

      It is a combination of what you wrote HERE:

      "Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c"

      and my addition below intended to clarify what you've been arguing:

      ", therefore FBI Special Agent Darin Steele would NOT have been allowed to testify to finding the hidden message Ivins put in the media letter."
      ==============================================
      You put YOUR part as a subsequent clause to MY part, thus
      leading the reader to think that the whole sentence reflects
      MY THINKING.

      This part, which you ascribe to me:

      "...to finding the hidden message Ivins put in the media letter."
      makes it seem to the reader that I BELIEVE that Ivins put a code in the media letter but am merely trying to exclude Steele's testimony about it on technical grounds. Nothing could be further from the truth!


      Next time: please keep your ideas and mine out of the same sentence. Please. No reader could guess that "therefore" means "now I'm switching to Ed Lake's take (ie Ivins did the writing/put in the code)".
      -------------------------------------
      Do you now argue that Rule 701C would allow Agent Steel to testify to everything about decoding the hidden message in the anthrax letters sent to the media EXCEPT for the tiny bit about realizing that TTT could be a DNA codon?
      --------------------------------------

      Steele would not have been able to testify about ANY "hidden message" that he, as an arrant amateur in decoding, "found"
      (ie detected via cryptology, deciphered via cryptology, for that's what "found" here really means in this context) in the letter(s). That we are talking about a notional trial of Bruce Ivins is just a detail: it would be the same if Hatfill were on trial and Steele/the Task Force did the same decryption, but claimed that: (final co-solution) PAT=William C. Patrick III, a friend of Hatfill's. It's the principle that counts.

      ----------------------------------------------
      Back to Mister Lake:

      You only very recently started mentioning "an amino acid code."
      ==========================================
      But "an amino acid code" is the METHOD OF (alleged)ENCRYPTION/ DECRYPTION! I've been writing posts using that word (using it probably dozens of times in the past 3 or 4 weeks!)on the prior thread (check it if you don't believe me: I just did a google search using "r rowley" and "amino acid code" and got
      26 hits, all but 7 of which were me at this venue talking about.....an amino acid code).
      -----------------------------------------

      BTW, I fixed the comment on my web site you complained about.
      --------------------------------------------

      Thank you!

      Delete
    2. R. Rowley wrote: "This part, which you ascribe to me:

      "...to finding the hidden message Ivins put in the media letter."
      makes it seem to the reader that I BELIEVE that Ivins put a code in the media letter but am merely trying to exclude Steele's testimony about it on technical grounds. Nothing could be further from the truth!"


      Nonsense. You've made it abundantly clear that you do not believe Ivins put a code in the letter. I was just trying to show a complete argument.

      Writing "Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c" is simply a NONSENSE CLAIM. I added an explanation for WHY I thought you make such a CLAIM.

      R. Rowley wrote: "Next time: please keep your ideas and mine out of the same sentence."

      I doubt that I can do that, since most of what you say is nonsense and I am debunking it. But, I'll try to avoid making it seem that you are claiming something you are NOT claiming. The only good way of doing that is to get you to clarify what you are claiming.

      R. Rowley also wrote: "But "an amino acid code" is the METHOD OF (alleged)ENCRYPTION/ DECRYPTION! I've been writing posts using that word (using it probably dozens of times in the past 3 or 4 weeks!)on the prior thread (check it if you don't believe me"

      Okay. In the Claims, Argument, Evidence thread:

      1. You mention it on June 13 at 8:51 am.
      2. You mention it on June 17 at 3:47 pm.
      3. You mention it on June 18 at 3:33 pm.
      4. You mention it on June 19 at 1:08 pm.
      5. You mention it on June 18 at 2:42 pm.
      6. You mention it on June 21 at 9:33 am.
      7. You mention it on June 22 at 8:17 am.
      8. You mention it on June 22 at 9:10 am.
      9. You mention it on June 24 at 7:42 am.
      10. You mention it on June 14 at 8:00 am.
      11. You mention it on June 24 at 9:11 am.
      12. You mention it on June 24 at 11:01 am.
      13. You mention it on June 24 at 11:27 am.
      14. You mention it on June 25 at 11:53 am.

      Checking the thread about Mohamed Atta's handwriting, I see you mentioned the "amino acid code" just once, on MAY 16 at 8:04 a.m., when you wrote:

      "the lawyers (mostly) know the rules of evidence, and, unless they think the judge is a doddering incompetent, they don't bother trying to slip in stuff that is: opinion, speculation, beyond the competence of the witness in a technical area (note: BOTH cryptography------remember the 'amino acid code' of immaculate conception?-------and handwriting comparisons are technical areas), and/or beyond the scope."

      So, you were arguing about the need for a cryptographer well over a month ago, and you mentioned the "amino acid code" back then. BUT, you don't really explain what you meant. I took it to mean the entire hidden message. Why on earth would anyone need a CRYPTOGRAPHER to figure out a code based upon DNA? That makes no sense whatsoever. A cryptographer wouldn't be able to figure out a code based on DNA without first learning about DNA. DNA coding is NOT something a cryptographer learns in cryptography school. Neither is brick size coding or lumber coding or codes used in the newspaper business or codes used in the patent office or codes used on bill put before Congress or ten thousand other coding systems used in specific fields.

      That's why I created the cartoon. Before a cryptographer can even begin to decode writing on a sheet of paper, he has to have some reason to believe that there IS a code to be decoded. And, even then he'd probably need to know more about the context in order to have some idea of where to begin.

      I think what we're saying is that you need to EXPLAIN exactly what your claim is and what your evidence is. Otherwise, I'm liable to assume what seems LOGICAL TO ME, not what might seem logical TO YOU.

      Ed

      Delete
    3. R. Rowley wrote: "This part, which you ascribe to me:

      "...to finding the hidden message Ivins put in the media letter."
      makes it seem to the reader that I BELIEVE that Ivins put a code in the media letter but am merely trying to exclude Steele's testimony about it on technical grounds. Nothing could be further from the truth!"

      Nonsense. You've made it abundantly clear that you do not believe Ivins put a code in the letter. I was just trying to show a complete argument.
      ---------------------------------------------
      Ask a third party. Preferably a newspaperman. They will tell you that your sentence was misbegotten. I'm through
      arguing with you on THAT POINT.

      Delete
    4. R. Rowley wrote: I'm through arguing with you on THAT POINT."

      Good. I feel the same way. We should only be arguing about the facts regarding who sent the anthrax letters, i.e., the FBI/DOJ's case against Bruce Ivins versus your case for whoever you think did it.

      Ed

      Delete
  13. Mr. Rowley wrote that this is his argument: "Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c, therefore FBI Special Agent Darin Steele would NOT have been allowed to testify to any amino acid code he allegedly found in the Amerithrax text(s)."

    What Mr. Rowley claims is NOT TRUE, of course. Lay witnesses are NOT explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c.

    What Rule 701c says is: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

    In other words: If Agent Steele is not testifying as an expert (and he wouldn't be), his testimony in the form of an opinion is limited to what he rationally perceived and cannot be based on scientific, technical, or other specialized knowledge within the scope of Rule 702..

    Having cursory knowledge of a scientific or technical area does NOT automatically make you an "expert" who must testify as an "expert" under Rule 702.

    Rule 702 says, a witness must testify as an expert IF "(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."

    Agent Steele would NOT qualify as an expert under Rule 702 because his testimony is NOT the product of reliable principles and methods, and he did NOT apply those "principles and methods" to find the "amino acid code" in the letter. It was just something he happened to notice.

    Agent Steele's testimony was the product of rational reasoning using knowledge he'd acquired from many different fields. He didn't apply "principles and methods" of a cryptographer OR a microbiologist. His experience as an investigator and as a microbiologist and his knowledge of Bruce Ivins and the Amerithrax investigation enabled him put the pieces together.

    Yesterday, I posted this quote from the source found HERE:

    The courts should not categorize an opinion as expert merely because the witness possesses an unusual level of experience. Only the application of a reliable methodology — a proven analytical approach beyond mere everyday reasoning — should qualify an opinion as expert rather than lay.

    Until yesterday, Mr. Rowley's argument was that Agent Steele's testimony would be admissible AT ALL because he's not a certified cryptographer. Now Mr. Rowley's argument seems to be that Agent Steele's testimony would not be admissible because he would be testifying as a LAY witness and only an expert under Rule 702 can testify about noticing that TTT is a DNA codon. That is another misunderstanding by Mr. Rowley.

    From page 44 of the pdf file found HERE:

    If the witness brings no reliable methodology beyond everyday reasoning from observed similar situations to the proffered opinion, the witness should be evaluated as a lay witness, subject to the corresponding limitations. The court should question whether the opinion is rationally based on the witness’s perception — whether it rests on inferences fairly drawn from the witness’s experience — and the jury should be invited to scrutinize the opinion in the same way.

    Agent Steele's testimony about the hidden message as a lay witness would have been allowed. No misunderstandings and misconceptions by Mr. Rowley can change that.

    Ed

    ReplyDelete
  14. Mr. Rowley,

    This particular disagreement over Rule 701C appears to be becoming slowly resolved because there are experts who have written on the subject, and there are official EXPLANATIONS available.

    I think we could resolve MORE of our disagreements that are based upon personal interpretations if you could just EXPLAIN your logic and evidence and allow me to explain my logic and evidence.

    Another example would be our disagreement over how relevancy is determined in court. There are probably expert explanations of how it is done. It's just a matter of clarifying your claim and my claim and then seeing which claim fits what the experts say.

    There's no point in arguing over things that are pure opinion and cannot be resolved (usually because mind-reading would be required), such as:

    "the Task Force (and subsequently Willman, and Mister Lake) mistook that understandable swelling of paranoid feeling for 'evidence of guilt'." Source: HERE

    You are arguing why you believe Ivins threw away his copy of Godel, Escher, Bach, and the FBI, the DOJ, David Willman and I have a different opinion of why Ivins threw away the book. None of us are mindreaders.

    A jury would have to resolve who is more believable after reviewing ALL the evidence which says that Bruce Ivins was the anthrax mailer. And, since Ivins is dead, that's never going to happen.

    So, why argue about things that cannot be resolved?

    It appears that there are LOTS of disagreements that CAN be resolved by simply checking the facts.

    Ed

    ReplyDelete
  15. You are arguing why you believe Ivins threw away his copy of Godel, Escher, Bach, and the FBI, the DOJ, David Willman and I have a different opinion of why Ivins threw away the book. None of us are mindreaders.
    ====================================================
    Okay, but the difference is: the FBI/DOJ's mindreading on this point is part and parcel of the AMERITHRAX INVESTIGATIVE SUMMARY; Mister Willman's mindreading on this subject is a part of HIS book; you probably have done likewise in your book,------------
    ------and a sure sign of it is this: http://www.anthraxinvestigation.com/IvinsGuilt.html
    wherein you state: (partial)(but not on the Hofstadter book)

    July 2008 - Seeking To Escape Justice

    At the hospital, Dr. Ivins apparently tried to build a case for an insanity plea by trying to convince a psychiatrist that he couldn't remember committing the crime. He also repeated over and over that he was not the kind of person who would deliberately murder five people, indicating that he hadn't planned to kill anyone, he had intended to save lives by sending out the anthrax-laced warning letters.
    -------------------------------------
    Yes, you used the qualifying "apparently" but since Ivins had REPEATEDLY told people over many months that he had no memory of having committed the crimes of Amerithrax, stating that his repetition of this to a medical doctor constitutes "tr[ying] to build a case for insanity" seems to be a sort of mindreading.

    But let's get back to your take on the disposal of the Hofstadter book: (partial, after talking about the book/'code')


    Summing up

    There's no way that all of this can just be a series of incredible coincidences. The hidden code in the letter and Dr. Ivins' attempt to destroy the evidence related to the code is concrete solid[...]
    --------------------------------------------
    No one reading the above is going to interpret that as you admitting you're doing some mindreading of Ivins': that's not what
    "concrete solid" is generally taken to mean.

    Beyond that, even at Ivins-friendly sites like Lew Weinstein's, seldom does one ever read an alternative PSYCHOLOGICAL explanation of why a man, who had suffered from paranoia for his entire adult life, might act in a paranoid way, and throw out something he thought, in his paranoia, would FALSELY incriminate him in the eyes of the Task Force.

    That is ALSO, I submit, why he lied about how much of the book he had read, his knowledge of the coding etc. By this time (November 2007) Ivins had tried honesty with the Task Force, almost foolishly so: the KKG obsession, the break-ins etc. And it had availed him nothing: they took his every ADMITTED weird quirk/crime as proof he was 'capable' of Amerithrax....

    Anyway, I just think I'm giving the 'defense' equal time in the psychological area: it makes no sense whatsoever to trace Ivins' paranoid behavior over decades (1970's to 2008) and then act baffled that paranoia could play any role in his disposal of Hofstadter's book in 2007!

    ReplyDelete
  16. R. Rowley wrote: "No one reading the above is going to interpret that as you admitting you're doing some mindreading of Ivins' .."

    You're gathering together a pile of DIFFERENT things and arguing that mindreading applies to ALL of them. That's nonsense.

    The argument started over why Ivins threw away his copy of Godel, Escher, Bach. You did mindreading to say he threw it away because he was paranoid. That's mindreading.

    The FBI and DOJ use it as evidence of guilt because (1) it is common practice for guilty people to try to get rid of evidence the authorities didn't find during a surprise search, (2) it appeared to be an attempt to destroy evidence, (3) Ivins was acting strangely when he did it, in a way he did not act on other trash collection nights, and (4) probably other reasons I can't think of at the moment.

    So, while it MIGHT - for sake of argument - be considered to be "mindreading" to say that Ivins threw the book away to get rid of evidence. THERE ARE FACTS TO SUPPORT THAT OBSERVATION. So, it really isn't "mindreading." It's someone following a pattern that indicates guilt.

    What facts do you have to explain why Ivins threw out Godel, Escher, Bach instead of an old pair of his wife's shoes? What does Godel, Escher, Bach have to do with paranoia?

    R. Rowley wrote: "it makes no sense whatsoever to trace Ivins' paranoid behavior over decades (1970's to 2008) and then act baffled that paranoia could play any role in his disposal of Hofstadter's book in 2007!"

    Again, what does Godel, Escher, Bach have to do with paranoia - particularly since Ivins claimed he hadn't read the part where the highlighting code is mentioned?

    You may have explained your reasoning before, but please explain it again. When there are 95 arguments going on at once, it can be difficult to keep them all straight.

    Ed

    ReplyDelete
  17. I wrote: "So, while it MIGHT - for sake of argument - be considered to be "mindreading" to say that Ivins threw the book away to get rid of evidence. THERE ARE FACTS TO SUPPORT THAT OBSERVATION. So, it really isn't "mindreading." It's someone following a pattern that indicates guilt."

    If I could start this argument all over again, I'd argue that YOU are doing mindreading, but the government was NOT.

    When a person's actions are explained by observing what he does and comparing that to what most other people do, that is NOT mindreading. That's behavioral analysis - or criminology.

    After the search of Ivins' home on November 7, 2007, the FBI was watching his habits and what he might throw in the garbage because it is common for guilty people to throw away evidence that a search by the police failed to find. That's not mindreading, it's something learned from decades of experience.

    Agent Steel then sat down and tried to figure out WHY Ivins threw out Godel, Escher, Bach. He wasn't doing any mindreading. He was trying to put 2 and 2 together to come up with some LOGICAL explanation for Ivins' actions.

    AND, don't forget, Ivins ALSO threw out a copy of American Scientist which contained an article titled The Linguistics of DNA. So, it wasn't just ONE item Ivins picked at random to throw out, it was TWO items that BOTH related to the code in the letters.

    Without a good explanation for why Ivins would specifically throw out Godel, Escher, Bach AND the magazine as a result of paranoia, I'll have to attribute such a claim to "mindreading." Why didn't he throw out any of thousands of other items he had in his home?

    There's no "mindreading" involved in the government's actions. It's just good detective work based upon many years of experience.

    Ed

    ReplyDelete
  18. Mr. Rowley wrote: "Lay witnesses are explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c, therefore FBI Special Agent Darin Steele would NOT have been allowed to testify to any amino acid code he allegedly found in the Amerithrax text(s)."

    I've shown in the comment HERE that the above are FALSE CLAIMS. Lay witnesses are NOT - REPEAT NOT explicitly prevented from testifying in scientific/technical areas by Rule of Evidence 701c. And there is NOTHING that would prevent Agent Steele to testifying to what he found in the media letters.

    Lay witnesses are only prevented from testifying in scientific/technical areas IF "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."

    None of that is true for Agent Steele. The fact that TTT is a DNA codon was just something he happened to notice.

    So, since your claims have been proved to be totally bogus, would you care to modify them? Or do you just argue that your beliefs override all evidence?

    Ed

    ReplyDelete
  19. The "T" in NEXT was not in fact double-lined. You would have learned this if you had obtained the handwriting forensics reports under FOIA. Thus, SA Steele's "code theory", as much as anything else, serves to cause an "Ivins Theory" to implode as if it were a jalopy in Spokane with an IED placed under it. Thank you for drawing attention to the issue.

    ReplyDelete
  20. "Anonymous" wrote: The "T" in NEXT was not in fact double-lined."

    Nonsense. You've been making that ridiculous, false statement repeatedly. And, I've been tell you repeatedly that, when enlarged, it's very clear that the T in Next IS highlighted. Click HERE to view the word "NEXT" enlarged to show the highlighted T.

    R. Rowley has a different silly argument. He argues the NONE of the T's are highlighted because only the horizontal lines are traced over, not the vertical lines. He made up a rule to serve his own purposes.

    If you look at an enlargement of the entire media letter (click HERE), you can clearly see that there is a pattern to highlighting the T's. NONE of the T's have highlighted vertical lines. But, more importantly, in "DEATH TO ISRAEL" the T in TO is highlighted identically to the T in NEXT, and the T in DEATH is clearly not highlighted at all. The T in the word DEATH in "DEATH TO AMERICA" is also NOT highlighted while the T in TO is highlighted. Thus there are two examples where you can CLEARLY see the difference between a highlighted and a non-highlighted T in a single line.

    "Anonymous" also wrote: "You would have learned this if you had obtained the handwriting forensics reports under FOIA."

    If you have some evidence that the T in NEXT was not highlighted, SHOW IT TO US. Don't make ridiculous claims and expect us to simply believe you.

    Ed

    ReplyDelete
  21. I will upload the documents provided by FBI under FOIA. See also my earlier description of David Hardy's earlier response while the documents were being processed.

    You should rely on the FBI's reports and documents instead of your theories.

    On the subject of the handwriting analysis and forensics, your internet posts over the past decade about a First Grader being the writer of the letters are especially unfounded.

    ReplyDelete
  22. "Anonymous" wrote: "I will upload the documents provided by FBI under FOIA."

    Okay. It appears you are saying that ONE of the forensic handwriting experts hired by the FBI mentions something about the T in NEXT. That could be interesting.

    "Anonymous" also wrote: "You should rely on the FBI's reports and documents instead of your theories."

    I would say that goes a THOUSAND TIMES OVER for you. You endlessly ignore the FBI reports to argue your own personal theory that Islamic militants sent the anthrax letters.

    I don't pay much attention to your writings, since they are generally irrelevant and badly written. Here's one of the occasions when you wrote about David Hardy:

    "David Hardy never did not release the lab notebook pages from the nights that the DOJ claimed Dr. Ivins was making a dried powder." (SOURCE: HERE.)

    Never did not release? Does that mean he did or didn't?

    I don't expect the documents to contain anything of real value, but I'm hoping they might contain something worth reading.

    Thanks in advance for uploading them.

    Ed

    ReplyDelete
  23. Part I (all footnotes in Part II, indicated by asterisks)

    Posted by Mister Lake:
    --------------------------------
    Without a good explanation for why Ivins would specifically throw out Godel, Escher, Bach AND the magazine as a result of paranoia, I'll have to attribute such a claim to "mindreading." Why didn't he throw out any of thousands of other items he had in his home?
    =============================================================
    I already alluded to this in several posts, probably in a few threads:

    1)October 2001. Visible, in the Brokaw letter, are 3 FULLY HIGHLIGHTED letter A's AND a number of other PARTIALLY highlighted letters, including T's redone in the cross-bars.

    2) ANYONE pondering those highlightings in 2001-2, with a good background in biology*, would have to think something like:
    'A's and T's could involve nucleotide bases, but it's hard to isolate the partially redone T's from partially redone other letters....' (so it's a chronologically front-loaded clue but NOT an unambiguous one).

    (And almost certainly Steele (and Smith?) was thinking along those lines in 2001-2 and for the same reason*)

    3)And there are signs that Ivins was, in addition to being a consultant early on in the Amerithrax investigation, trying, at least sporadically (no pun intended!), to figure things out for himself:
    (partial from CNN story on email Ivins sent to himself):
    http://www.cnn.com/2008/CRIME/09/24/anthrax.ivins/
    ---------------------------------------------------------
    An FBI agent quotes the message in an affidavit accompanying applications for search warrants for Ivins' e-mail accounts.

    "Yes! Yes! Yes!!!!!!! I finally know who mailed the anthrax letters in the fall of 2001. I've pieced it together! Now we can finally get this over and done with," the e-mail reads.

    In it, the former biodefense researcher says he plans on turning information over to his lawyer and that his lawyer would then give it to authorities. The e-mail does not say who Ivins believed was responsible.

    "I'm not looking forward to everybody getting dragged through the mud, but at least it will be over," the e-mail reads. "Finally! I should have it TOTALLY nailed down within the month. I should have been a private eye!!!!"
    (email sent Sept 7th 2007)
    ------------------------------------------------------
    As I noted previously, the above email to himself may be serious
    or it may be self-mocking but in either case it is inconsistent with a guilty Bruce Ivins who would have had to do no 'detective' work whatsoever in Amerithrax.

    4) Time passes. Ivins probably goes through periods of thinking he really was going to crack the
    case (via a decryption** and/or other methodology) and other periods when he's either too busy with work and/or is
    discouraged about making any progress. SOME of that (his self-evaluation of progress in 'detective work')
    may be in the 30 terabytes of email material the Task Force obtained from USAMRIID. (Whereas the most 'incriminating' info was likely already cited by the Task Force)

    5) From 2005 to 2007 things go from bad to worse: Ivins' admissions about KKG breakins, his theft of Nancy Haigwood's notebook, his vandalism of her vehicle, and impersonation of her in a letter fail to convince the Task Force
    that he is leveling with them, and only convince them that 'he's the kind of guy who would do something like [Amerithrax]'..
    They can almost taste the full confession that is just around the corner. But it never comes.

    6) The Task Force's searches of his home, vehicle etc in late 2007 sweep away any doubt Ivins may have still harbored
    that the Task Force believed him: they had taken everything he admitted as sign of his guilt, and merely took his
    denials of having done Amerithrax as lies.

    (END PART II)

    ReplyDelete
  24. (PART II)


    7) What to do? In some ways he was helpless, but he could destroy or throw away anything he anticipated
    the Task Force may take to be 'incriminating' (but incriminating only based on the worst assumptions) including the material(s) he used to attempt decryption. He may have simply burned a few loose papers connected to that but a book's more difficult to completely destroy that way. Instead he took his 'decryption aids' (Hofstadter's book and a magazine article) and threw them out in the trash.

    8) It isn't that paranoia is operating in isolation in Ivins' mind: if you fear the worst (the morbid suspiciousness that is
    a part of paranoia), that doesn't mean you can't still make SOME intellectual distinctions. He wasn't going to throw
    away, out of fear, his entire personal library (which would likely be heavy in the science and music areas), just anything he
    reasonably/paranoiacly**** thought the Task Force might misinterpret, if it were discovered on a subsequent search
    of his house, as a sign he was behind Amerithrax. That meant the Hofstadter book and the magazine article****as those might be taken to be aids to ENCRYPTION in Sept/Oct 2001, rather than aids in DECRYPTION in subsequent years.

    9) And that's exactly what happened: the Task Force took both his possession/use of Hofstadter's book and his
    efforts to dispose of it as evidence that he had used it to compose an encoded text in September of 2001. That
    Ivins gave duplicitous and self-contradictory explanations about how much of Hofstadter's book he had read
    and his level of familiarity with genetics merely confirmed for them that he was 'conscious of guilt', whereas,
    in my view, he simply despaired of convincing the Task Force of anything and switched from artless honesty
    to poorly thought out fibs to try to distance himself from the (implied) accusations.


    *The reason I'm sure of this is: when the movie GATTACA came out in 1997, I immediately knew, without reading a review or synopsis, that the letters of the title stood for nucleotide bases, and I have no background whatsoever in biology.
    The only thing I see the Hofstadter book 'contributing' in respect to the code is the substitution of the one-letter
    amino acid designators for the 3-letter nucleotide bases, but that's still just a fairly simple substitution code, and if it
    were really intended in the Brokaw text it certainly would be more 'breakable' by a cryptoanalyst with a smattering
    of biology than a biologist without even a smattering of crypto background.

    **It cannot even be excluded that Ivins 'cracked the code' in the same exact way that Steele/the Task Force were
    to do in 2008-2009: by ignoring all partially-highlighted letters that were NOT T's. And if Ivins saw a
    'PAT' at the end of the decryption rainbow, he may well have convinced himself that it was the signature of
    Pat Fellows. Since we know that Ivins named Fellows and Mara Linscott as the last two of seven possible
    perps in talking to the Task Force, this is not an implausible conjecture. We know from Willman's book that
    Ivins ALSO named Fellows and Linscott as likely perps in private conversations with his daughter, Amanda,
    so it's unlikely this suspicion was exclusively driven by a need to lead the investigators astray. SOMETHING,
    in addition to the morbid suspiciousness that was a part of his mental illness, drove Ivins to suspect Fellows/
    Linscott. The Task Force, in this scenario, followed Ivins' path in decryption to the point of "PAT" but instead
    interpreted that PAT completely differently*****.

    ReplyDelete
  25. PART III

    **It cannot even be excluded that Ivins 'cracked the code' in the same exact way that Steele/the Task Force were
    to do in 2008-2009: by ignoring all partially-highlighted letters that were NOT T's. And if Ivins saw a
    'PAT' at the end of the decryption rainbow, he may well have convinced himself that it was the signature of
    Pat Fellows. Since we know that Ivins named Fellows and Mara Linscott as the last two of seven possible
    perps in talking to the Task Force, this is not an implausible conjecture. We know from Willman's book that
    Ivins ALSO named Fellows and Linscott as likely perps in private conversations with his daughter, Amanda,
    so it's unlikely this suspicion was exclusively driven by a need to lead the investigators astray. SOMETHING,
    in addition to the morbid suspiciousness that was a part of his mental illness, drove Ivins to suspect Fellows/(Linscott)

    ***'reasonably/paranoiacly': here (ie in this precise situation) the mental processes of a paranoid and that of
    a reasonable person really come together and are indistinguishable: as I noted previously: when the FBI really
    IS following you around, IS talking about you behind your back, IS subverting you via isolation, IS trying to
    'crack' you psychologically etc., those characteristic fears of paranoia are realized in the real world and are
    no longer the province of self-delusion.

    ****If the Hofstadter book and the magazine article constituted Ivins' entire library on codes and ciphers, I must
    say that his interest in that subject was minimal and situational: driven almost entirely by his KKG delusion and
    from October 2001 onward by his efforts to decrypt any hidden message in the Brokaw text. Since 1999
    the standard work for an overview of codes and ciphers has been Simon Singh's work THE CODE BOOK:
    THE SCIENCE OF SECRECY FROM ANCIENT EGYPT TO QUANTUM CRYPTOGRAPHY.
    If that and/or similar basic works were not in his personal library, then I would say his interest in codes was
    derivative: driven, like so much else (the Nancy Haigwood thing, the breakins etc), by the Kappa Kappa
    Gamma delusion, rather than being a free-standing area of interest.

    *****(Footnote to footnote **) So under this scenario (my hypothesis) Ivins uses (primarily) Hofstadter to
    'decrypt' the Brokaw highlightings circa Sept 2007, while the Task Force, alerted to the Hofstadter book's
    possible relevance by Ivins' attempt at discarding same, does the same basic 'decryption' sometime in 2008-2010.
    By my lights Ivins did better, even if we lay aside the chronology:
    Ivins comes to (co?) solution "PAT", and takes it to mean that someone named Pat, either alone or with help
    did Amerithrax (hence his suspicions of Pat Fellows).
    whereas the Task Force comes to (co-)solution "PAT" and decides it means the culprit is someone named......Bruce. And they arrive at that via the mind-reading that is some much a part of the
    Amerithrax Investigative Summary.Linscott. The Task Force, in this scenario, followed Ivins' path in decryption to the point of "PAT" but instead interpreted that PAT completely differently*****.

    ReplyDelete
  26. Mr. Rowley,

    It's VERY difficult to follow your long, long, long, long, convoluted and largely incoherent 2-part comment.

    You wrote: "ANYONE pondering those highlightings in 2001-2, with a good background in biology*, would have to think something like: 'A's and T's could involve nucleotide bases ..."

    That's absurd! It's 20-20 hindsight at work. If A's, T's, C's and G's were highlighted, THEN someone with a background in biology might think of DNA. But, just A's and T's shouldn't mean anything. When the author of Godel, Escher, Bach was shown the letters and the highlighted A's and T's were pointed out to him, he couldn't see a connection to DNA because G's and C's weren't also highlighted.

    And why didn't any of the other hundreds of thousands of people in biology, microbiology, medicine or forensic DNA work tell the FBI that the A's and T's represented codons?

    You wrote: "As I noted previously, the above email to himself may be serious or it may be self-mocking but in either case it is inconsistent with a guilty Bruce Ivins who would have had to do no 'detective' work whatsoever in Amerithrax."

    TOTALLY UNTRUE. It is TOTALLY consistent with Ivins many many many attempts to point the blame somewhere else. He wasn't doing "detective work." He was looking for reasons he could use to point the finger elsewhere, which is TOTALLY consistent with the actions of a guilty person.

    You wrote: "It cannot even be excluded that Ivins 'cracked the code' in the same exact way that Steele/the Task Force were
    to do in 2008-2009"


    YES, THAT CAN BE EXCLUDED. In your incoherent comment you don't explain how Ivins figured out that Godel, Escher, Bach and the science magazine were used to CREATE the code. Agent Steele figured it out because Ivins threw away those items. But, you seem to suggest that Ivins discovered it long before Steele did. HOW?

    Your rambling comment appears to be just an attempt to rationalize some way that Ivins could have been using Godel, Escher, Bach and the magazine to decode a hidden message in the letter. But why would the code be in one of Ivins' favorite books and in a magazine he just happened to have in the first place?

    I can't make much sense of what you write -- other than to see it as an example of you trying to find a way that Ivins could still be innocent and your theory could still be valid.

    Ed

    ReplyDelete
    Replies
    1. Mr. Rowley,

      It's VERY difficult to follow your long, long, long, long, convoluted and largely incoherent 2-part comment.

      You wrote: "ANYONE pondering those highlightings in 2001-2, with a good background in biology*, would have to think something like: 'A's and T's could involve nucleotide bases ..."

      That's absurd! It's 20-20 hindsight at work. If A's, T's, C's and G's were highlighted, THEN someone with a background in biology might think of DNA. But, just A's and T's shouldn't mean anything.
      =============================================
      What do you mean? The Task Force 'amino acid code' is nothing BUT A's and T's in the surface text. Did those A's and T's suddenly become something else?
      ==============================================
      When the author of Godel, Escher, Bach was shown the letters and the highlighted A's and T's were pointed out to him, he couldn't see a connection to DNA because G's and C's weren't also highlighted.
      ----------------------------------------------
      Actually, Hofstadter has given only the most tepid and conditional endorsement of the Task Force's 'solution' to this day.
      ----------------------------------------------
      You wrote: "It cannot even be excluded that Ivins 'cracked the code' in the same exact way that Steele/the Task Force were
      to do in 2008-2009"

      YES, THAT CAN BE EXCLUDED. In your incoherent comment you don't explain how Ivins figured out that Godel, Escher, Bach and the science magazine were used to CREATE the code
      ---------------------------------------------
      The same way the Task Force did 1-2 years later. If you know the book, have it at home, then you just connect that 'neat' amino acid code (neat because it appealed to the biologist) to the Brokaw highlightings. His only problem was the same as that for anyone: reconciling the partially highlighted letters which included letters that could not possibly fit either a DNA-based amino acid code or an RNA-based one.

      Delete
    2. R. Rowley wrote: "What do you mean? The Task Force 'amino acid code' is nothing BUT A's and T's in the surface text. Did those A's and T's suddenly become something else?"

      No, the A's and T's didn't suddenly become something else. But the "amino acid code" isn't just A's and T's. It's also G's and C's. It's normal to look at ALL four letters. When you see all four letters - TCAG - THEN you KNOW you're probably dealing with DNA codes. Just two of the letters could be ANYTHING. It could be someone's initials, it could indicate a name like "Atta," or it could mean what T&A usually means: Tits and Ass.

      R. Rowley also wrote: "The same way the Task Force did 1-2 years later. If you know the book, have it at home, then you just connect that 'neat' amino acid code (neat because it appealed to the biologist) to the Brokaw highlightings."

      You're not making sense.

      TTT = Phenylalanine. Period. That's the correct decoding of TTT. How does that tell you that the code refers to Pat Fellows?

      AAT = Asparagine, and TAT = Tyrosine. Why would Ivins think that the person who wrote the anthrax letters must be Pat Fellows because the first letters of those three amino acid names spell out "PAT"? Why would Pat Fellows put a coded version of her name in the letters?

      Agent Steele had GOOD REASONS to put two and two together: (1) Ivins had thrown out one of his favorite books about codes, (2) at the same time he'd thrown out a science magazine about the DNA code used in the letters, (3) it was known that throwing out EVIDENCE is a common thing for guilty people to do after their home has been searched, (4) Ivins was known to be fascinated by codes, (5) Ivins was a microbiologist just like Steele, (6) Ivins had a motive to send the letters, (7) Ivins had apparently been trying to destroy OTHER evidence, and (8) Ivins had a history of traveling to distant places to send out coded messages.

      There's no evidence that Pat Fellows was interested in codes. Ivins had lent a copy of Godel, Escher, Bach to her and she didn't read it. So, he asked for it back. That should mean that Pat Fellows couldn't have used the code in the book to put a hidden message in the media letter.

      Plus, of course, the ZIP code and school name in the return address on the senate letters connects to IVINS, not to Pat Fellows.

      Ed

      Delete
    3. Oops. I just remembered three more reasons for Agent Steele to put two and two together: (9) the decoded message "PAT" referred to one of women with whom Ivins was obsessed, and (10) the other decode message was "FNY" which referred to the long playful debate between Ivins and Mara Linscott over Linscott's favorite baseball team, the New York Yankees, and (11) Ivins was known to have a hatred for New York City.

      Ed

      Delete
    4. TTT = Phenylalanine. Period. That's the correct decoding of TTT. How does that tell you that the code refers to Pat Fellows?
      =============================================
      According to the FINAL REPORT the two co-solutions OF THE ENTIRE 'code' are:

      1)PAT

      2)FNY
      ==============================
      Number 1), as a solution, best fits someone named "PAT".
      What's so difficult?

      Delete
    5. R. Rowley wrote: "Number 1), as a solution, best fits someone named "PAT".
      What's so difficult?"


      What's so difficult is the number of steps and all the things you have to figure out before you can get from seeing characters traced over in a letter to deciphering a code to mean "FNY." You don't even know for certain what "traced over" means!

      You seem to have some idea that an "expert" on "amino acid codes" (whatever that is) can go instantly from seeing the media letter to figuring out that there are two hidden messages in it, "PAT" and "FNY."

      Nothing is farther from the truth. Your beliefs don't even make any sense.

      Exactly HOW do you imagine that an "amino acid code" expert (OR a cryptographer) is going to decipher the hidden message in the media letter? What are the steps?

      Ed

      Delete
  27. Mr. Rowley,

    Do you concede that Agent Steele would have been allowed to testify as a lay witness to his findings regarding the hidden message in the anthrax media letter?

    Your arguments claiming that he would NOT have been allowed to do so have been proved to be total nonsense. And you seem to be changing the subject.

    Ed

    ReplyDelete
  28. Mr. Rowley,

    Do you concede that Agent Steele would have been allowed to testify as a lay witness to his findings regarding the hidden message in the anthrax media letter?
    ================================================
    I would have no basis for making such a concession:

    1)even determining WHETHER there is a hidden message (let alone what that message is) is part of the field(s) of cryptoanalysis/
    cryptography* and thus of a highly specific discipline.

    2)Steele had no background (experience/training) in said discipline.

    3)therefore he would have been excluded from testifying on any such code, beyond saying 'I saw some letters as being highlighted. some in full, others partially' as such a statement does not require expertise, but rather is that of 'rational perception' alone.

    *A discovery of the past 4 or 5 years on my part is that there is a field called "steganography" which seems to be a near cousin to
    cryptology. But even if THIS is the field we are really dealing with, it is highly technical and Steele wouldn't have qualified.
    http://en.wikipedia.org/wiki/Steganography

    ReplyDelete
    Replies
    1. Mr. Rowley,

      What's the point of discussing things with you if you do not read the responses? Regarding your points:

      1) this has NOTHING to do with the question.

      2) this qualifies Steele as a LAY witness.

      3) total nonsense. It's been made clear to you that you do NOT UNDERSTAND Rule 701-C. The fact that Steele was not a qualified cryptographer MEANS he CAN testify as a LAY witness. Why can't you understand that? I've cited the law. I've cited experts. I've proven it every way imaginable. But you just continue mindlessly believing what you want to believe.

      Ed

      Delete
    2. What's the point of discussing things with you if you do not read the responses? Regarding your points:

      1) this has NOTHING to do with the question.
      =======================================
      The question was: do I "concede" that "Steele would have been allowed to testify as a lay witness to his findings regarding the hidden message in the anthrax media letter?"
      ---------------

      So what I wrote was:
      1)even determining WHETHER there is a hidden message (let alone what that message is) is part of the field(s) of cryptoanalysis/
      cryptography* and thus of a highly specific discipline.
      ----------------------------------------------
      Conceding that Steele would have been able to testify
      on a hidden message was excluded by the technical/scientific nature of such an enterprise: my point one merely went over that for the umpteenth time.
      It's redundant based on countless other times I've said the same thing, but hardly has "nothing" to do with the question. Laymen just don't testify on such topics unless
      the judge screws up....in a big way. There may be some grey areas but THIS IS NO ONE OF THEM!
      --------------------------
      2) this qualifies Steele as a LAY witness.
      ---------------
      No. You are consistently reading 701c based on what you WANT it to say, rather than what it says.
      -----------------
      3) total nonsense. It's been made clear to you that you do NOT UNDERSTAND Rule 701-C.
      -----------------
      Get an attorney. You'll find you are wrong. If Steele testfifies on that totally bogus "amino acid code" then there are no standards.

      But there are.

      Delete
    3. R. Rowley wrote: "Get an attorney. You'll find you are wrong. If Steele testfifies on that totally bogus "amino acid code" then there are no standards."

      I did better than getting an attorney. I cited an article on the subject of "Experience Based Opinion Testimony" from the Pepperdine University Law Review found HERE. I also cited other documents written by lawyers.

      All you do is cite yourself. You provide no supporting legal opinions of any kind.

      You make a preposterous claim and then ask me to prove you wrong. You are the person making the claim, so the burden of proof is really on you to support your claim.

      When I supply the proof that you are wrong, you don't even read or comment on it. You just pretend it doesn't mean anything, and you demand I consult with a lawyer.

      What is the question you want asked?

      You aren't even clear on what you mean by "amino acid code." You aren't clear on what kind of expert you think the witness has to be - a cryptography expert or a "amino acid code" expert? What IS an "amino acid code" expert?

      You don't even seem to understand that an "amino acid code" expert probably isn't going to know how to decode the hidden message Ivins put in the media letter.

      This morning, I was looking at YouTube videos of lawyers and judges explaining the Rules of Evidence. They all show that you are wrong, but they don't say any more than what the Pepperdine Law Review paper says.

      A cryptographer would NOT be an expert in the "amino acid code." The "amino acid code" is a special code used by specialists. A cryptographer would not be an expert on the Dewey Decimal System code used in libraries. A cryptographer would not be an expert on specialized codes used by newspaper people, by oil drillers, by ship captains or by people in thousands of other fields of work.

      An expert on the "amino acid code" would not know how to decipher a hidden message that requires knowing a technique described in Godel, Escher, Bach.

      Exactly what kind of "expert" do you believe a person has to be before he can testify to decoding the hidden message that Agent Steele found in the anthrax letters sent to the media?

      Ed

      Delete
  29. Ed writes:

    "When you're tricking someone else into doing some writing for you, it can be very difficult to make certain they do things exactly the way you might want. "

    To clarify, Ed Lake thinks that Bruce Ivins tricked some First Grader into double-lining certain letters of the letter in embedding a code. Dr. Ivins, of course, would have had no reason to do so.

    ReplyDelete
    Replies
    1. "Anonymous" wrote: "Dr. Ivins, of course, would have had no reason to do so."

      Of course he had a reasons: (1) There would be no chance that anyone would recognize the handwriting as his. (2) Tricking a child that way would freak his wife out if she ever learned about it. (He seemed to enjoy that so much that he did it from the grave, giving money to a charity his wife hated.)

      Over the year or so that Ivins worked on the letter and planned what he was going to do, he probably practiced disguising his own handwriting. But it's difficult to do without leaving SOME trace of your own writing habits.

      Ed

      Delete
  30. So in Mister Lake's Sunday comment was:

    ""The Convincer" has been claiming that NONE of the T's are fully highlighted."
    --------------------------------------------------
    I've been saying that for 3 or 4 years and NO ONE has disagreed with me. The Task Force simply "forgot" to mention it. Same with Willman in his book.
    Back to Mister Lake:
    ----------------------------------------------------
    He apparently has a personal rule that a T must be fully traced over - both the horizontal and the vertical lines - before it can be considered to be "highlighted."
    -------------------------------------------------------
    If a house or a motor vehicle has only been half (or 1/3rd or 1/4th) painted, that's how I would describe it in order to be accurate: half-painted, 1/3rd painted etc. This has nothing to do with a 'personal rule' unless accuracy is a personal rule.
    Why don't you, the Task Force, and Willman WANT to be accurate?
    (I suspect it's because you know that such accuracy would leave the 'amino acid code' in an even MORE precarious position as to perceived reliability).
    highly dubious).

    ReplyDelete
    Replies
    1. R. Rowley wrote: "If a house or a motor vehicle has only been half (or 1/3rd or 1/4th) painted, that's how I would describe it in order to be accurate: half-painted, 1/3rd painted etc. This has nothing to do with a 'personal rule' unless accuracy is a personal rule.
      Why don't you, the Task Force, and Willman WANT to be accurate?"


      You live in a fantasy world! This is not about fantasy situations in your fantasy world!

      When an investigator in this world is trying to figure out what someone else did and why they did it, there usually is NO WAY to be 100% accurate.

      The investigator puts the facts together the best way he can. He may consult others to get their input, but the end result is still going to be merely the best he can do. And the jury is going to have to decide if it's believable or not.

      Human beings are not machines. You can't check the programming to be 100% accurate about what someone meant when they didn't fully trace over a character.

      If a code is based upon whether or not a character of the alphabet is traced over, and some of the characters are not as fully traced over as others, the question then becomes: Can the code be decoded only if you assume that half-traced over means NOT traced over, or can the code be decoded only if you assume that half-traced over means TRACED OVER?

      The decoding process WORKS if you assume that half-traced over means TRACED OVER. It does NOT work if you assume that half-traced over means NOT TRACED OVER.

      You seem to claim that this is not good enough to be evidence. But your claim is also that NOTHING is good enough to be evidence unless BY ITSELF it proves the person is either guilty or innocent. So, your beliefs have nothing to do with the world we live in or the Rules of Evidence.

      Agent Steele would testify to how he decoded the message and what it means. The jury would decide whether to believe him or not. Period.

      Ed

      Delete
  31. I don't believe I ever mentioned here the mechanism by which this stuff is ironed out, before it ever gets presented in front of a jury. It is the "in limine" motion.
    http://en.wikipedia.org/wiki/Motion_in_limine

    So, the defense would have filed pre-trial in limine motions to eliminate from presentation in front of the jury:

    1)all references to KKG breakins by Ivins. In accord with Rule of Evidence 404 b)

    2)all evidence related to 'amino acid code' in Amerithrax letters(in accord with Rule of Evidence 701 c)), unless presented by certified expert in cryptology (in accord with Rule of Evidence 702).

    3)all psychiatric evaluations of Ivins (patient-doctor privilege).

    4)the non-side-by-side evaluation/comparison of Ivins' alleged printing on postal items sent in the 1990s and early 2000s with Amerithrax printings by persons without any expertise in Questioned Document or handwriting analysis.
    Again, this violates 701 c) of the Rules of Evidence.

    (?possibly other items?)

    ReplyDelete
    Replies
    1. R. Rowley wrote: "So, the defense would have filed pre-trial in limine motions to eliminate from presentation in front of the jury "

      You just endlessly misunderstand the law.

      First of all, even if the defense files a motion to disallow an item of evidence, that doesn't mean the judge will agree. The prosecution has the opportunity to explain why the evidence is relevant and SHOULD BE admitted.

      Second, Rule 404b-1 says Ivins' KKG break-ins cannot be entered to show his character as being criminal, BUT Rule 404b-2 says the KKG break-ins CAN be entered for a purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." In other words, the KKG break-ins can be entered to show that there is a pattern and a modus-operandi to Ivins' crimes.

      When you cite a rule, you need to actually READ THE ENTIRE RULE AND UNDERSTAND IT.

      Your nonsense interpretations of Rule 701-C are still nonsense no matter how many times you repeat them.

      Ed

      Delete
    2. Second, Rule 404b-1 says Ivins' KKG break-ins cannot be entered to show his character as being criminal, BUT Rule 404b-2 says the KKG break-ins CAN be entered for a purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."
      ====================================================
      See, here we go again: the Rules of Evidence don't talk about AMERITHRAX. They are rules for all federal criminal cases.
      ---------------------
      "Rule 404b-2 says the KKG break-ins CAN be entered for a purpose "such as proving motive,..."


      What you have done in the above clause (only partially presented) is exactly what you did to me in that sentence I was complaining about previously: you took YOUR INTERPRETATION and put it in the 'mouth' of Rule 404b-2, which again is giving a general overview of things. That rule wasn't written with Amerithrax in mind.

      But as to your interpretation, I don't agree with it (surprise!) and the admissibility would be also interpreted/evaluated in terms of RULE 403. EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE, CONFUSION, WASTE OF TIME, OR OTHER REASONS
      http://www.law.cornell.edu/rules/fre/rule_403
      (and possibly other rules: I have confidence in Kemp!)

      Delete
    3. R. Rowley wrote: "See, here we go again: the Rules of Evidence don't talk about AMERITHRAX. They are rules for all federal criminal cases."

      You're not making any sense. We're talking about the Amerithrax case and how it would be handled in court. We're not just discussing rules of law in general.

      You used the Amerithrax case when you wrote:

      "So, the defense would have filed pre-trial in limine motions to eliminate from presentation in front of the jury:

      1)all references to KKG breakins by Ivins. In accord with Rule of Evidence 404 b)"


      And I responded by showing how Rule 404-B-2 would ALLOW references to "KKG breakins by Ivins."

      How can you argue that I'm applying the Ivins case to the law and you were not?

      It doesn't make any difference whether you agree with my interpretations or not. The question is: WHOSE INTERPRETATION IS RIGHT?

      I PROVE your interpretations are WRONG by citing the law and lawyers. But you ignore the proof and just continue to argue the same nonsense.

      Ed

      Delete
  32. Mr. Rowley,

    Here is a link to a YouTube video of a law teacher explaining Rules of evidence 701 and 702:
    http://www.youtube.com/watch?v=IsKOwj5mPJI

    At about the 6 minute mark, the teacher says what I've been saying: Rule 701-C says a lay witness can testify to what he rationally observed UNLESS he's an expert testifying AS an expert under Rule 702, in which case he must testify as an EXPERT witness.

    Either way, he CAN testify. There is nothing in Rule 701C that says he cannot testify at all.

    I'll look for more experts discussing those rules, but I suspect they'll all say the same thing: YOU ARE WRONG.

    Ed

    ReplyDelete
  33. Either way, he CAN testify. There is nothing in Rule 701C that says he cannot testify at all.
    ==============================================
    You already conceded (some week or two ago) that cryptology/cryptography/cryptoanalysis are specialized fields.
    701c's (negative) stipulation is:

    (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
    --------------
    But ANYONE doing a decryption is doing it, not on mere 'perception' (ie the pith of 701 a)), but on a lengthy and involved analysis that requires, to have even a patina of reliability, some familiarity with those fields. THAT'S why Steele could not testify about such a code.

    ReplyDelete
  34. R. Rowley wrote: "But ANYONE doing a decryption is doing it, not on mere 'perception' (ie the pith of 701 a)), but on a lengthy and involved analysis that requires, to have even a patina of reliability, some familiarity with those fields. THAT'S why Steele could not testify about such a code."

    You're premise is WRONG therefore all your conclusions are WRONG.

    Agent Steele was NOT doing a "decryption." He was trying to figure out why Ivins threw away one of his favorite books and a science magazine about "The Linguistics of DNA." He was applying all of his knowledge as an investigator to do that.

    During the process of figuring things out, he decoded a message.

    1. He CAN testify as a lay witness to what he perceived and did.

    2. He is NOT an expert cryptographer, so he does NOT have to testify as an expert under Rule 702.

    3. The reliability and value of what he decoded will be determined by THE JURY.

    YOUR PREMISE IS WRONG. Agent Steele was NOT "doing a decryption" involving a "lengthy and involved analysis" that must have "reliability" according to the Daubert Rule. He was just figuring things out as a good investigator does all the time, and in the process he decrypted a code. AND, he can testify to what he did.

    There is NO RULE that says that a layman cannot decode a message. There is NO RULE that says that if a layman decodes a message he cannot testify about it in court. Rule 701-C says that IF Agent Steele was an expert cryptographer and decoded the message as part of his job as an expert cryptographer, then he MUST testify under Rule 702. That doesn't apply to Agent Steel. He was NOT an expert cryptographer. So, it is OKAY for him to testify under Rule 701 as a lay witness.

    Ed

    ReplyDelete
  35. You're premise is WRONG therefore all your conclusions are WRONG.

    Agent Steele was NOT doing a "decryption."
    ==========================================================
    So, who did the decryption? For if you have a coded/encrypted message and you claim that that message is relevant to a trial (especially a capital offense trial), then SOMEONE must have done a decryption. Merely relabelling a decryption 'the figuring of things out' doesn't change it: it's still a decryption.
    ------------------------------------------------------
    There is NO RULE that says that a layman cannot decode a message. There is NO RULE that says that if a layman decodes a message he cannot testify about it in court.
    -----------------------------------------------------
    701-c.

    ReplyDelete
    Replies
    1. R. Rowley wrote: "Merely relabelling a decryption 'the figuring of things out' doesn't change it: it's still a decryption."

      But there's a difference in what was being done. When you are a layman trying to figure something out and in the process end up unexpectedly doing a decryption, that is NOT the same thing as an expert starting out to do a decryption using established techniques and doing it.

      You recall the attorney in the Jodi Arias case who decrypted a message Arias wanted to use to tamper with a juror. The attorney was NOT a cryptographer, but he told the jury what he did and no one objected.

      Can that be the only case in history where a layman decoded a message and told the jury what he did?

      Wouldn't other such cases where a layman testified to decoding a message disprove your beliefs?

      Ed

      Delete
  36. Mr. Rowley,

    It appears we may at last have defined the right question to ask a lawyer:

    Is there any Rule of Evidence that says a layman cannot decode a message and testify in court to what he did?

    I say there isn't any such Rule.

    You claim that Rule 701-C says a layman cannot decode a message and testify to what he did, all decoding work must be done by an expert cryptographer.

    Does that seem to you to be an accurate evaluation of our positions?

    Ed

    ReplyDelete
  37. It appears we may at last have defined the right question to ask a lawyer:

    Is there any Rule of Evidence that says a layman cannot decode a message and testify in court to what he did?
    ====================================================
    I would rephrase:

    Is it permitted under the Rules of Evidence for a layman to testify in a criminal trial to a decoding/decryption he did, when that decryption may be material to guilt/innocence?

    ReplyDelete
  38. R. Rowley wrote: "Is it permitted under the Rules of Evidence for a layman to testify in a criminal trial to a decoding/decryption he did, when that decryption may be material to guilt/innocence?"

    That's distorting the question in an attempt to get the answer you want.

    My version is more general. The Rules of Evidence do NOT just apply to criminal cases. Rule 701-C in particular was created because of problems in CIVIL cases. In civil cases, guilt or innocence may not be an issue.

    Are you arguing that if the issue does not involve guilt or innocence and only involves a civil matter such as who was at fault in an automobile accident, the interpretation of Rule 701-C is DIFFERENT and it is OKAY for a lay witness to testify to decoding a message?

    If that's your position, what Rule of Evidence justifies your interpretation?

    Ed

    ReplyDelete
  39. Are you arguing that if the issue does not involve guilt or innocence and only involves a civil matter such as who was at fault in an automobile accident, the interpretation of Rule 701-C is DIFFERENT[...]
    ==============================================
    I did not have a civil matter in mind. I had in mind something like you once thought up (in the last couple weeks)where someone decoded some message to go to a park, then saw a crime underway at the park, and then helped victim and/or helped apprehend the perpetrator. The perpetrator/defendant's innocence/guilt does not turn on the accuracy of the decoding/decryption. Even if the decoding/decryption was a MISTAKE, it was still what made the person go to the park. So, if I understand things correctly, the witness could explain that as a circumstance as to why he happened to be in the park. Because it is not material, but is peripheral.

    As to the civil vs criminal thing, there MAY be some differences there too, and if you are going to ask a professional anyway, you'll want to phrase your question as stringently as possible, especially if you ask it, as apparently you intend to ask it, in the abstract (ie without any reference to Amerithrax or Ivins by name).

    ReplyDelete
  40. R. Rowley wrote: "I did not have a civil matter in mind."

    I realize that. But RULE 701-C applies to civil AND criminal cases. There's nothing in the rule (or in any part of Rules 701 and 702) that says anything is different in civil versus criminal cases.

    Plus, as I said, Rule 701-C was created because of problems that were occurring in CIVIL cases.

    Our current mission here is to determine who is right and who is wrong in their interpretation of Rule 701-C. If the rule doesn't distinguish between civil and criminal testimony, then it shouldn't make any difference if a civil lawyer gives the answer.

    R. Rowley also wrote: "As to the civil vs criminal thing, there MAY be some differences there too, and if you are going to ask a professional anyway, you'll want to phrase your question as stringently as possible, especially if you ask it, as apparently you intend to ask it, in the abstract (ie without any reference to Amerithrax or Ivins by name)."

    No, I intend to as the questions as GENERAL as possible, exactly as stated above:

    Is there any Rule of Evidence that says a layman cannot decode a message and testify in court to what he did?"

    If the answer is "No," then I'll try to ask your question:

    Is it permitted under the Rules of Evidence for a layman to testify in a criminal trial to a decoding/decryption he did, when that decryption may be material to guilt/innocence?

    The answer to your question should be "Yes."

    My question is about Rules of Evidence. Your question is about Rules of Evidence AND a type of case. When you start adding in all kinds of qualifiers, like it must be a criminal case and it must be a matter of proving innocence or guilt and it must be an "important" case and it must be yada yada yada, then you don't get an answer, you get questions for more information about the case. So, you end up answering questions and adding in additional information for a couple months, and the answer after all those questions should still be the same as if you just asked the question about the Rules of Evidence.

    I don't have any idea what lawyer I'll ask - or even if I can find a lawyer to ask. I'll try on-line lawyers first, maybe some legal discussion forums.

    Meanwhile, do we agree that if I find a case where a layman testified about decoding a message that is relevant to a case, and there was no objection, that is all we need? You will have been proved wrong.

    Ed

    ReplyDelete
  41. No, I intend to as the questions as GENERAL as possible, exactly as stated above:

    Is there any Rule of Evidence that says a layman cannot decode a message and testify in court to what he did?"
    =========================================================
    Well, then be prepared to get an answer somewhere along the lines of: It depends.
    And one of the things it could depend on is: whether the decoding/decryption is material or not.
    That's the whole PURPOSE of asking as pared-down a question as possible. But have it your way (since I know you will anyway!) :)

    ReplyDelete
  42. Mr. Rowley,

    Someone just reminded me of a case where the FBI is looking for the PUBLIC'S help to decode a message in order to find a killer. Click HERE.

    The web page says,

    "The FBI has always relied on tips and other assistance from the public to solve crimes, and although breaking a code may represent a special circumstance, your help could aid the investigation. Take a look at McCormick’s two notes. If you have an idea how to break the code, have seen similar codes, or have any information about the Ricky McCormick case, send them to us

    I'd forgotten that on April 9, 2011, I created my own web page HERE where I did some attempts to decode the documents. This is also the area where "Joseph from Spain," who posts here, has a BIG interest.

    Presumably, if some layman breaks the code and helps bring a killer to justice, he'll have to testify in court to how he broke the code. There won't be any need to bring in any cryptographers to verify anything. If it works, it works. If it helps catch the guy, it helps catch the guy.

    Ed

    ReplyDelete
  43. Mr. Rowley,

    I just found a reference to the Zodiac killer HERE which says,

    "Federal and local investigators were particularly embarrassed when they could not decipher a coded message sent by the killer to the news media. When the media printed the coded message, a husband and wife broke the code. Part of the code said: "I like killing people because it is so much fun.

    There was never a trial of the Zodiac killer, but if there had been, you can be certain that that husband and wife would have testified to what they did.

    Ed

    ReplyDelete
    Replies
    1. There was never a trial of the Zodiac killer, but if there had been, you can be certain that that husband and wife would have testified to what they did.
      ---------------------------------------------------------------------------------------------------------------

      Only if :

      1) there was a verification that their solution was valid. (ie by a professional)

      2) it was material to who he (Zodiac) was.

      3) it came to trial.

      Since I myself have worked on this case (decades after), I can tell you that the decryption(s) by Donald Harden and his wife, though undoubtedly well done, don't really tell us an awful lot about a particular person. They do however tell us quite a bit about the psychology of the perp. His psychology is close to that of, not Ivins, but the true Amerithrax mastermind.
      ------------------------------------------------------------------------------------------------
      But on the larger point, there's an irony in your efforts to sell me on how 'good' (ie competent) an amateur can be. Since I'm an amateur and think I've 'cracked' the mystery at the very heart of Amerithrax, there's no need to 'sell' me..

      But Due Process requirements, that's something else.
      http://commons.wikimedia.org/wiki/File:Zodiac_cipher.png

      Delete
  44. Presumably, if some layman breaks the code and helps bring a killer to justice, he'll have to testify in court to how he broke the code. There won't be any need to bring in any cryptographers to verify anything.
    =======================================================
    Of COURSE there will be a need to verify things. And THAT even before it gets to, let's say, the in limine hearing. What does the FBI do if it gets 2 (different) solutions? Or 5? Or 10? What they will UNDOUBTEDLY do is: submit each putative solution to: that very office I've been writing here about for so long:
    about: http://www.fbi.gov/about-us/lab/scientific-analysis/crypt

    You know, the office that they should have sent/would have sent (if it were valid!) the 'amino acid code' to in the 2008-2010 timeframe.

    ReplyDelete
  45. R. Rowley wrote: "Of COURSE there will be a need to verify things.

    NONSENSE. You are making assumptions. It may not make any difference if the decoding was done properly or not.

    If a layman broke a code and helped bring a killer to justice, you can be CERTAIN that breaking the code was NOT the only evidence in the case. You continually seem to think that evidence is not evidence unless BY ITSELF it convicts someone.

    If the code was incorrectly broken and STILL somehow led to finding the killer, the code-breaker would still testify in court to what he did. OTHER evidence would presumably convict the killer. The incorrectly broken code would just be the trigger that led to finding the right person.

    And, if the letter breaks the code CORRECTLY and that leads to identifying the killer, there would STILL me a lot more evidence required in order to convict. And there would be no need to verify that the code was correctly broken, since what was done accomplished all that was needed. If some "expert" finds some minor problem, who cares?

    Ed

    ReplyDelete
    Replies
    1. The criteria for admissibility of the layman's opinion testimony will be if it is RELEVANT or not. If the decoding somehow led to the right person, then it is relevant - even if the decoding was not entirely correct.

      Ed

      Delete
    2. R. Rowley wrote: "Of COURSE there will be a need to verify things.

      NONSENSE. You are making assumptions. It may not make any difference if the decoding was done properly or not.
      ------------------------------------------------------------------------------------------
      Huh? (That's all I can say: Huh?)
      ---------------------------------------------------------------------------------------
      If a layman broke a code and helped bring a killer to justice, you can be CERTAIN that breaking the code was NOT the only evidence in the case.
      ---------------------------------------------------------------------------------------
      But THE WHOLE PURPOSE OF A TRIAL (hearing witnesses, looking at evidence etc.) is to determine WHETHER the defendant did it! Now you are writing
      as if that determination (guilt/innocence) is something separate from the skeins of
      evidence and their reliability.
      ---------------------------------------------------------------------------------------
      If the code was incorrectly broken and STILL somehow led to finding the killer, the code-breaker would still testify in court to what he did.
      -----------------------------------------------------------------------------------------
      Can you give me AN EXAMPLE of an incorrectly broken code that "let to finding the killer"? Because it makes little sense that I can see.
      -------------------------------------------------------------------------------------
      The incorrectly broken code would just be the trigger that led to finding the right person.
      ------------------------------------------------------------------------------------
      How do you mean "trigger"? (And yes, I know what a trigger is in general, I just can't picture it in this context!)
      -------------------------------------------------------------------------------------------------------------
      And, if the letter breaks the code CORRECTLY and that leads to identifying the killer, there would STILL me a lot more evidence required in order to convict. And there would be no need to verify that the code was correctly broken, since what was done accomplished all that was needed. If some "expert" finds some minor problem, who cares?
      ==================================================
      The whole POINT of verification is: to determine whether the solution is RELIABLE evidence. UNRELIABLE EVIDENCE is what the courts try to keep out of their trials.
      The jury can't evaluate decryptions on their own. It's too technical for them. They rely on the court to play a gatekeeper role. And not just in this particular field of specialization.

      Delete
    3. R. Rowley wrote: "The whole POINT of verification is: to determine whether the solution is RELIABLE evidence."

      That's true for EXPERT witnesses. But there is often NO WAY to verify a LAY witness's testimony. Verification of a LAY witness's testimony - such as it is - is usually in how the witness's testimony fits together with all the other evidence.

      This is all about the law. Since you have almost no understanding of the law, it may seem totally unreasonable to you, but the law is for solving issues between HUMANS, not between machines. So, things are not always clear and verifiable.

      R. Rowley wrote: "Can you give me AN EXAMPLE of an incorrectly broken code that "led to finding the killer"? Because it makes little sense that I can see."

      I can probably think of a hundred hypothetical situations.

      If a detective (who is not a cryptographer) erroneously decoded a message saying a meeting between wanted criminals was going to take place in a fifth floor apartment at an address, and when the police went to the building they spotted the criminals coming out of a third floor apartment and arrested them, the detective would testify in court that he didn't quite get the decoding correct, but everything worked out okay anyway.

      If a detective decoded a message saying that a hitman was going to shoot a man named John White in a warehouse on Main Street, and when the cops got there they found that the hitman had just shot and killed Juan Blanco, the detective would testify in court that he didn't realize that Juan Blanco was Spanish for John White.

      If a detective decodes a note saying that Juror #6 in a murder trial is a cousin of the defendant, and the questioning of the jurors shows that Juror #8 is the cousin AND also an accomplice in the murder, the detective simply mistook a 6 for an 8, he would testify to that at the new trial.

      I could go on and on, but these three examples should give you an idea of what I mean.

      Ed

      Delete
    4. R. Rowley wrote: "Can you give me AN EXAMPLE of an incorrectly broken code that "led to finding the killer"? Because it makes little sense that I can see."

      I can probably think of a hundred hypothetical situations.
      ------------------------------------
      I wasn't looking for a hypothetical, I was looking for an actual case where that happens.
      -------------------------------------------
      If a detective (who is not a cryptographer) erroneously decoded a message saying a meeting between wanted criminals was going to take place in a fifth floor apartment at an address, and when the police went to the building they spotted the criminals coming out of a third floor apartment and arrested them, the detective would testify in court that he didn't quite get the decoding correct, but everything worked out okay anyway.
      --------------------------------------------
      But guilt or innocence (of the defendants) does not turn on the decryption. You are once again mixing law enforcement techniques in with Due Process. The decryption, if mentioned at trial, would be a peripheral matter. The arrests were made based on visual spotting of the suspects, not the specifics of the decoding.

      Whereas a verdict in Ivins' trial could have turned on
      jury acceptance that: there was a code, it was correctly
      analyzed (NOT: perceived), correctly decoded, and that decoding points to the defendant. Right down to the equation: PAT-Pat Fellows who was a friend of Ivins
      -------------------------------------------
      If a detective decoded a message saying that a hitman was going to shoot a man named John White in a warehouse on Main Street, and when the cops got there they found that the hitman had just shot and killed Juan Blanco, the detective would testify in court that he didn't realize that Juan Blanco was Spanish for John White.
      -----------------------------------------------
      Another problem with this (and just about all 'decoding' scenarios presented even by the attorneys) is: in the examples:

      1)there's no doubt that the code exists. (Not so in Amerithrax: I have it on good authority that a clever fellow argued for years that the 'code' was merely doodling!)

      2)there's no doubt who wrote/spoke the code (the hitman in your second example.
      ------------------------------------------------
      But the whole purpose of the decryption in Amerithrax (well, unless you are a cynic like I am!) is:
      to determine WHO WROTE THE LETTER (the Brokaw text).
      The message, if there is one there, does NOT give you a location to go to (which broadly speaking itself verifies the decryption: wrong address, at least partially wrong decryption, totally wrong decryption, totally wrong address).

      That makes the Amerithrax 'code' unprecedented to my knowledge.

      Would a court allow 'decryption' testimony if there's no surety that a code exists?!?!?
      This would have certainly been hashed over in an in limine hearing. Big time.

      Delete
    5. R. Rowley wrote: "I wasn't looking for a hypothetical, I was looking for an actual case where that happens."

      Don't be absurd. It's hard enough trying to find some legal case where someone had to decode a message, and you now want a REAL case where the message as decoded incorrectly and still was used in evidence? You're just looking for reasons to stick with your own ridiculous beliefs.

      R. Rowley wrote: "Would a court allow 'decryption' testimony if there's no surety that a code exists?!?!?"

      Yes. The FBI Agent perceived that there was a code there and he decoded it. That would be his testimony. If the defense wanted to argue that no code exists, they could give it a try. They would probably be laughed out of court, since anyone can see the evidence is OVERWHELMING that the code is there and it DOES exist.

      You just close your eyes to the facts because the facts disprove your personal beliefs.

      Ed

      Delete
  46. Mr. Rowley,

    I found a pro bono law firm on line and sent them the question. I don't expect a response, but there's no harm in trying.

    I provided a link to this thread, so they may check it out. Time will tell.

    Ed

    ReplyDelete
    Replies
    1. Thanks for your efforts.

      Delete
  47. I found a place where they MIGHT give an answer to our questions.

    I rephrased the question a bit, however, since the original left open the question of whether the decoded message is relevant to the case or not.

    The new question:

    Is there any Rule of Evidence that says a layman cannot decode a relevant, secret message and testify in court to what he did?

    And the details are:

    The question is about Rule of Evidence 701-C . Someone is arguing that Rule 701-C says only a cryptographer or other coding expert can testify about decoding a message. I say that if a police officer who is not a cryptographer figures out and breaks a code that is relevant evidence in a case, he can testify in court to what he did and how he did it.

    Ed

    ReplyDelete
    Replies
    1. I just got an email that says you can click HERE to view the question and the answer.

      Ed

      Delete
    2. Here's the answer:

      That is an interesting question with some nuances involved. This answer would apply to federal rules along with most states (including WI) as they follow the same rules for expert and lay opinion.

      Basically, there is nothing that would specifically prevent the officer from testifying about the code just like there would be nothing that would prevent you or me from doing so. He would not be considered an expert and there may be some limit on what he could testify about regarding the code but generally speaking he could probably say what he believed the code meant.

      Of course, this is assuming that the code is not something that is dynamic but in fact has a correct and single solution similar to a math problem. Like a math problem (2+2=4) anyone will likely be able to answer that question even though technically speaking solving the problem involves the application of specialized knowledge (arithmetic).

      If this were a question of some more dynamic issue where opinions could and will likely differ, there would likely be some reason to prevent the officer's testimony. The expert opinion rule is targeted at things like medical diagnosis, legal opinion, accident reconstruction (see Kuhmo Tire- an expert opinion case regarding tire wear). These areas all deal with situations where lay people could not form the opinion. My belief, and others may disagree, is that code breaking could be accomplished by a lay person and they could then testify to the code (but probably not code breaking as a skill or details regarding other codes or other specific information). Think of it like solving a Sudoku puzzle. Anyone could do it if given the time. That person would not be barred from testifying about the solution simply because they are not a professional trained Sudoku puzzle solver.

      That is my answer. I'm sure some lawyers will disagree and I would guess at some point I will argue the opposite of this answer because it would be better for my case. Hope that answers your question.


      Ed

      Delete
    3. A second opinion just appeared HERE. Here it is:

      If the officer has the personal experience of cracking the code, he or she can certainly testify as a lay witness. The officer's testimony is relevant and has no problem on admissibility as to the process and result of his or her own experiences without expert qualification.

      Ed

      Delete
    4. From the first expert:
      Of course, this is assuming that the code is not something that is dynamic but in fact has a correct and single solution similar to a math problem.
      =====================================
      And in the Brokaw text we know that that is NOT the case:
      Mister Lake admitted weeks ago that:

      1)Co-solution 'PAT' could stand for tens of thousands of persons with that name/nickname, the initials of countless other persons, the initials of organizations etc.

      2)ditto with co-solution 'FNY': placenames in New York State, initials to persons' names, organizations etc.

      And that's if we ACCEPT the DoJ's assertions about what the surface text is: what is highlighted. (I don't and I made my determination what was highlighted 2-3 years before the DoJ came up with their 'amino acid code').

      (in contrast, the running assumption of all the Zodiac
      ciphers was: each and every character of the surface text had a breakout in the hidden text. IOW no crucial selection of partially highlighted features).
      -----------------------------------------------
      In thinking this over again overnight I realized the greatest obstacle to presentation in a trial: relevance.
      There's no way a prosecutor in an in limine hearing could
      prove, TO ANY DEGREE WHATSOEVER, that "PAT" or "FNY" point to the defendant, since it's sheer mind-reading that led to that 'conclusion'. So, it would run afoul of
      Rule of Evidence 403. Besides 701-c.
      -----------------------------------------
      Back to the first legal expert:
      ------------
      If this were a question of some more dynamic issue where opinions could and will likely differ, there would likely be some reason to prevent the officer's testimony.
      ================================================
      Yup. This sucker's as 'dynamic' as dynamic can be (see points 1) 2)).

      Delete
    5. R. Rowley wrote: "And in the Brokaw text we know that that is NOT the case"

      As expected, you're spinning things to find reasons to ignore the facts. The answer is "PAT." The fact that there are many different people in the world named "Pat" is NOT PART OF THE CODE THAT WAS DECODED. That part is pure detective work.

      R. Rowley wrote: "There's no way a prosecutor in an in limine hearing could prove, TO ANY DEGREE WHATSOEVER, that "PAT" or "FNY" point to the defendant, since it's sheer mind-reading that led to that 'conclusion'.

      Once again you show your total IGNORANCE of circumstantial evidence. The prosecutor doesn't have to PROVE that. Agent Steele testifies to what he found, and the JURY decides whether to believe him or not.

      R. Rowley also wrote: "This sucker's as 'dynamic' as dynamic can be"

      You clearly misunderstand the word "dynamic." In this instance, it means "constantly changing." There was nothing "constantly changing" about the hidden message in the anthrax letters sent to the media.

      Ed

      Delete
    6. R. Rowley wrote: "And in the Brokaw text we know that that is NOT the case"

      As expected, you're spinning things to find reasons to ignore the facts. The answer is "PAT."
      ===========================================
      (And you forgot the answer is also(!) FNY!)
      -------------------------
      The answer is "PAT."
      --------------
      Only if you KNOW:

      1)that the partially-highlighted letters that the Task Force selected are the "correct" ones (the Ed Lake of 2001-5 saw THREE partially highlighted letter O's in the text, ie in a timeframe when he was not trying to defend any 'amino acid code', so would not be prejudiced by that defense. Therefore I would call any such 'Rorschach test' of a code "dynamic", ie subject to change as the would-be 'decoder' changes the letter selection(s), with only the 3 entirely-highlighted letter A's a perennial in the surface text).

      2)it's an 'amino acid code' of the type in Hofstadter's book.

      Neither one (1 or 2) is cryptologically testable. And Mister Lake admitted that, some days-----or was it weeks?---ago.
      --------------------------------------------------
      R. Rowley also wrote: "This sucker's as 'dynamic' as dynamic can be"

      You clearly misunderstand the word "dynamic." In this instance, it means "constantly changing."
      ------------------------------------------
      Oh, did the lawyer write you a separate email stating that? Or is that your take? Let me guess....

      Delete
    7. R. Rowley wrote: "Neither one (1 or 2) is cryptologically testable."

      All you are doing is playing word games and showing ONCE AGAIN that you are TOTALLY IGNORANT of how circumstantial evidence is utilized in court.

      R. Rowley wrote: "You clearly misunderstand the word "dynamic." In this instance, it means "constantly changing."
      ------------------------------------------
      Oh, did the lawyer write you a separate email stating that? Or is that your take?"


      Jeeze! Another MORONIC argument over a word!

      Check the definition HERE or HERE or HERE.

      dy·nam·ic (d-nmk)
      adj. also dy·nam·i·cal (--kl)
      1.
      a. Of or relating to energy or to objects in motion.
      b. Of or relating to the study of dynamics.
      2. Characterized by continuous change, activity, or progress: a dynamic market.
      3. Marked by intensity and vigor; forceful.


      Ed

      Delete
    8. Who's the linguist here, you or me?

      Yes, I know what the word "dynamic" means. But that DOES NOT NECESSARILY mean that that's how an ATTORNEY uses the word when talking about 'codes' in a courtroom context. Is that SO difficult to understand?!?

      So, the word "argument" can mean "quarrel" but that's (generally) not what an attorney means when he says "closing argument" in a legal situation. The CONTEXT of usage is what gives us the intended meaning.

      However, since your precious "amino acid code" is very much like a Rorschach test, I would say that it IS "Characterized by continuous change" since we each see different things in it, via one person seeing this letter as highlighted, another person that letter as being highlighted.

      (And anyway, it's no code at all but a signature line! This whole business of a 'code' must be giving the true author stitches!)

      Delete
    9. R. Rowley wrote: "However, since your precious "amino acid code" is very much like a Rorschach test, I would say that it IS "Characterized by continuous change" since we each see different things in it, via one person seeing this letter as highlighted, another person that letter as being highlighted.

      Jeeze! Another MORONIC argument over a word!

      In your example, the code and solution are NOT dynamic and remain the same, there are merely different opinions from different people who try to interpret it. That doesn't make the code "dynamic" it makes the SOLUTION debatable.

      Your arguments are preposterous distortions of reality.

      Ed

      Delete
  48. Mr. Rowley,

    It's difficult to imagine how it can be made more clear that FBI Agent Darin Steele WOULD have been allowed to testify to how he decoded the hidden message in the anthrax media letters.

    But, there may be other answers on the way to add to the 2 legal opinions above. The chances of anyone disagreeing should be very close to nil.

    Ed

    ReplyDelete
  49. Mr. Rowley,

    I received 2 more emails while at the health club this afternoon. The first was from a Pro Bono web site I'd contacted. They informed me that they do not answer the kind of question I asked, but they provided 2 links to other lawyer sites which MIGHT provide answers. (I checked them out. NEITHER provides FREE legal answers.)

    The second email contained further comments from the 2nd lawyer to respond this morning. He added this:

    The lay "expert" can testify as to his or her experience, but not to the validity of a scientific methodology to support a Daubert finding. You need a cross-examined qualified expert for that.

    In other words, Agent Steele would have been able to testify for the prosecution on how he decoded the message and what the message says, but, as a lay witness, he could not testify to how what he did meets the Daubert standard for validity. And, if the prosecution or defense wanted someone to assure or question the validity of Agent Steele's methodology and whether or not it is in accord with the Daubert standard, then they would need to hire an Expert witness in cryptography.

    Ed

    ReplyDelete
  50. The lay "expert" can testify as to his or her experience, but not to the validity of a scientific methodology to support a Daubert finding. You need a cross-examined qualified expert for that.

    In other words, Agent Steele would have been able to testify for the prosecution on how he decoded the message and what the message says,
    ========================================================
    Maybe you are right, but what's the relevance of a message that says "PAT" when the defendant doesn't have that name?
    What's the relevance of a message that says "FDY"
    when that isn't the defendant's initials?
    (Yeah, I know that you are going to say that it HAS to be Pat Fellows and that means it's Ivins, but that's the mindreading I was talking about that is rife in the AMERITHRAX INVESTIGATIVE SUMMARY.

    (If the 'decryption' had any validity, it would have been verified AT THE VERY LEAST by the FBI office in charge of that stuff: http://www.fbi.gov/about-us/lab/scientific-analysis/crypt
    So: either 1) it was sent there and flunked the test or 2)they knew it wouldn't pass and never submitted it)

    ReplyDelete
    Replies
    1. R. Rowley wrote: "Maybe you are right, but what's the relevance of a message that says "PAT" when the defendant doesn't have that name?"

      Again you show a TOTAL IGNORANCE of how circumstantial evidence is used in court. Why would "PAT" have to be the name of the person who coded the message? That makes no sense at all. It's a rule you just made up.

      R. Rowley wrote: (If the 'decryption' had any validity, it would have been verified AT THE VERY LEAST by the FBI office in charge of that stuff"

      Nonsense. You're just making up rules so you can argue things where you have no basis for an argument.

      Ed

      Delete
    2. R. Rowley wrote: "Maybe you are right, but what's the relevance of a message that says "PAT" when the defendant doesn't have that name?"

      Again you show a TOTAL IGNORANCE of how circumstantial evidence is used in court. Why would "PAT" have to be the name of the person who coded the message?[...]
      ====================================
      No one said it "had" to be (nice invention on your part!)
      but apparently the Task Force had enough background information on Ivins at that point that just about ANY 3-letter combination could have been attributed to Ivins via
      a clever enough "decryptor" (I use the word ironically).
      (I feel a parody coming on soon!)


      And that's just it: it could have been attributed to COUNTLESS other persons as well. Meaning it's a vague, it's-all-in-how-you-breakout-those-last-3-letters sort
      of "evidence". The very sort of "evidence" courts try to keep out of trials based on: lack of reliability, possible out-and-out irrelevance.
      ------------------------------------------------
      R. Rowley wrote: (If the 'decryption' had any validity, it would have been verified AT THE VERY LEAST by the FBI office in charge of that stuff"

      Nonsense. You're just making up rules so you can argue things where you have no basis for an argument.
      ---------------------------------------------
      Oh, the idea that the FBI office that handles decryptions should have handled this decryption is: a made up rule? Sounds like common sense to me, and I think a jury, if it had ever come to that, would have agreed agreed with me.

      Delete
    3. R. Rowley wrote: "it could have been attributed to COUNTLESS other persons as well. Meaning it's a vague, it's-all-in-how-you-breakout-those-last-3-letters sort of "evidence". The very sort of "evidence" courts try to keep out of trials based on: lack of reliability, possible out-and-out irrelevance."

      All you are doing is ONCE AGAIN showing your TOTAL IGNORANCE of how circumstantial evidence is treated in court.

      R. Rowley also wrote: "Oh, the idea that the FBI office that handles decryptions should have handled this decryption is: a made up rule? Sounds like common sense to me, and I think a jury, if it had ever come to that, would have agreed agreed with me."

      That's just another silly claim that cannot be proved or disproved. It's a waste of time to even read such arguments, much less respond to them.

      Ed

      Delete
  51. As I predicted at least one of the three experts said: It depends.
    --------------------------------
    Interesting question, and the outcome might be very dependent on the evidence in the specific case. There are two different issues here, at least. One is whether the officer can testify as an expert and give an opinion. The other is whether the officer can simply testify as to what he did. The two may, and very likely do, have different answers. If this issue came up in one of my cases I would consider it a serious research project. I would certainly not just read the rule and wing it. So consider this just a top-of-the-head response to your question, and in no sense at all a researched, worked-out, or reliable answer.

    For what it is worth, I have been involved in many drug cases in which drug traffickers used clumsy and obvious "code" words to disguise the meaning of their telephone conversations. A child could see through these references, and they are in no sense the kind of code that would require a cryptographer to understand or explain. I do not know what kind of "code" you are dealing with in your case.

    ReplyDelete
  52. And another example of the mindreading that is involved in the AMERITHRAX INVESTIGATIVE SUMMARY, specifically in the 'code' area, is this passage: (page 62)
    -----------------------------
    Inner message (duality)

    links to both Former Colleague #1 and Former Colleague #2
    The author of GEB discusses the concept of “duality,” that messages can have multiple meanings. This is further evidence that the messages here related to both former colleagues.
    ======================================
    So, because the author of a book talks about 'duality' that means that the co-solution "PAT" must refer to BOTH Pat Fellows AND Patricia Worsham?!? AND that the only person who could have written the message was Ivins?!?!? THIS is evidence?!?

    ReplyDelete
  53. R. Rowley wrote: "So, because the author of a book talks about 'duality' that means that the co-solution "PAT" must refer to BOTH Pat Fellows AND Patricia Worsham?!? AND that the only person who could have written the message was Ivins?!?!? THIS is evidence?!?"

    The author of the book has nothing to do with the evidence. He would not be put on the stand.

    Your screwball interpretation of what would be said and done in court has NOTHING to do with reality.

    All you are doing ONCE AGAIN is showing that you are TOTALLY IGNORANT of how circumstantial evidence is used in court.

    How do ever expect to understand any of these things if you insist on remaining TOTALLY IGNORANT of the way things work in court?

    Ed

    ReplyDelete
  54. Mr. Rowley,

    The question about Rule 701-C has been answered by two different lawyers.

    The first answer is:

    "Basically, there is nothing that would specifically prevent the officer from testifying about the code just like there would be nothing that would prevent you or me from doing so."

    The second answer is:

    "If the officer has the personal experience of cracking the code, he or she can certainly testify as a lay witness. The officer's testimony is relevant and has no problem on admissibility as to the process and result of his or her own experiences without expert qualification."

    That means that BOTH lawyers say that Agent Steele COULD testify to what he found. Your interpretation of Rule 701-C was WRONG.

    I am totally willing to continue arguing about OTHER ISSUES, but the only way such issues are going to be resolved is if you learn about how circumstantial evidence works in court. We cannot come to any solution to our other disagreements if you mind is closed to the reality of how circumstantial evidence is used in court.

    Ed

    ReplyDelete
  55. "Basically, there is nothing that would specifically prevent the officer from testifying about the code just like there would be nothing that would prevent you or me from doing so."

    The second answer is:

    "If the officer has the personal experience of cracking the code, he or she can certainly testify as a lay witness. The officer's testimony is relevant and has no problem on admissibility as to the process and result of his or her own experiences without expert qualification."

    That means that BOTH lawyers say that Agent Steele COULD testify to what he found. Your interpretation of Rule 701-C was WRONG.
    ===============================================
    They were going by their experiences, which OVERWHELMINGLY deal with drug-related charges and simple, relatively ad hoc 'codes' that such persons use. I did not dispute that THAT was the case. Indeed I was the one who first introduced that phenomenon (drug-related 'codes' and the use of decryptions in court) to our discussions in that 225-post thread where I posted at
    June 12, 2013 at 11:58 AM
    about the case which was examined by an appellate court here and upheld:
    https://bulk.resource.org/courts.gov/c/F3/15/15.F3d.225.93-1279.286.html
    That thread is here:
    http://anthraxdebate.blogspot.com/2013/06/subject-claims-arguments-and-evidence_3.html#comment-form

    --------------------------------------------------------------
    I am totally willing to continue arguing about OTHER ISSUES, but the only way such issues are going to be resolved is if you learn about how circumstantial evidence works in court. We cannot come to any solution to our other disagreements if you mind is closed to the reality of how circumstantial evidence is used in court.
    =================================================
    Actually, I've been avoiding that topic recently because:

    1)we went over this topic BIG TIME oh, 1 to 3 years ago (sorry, can't be more precise: I remember specific topics and then the timeframe vanishes).

    2)you hadn't much interesting to say, except the obvious: you thought that the category of "circumstantial" somehow made multiple weak skeins of evidence strong via some sort of synergy.

    3)while that's POSSIBLE in principle, it's not true in Amerithrax:
    each skein of evidence is weak, and it's not strengthened by the special pleading that is behind so much of it. Psychologizing and mindreading. To the max.

    ReplyDelete
  56. R. Rowley wrote: "They were going by their experiences, which OVERWHELMINGLY deal with drug-related charges and simple, relatively ad hoc 'codes' that such persons use."

    You are using mind-reading to try to create a new argument. The rule is the SAME whether it's a drug case or a murder case or a fraud case or a blackmail case. YOU HAVE BEEN PROVED WRONG.

    R. Rowley also wrote: "you thought that the category of "circumstantial" somehow made multiple weak skeins of evidence strong via some sort of synergy.

    3)while that's POSSIBLE in principle, it's not true in Amerithrax:"


    Circumstantial evidence is circumstantial evidence regardless of the case. You appear TOTALLY IGNORANT of how circumstantial evidence works in court and FANTASIZE that it somehow doesn't work in the Amerithrax case. That is just plain RIDICULOUS.

    Your arguments just get more and more absurd. The idea that the Rules of Evidence that apply to other criminal cases do not apply to the Amerithrax case is CRAZY.

    Ed

    ReplyDelete
  57. R. Rowley wrote: "They were going by their experiences, which OVERWHELMINGLY deal with drug-related charges and simple, relatively ad hoc 'codes' that such persons use."

    You are using mind-reading to try to create a new argument. The rule is the SAME whether it's a drug case or a murder case or a fraud case or a blackmail case.
    =================================================
    Are you disputing:

    1)that the defense would have issued a challenge of the 'code' in an in limine hearing?

    2)that the defense would have used one or more qualified cryptologist in that in limine hearing?

    or simply

    3)that the defense would have prevailed in the in limine hearing in suppressing the 'code' testimony on relevancy/reliability grounds?
    __________________
    Above are sincere questions, I really don't understand your interpretation here.

    ReplyDelete
  58. R. Rowley wrote: "Above are sincere questions, I really don't understand your interpretation here."

    I don't think there would be any challenge of the "code" in any in limine hearing. PERIOD. You must be misunderstanding something.

    Motion in limine (source HERE

    A motion made before a trial begins, asking the court to decide whether particular evidence will be admissible. A motion in limine is most often made to exclude evidence by a party who believes that evidence would prejudice the jury against him or her. For example, a defendant in a criminal trial might make a motion in limine to exclude evidence of previous crimes.


    There is no cause for any motion "in limine" here. There is nothing preventing the DOJ from putting Agent Steele on the stand to testify to what he rationally perceived during the investigation of Bruce Ivins.

    You are just ONCE AGAIN misunderstanding something.

    Ed

    ReplyDelete
  59. A more complete version would be:
    ------------------------------------
    General Background

    Motions in limine are used to obtain advance rulings from the court on the admissibility of evidence. Hearings on the motions are to be held outside of the presence of the jury. Such motions may be to exclude or include evidence.

    Derived from Latin, in limine literally means “at the threshold” and not “to limit” as commonly assumed. Presumably “at the threshold” refers to the idea that such motions are typically presented pre‐trial, although there is no prohibition against making such motions after a trial has commenced.

    There is no explicit mention of motions in Limine in the Federal Rules of Evidence or the new Illinois Rules of Evidence. Case law has opined that authority for motions in limine is gained from the court’s general authority to control the nature of information presented to a jury.

    Grounds for Motion in Limine

    Multiple evidentiary issues may be addressed by motions in limine. Grounds for granting a motion in limine include:

    1)Evidence is Irrelevant: Irrelevant evidence may be precluded from presentation to the jury (IRE 402). Counsel will often attempt to introduce irrelevant evidence to create sympathy or prejudice among the jury. As an example, is it relevant if a defendant is wealthier than the plaintiff? Is it relevant if a physician failed his first attempt to become Board Certified twenty years ago?

    2)Evidence is Prejudicial: Information that is relevant, but unduly prejudicial, may be excluded (IRE 403). As an example, relevant photographs of an accident may be so gory they become prejudicial and should be excluded. Some evidence, such as prior criminal convictions over ten years old, may be excluded as prejudicial by applicable rules of evidence (IRE 609(b)). Evidence of religious beliefs may be inadmissible (IRE 610).

    3)Evidence is Cumulative: Cumulative or repetitive evidence may be excluded (IRE 403). The court has wide latitude in making the determination as to what is, or is not, cumulative testimony. Among other reasons, cumulative evidence may be excluded to avoid the needless waste of time (IRE 611(a)).

    4)Witness is not Competent: The competency of expert and lay witnesses may be challenged. Examples include physicians not familiar with the applicable standard of care and engineers not qualified in a particular field. Lay witnesses that did not actually see a particular event may not be competent to testify (IRE 602) Additionally, testimony of mentally incompetent witnesses and testimony subject to exclusionary statutes such as the Dead Man’s Statute may be challenged.

    5)Evidence was Improperly Obtained: Criminal trials are not the only situation where improperly obtained evidence may be excluded. Other examples include privileged information improperly obtained by an employee and evidence obtained through inspections conducted without notification to the opposing counsel.

    6)There was a Late/Incomplete Disclosure: A witness may be barred from testifying if the witness was not disclosed in a timely fashion, or if the witness plans on testifying about matters not identified in responses to discovery requests.
    ========================================================
    Skipping section
    ==========================================================
    Conclusion
    Motions in Limine may have a huge impact on the outcome of a trial. You should be aware of issues potentially subject to a motion in limine from the moment you agree to represent a client and prepare your case accordingly.
    ===========================================================
    I think the 'code' testimony would be attacked under items 1), 2),
    and 4).

    http://www.hrbklaw.com/motionsInLimine.shtml

    ReplyDelete
    Replies
    1. R. Rowley wrote: "I think the 'code' testimony would be attacked under items 1), 2), and 4)."

      That may be what you think and BELIEVE, but your beliefs have nothing to do with reality.

      1. The hidden message evidence is as far from irrelevant as you can get, since it is almost "smoking gun" evidence showing Ivins was the anthrax mailer.

      2. I think you're saying that any evidence that points to Ivins' guilt is "prejudicial." That's hilarious. But, I can see that is the way you think.

      4. The idea that an FBI agent who is also a microbiologist is "incompetent" to testify as a witness is STUPID. But, I can see that you are just trying to spin that rule to say that Agent Steele is not competent as an expert cryptographer. But, agent Steel would be put on the stand as a LAY witness, so he would not need to be "competent as an expert cryptographer."

      You just endlessly misinterpret the law to make things fit your own beliefs.

      Ed

      Delete
    2. R. Rowley wrote: "I think the 'code' testimony would be attacked under items 1), 2), and 4)."

      That may be what you think and BELIEVE, but your beliefs have nothing to do with reality.

      1. The hidden message evidence is as far from irrelevant as you can get, since it is almost "smoking gun" evidence showing Ivins was the anthrax mailer.
      ===============================================
      That would be the PROSECUTOR'S argument (see above usage of that word!) at the in limine hearing, but that may well
      NOT be the judge's take. The judge, as I understand it, would:

      1)ask the prosecutor about past instances of such uses of such evidence in OTHER CASES (ie ask about the case law).
      NOT about general code talk by drug dealers etc. but about the specific code alleged in the prosecutor's brief AND (if he/she thinks of it) about how the surface text was arrived at).

      2)ask for professional opinions as to the validity of the 'decoding' methodology.
      ==============================================
      2. I think you're saying that any evidence that points to Ivins' guilt is "prejudicial."
      ----------------------------------------
      Any evidence that leans so heavily on discrediting someone
      because of mental illness (rife through the AMERITHRAX INVESTIGATIVE SUMMARY), attributes the worst motives to each statement they make, involves 'decryptions' of alleged texts (here I mean the SURFACE text, which is indeed alleged and unproven, indeed unprovable) via a methodology which is questionable at best, and is fundamentally unverifiable, is indeed prejudicial.
      ----------------------------------------
      4. The idea that an FBI agent who is also a microbiologist is "incompetent" to testify as a witness is STUPID.
      -----------------------------------------
      If he were testifying on the use of the GENERAL amino acid code, ie the blueprint for the manufacture of proteins within a cell, there would be no admissibility problems. But such testimony would be irrelevant to the posited
      murder trial.

      Delete
    3. Mr. Rowley,

      Your interpretations of the law have nothing to do with reality. They're simply ridiculous and not worth arguing over. You are just playing more "word games" to create MORONIC arguments instead of seriously looking at the evidence.

      Ed

      Delete
    4. Mr. Rowley,

      Your interpretations of the law have nothing to do with reality. They're simply ridiculous and not worth arguing over. You are just playing more "word games" to create MORONIC arguments instead of seriously looking at the evidence.
      =================================================
      Since this is, as far as I know, the very first thread in which you've even used the term "in limine", I'd say we are making progress!

      Delete
    5. R. Rowley wrote: "Since this is, as far as I know, the very first thread in which you've even used the term "in limine", I'd say we are making progress!"

      Then we CLEARLY have VERY different ideas of what qualifies as "progress." I define progress as moving closer to a resolution of an issue. You apparently see "progress" as introducing a new word or term into the discussion to generate more MORONIC arguments that can only push us farther from a resolution of the issues.

      You absurdly argue that in limine,

      "The judge, as I understand it, would:

      1)ask the prosecutor about past instances of such uses of such evidence in OTHER CASES (ie ask about the case law).
      NOT about general code talk by drug dealers etc. but about the specific code alleged in the prosecutor's brief AND (if he/she thinks of it) about how the surface text was arrived at).

      2)ask for professional opinions as to the validity of the 'decoding' methodology."


      Your beliefs have nothing to do with reality. The judge wouldn't even know about the coded message or any other testimony from FBI agent Steele. The cases is tried in court not in limine.

      If a judge did as you believe, he'd be be removed from the bench for incompetency.

      Ed

      Delete
  60. ------------------------------------------------
    Also useful but I haven't had to time read through it yet is:
    http://www.orrick.com/Events-and-Publications/Documents/2724.pdf
    ===============================================
    You are just ONCE AGAIN misunderstanding something.
    ===============================================
    You are once again glomming onto the first source you find, as long as that is, in your view, favorable to you take.
    Sorry, but the law is a LOT more complicated than you (and you and I put together!) think.

    ReplyDelete
    Replies
    1. R. Rowley wrote: "You are once again glomming onto the first source you find, as long as that is, in your view, favorable to you take.
      Sorry, but the law is a LOT more complicated than you (and you and I put together!) think."


      I've quoted NUMEROUS sources in this thread. They all say the same thing. You just ignore them.

      YOU are the one who is desperately hunting for ways to twist the laws to make them fit your beliefs.

      The laws aren't that complicated. It's people who twist the laws who try to MAKE them fit their beliefs who make them seem more complicated than they really are.

      Above, I quoted a lawyer who said, "I'm sure some lawyers will disagree and I would guess at some point I will argue the opposite of this answer because it would be better for my case."

      The law is simple and straight forward. But it is left open to interpretations by people who want to find a way around the law.

      Mostly, they're people who play "word games" the way you do.

      Ed

      Delete
    2. Above, I quoted a lawyer who said, "I'm sure some lawyers will disagree and I would guess at some point I will argue the opposite of this answer because it would be better for my case."

      The law is simple and straight forward. But it is left open to interpretations by people who want to find a way around the law.

      Mostly, they're people who play "word games" the way you do.
      =========================================
      According to Mister Lake, all the US Supreme Court does is: play word games!

      Delete
    3. R. Rowley wrote: "According to Mister Lake, all the US Supreme Court does is: play word games!"

      No, the lawyers before the Supreme Court play the "word games." They present two different INTERPRETATIONS of the law to the Supreme Court Justices, and the Justices decide which interpretation fits with the Constitution.

      Different interpretations of the law can be called "word games," but that's not the way they are usually described, since it's more serious than a "game." I describe your "word games" as "word games" because they are not to be taken seriously. They are just "games" you play to get around being shown to be wrong.

      Ed

      Delete
    4. I describe your "word games" as "word games" because they are not to be taken seriously.
      --------------------------------------------
      If feel that way about you. How about this blast from the past, since it is about the 'code'?
      ===================================================
      (first Mister Lake)
      If some cryptographer disagrees with the way the message was decoded, it would be the job of the DEFENSE lawyers to bring in such an “expert witness” to explain his theory of how the code SHOULD HAVE BEEN deciphered. Or the cryptographer could argue that the code wasn’t really a code because it didn’t fit with his experience of how hidden messages are encoded. Such testimony would provide a good laugh for the jury.
      ==============================================
      I’ve got a better joke: the defense should call Mister Lake as the defense witness on this point…........(after preliminaries)

      (Defense): So, you yourself maintained FOR SEVERAL YEARS that what the prosecutors are calling an ‘amino acid code’ was simply the scribblings of a 6 or 7 year old child as he or she doodled, doodled in between periods of copying the original text of each letter written by the Anthrax Killer, is that correct Mister Lake?

      (Lake): Well, let me…..

      (Defense): Answer yes or no, Mister Lake!

      (Lake) (cornered): Yes.

      (Defense): And did you make that judgement in haste or was it something, a concept that you deliberated over for several years, even to the point of writing an on-line document about this idea?

      (Lake): (mumbles)

      (Defense): And wasn’t that document called “The facts say: a child wrote the anthrax letters”?

      (Lake): Well, they DO say that!!!!!!
      ================================================
      Yes, you would make a jim-dandy DEFENSE witness for Ivins.
      And since you are a LAY witness, you could not be excluded, am I right? Just you giving your "rational perceptions" circa 2004-2009?
      --------------------------------------------------
      http://www.propublica.org/comments/despite-evidence-of-fbi-bungling-new-probe-into-anthrax-killings-unlikely/asc/P50

      Delete
    5. R. Rowley wrote: "Yes, you would make a jim-dandy DEFENSE witness for Ivins.
      And since you are a LAY witness, you could not be excluded, am I right?"


      No, you are NOT right. You are ABSURDLY AND RIDICULOUSLY WRONG.

      Before the defense could call me to the stand, they would have to explain how my testimony is RELEVANT. I'm just a guy on the Internet. My testimony would NOT BE RELEVANT to the case in any way shape or form. How can you possibly believe it would be?

      All you are doing is showing your TOTAL IGNORANCE of how things work in court. What do you think you are going to accomplish by arguing something so totally ridiculous?

      Let's change things to make them a bit more possible, and say that the defense cross-examines Agent Steele. I DO NOT THINK THEY WOULD DO IT THIS WAY, but, for the sake of illustration, here's some hypothetical testimony:

      (Defense): What did you think the highlighted characters in the letter represented before you figured out that they were a coded message?

      (Steele): I had no idea. I thought they just might be doodling or someone's initials or maybe even an attempt to make it look like Mohamed Atta wrote the letter, since "Atta" is spelled with A's and T's. I also noticed that "TTT" is a codon for the amino acid Phenylalanine. But, I couldn't make any sense of why Phenylalanine would mean anything and be in such a letter.

      (Defense): But, although you couldn't figure things out before, you are now confident that you've figured things out correctly?. Is that true?

      (Steele): Yes.

      (Defense): Why?

      (Steele): Because I didn't have all the information back then that I had after studying the coding materials that Dr. Ivins threw out. When you have more information, you can make better judgements as to what something means. The more information you have, the more certain you can be that you've figured things out correctly.

      (Defense): But you could still be wrong? You were wrong before, and you could still be wrong?

      (Steele): Yes, of course.

      (Defense): Thank you. (To the judge): I'm finished with the witness, your honor.

      (Prosecution): Re-direct, your honor?

      (Judge): Go ahead.

      (Prosecution): Agent Steele, do you think your solution is correct?

      (Steele): Yes, I do.

      (Prosecution): Why?

      (Steele): Because it makes total sense. Everything fits perfectly. I have no reason NOT to believe it's the totally correct interpretation of what Dr. Ivins put in the letter.

      (Prosecution): Thank you.

      Ed

      Delete
    6. R. Rowley also wrote: "If some cryptographer disagrees with the way the message was decoded, it would be the job of the DEFENSE lawyers to bring in such an “expert witness” to explain his theory of how the code SHOULD HAVE BEEN deciphered."

      Yes, of course, IF the defense had an expert who decoded the message differently. But, if some cryptographer had such information in the Amerithrax case, we'd have known about it by now. The media would have jumped all over it and turned it into GIANT headlines. The media haven't done that, so the idea that there is a different way to decode the letter is not supported by any facts. It's just an argument.

      Anthrax Truthers NEVER have better evidence, they just do not believe the government's evidence.

      R. Rowley also wrote: "Or the cryptographer could argue that the code wasn’t really a code because it didn’t fit with his experience of how hidden messages are encoded. Such testimony would provide a good laugh for the jury."

      Yes, such testimony would provide a good laugh for the jury when the prosecution cross-examines the witness like so:

      (Prosecutor): How many hidden messages in threat letters have you decoded in your career?

      (Witness): Um, none. They weren't in threat letters.

      (Prosecutor): What kind of letters were they in?

      (Witness): Mostly love letters between a husband and someone else's wife in divorce cases.

      (Prosecutor): Any other kind?

      (Witness): Um. No.

      (Prosecutor): How many of those love letters did you decode in your career?

      (Witness): Three.

      (Prosecutor): And did those three letters contain the same kind of hidden message using the same kind of code?

      (Witness): Two were almost identical.

      (Prosecutor): How can that be?

      (Witness): They were two letters in the same divorce case. Both were written by the same guy to the same woman.

      (Prosecutor): And the third letter? Was it the same kind of code?

      (Witness): No, it was totally different.

      (Prosecutor): It was done by a different person, so naturally it was done in a different way. Correct?

      (Witness): Yes.

      (Prosecutor): So, do you believe that that those two cases create a standard by which all other hidden messages must be judged?

      (Witness): No, of course not.

      (Prosecutor): Then why are you here?

      (Witness): The defense paid me to come here.

      (Prosecutor): Will they also pay for your transportation home again?

      (Witness): Yes.

      (Prosecutor): Then have a good trip home.

      Ed

      Delete
    7. I probably should have had the witness in the comment above describe the two coding methods. I'd have him say that the first cheating husband was using a code which involved the first word of the first sentence, the second word of the second sentence, the third word of the third sentence, etc.

      And the second cheating husband used lemon juice to underline letters of the alphabet in the letter. The underlining wouldn't become visible until heat was applied, and then the lemon juice would turn brown and you can see what the underlined characters spell out.

      The idea that the anthrax letter MUST contain one of those two coding methods because no one can do anything new for the first time would be more clearly shown to be totally ridiculous.

      Ed

      Delete
    8. R. Rowley wrote: "Yes, you would make a jim-dandy DEFENSE witness for Ivins.
      And since you are a LAY witness, you could not be excluded, am I right?"

      No, you are NOT right. You are ABSURDLY AND RIDICULOUSLY WRONG.

      Before the defense could call me to the stand, they would have to explain how my testimony is RELEVANT. I'm just a guy on the Internet.
      =================================================
      No, relevant or irrelevant depends on the CONTENT of the line of questioning. You studied the printing in the two canonical Amerithrax for YEARS (roughly late 2001 to late 2009) before the Task Force/DoJ came up with their 'amino acid code'. Steele, by your account, isn't testifying as some sort of expert but as a layman, a layman who is merely giving his "rational perceptions", a phrase you have repeated over and over again. Given the magnifications available on the Internet (at the UCLA epidemiology dept, among other places), anyone who was studying the lettering including the highlighting had insight into what the highlightings might mean.....

      Delete
    9. R. Rowley also wrote: "If some cryptographer disagrees with the way the message was decoded, it would be the job of the DEFENSE lawyers to bring in such an “expert witness” to explain his theory of how the code SHOULD HAVE BEEN deciphered."
      ---------------------------------------------------
      No, you need to reexamine that site: those words are YOURS, not mine.

      However, when a jury has to choose between a career crypotoanalyst from NSA testifying for the defense, and a rank amateur like Steele, there's little chance that they will go with the latter.

      But again, this would have been ironed out in a in limine hearing. The jury would never have heard about this line of testimony. On account of (extreme) unreliability.
      ==================================================
      R. Rowley also wrote: "Or the cryptographer could argue that the code wasn’t really a code because it didn’t fit with his experience of how hidden messages are encoded. Such testimony would provide a good laugh for the jury."
      -----------------------------------------------------
      No, once again that's me quoting you.

      Delete
    10. R. Rowley wrote: "No, relevant or irrelevant depends on the CONTENT of the line of questioning."

      Your continuing TOTAL IGNORANCE of the Rules of Evidence is ASTONISHING!

      Before you can question a witness on the stand, you have to have a legally valid reason for putting that person on the stand.

      -----------
      Rule 602. Need for Personal Knowledge

      A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
      --------

      I have NO PERSONAL KNOWLEDGE OF THE MATTER. Everything I know is the result of reading it somewhere and putting pieces together. I did NOT know Ivins. I was NOT an official investigator on the case as Agent Steel was. My testimony would show that I have no PERSONAL knowledge of the matter. No lawyer can show evidence that would allow me to testify under Rule 602.

      You cannot possibly be as IGNORANT as you make yourself appear to be. Are you arguing these RIDICULOUS arguments just to wear me down, KNOWING that they are RIDICULOUS arguments?

      R. Rowley also wrote: "But again, this would have been ironed out in a in limine hearing. The jury would never have heard about this line of testimony. On account of (extreme) unreliability."

      And it's been explained to you that THERE WOULD BE NO IN LIMINE HEARING. There is NO REASON for such a hearing. Agent Steele would be testifying to what he rationally perceived while doing his job as an FBI agent on the case. You fantasize that his testimony would involve "(extreme) unreliability," but your fantasies have nothing to do with reality or with what would actually happen in court.

      Your arguments have gone BEYOND IGNORANT AND RIDICULOUS.

      When you keep arguing the same nonsense over and over and over, it shows that you are INCAPABLE of learning or understanding anything.

      If you are INCAPABLE OF LEARNING, there isn't much point in me trying to explain things to you. It appears I need to put together some cut and paste answers, since you just mindlessly argue the same things over and over and over and over.

      Ed

      Delete
    11. R. Rowley wrote: "No, relevant or irrelevant depends on the CONTENT of the line of questioning."

      Your continuing TOTAL IGNORANCE of the Rules of Evidence is ASTONISHING!

      Before you can question a witness on the stand, you have to have a legally valid reason for putting that person on the stand.

      -----------
      Rule 602. Need for Personal Knowledge

      A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
      --------

      I have NO PERSONAL KNOWLEDGE OF THE MATTER.
      ==============================================
      You're leaving out what "the matter" is.It's what the 'highlighting'/printing LOOKS LIKE. You're saying that after 3 separate versions of the child-printed-it document (2004-2010?) and assorted other documents you wrote on the Amerithrax texts (not to mention two books that must go over SOME of that same material!), printing and/or highlighting (comparing them to, among other things, the writing of two terrorists
      (see: http://www.anthraxinvestigation.com/handwriting2.html
      http://www.anthraxinvestigation.com/index.html#letters
      Etc.)
      you have no "personal knowledge" of the forms and shapes of the letters, and the highlighting?????????

      That's just not credible! The Internet has made that material available (now) over a decade. And your copious use of that material is obvious to anyone who has read your three websites!

      Even Steele wouldn't (mostly) be going by what he saw and photographed in October 2001: that was too long ago, and he was likely just concentrating on taking clear photographs, for evidentiary and other reasons. Most of the work of the Task Force on the lettering/highlighting was almost certainly done via photographs.

      I see no consistency in your positions, Mister Lake:

      when it comes to those 'witnesses' mentioned on pages 89-90 of the Amerithrax Investigative Summary, you were TOTALLY SURE (and unless you changed your mind unannounced) STILL are sure, that they, operating merely by memory of mailings they received many months to years earlier, would, without having done side-by-side comparisons, have been able to make judgements-disguised-as-observations about similarities of those alleged mailings' printing style(s) with Amerithrax texts. Your explanation was:
      -----------------
      They may have "different rules for admissibility" for EXPERT witnesses, but there are no such "different rules for admissibility" for LAY or EYE witnesses. Eye witnesses testify to what they saw. PERIOD.[...]
      ==========================================
      You have studied photographically the Amerithrax texts FAR LONGER and more assiduously than those 'witnesses' who allegedly received mailings from Dr Ivins long ago, and they, according to you, can "testify to what they saw. PERIOD."

      Why can't you testify to what you saw, over a much longer time and with a greater degree of studiousness?

      Delete
    12. And it's been explained to you that THERE WOULD BE NO IN LIMINE HEARING. There is NO REASON for such a hearing.
      -----------------------------------------------
      Yes, there is: if the prosecution announces that it's going to submit evidence of an "amino acid code" and the defense denies there's any such code in the texts, and exposing the jury to same would be prejudicial to the defendant, that can only be ironed out via an in limine hearing.

      Delete
    13. R. Rowley wrote: "you have no "personal knowledge" of the forms and shapes of the letters, and the highlighting?????????"

      I have no RELEVANT "personal knowledge" to testify in the Ivins case as defined by the Rules of Evidence.

      Does everything have to be spelled out for you? Are you incapable of following what is being discussed?

      R. Rowley wrote: "Why can't you testify to what you saw, over a much longer time and with a greater degree of studiousness?"

      BECAUSE THE RULES OF EVIDENCE SAY I CAN'T. BECAUSE IT'S AGAINST THE LAW.

      Testimony on a matter being tried in court is limited to testimony from people with PERSONAL KNOWLEDGE - and experts. I am neither.

      It doesn't make any difference how much I study the case, that still is NOT "personal knowledge" according to the law.

      PERSONAL KNOWLEDGE - Law & Legal Definition

      Personal knowledge means knowledge of a circumstance or fact gained through firsthand observation or experience.

      Click HERE for the source.

      Meaning of Personal knowledge

      Knowledge derived at first hand from actual sight or hearing of the matter in question, and not from hearsay.

      Click HERE for the source.

      My knowledge is NOT "first hand" knowledge. It's all gained from books and articles and documents I read on the subject - which is equivalent to hearsay. It's stuff other people wrote and I read.

      You dream up rules, and when it's shown to you that your dreamed up rules are NONSENSE, you become argumentative and start arguing that the LAW and the REAL RULES are meaningless and do not apply to anything.

      Why not just admit your total ignorance of the law? Why endlessly make a fool of yourself?

      R. Rowley also wrote: "if the prosecution announces that it's going to submit evidence of an "amino acid code" and the defense denies there's any such code in the texts, and exposing the jury to same would be prejudicial to the defendant, that can only be ironed out via an in limine hearing."

      More ridiculous, idiotic fantasies.

      The defense can deny anything and everything all they want. It doesn't change anything - NOR is it a basis for an in limine hearing. They'll get their chance to argue against the evidence in court.

      The idea that such evidence is "prejudicial" is STUPID.

      The only kind of "evidence" that is "prejudicial" and not allowed is evidence that doesn't have anything to do with the matter being tried in court. Examples: (1) Ivins' collection of dirty female underwear. (2) A letter Ivins wrote that shows him supporting pedophilia and child molesters.

      You just endlessly show your total ignorance of the law.

      Ed

      Delete
    14. I wrote: "The only kind of "evidence" that is "prejudicial" and not allowed is evidence that doesn't have anything to do with the matter being tried in court. Examples: (1) Ivins' collection of dirty female underwear. (2) A letter Ivins wrote that shows him supporting pedophilia and child molesters."

      I probably should have written, "One kind of 'evidence' that is 'prejudicial' ...." instead of "The only kind ...."

      After thinking about it a bit, I can see that there are other kinds of "prejudicial" evidence that a judge probably wouldn't allow, even though the evidence DOES have to do with the case: The judge probably wouldn't allow gruesome photos of dead victims or of ugly anthrax lesions to be shown during the trial. Such photos would serve no purpose other than to make the jury angry at whoever was responsible. Such photos would appeal to emotions instead of to logic and reasoning, and thus they are "prejudicial."

      Ed

      Delete
    15. My knowledge is NOT "first hand" knowledge. It's all gained from books and articles and documents I read on the subject - which is equivalent to hearsay. It's stuff other people wrote and I read.
      ==============================================
      No, now you are going all over the map. I'm just talking about the code-or-is-it-doodling? question: your evaluation of the highlighting.

      1) If Steele was doing the decoding, not via staring at the original Brokaw text from
      October of 2001 to January of 2010*, but from the photos and other reproductions taken of that text,

      2) and YOU were evaluating the lettering and highlighting based on photos supplied by the FBI (to the public at large and to such organizations as the UCLA Epidemiology Department (see:
      http://www.ph.ucla.edu/epi/bioter/detect/antdetect_letters_a4a.htm ))

      then you and Steele were doing essentially the same thing visually. His evaluation of those features wasn't any more "personal" than yours was.

      If you are evaluating handwriting, prose style etc. it doesn't much matter how the text comes to you, as long as it is reliably the text in question.
      ---------------------------------------------------------------------------------------------------
      *And we can be pretty sure he was not: typically such evidence once photographed is placed in some evidence room or repository, The photos are what is used to study, and that's why making good quality photographs is so important. The chronology (ie the fact that there was no 'amino acid code' in the picture until sometime between August 2008 and February 2010) confirms that
      notion: the Task Force was hardly using the original texts as daily working aids all through those years.

      Delete
    16. Since Mister Lake can't take a hint I'll lay it out there:

      1) calling something "stupid" doesn't make it so, even when the word "stupid" is
      in all caps.

      2) calling something "ridiculous" doesn't make it so, even when the word "ridiculous" is in all caps.

      3) calling something "moronic" doesn't make it so, even when the word "moronic" is in all caps.

      4) saying some notion is a "fantasy" doesn't make it so, even if the word "fantasy" is in all caps.

      Etc.
      A word to the wise....

      Delete
    17. R. Rowley wrote: "If you are evaluating handwriting, prose style etc. it doesn't much matter how the text comes to you, as long as it is reliably the text in question."

      You couldn't be more wrong.

      That may be the way YOU see things, but it is NOT the way things are viewed in court. Your view would be best described by those four words you don't like.

      In court, Agent Steele's observations would be allowed because he was an OFFICIAL INVESTIGATOR on the case. He helped do the investigation that the prosecutor used to put together the court case against Ivins. The FBI does the investigating for the DOJ, and the DOJ does the prosecuting. You and I do not fit into that picture anywhere.

      Agent Steele was the person who took the photo of John Ezzell holding the Daschle letter up against the lab window - the picture that is on the cover of my book. Agent Steele KNEW Bruce Ivins personally. Agent Steele examined evidence personally. He was on the case longer than just about anyone else.

      If there would be any question about a possible difference between a photo and the real thing, Agent Steele had access to the real thing. I don't. You don't.

      So, you may think that the courts should consider my or YOUR opinion to be as RELEVANT as Agent Steele's, but that is definitely NOT the way the court system works.

      Maybe you think the courts SHOULD work YOUR way, but this discussion is about how things WORK - not about how you think they SHOULD work.

      Ed

      Delete
    18. R. Rowley wrote: "If you are evaluating handwriting, prose style etc. it doesn't much matter how the text comes to you, as long as it is reliably the text in question."

      You couldn't be more wrong.

      That may be the way YOU see things, but it is NOT the way things are viewed in court.[...]
      ==============================================
      Once again, you misread what I wrote:

      1) I did NOT write that documents offered as evidence IN COURT don't have to have established provenance/chain(s) of custody. (And witness(es)thereto).

      2)I wrote about the efficacy of the linguistic/cryptographic analysis. In the case of the Amerithrax texts, we are ALL 'getting' (ie seeing them)
      courtesy of the Task Force/FBI, either directly (their website, say) or indirectly (via, say, the UCLA Epidemiology Dept site). If they are fraudulent or altered in any way, it is because of the Task Force/FBI.


      Back to Mister Lake:
      If there would be any question about a possible difference between a photo and the real thing, Agent Steele had access to the real thing. I don't. You don't.
      -------------------------------------------
      That would make him THE person to testify to the authenticity of the photos. I was NOT talking about the authenticity of the photos. I was talking about what you do in ANALYSIS (lingistic, cryptographic etc,) once you are assured a text IS authentic.

      If this were not the case, then each and every law enforcement agency that had, say, a 'potential' code-bearing text in a case would simply have the photographing cop do the code-breaking. Doesn't work that way, except rarely.
      ===============================================
      But if the Task Force has the inside track on this (the photos) then how come they "forgot" to tell the readers of their 92 page document that ALL the T's that they selected were only redone/done extra heavy in the crossbars? Or that they "forgot" to mention that a reasonable person (such as the Ed Lake of 2001-8) would see OTHER letters as partially highlighted? (Three letter O's according to the Ed Lake of that era).

      Delete
    19. R. Rowley wrote: "I was talking about what you do in ANALYSIS (lingistic, cryptographic etc,) once you are assured a text IS authentic.

      If this were not the case, then each and every law enforcement agency that had, say, a 'potential' code-bearing text in a case would simply have the photographing cop do the code-breaking. Doesn't work that way, except rarely."


      Except for conspiracy theorists who question everything, there's no question about the authenticity of the documents, since "chain of custody" documents are maintained for all evidence of that kind.

      There's no reason to believe that the documents were EVER considered to have a 'potential' code-bearing text" before the code was actually broken.

      It's been explained to you many times that it wasn't until after Ivins threw away the code books that the idea of a coded message within the letter occurred to Agent Steele.

      Handwriting and "linguistic" experts were consulted, but they evidently couldn't agree on anything about the handwriting or "linguistics."

      R. Rowley wrote: "But if the Task Force has the inside track on this (the photos) then how come they "forgot" to tell the readers of their 92 page document that ALL the T's that they selected were only redone/done extra heavy in the crossbars?"

      Your arguments that the FBI and DOJ should have done things the way you feel they should have been done are just a waste of time. I don't think anyone agrees with you. Everyone tends to do things their own way. No one cares about how you think things should be done.

      1. The hidden coded message was not discovered until Agent Steele decoded it.

      2. Agent Steele discovered the hidden message because Bruce Ivins threw away the code books, and Agent Steele wondered why.

      3. Agent Steele would testify as a lay witness in court to how he happened to decode the hidden message in the media letter.

      4. What cryptographers might think about the hidden message and code is either irrelevant or a matter for the defense, if the defense lawyers think they can make a valid argument in some way.

      5. What I thought about the small o's is irrelevant, since I have no "first hand" knowledge of the case and therefore cannot testify as a witness of any kind in the case.


      Ed



      Delete
  61. FWIW, via emails I received a couple other responses from lawyers who said:

    "As long as you can lay a foundation for the testimony you can get it into court."

    and

    "A layman may testify how he decoded the message. Your lawyer can cross examine him to poke holes in his process, but unlikely to prevail."

    These aren't answers to any newly asked question, they are just MORE answers to the question I asked early in the week.

    Ed

    ReplyDelete