I'm thinking about writing another book. Unfortunately, all I have so far is a basic idea and a possible title:
However, the copier machine question seems like a question that can easily be resolved by checking with published sources or by asking some experts. But, before doing that, we'd have to decide and agree on what the question is. And, I fear that getting an agreement on a question may be as difficult as getting an agreement on an answer. True Believers always want to phrase questions so that the only possible answer is the answer they want, even if the question no longer has anything to do with the issue that is being argued. They'll change a question about the law into a question about what is "right" or what "most people believe."
We also did not finish discussing the difference between "proving the negative" and proving someone is wrong. That looks like something that can be easily explained and equally easily researched, but that doesn't mean it will be easy to get an agreement.
The big question seems to be: How do you convince a True Believer who believes something that no one else in the world believes that he could be be wrong.
Ed
I did some research to find what others say about what "proving the negative" means. Doing that research showed me some other angles to the subject. For example, I found "Russell's Teapot" which says,
ReplyDelete"Russell's teapot, sometimes called the celestial teapot or cosmic teapot, is an analogy first coined by the philosopher Bertrand Russell (1872–1970) to illustrate that the philosophic burden of proof lies upon a person making scientifically unfalsifiable claims rather than shifting the burden of proof to others, ... Russell wrote that if he claims that a teapot orbits the Sun somewhere in space between the Earth and Mars, it is nonsensical for him to expect others to believe him on the grounds that they cannot prove him wrong."
Another source:
"The burden of proof is always on the claim that X exists rather than on the claim that X does not exist."
Another source that is easier to understand says:
"A negative proof is a logical fallacy which takes the structure of:
X is true because there is no proof that X is false."
Another good source says:
"The negative proof fallacy is where one assumes something is true if it cannot be proven false. It can also happen when one assumes that something is false if it cannot be proven true.
An infinite amount of silly statements might be declared and be completely unprovable, hence we cannot assume validity in the face of unprovability. This is what is known as burden of proof."
As anyone can see, this has nothing to do with proving someone wrong. It has to do with claiming something is true because it cannot be proved to be false.
Example: Claiming that an al Qaeda agent was behind the anthrax attacks because it cannot be proved that there was no al Qaeda agent behind the anthrax attacks. Using such reasoning, any evidence proving that Bruce Ivins did it could be interpreted as meaning Ivins was an al Qaeda agent, if you cannot prove he wasn't.
Another example: Claiming that NOT finding the copy machine that Ivins used is relevant because it cannot be proved that it is NOT relevant. I.e., if you cannot prove it is NOT relevant, then it IS relevant. That is false logic. It requires proving the negative. The burden on the proof MUST be on the person making the claim that the negative finding is relevant, not on the person who disputes the claim.
Simple.
Ed
No one makes that claim about Al Qaeda. Instead, the argument is that given the expressed intent to use anthrax to retaliate for the imprisonment of senior EIJ leaders, to include the Blind Sheik, it is important to learn what strain of anthrax Yazid Sufaat was using. You have a singularly incurious mind. Yazid can tell us now.
DeleteYou on the other hand make that claim about your First Grader -- you say that it the burden of others to show that a First Grader did not write the lettes. Even Dr. Ivins' daughter Amanda has written to tell you that there is no factual basis to your opinion.
As for the xerox machines at USAMRIID, that is just a datapoint - understanding that data point permits the reader of the Amerithrax Investigative Summary not to be misled into thinking that Dr. Ivins was copying the letters when he was in the USAMRIID library. Thus, rather than evidence of copying it is in the nature of alibi evidence -- pointing out how he was spending some of his time.
Anonymous wrote: "you say that it the burden of others to show that a First Grader did not write the lettes."
DeleteNO, I DO NOT SAY THAT. Once again you demonstrate that you do not understand what you read.
I listed 12 facts which say a child wrote the letters. Those facts are solid evidence that a child wrote the letters. I claim that those facts PROVE that a child wrote the letters. And there are other facts that can also be used if those 12 facts aren't enough.
I presented my case. There is no burden of proof on anyone else, unless they think they have a better hypothesis. If someone thinks they have a better hypothesis, then they need to provide the evidence.
Either way, my hypothesis that a child wrote the letters stands as PROVED. It is the best explanation for the known evidence. I do not require that someone try to prove me wrong. They can accept the facts or they can disbelieve the facts.
I just think it's STUPID for someone to say that I'm wrong because they don't believe the facts or because some other person doesn't believe the facts.
Anonymous also wrote: "Thus, rather than evidence of copying it is in the nature of alibi evidence -- pointing out how he was spending some of his time."
So, it's like going to a soda machine? How does that prove any alibi when the copy machine and soda machine are NOT INSIDE SUITE B3, nor do their use provide an alibi for the time of the mailings?
Ed
On the subject of the copy machine. What question would be asked of legal "experts" to get the right answer?
ReplyDeleteYou cannot ask, "Is the copy machine in the USAMRIID library relevant to the case?"
That requires that the legal "expert" also be an expert on that particular copy machine and its role in the case (if any).
The question might be, "Is something relevant in a legal case because it was tested, even if the tests found nothing?"
But the answer would likely be, "I don't know. It all depends upon the circumstances. If the claim is that person A shot person B, but a test for gunshot residue found nothing on person A, that could be relevant."
So, rephrasing the question, we get, "Is something relevant in a legal case because it was tested, even if NO CLAIM was made and the tests found nothing?"
The correct answer should be, "No." But, a lawyer might still respond, "I don't know. It all depends upon the circumstances," since the obvious answer is "No," and thus the lawyer might think it's a "trick question."
Simple questions aren't always simple.
Ed
It really is quite simple, Ed. The defense argument would be that no photocopier to which Dr. Ivins had access was shown to be a match used in the mailings. The jury simply considers that as part of the input in assessing the case. Photocopy toner can now be matched with 99% certainty and so it a powerful forensic tool.
DeleteAnonymous wrote: "The defense argument would be that no photocopier to which Dr. Ivins had access was shown to be a match used in the mailings."
DeleteTotal nonsense. Dr. Ivins had access to dozens, maybe hundreds of photocopiers. The idea that the only photocopier he could use was the one in the USAMRIID library is ridiculous. The jury would understand that that would be the one photocopier that Ivins would probably NOT use, since he was smart enough to know that there might be some way to show that the attack letters were copied on that machine. The same logic applies to the photocopier at the Frederick Public Library.
Ivins would far more likely have used a photocopy machine at an office supply store, at a grocery store, at a drug store, at a distant public library, at a UPS store or at a printing shop than the nearby copy machines to which he could be easily connected.
And, since Ivins made it a practice to drive long distances to commit his crimes, he could have used any publicly accessible photocopier within a hundred miles.
Ed
Yes, the facts (of the absence of any match) is presented to the jury and then they can assess the evidence and determine what weight to give it.
DeleteAlthough you seem as unfamiliar with the technology as you are unfamiliar with application of the Federal Rules of Evidence, it was in the news this week that DHS had handed its forensic database of toner data to ICE.
According to my intelligence source, NONE of the photocopies seized from Dr. Ivins' work or home were a match with the mailed letters.
The Searchable Toner and Printing Ink Library database system was created in partnership between Science and Technology Directorate and the Ames Laboratory, U.S. Department of Energy. It provides the HSI Forensic Laboratory and other federal, state, local, tribal and international law enforcement agencies with the capability to identify and analyze printed evidence by matching them with an archive of known print media samples, said ICE.
"The casework associated with printing inks and toners continues to expand, and this library makes forensic document analysis possible across law enforcement laboratories,” said Dr. Kai-Dee Chu, program manager of the Resilient Systems Division of DHS' Science and Technology Directorate. “It will assist law enforcement officers to ... link such items with comparable documents associated with other criminal incidents, locations, materials or individuals."
...
"The Searchable Toner and Printing Ink Library … enables identification of suspected samples with much higher confidence."
Chu explained that the capability that the library brings to ICE fills a very important technology gap that has been identified by the general forensic community. He went on to explain that the HSI Forensic Laboratory has already started to field inquiries about the technology.
"The Homeland Security Investigations Forensic Laboratory is already receiving inquiries and requests from state and local law enforcement to help analyze suspected documents," he said.
In addition to attendees from ICE, forensic scientists from the U.S. Secret Service, National Institute of Justice and FBI participated in the ceremonial handover of the database, said ICE.
"There is a very high interest from the forensic community wanting to collaborate and further mature this technology," Chu said.
GAO, therefore, would have access to this database if it chooses.
Anonymous,
DeleteBabbling about toner evidence is not relevant to this discussion. There was no toner evidence presented in the Amerithrax case. If you believe that there could be toner evidence, then prove it. Otherwise, it's just a waste of time to babble about it.
Ed
Another source about
ReplyDelete"Proving a Negative
(The Objectivist Newsletter, April 1963) "Proving the non-existence of that for which no evidence of any kind exists. Proof, logic, reason, thinking, knowledge pertain to and deal only with that which exists. They cannot be applied to that which does not exist. Nothing can be relevant or applicable to the non-existent. The non-existent is nothing. A positive statement, based on facts that have been erroneously interpreted, can be refuted - by means of exposing the errors in the interpretation of the facts. Such refutation is the disproving of a positive, not the proving of a negative.... Rational demonstration is necessary to support even the claim that a thing is possible. It is a breach of logic to assert that that which has not been proven to be impossible is, therefore, possible. An absence does not constitute proof of anything. Nothing can be derived from nothing." If I say, "Anything is possible" I must admit the possibility that the statement I just made is false. Doubt must always be specific, and can only exist in contrast to things which cannot properly be doubted."
Lots to think about there.
Proving R. Rowley is wrong is NOT proving the negative. It is proving the obvious. ;-)
Ed
If Ed thinks that the defense could not admit the photocopier reports as evidnece, he is mistaken. He has no legal training and thinks a First Grader wrote the letters. Enough said. He should research and cite the legal precedent before giving his lay opinion about it.
DeleteThe review of photocopiers was part of the science relied upon in Amerithrax and is thus part of the GAO's scope of review.
Anonymous wrote: "The review of photocopiers was part of the science relied upon in Amerithrax and is thus part of the GAO's scope of review."
DeleteAgain you demonstrate that you do not understand what you read.
The GAO is not involved in this matter. The question is about a theoretical trial of Bruce Ivins. The Department of Justice (DOJ) would have prosecuted the case, not the General Accountability Office (GAO).
The review of photocopiers was NOT part of the science relied upon in Amerithrax. It was only a subject that was investigated. No one RELIED upon anything about photocopiers.
Also, you shift the burden of proof to me and ask me to prove the negative. I've stated that the photocopier report is NOT relevant to the case against Bruce Ivins. Irrelevant material cannot be entered into evidence. I cannot prove that the photocopier report is NOT relevant, since that would require proving the negative. However, if you argue that it IS relevant, you need to prove the positive: either prove that it is relevant or cite the precedent that irrelevant evidence CAN be admitted as evidence. The defense would have to do that before the photocopier report could be admitted as evidence.
Ed
Once again Mister Lake's summary of my position was lacking (from the weekly bit above):
ReplyDelete-----------------------
R. Rowley argued that the fact that they couldn't find the copy machine is "relevant" evidence of something.
==============================================
No, I never argued that. I argued that the fact that the workplace photocopier most convenient to Ivins was tested by trained (a)technician(s) working for the investigators and could not be matched to the photocopied Amerithrax texts was a relevant detail to any notional trial of Bruce Ivins.
I further argued that there was no legal (read: procedural) basis for an objection to the entering into evidence of the report on that photocopier, since the only possibly grounds could be 'relevance' and it was plenty relevant.
I observed that it was then going to be up to the jury as to how much weight to give that report.
-----------------------------------------------
Mister Lake, reversing things, wants to say it has NO WEIGHT, and thus is irrelevant, and thus can't be admitted. He is reversing procedure to suit his own polemical druthers.
R. Rowley wrote: "I further argued that there was no legal (read: procedural) basis for an objection to the entering into evidence of the report on that photocopier, since the only possibly grounds could be 'relevance' and it was plenty relevant."
ReplyDeleteNo, it is NOT relevant. Claiming it is relevant does not make it relevant.
The fact that the FBI tested it does NOT automatically make it relevant.
It is NOT relevant because it does NOTHING to prove OR disprove the claims made against Bruce Ivins.
Such a thing would not even be brought up, but assuming the defense DID bring it up at a pre-trial hearing, the judge would ask, "How is the copier testing relevant to proving or disproving the claim against Dr. Ivins?"
What do you believe would be the response from the defense?
Ed
We need to ask an attorney who has no position on Amerithrax.
ReplyDeleteBut none of Mister Lake's post gives a procedural reason for the judge to rule it inadmissible.
======================================================
Mister Lake:
-----------
the judge would ask, "How is the copier testing relevant to proving or disproving the claim against Dr. Ivins?"
What do you believe would be the response from the defense?
------------------------------------------------------
'Your honor, it is beyond the time and resources of the defense to try to test each and every photocopier that Bruce Ivins MIGHT have used to photocopy the texts------and just to note, any photocopier readily available to Mister Ivins was readily available to others working at USAMRIID-------, a photocopying that is an integral part of committing the Amerithrax crimes, but we thought that we could at least eliminate the machine that the INVESTIGATORS THEMSELVES tested, because they themselves thought it may have been the one used by someone at USAMRIID. We, the defense, heartily agree that that was a healthy supposition to make. And that especially in light of the fact that the prosecution claims that Dr Ivins did the drying and purifying of the attack spores at his workplace, at USAMRIID.
We realize that this does not, IN AND OF ITSELF, logically rule out either Dr Ivins nor any other potential perpetrator at USAMRIID, but it does give a better perspective on the probabilities involved. The weight given to the photocopier report would, of course, be up to the jury to decide in its deliberations.'
R. Rowley wrote: "We need to ask an attorney who has no position on Amerithrax."
ReplyDeleteI've seen legal forums on the Internet where legal questions can be asked. But, I think we also need to ask the question in a way that just addresses the legal issues, not anything in the Ivins case specifically.
R. Rowley also wrote: "We realize that this does not, IN AND OF ITSELF, logically rule out either Dr Ivins nor any other potential perpetrator at USAMRIID, but it does give a better perspective on the probabilities involved."
The judge would tell the defense lawyer he needs to go back to law school. The defense cannot admit evidence on the basis that it opens up probabilities or possibilities. Evidence can only be admitted to prove or verify a claim. Possibilities and probabilities neither prove nor verify anything.
The copier testing cannot be admitted because it is irrelevant and proves nothing.
Ed
The judge would tell the defense lawyer he needs to go back to law school. The defense cannot admit evidence on the basis that it opens up probabilities or possibilities.
ReplyDelete--------------------------------------------
No, you are wrong. Take the OJ trial: each side was trying to goose the timeline. Why? Because any and all indications that the murders took place LATE, made it less probable that OJ did them (he had the flight to catch). The defense had to play up what it had in that regard (I think it had very little). The prosecution had the upper hand on the timeline: because the chauffeur couldn't get an answer when he rang the first time, because when he entered the compound later, he saw a man who looked generally like Simpson walking (rather than taking a nap inside). etc.
These myriad details tweak probabilities. And in the end "beyond a reasonable doubt" is a probability statement.
R. Rowley wrote: "No, you are wrong."
ReplyDeleteNo, you are wrong. You cannot admit evidence on the basis that it opens up possibilities or probabilities.
You cite the OJ trial and how things that were legitimately brought up during the trial were then USED to suggest possibilities.
That is VERY different from telling the judge that you want to admit some report because it will allow you to bring up probabilities and possibilities you couldn't otherwise bring up.
Also, there's the question I mentioned in the other thread:
WHO would testify about the report and HOW would they do it?
The only "expert" is an FBI agent, and he's not going to tell the defense lawyer what the defense lawyer wants to hear. Nor is the defense lawyer going to be able to twist the FBI agents statements that the testing proved nothing into a claim that it proved something. That would require that the defense lawyer make claims and statements that he is not qualified to make. And, he'd be testifying without taking the stand. He can't do that.
Ed
Also, there's the question I mentioned in the other thread:
ReplyDeleteWHO would testify about the report and HOW would they do it?
------------------------------------------------
I don't think testimony would be necessary, since the prosecution wouldn't be challenging the PROVENANCE of the documents (these are Task Force/FBI/DoJ documents). And they would have been rendered to the defense BY the prosecution on a discovery request.
(ie it would have been thoroughly documented that these were not spurious or counterfeit reports).
But if a witness WERE necessary it would be: the SA signing the document and/or the technician doing the testing, perhaps singing too.
The only "expert" is an FBI agent, and he's not going to tell the defense lawyer what the defense lawyer wants to hear.
ReplyDelete--------------------------------------
He will if the question is framed correctly. And usually it's framed right, among other ways, in a yes-or-no form.
(this is precisely why I, many moons ago, was pointing out how Jeff Taylor ducked the question about the handwriting comparisons: it was a yes-or-no question, but he answered as if it were anything but! Sometimes you can get away with that with reporters.)
R. Rowley wrote: "I don't think testimony would be necessary,."
ReplyDeleteWha...?
Do you imagine that the defense attorney is going to pass copies out the the members of the jury and ask them to read it for themselves to figure out what it means? When are they going to do this reading? While the prosecution presents its case?
That is NOT the way things work in any American court.
If a document is introduced in court as evidence of something, SOME EXPERT has to explain to the jury what the document means to the case against the defendant.
Take the in-out logs as an example. As head of the investigation, SA Montooth would probably have taken the stand and been asked to explain to the jury what the in-out logs showed about Ivins' unusual work times. The prosecution would probably have big charts or slides showing the in-out logs, and they'd have graphs showing how unusual those work times were compared to anything Ivins did previously in the past 2 years or more. Every detail would be explained thoroughly.
The prosecutor would stand by the screen or the easel with a pointer to ask Montooth, "What does this indicate?" "What did that mean to you?" "What does it tell you about what Dr. Ivins was doing." "How did it tell you that?" Etc., etc.
Another example would be a report on the morphs found in the powders. One scientist after another would be called to the witness stand to explain to the jury what it all means. There would be slides and charts for that, too.
Yet, you don't think there's any need for any testimony about what a report on the testing of a copier means?
Your beliefs have nothing to do with reality. So, you still need to explain WHO is going to tell the jury what the report means for the defense, and HOW are they going to do it? It won't happen by osmosis, by wishful thinking or by handing out copies to the jury to read while the prosecution is presenting its case.
Ed
The FBI's forensic reports excluding the USAMRIID photocopiers will be available to you to read if obtained by the GAO and made available.
DeleteRelatedly, if the GAO feels constrained to only release the interviews of FBI scientists and investigators, then it can release the interviews of the scientist who did the mass spec on the toner. Dr. Bartick, now in Boston, can explain the USAMRIID toners were excluded. It is a simple matter to call him.
As a formal matter, typically production under FOIA is doen by the agency rather than GAO.
The best part of the forensic tests on photocopies is that ALL copies in Dr. Ivins possession could be excluded as having been made on the same photocopier. It is a simple matter to test other photocopies from a subject and test the toner -- just as it was to take photocopies taken from USAMRIID made during that time period. You have always confused the issue of "tracks" with the mass spec on the toner. They are two different issues. ALL copies seized from USAMRIID that were tested could be excluded.
DeleteAnonymous,
DeleteYou're babbling about what the GAO would or will do. Who cares about opinions about future events? We can argue about what the GAO REPORTED after they REPORT IT.
The facts say the prosecution would have presented NO photocopier evidence in the trial of Bruce Ivins.
You and R. Rowley argue that the defense would have presented photocopier evidence even though it is clearly irrelevant, since no relevance to Ivins guilt or innocence can be shown.
Ed
The expert reports done on the toner used in the materials from 2001 seized from Dr. Ivins would have been relevant and admissible. See case law. Instead of posting on the subject of legal precedent, you might both take a moment to learn something about forensic discrimination of photocopy toner and the increasing confidence levels now that can be achieved in excluding the photocopies known to be available to Dr. Ivins -- to include the Frederick public library, USAMRIID, his local post office branch, and the local copy shops. All those machines were tested.
DeleteAnonymous wrote: "Instead of posting on the subject of legal precedent, you might both take a moment to learn something about forensic discrimination of photocopy toner ..."
DeleteIf you believe toner testing proves something, why don't you explain it to us? Why ask us do the research? Is it because you cannot explain it and want us to do it for you?
I don't see it as relevant. You claim it IS relevant. It's your claim, so it's up to you to back up the claim with logic and evidence. So far, you've made no case.
And, I've got better things to do than do your work for you.
Ed
I have posted and explained the studies on Lew's blog. You just are not well read.
DeleteAnonymous wrote: "I have posted and explained the studies on Lew's blog."
DeleteLew's blog is a BOTTOMLESS SWAMP of disorganized and irrelevant information. No one I know has the time to dig through it to find something that may or may not be worthwhile.
It's tough enough to just glance through the most recent worthless posts once a day without digging into all that endless and meaningless crap.
Ed
I wrote: "The only "expert" is an FBI agent, and he's not going to tell the defense lawyer what the defense lawyer wants to hear."
ReplyDeleteAnd R. Rowley responded, "He will if the question is framed correctly."
He cannot ask leading questions. So, the defense can only ask questions like, "What does this mean?" and "What did that tell you?"
A question like, "Does that tell you Ivins didn't use that copier?" would be a leading question. It cannot be asked.
So, what kind of questions do you believe the defense would ask to try to get the jury to believe the document says something about Ivins' innocence?
Ed
Posted by Mister Lake:
ReplyDelete-----------------
R. Rowley wrote: "I don't think testimony would be necessary,."
Wha...?
Do you imagine that the defense attorney is going to pass copies out the the members of the jury and ask them to read it for themselves to figure out what it means? When are they going to do this reading? While the prosecution presents its case?
======================================
No I already gave a way to introduce such evidence (repost from
rowley March 2, 2013 at 9:58 AM, last week's thread)
------------------------------------------------------
So what's to stop the defense from saying, at the beginning of the defense-in-main something along the following lines:
'If it please the court, I would like to enter into evidence this FBI document #[so and so], dated [so and so] which explicitly states, and now I'm reading from the document "The USAMRIID copier could not be matched to the flaws observed in the Amerithrax letters which were photocopied somewhere". The document is signed both by the technician [so and so] and by Special Agent [so and so]'
The judge would likely say "Very well, this will be exhibit # [so and so].
----------------------------------------------
Ditto for the handwriting comparison document(s).
---------------------------------------------
Testimony is largely necessary to explain the provenance of a document, or if HIGHLY technical in nature, a presentation of the results 'for the layman'. But almost certainly there is, along with the technical jargon of the photocopier technician, a simpler version, a precis or resume for the investigators. This could be read by the defense at the time the documents are entered into evidence.
Since the provenance of these documents (report on USAMRIID copier, report on printing comparisons)wouldn't be in dispute (since they are both coming from the prosecution), I see no reason that they couldn't be read, in part (likely), or in whole (boring and over the head of many jurors and thus unlikely)by the prosecution.
There's no reason for the jurors to do any reading on their own.
And R. Rowley responded, "He will if the question is framed correctly."
ReplyDeleteHe cannot ask leading questions. So, the defense can only ask questions like, "What does this mean?" and "What did that tell you?"
================================================
A witness can be read what's in the document, and in the photocopier document there's going to be a passage along the following lines:
'The USAMRIID library photocopier could not be matched to the flaws observed to exist in the Amerithrax photocopied texts.'
So (defense counsel):
'Was that the finding of the document, Agent X, yes or no?'
=========================================================
That's not what is meant by 'a leading question'.
Again, I don't think it would be necessary to call as a witness anyone in order to submit the documents (USAMRIID copier check, handwriting comparison(s)) into evidence.
ReplyDeleteI think those two would fall under the rubric of "self-authenticating documents":
http://www.law.cornell.edu/rules/fre/rule_902
Shorter treatment here:
http://en.wikipedia.org/wiki/Self-authenticating_document
Partial post by Mister Lake:
ReplyDelete--------------------
The prosecutor would stand by the screen or the easel with a pointer to ask Montooth, "What does this indicate?" "What did that mean to you?" "What does it tell you about what Dr. Ivins was doing." "How did it tell you that?" Etc., etc.
--------------------------------
Funny that YOU were the one to mention 'leading the witness'. But that's exactly what your scenario above is about.
"Objection, your Honor, counsel is leading the witness!"
"Objection, your Honor, counsel is asking the witness to speculate".
-------------------------------------------------------------
Aside from that but related to it there is:
Calls for a conclusion: the question asks for an opinion rather than facts.
http://en.wikipedia.org/wiki/List_of_objections_(law)
So the following questions imagined by Mister Lake asked by the DEFENSE (!!!!!!!!!!!!!!!!!!!)
"What does this mean?" and "What did that tell you?"
are BOTH questions that call for a conclusion. No defense attorney in his right mind would ask such questions.They, as I already indicated, would ask yes/no questions, carefully crafted.
Questions that they already knew the answers to (via documents, depositions etc.)
The prosecution would, for FRIENDLY witnesses, try to craft questions that gave more interpretive leeway.
R. Rowley wrote: "So what's to stop the defense from saying, at the beginning of the defense-in-main something along the following lines:
ReplyDelete'If it please the court, I would like to enter into evidence this FBI document #[so and so], dated [so and so] which explicitly states, and now I'm reading from the document "The USAMRIID copier could not be matched to the flaws observed in the Amerithrax letters which were photocopied somewhere".
That is testimony. The defense lawyer cannot provide testimony by reading a document to the judge or jury. And you are saying the defense lawyer would read the document BEFORE it is presented as evidence. That's doubly absurd.
Haven't you seen enough movies where the prosecution or defense asks someone in the witness stand to read some highlighted passage from a document? That is how it is done in court.
If the defense wants to use the document in court, they would FIRST have to convince the judge that it is okay during the pre-trial hearings over the objections of the prosecution.
If the judge agrees, in court the defense lawyer would present the document to the court clerk and ask it be admitted into evidence. Then, once that is done, using a copy of the report, the defense lawyer would call the author of the report to the stand. The defense would ask the verifying questions: Did you write this report? Is that your signature?
Then, the defense attorney would ask the author of the report to read some highlighted passage.
The only OPINION that can be given is an opinion from the expert who wrote the report. The only INTERPRETATION that can be given is the interpretation of the expert who wrote the report OR a defense expert who disputes the findings.
The defense lawyer cannot provide his own personal opinions about the document without a severe reprimand from the judge.
Ed
R. Rowley wrote: "I think those two would fall under the rubric of "self-authenticating documents":
ReplyDeleteNo, they wouldn't. FBI reports are generally NOT self-authenticating. They are NOT certified. They are NOT notarized.
But, that's not the problem here. The problem is that admitting such a document has no value unless some expert testifies to what it means to the case.
The defense lawyer cannot testify to what it means to the case.
The person who wrote the report cannot testify to what it means to the case, since it proved nothing.
You'd need someone to testify that finding nothing means something. Who is going to do that?
Ed
R. Rowley wrote: "I think those two would fall under the rubric of "self-authenticating documents":
ReplyDeleteNo, they wouldn't. FBI reports are generally NOT self-authenticating. They are NOT certified. They are NOT notarized.
----------------------------------------------
They probably WOULD be as part of the handover from the prosecution to the defense: it is in the prosecution's best interests to keep track of DoJ-internal documents, including investigative documents. So as to make sure the defense doesn't pull a switcheroo at the trial, among other reasons. What do you imagine, that Rachel Lieber is just going to toss the report(s) over the transom of Paul Kemp's office? No, there are regular arrangements made in such renderings of documents. Probably including notarization.
(But the full range of those arrangements could be better commented on by a practicing attorney)
Posted by Mister Lake:
ReplyDelete------------------------------
R. Rowley wrote: "So what's to stop the defense from saying, at the beginning of the defense-in-main something along the following lines:
'If it please the court, I would like to enter into evidence this FBI document #[so and so], dated [so and so] which explicitly states, and now I'm reading from the document "The USAMRIID copier could not be matched to the flaws observed in the Amerithrax letters which were photocopied somewhere".
That is testimony.[...]
---------------------------------------
No, reading from a document is not "testimony" if done by counsel (of either side). Sometimes the attorneys LIKE to have documents read aloud by witnesses, because they figure it makes a bigger impression on the jury. But there is nothing to stop a defense attorney OR a prosecutor from reading from a document IF the document has already been ruled admissible (and the written form of the document entered into evidence).
R. Rowley wrote: "Funny that YOU were the one to mention 'leading the witness'. But that's exactly what your scenario above is about."
ReplyDeleteSigh. No, that is NOT leading the witness.
You have to ask questions to get answers. A question like "What does this indicate?" or "How did it tell you that?" is not leading the witness. It's how a lawyer gets an expert witness to testify to the facts of the case.
According to Wikipedia, a leading question is a question which "suggests the particular answer or contains the information the examiner is looking to have confirmed."
The questions I used just ask for information.
Leading questions would be:
"Did that indicate Ivins drove to New Jersey?"
"Did the morph evidence tell you the attack powders originated with flask RMR-1029?"
"How did the in-out logs tell you Ivins was making the powders in Suite B3?"
Etc.
R. Rowley also wrote: "BOTH questions that call for a conclusion. No defense attorney in his right mind would ask such questions."
An expert witness is put on the stand to give his conclusions about what he found. That's why he's called.
The prosecution can ask, "What is your conclusion?"
The expert witness then states what he concluded from the evidence. Example: "I concluded that the silicon in the spores got there from natural processes, not from any artificial additive."
Ed
But, that's not the problem here. The problem is that admitting such a document has no value unless some expert testifies to what it means to the case.
ReplyDelete-------------------------------------------------
Don't agree. It is beyond the scope of any 'expert' to say what a given document or a given finding "means to the case": the jury will decide that. The expert, if he is called, is merely talking about what the results of a test (photocopier) or side-by-side comparison (handwriting analysis) reveal. It is not for that person to speculate (Objection, calls for speculation!), or conclude (Objection, calls for a conclusion on the part of the witness!)about the wider ramifications about these tests/checks and their attendant documents.
You have to ask questions to get answers. A question like "What does this indicate?" or "How did it tell you that?" is not leading the witness.
ReplyDelete------------------------------------------------
Those questions are too open-ended: fine for chatting in the 'hood or your local bar, but not the sort of question that is finely focussed. The second question might be okay, depending on what Q&A went before it.
An expert witness is put on the stand to give his conclusions about what he found. That's why he's called.
ReplyDeleteThe prosecution can ask, "What is your conclusion?"
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They can ask that if the context (read: previous Q & A) makes clear what the witness is concluding about, what the focus of his conclusions are.
Otherwise you could have a beyond-the-scope problem:
Beyond the scope: A question asked during cross-examination has to be within the scope of direct, and so on.
http://en.wikipedia.org/wiki/List_of_objections_(law)
R. Rowley also wrote: "BOTH questions that call for a conclusion. No defense attorney in his right mind would ask such questions."
ReplyDeleteAn expert witness is put on the stand to give his conclusions about what he found. That's why he's called.
=========================================
In VERY general terms that's true. But it has to be done through the established procedures of legal practice. ONE of those established procedures is for counsel to ask very specific questions. OTHERWISE you would merely get a series of bloviating "expert witnesses, defense and prosecution, wasting precious court time on matters 1)irrelevant and 2) beyond the scope of the questioning/their own expertise.
Not a good thing.
R. Rowley wrote: "No, there are regular arrangements made in such renderings of documents. Probably including notarization."
ReplyDeleteYou are speculating.
Copies of prosecution documents in the case would be sealed and turned over to the defense en masse at their offices long prior to the actual trial. The defense would then unseal the BOXES of documents and spend months reviewing them.
Before going to court, if the defense wants to use a document as evidence, they'd make two additional copies of it. In court, they'd give one copy to the prosecution to verify that it hasn't been altered, and they'd give another copy to the court clerk to be admitted into evidence.
They are NOT self-authenticating documents.
R. Rowley also wrote: "No, reading from a document is not "testimony" if done by counsel (of either side)."
Okay, I can't say that it wouldn't be allowed under certain circumstances. A lawyer can certainly read from law books to cite a point of law or a legal precedent, even though they would more likely just cite the reference and give the book to the judge to read for himself.
But reading from an FBI report that proved nothing?
And what would be the point if the defense cannot interpret the report for the jury? Or do you believe that the defense can read from a bunch of reports that found nothing and argue to the jury that finding nothing proves something?
I don't think the report would be allowed into evidence in the first place, since it is evidence of nothing relevant. So, arguing that it can be then read to the jury is just compounding nonsense. And, it all means nothing if the information cannot be interpreted for the jury.
Why would the defense lawyer want the jurors looking at him and wondering why he's reading all this meaningless stuff?
Wasting the time of a juror is one way to get the jury mad at you and your client.
Putting speculation on top of other speculation is a waste of time for all of us.
Ed
R. Rowley wrote: "No, there are regular arrangements made in such renderings of documents. Probably including notarization."
ReplyDeleteYou are speculating.
Copies of prosecution documents in the case would be sealed and turned over to the defense en masse at their offices long prior to the actual trial. The defense would then unseal the BOXES of documents and spend months reviewing them.
----------------------------------------------------
I think all those copies would be either certified or notarized.
Yes, it's "speculation" but such certification is what makes them admissible to begin with: the certification that this is a TRUE copy of an original held by the prosecution. This is probably a routine function of a whole office full of people at DoJ, seeing as how they are a paper factory.
Here's a notary that advertises online:
ReplyDeletehttp://pinnaclepfs.com/Notary.html
To the right is a list of all the things that can be notarized.
One reads "•Discovery Documents"
But I imagine the DoJ has their own in-house operation for that: they don't need a commercial notary.
Could be wrong....
R. Rowley wrote: "It is beyond the scope of any 'expert' to say what a given document or a given finding "means to the case": the jury will decide that"
ReplyDeleteThe jury will decide if the document or findings helps prove guilt to them, but the expert will state what the evidence means to him and to the case. That is why he is put on the stand.
However, SA Montooth wouldn't technically be an "expert" witness. He'd be a witness to the investigation and to what Ivins said in interviews, etc. His opinions about investigative matters should be relevant and allowable. E.g., "Not finding fingerprints means nothing, since most people know about fingerprints and don't intentionally leave them at the scene of a crime if it can be avoided."
Your other posts are just the same thing over again and a waste of time.
A prosecutor picks his or her witnesses and questions them before the trial to make sure they won't waste everyone's time by talking about things that do not matter to the case.
Ed
R. Rowley wrote: "It is beyond the scope of any 'expert' to say what a given document or a given finding "means to the case": the jury will decide that"
ReplyDeleteThe jury will decide if the document or findings helps prove guilt to them, but the expert will state what the evidence means to him and to the case.[...]
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No, that's precisely what the witness must NOT do. Not only would there be an objection, but the comment would be stricken from the record and the jury instructed to ignore the remark.
(It violates MULTIPLE principles: beyond the scope principle; the speculation principle etc.)
Why would the defense lawyer want the jurors looking at him and wondering why he's reading all this meaningless stuff?
ReplyDelete-----------------------------------------
Who said anything about meaningless stuff. I cited the defense attorney reading a precis along the lines of:
"Conclusion: the USAMRIID library photocopier could not be matched to the imperfections found in the Amerithrax attack letters."
(There's no reason to read the entire document aloud)
If an individual juror finds that "meaningless", so be it. But I don't think the majority would.
R. Rowley wrote: "I think all those copies would be either certified or notarized."
ReplyDeleteI think that would be a total waste of time. Notarization requires that the notary be present when a document is signed. We're talking about case documents from years earlier. You'd have to round up all the agents and have them sign a second time before a notary. There's no need for that. AND there's no need to make such copies "self-authenticating" if it's a simple matter to call the author to the stand to authenticate them, and that would probably be done anyway if the documents were going to be used in trial.
Your post about notaries is just nonsense on top of nonsense.
Ed
Your post about notaries is just nonsense on top of nonsense.
ReplyDelete---------
In what way?
R. Rowley wrote: "No, that's precisely what the witness must NOT do."
ReplyDeleteAccording to your beliefs. But, let's take an example:
A scientist takes the stand and shows solid evidence that the silicon in the spores got there via natural processes and not via some artificial additive. He can then explain that that is evidence that no special equipment or expertise was required to cause silicon to appear in the attack spores.
The prosecutor could ask, "Did Dr. Ivins have all the necessary equipment in his lab?"
The scientist would respond, "Yes. In fact, he created spores with identical silicon when he created the contents of flask RMR-1030."
The jury would then know that the silicon didn't require any unusual expertise from Ivins, and since Ivins created spores containing silicon for flask RMR-1030, so he could also have created it for the attack powders.
All the jury needs to do is decide if this information along with all the other evidence is enough to declare Ivins guilty beyond a reasonable doubt.
R. Rowley also wrote: "Who said anything about meaningless stuff. I cited the defense attorney reading a precis along the lines of:
"Conclusion: the USAMRIID library photocopier could not be matched to the imperfections found in the Amerithrax attack letters."
It's meaningless stuff if it's relevance is not established and explained. The fact that Ivins didn't use a specific photocopier doesn't mean anything. It's meaningless information. It's irrelevant. (So is your opinion.)
If the defense attorney tries to explain what it means, he's testifying to something he's not qualified to testify about.
If the defense makes a statement about the meaning of the photocopier tests it has to be done by an expert so that that expert can be cross-examined by the prosecution or a rebuttal witness can be called.
I wrote: "Your post about notaries is just nonsense on top of nonsense."
And R. Rowley responded: "In what way?"
Your belief that a document put into evidence must be notarized is not proved (and doesn't seem logical). It seems to be nonsense. Posting links about notaries is nonsense on top of nonsense.
Ed
You two should not be discussing the subject given neither of you are qualified to address it. Instead, you should be reading about it.
ReplyDelete"The Admission of Forensic Science Evidence in Litigation" is Chapter 3 in the National Academies 2009 publication Strengthening Forensic Science in the United States: A Path Forward (2009)
http://www.nap.edu/openbook.php?record_id=12589&page=85
Anonymous wrote: "You two should not be discussing the subject given neither of you are qualified to address it."
ReplyDeleteIs that a rule you just made up?
Excuse us if we do not obey your rules.
Ed
Hmm. No posts in the queue at the moment. It looks like a good time to shut down for today.
ReplyDeleteEd
And R. Rowley responded: "In what way?"
ReplyDeleteYour belief that a document put into evidence must be notarized is not proved (and doesn't seem logical).
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I think you're wrong:
1)notarization or certification serves ALL parties.
2)if the defense is getting discovery documents, it must be certain that what it is getting is VERIFIABLY identical in text/(other features?) to what the prosecution has: in order to know what the prosecution might try to claim but ALSO to know that any document obtained thereby will stand up in court if the defense itself decides to introduce the document into evidence.
3)the prosecution ALSO doesn't want to be blindsided by a 'variant' document introduced by the defense, either a variant doctored by the defense itself or one of two or more variants that were floating around the FBI or Justice AND which just happened to end up in the defense's possession due to carelessness.
4)the judge has to make rulings on documents and must do so according to some protocol. A part of that protocol must have to do with the provenance/chain of custody. When it is a written document, a DoJ-to-defense discovery document, the certification/notarization makes it less likely that, down the road, it will turn out that the defense's version is different from the prosecution's.
5)also the jury would be confused if any variants of documents were discovered.
R. Rowley wrote: "I think you're wrong"
ReplyDeleteI think you have a very WRONG idea of how things work. It's simply NOT PRACTICAL to get notarized copies of every document provided during discovery in a case that lasted for SEVEN YEARS.
There's an on-line document which explains just about everything anyone needs to know about discovery documents. Click HERE to view it.
Note that they go through all kinds of precautions to make certain that there are no confusing "variants of documents." Notarization would NOT prevent that. All notarization would do is make certain that everything is properly signed.
This is my last post after my last post for today. Guaranteed!
Ed
It's simply NOT PRACTICAL to get notarized copies of every document provided during discovery in a case that lasted for SEVEN YEARS.
ReplyDelete----------------------------------------------
No, they don't make discovery requests that broad. They ask for SPECIFIC things. Kemp would surely have asked for the USAMRIID photocopier report(s). And the (hand) printing comparison report. Because these things are potentially USEFUL for the defense.
R. Rowley wrote: "No, they don't make discovery requests that broad. They ask for SPECIFIC things."
ReplyDeleteThe issue is whether or not such documents need to be NOTARIZED. So, whether the defense asks for a thousand documents or ten thousand documents, it's still a LOT of documents to be notarized for NO REASON.
Notarization does nothing to resolve the issues you complained about: "variant" documents where the prosecution has a different version of a document than the defense.
So, if you BELIEVE that discovery documents are notarized, and are thus "self-authenticating" and can therefore be entered into evidence without anyone explaining them to a jury or testifying about they mean, then you need to PROVE that, since your belief appears to be absolutely ridiculous.
Ed
The issue is whether or not such documents need to be NOTARIZED. So, whether the defense asks for a thousand documents or ten thousand documents, it's still a LOT of documents to be notarized for NO REASON.
ReplyDelete-------------------------------------------------------
I don't know how you came up with those figures. I mentioned only two items (I assume there would be more, but whether that would be in the dozens or low hundreds in such a case, I hesitate to speculate); in addition the discovery request LIKELY goes by category: "defense requests all prosecution documents dealing with defendant's handwriting/printing and any analyses/comparisons done of same". Just an example, for the defense to start off with has no idea WHAT the prosecution team is holding.
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Back to Mister Lake:
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So, if you BELIEVE that discovery documents are notarized, and are thus "self-authenticating"[...]
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How, save by certification/notarization, could all the parties be sure they have the same documents?
If we are talking about PROSECUTION documents to begin with, the defense isn't getting the originals, but only copies. I think for official purposes (including the legal work in real estate transactions involving deeds) all such documents need to be notarized, and for the same basic reason. I would be very surprised if the standard for federal criminal court documents were lower.
I THINK (not 100% sure) that the section dealing with this is covered here:
ReplyDeletehttp://www.law.cornell.edu/rules/fre/rule_902
Federal Rules of Evidence.
Rule 902
Under section about self-authenticating documents.
A part of it is:
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
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But the entire Rule 902 is longer and is worth a perusal.
Richard Rowley wrote: "How, save by certification/notarization, could all the parties be sure they have the same documents?"
ReplyDeleteNOTARIZATION DOES NOTHING TO ASSURE THAT.
Discovery is not provided item by item. It's provided as one big mass. Then, if the defense finds something that is missing, they request it.
I provided a link for you. Here it is again as text instead of a link: http://www.justice.gov/dag/discovery-guidance.html
Step 3, Section A says:
"Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g. agent notes or internal memos, that the court may deem to have been part of the “file.”
The responsibility for making certain that copies given to the defense are the same as those kept by the prosecution is the responsibility of the PROSECUTOR, not some notary who wouldn't know the difference between evidence and circus tickets.
The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
Ed
R. Rowley wrote: "Under section about self-authenticating documents."
ReplyDeleteSelf-authenticating documents are things like certified copies of birth-certificates or a drivers license or a Green Card or an import license or diploma.
FBI investigation records are NOT "Certified Copies of Public Records." They are NOT certified and they are not public records.
You're off into Looney Tune Land.
Ed
I thank Mister Lake for that link. Right after the second full sentence of the body of the text is this note: see USAM §9-5.001
ReplyDeleteSo I did. It is here:
Parts of that (I'm picking and choosing on this):
-----------------------------------
The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant. Kyles, 514 U.S. at 437.
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My take: so quite apart from any specific requests by the defense, the prosecutor is obligated to 'seek' exculpatory and impeachment information from the full prosecution team.
My further take: they would have surely turned up the non-match of Ivins' printing when compared to the printing of the Amerithrax letters/envelopes. Exculpatory information plain and simple.
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Another section:
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Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
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My take: this would likely include the non-match to the USAMRIID library copier, unless the prosecutor already intended to introduce this info via his case-in-main.
R. Rowley wrote: "My further take: they would have surely turned up the non-match of Ivins' printing when compared to the printing of the Amerithrax letters/envelopes. Exculpatory information plain and simple."
ReplyDeleteNonsense, pure and simple. We're just going around in circles.
Evidence that proves nothing proves nothing.
The copier information would probably be given to the defense as part of discovery, but since it proves NOTHING, it certainly would NOT have been presented in court by the prosecution.
And the defense would not likely present it in court, either, since it PROVES NOTHING. If they think it does, they would have to have some "expert" explain how it does.
Who would that be?
Ed
R. Rowley wrote: "My further take: they would have surely turned up the non-match of Ivins' printing when compared to the printing of the Amerithrax letters/envelopes. Exculpatory information plain and simple."
ReplyDeleteNonsense, pure and simple. We're just going around in circles.
Evidence that proves nothing proves nothing.
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No, once again you're hopping back and forth between and among the roles of the participants. The jury decides how much weight to give the non-match of the printing. Not Ed Lake, not r rowley.
The judge would have had no reason to exclude it. The only (smallish) surprise to me is: the PROSECUTOR has an active obligation to provide this info to the defense. The defense doesn't/shouldn't even have to make a request.
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Back to Mister Lake:
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If they think it does, they would have to have some "expert" explain how it does.
Who would that be?
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The person who did the graphic analysis. This is not info that fell from the sky. (But it would not be surprising if the defense then had their OWN graphologist do a second check of the printings, to buttress the Task Force's, and that second graphologist would be then called to testify too)
R. Rowley wrote: "The judge would have had no reason to exclude it."
ReplyDeleteNonsense. The judge WOULD have plenty reason to excluded it. IT DOESN'T HELP PROVE ANYTHING, THEREFORE IT IS IRRELEVANT.
And we're back to the same ridiculous argument again. "The person who did the graphic analysis" is evidently MANY PEOPLE, and they cannot agree on anything about the handwriting. So, their testimony is WORTHLESS. Their disagreement does not help prove or disprove anything about Ivins' guilt or innocence.
The copy machine report is similar in that IT PROVES NOTHING toward Ivins' guilt or innocence, so there's no reason for the judge to allow it.
And, if the judge DID allow it, and if the DEFENSE called all the FBI agents who did all the testing of all the machines to the stand, all they could say is that they don't have any evidence of exactly which copy machine was used. So, they have NOTHING OF VALUE to say.
You just make the same ridiculous arguments over and over and over and over and over and over.
Ed
I see that I ignored the second part of Mister Lake's last post:
ReplyDelete---------------------------------
The copier information would probably be given to the defense as part of discovery, but since it proves NOTHING, it certainly would NOT have been presented in court by the prosecution.
And the defense would not likely present it in court, either, since it PROVES NOTHING. If they think it does, they would have to have some "expert" explain how it does.
Who would that be?
=============================
You're not thinking like a lawyer. Or at least not like a very good one. If there's a piece of evidence that's helpful to the other side, the best thing to do is to get in front of that piece of information. The prosecutor could do that, in his case-in-main, by asking Montooth about the check of the USAMRIID photocopier. THEREBY the prosecutor can, after he gets the results from the witness, follow up along these lines:
"Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
"No."
"Why not?"
"Because a USAMRIID employee could have gone to a public access photocopier anywhere in the state of Maryland. There was no need to do it right there at USAMRIID."
This limits any damage the report on the copier could do. And it does it BEFORE the defense gets to make any hay out of it.
R. Rowley suggests that on the witness stand SA Montooth could be asked by the defense lawyer, "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
ReplyDeleteThat is a PERFECT EXAMPLE OF A LEADING QUESTION that would not be allowed. Only a lawyer who is also an idiot would ask such a question.
All that a defense lawyer can ask is, "Did you test the copy machine at USAMRIID?"
Montooth: "Yes."
Defense: "What did you find?"
Montooth: "We found no evidence that it was the copy machine that was used to create the anthrax letters."
Defense: "What did that mean to you?"
Montooth: "Nothing. No evidence means no evidence. It could have been the machine that was used, but for someone reason the test couldn't determine that, or Dr. Ivins could have used some other machine somewhere else."
Ed
R. Rowley suggests that on the witness stand SA Montooth could be asked by the defense lawyer, "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
ReplyDeleteThat is a PERFECT EXAMPLE OF A LEADING QUESTION that would not be allowed. Only a lawyer who is also an idiot would ask such a question.
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It is no leading question, it's clear that Mister Lake has no idea what a leading question is. (And for just such a blunder he should get some lawyers posting here on a regular basis!)
The first 3 exchanges Mister Lake provides:
-----------------
Montooth: "Yes."
Defense: "What did you find?"
Montooth: "We found no evidence that it was the copy machine that was used to create the anthrax letters."
--------------------------------------------
are the questions I envisioned when I wrote
"after he gets the results from the witness, "
since THOSE questions are self-evident ones.
Mister Lake is mistaking SPECIFIC questions
1)"Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
[then]
"Why not?"
for 'leading questions'. They are not the same.
------------------------------------------
Question 1) could have been answered yes or no. Question 2)is a not untypical follow-up question.
Mister Lake seems to think that vague question "What did that mean to you?" (which could be answered in a myriad of ways) are better than specific questions. The legal profession (mostly) disagrees.
End of Part I
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Question 1) could have been answered yes or no. Question 2)is a not untypical follow-up question.
ReplyDeleteMister Lake seems to think that vague question "What did that mean to you?" (which could be answered in a myriad of ways) are better than specific questions. The legal profession (mostly) disagrees.
--------------------------------------------------------------
leading question
Definition:
A type of question that implies or contains its own answer. A leading question can serve as a form of persuasion.
---------------------------
http://grammar.about.com/od/il/g/Leading-Question-term.htm
Examples given at same site:
Examples and Observations:
•Kent Brockman: Apu, will you ever stop selling spoiled meat?
Apu: No. I mean, yes. I mean--uh oh.
("Homer and Apu." The Simpsons, 1994)
•"Salespeople make good use of leading questions. Buying a roomful of furniture is a major purchase, a big decision. . . .
"The salesperson, waiting impatiently, wants to hurry the process along. What can she do? She probably wants to say, 'So buy it already. It's just a sofa.' But that would not help. Instead, she asks a leading question: 'How soon would you need your furniture delivered?' The customer might answer 'Right away' or "Not for a few months, until we move into our new house.' Either answer serves the salesperson's purpose. The question assumes that the customer will need the store's delivery service, though that is true only after the customer buys the furniture. By answering the question, the customer implies that she will go ahead with the purchase. The question helps push her into a decision that she had been uncertain about until she answered it."
(Michael Lovaglia, Knowing People: The Personal Use of Social Psychology. Rowman & Littlefield, 2007)
•"Subtle leads are questions that may not be immediately recognised as leading questions. Harris (1973) reports studies which demonstrate that the way a question is worded can influence the response. For example, asking somebody how tall a basketball player is produced greater estimates than when respondents were asked how short the player was. The average guess of those who were asked 'how tall?' was 79 inches, as opposed to 69 inches for those who were asked 'how small?' Hargie describes a study by Loftus (1975) which reported similar findings when forty people were asked about headaches. Those who were asked 'Do you get headaches frequently and, if so, how often?' reported an average of 2.2 headaches per week, whereas those who were asked 'Do you get headaches occasionally and, if so, how often?' reported only 0.7 per week. Some interviewers may deliberately use subtle leads to obtain the answers they desire, but often neither the interviewer nor respondent is aware of the extent to which the wording of the question can influence the response."
(John Hayes, Interpersonal Skills at Work. Routledge, 2002)
R. Rowley argues that this is not a leading question: "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
ReplyDeleteIt IS a leading question by any measure. It suggests the answer the lawyer wants: "Yes, I thought no one at USAMRIID could have done the copying." The answer is in the question.
A leading question is: "A question which puts into the witness' mouth the words to be echoed back, or plainly suggests the answer which the party wishes to get from him."
In real life, if previous questions determined that there was no-match to the USAMRIID copier, the next question would be, "What did you conclude from that?"
Mr. Rowley's question is just as leading and ridiculous as asking, "Did the non-match to the USAMRIID copier lead you to think that al Qaeda did the copying in a cave in Afghanistan?"
Or, "Did the non-match to the USAMRIID copier lead you to think that Dr. Ivins must have used a different copy machine?"
Mr. Rowley argues that asking the question properly, "What did you conclude from the lack of a match to the USAMRIID copier?" is too vague because it can be answered in a "myriad of ways."
If the lawyer isn't nearly certain what the answer is going to be to his question, he's a fool to ask the question.
Let's assume that an idiot defense lawyer asked the question Mr. Rowley wants asked:
Defense: "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
FBI agent: "No, of course not. That would be stupid."
OR, if the FBI agent was directed answer only yes or no:
FBI agent: "No."
What would be the next question from the defense?
Answer:
Defense lawyer: "Why not?"
FBI agent: "Because the test only showed that the test couldn't detect evidence that the anthrax letters were made on that copy machine. It cannot detect the negative. It cannot detect that the letters were NOT made on that machine. There are a myriad of ways it could have been made on that machine but not be detectable by the tests. For example, the machine could have been cleaned and/or repaired between the copying and the testing. Or the brand of toner could have been changed."
Ed
Mister Lake posted (partial):
ReplyDelete----------------
Let's assume that an idiot defense lawyer asked the question Mr. Rowley wants asked:
Defense: "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
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Mister Lake: less vituperation, more attentive reading of my posts. Please.
Your LATEST blunder is recorded above:
-------------------------------
Defense: "Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"
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The question is indeed mine but from the context of my post, it is clear to the attentive reader that that's a question I posit the PROSECUTION posing: (repost my original words)
post of r rowley March 5, 2013 at 10:59 AM
(partial)
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The prosecutor could do that, in his case-in-main, by asking Montooth about the check of the USAMRIID photocopier. THEREBY the prosecutor can, after he gets the results from the witness, follow up along these lines:
"Did the non-match to the USAMRIID copier lead you to think that no one at USAMRIID could have done the copying?"[...]
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The PROSECUTOR could do that. Somehow Mister Lake switches that to "the defense".
(Somehow I missed his blunder the first time I read it, as I wasn't expecting him to do that, the whole point of the post was how THE PROSECUTOR could get out in front of the photocopier evidence by beating the defense to the punch, ergo it never crossed my mind that Mister Lake would screw it up).
As I said, a little less vituperation, a little more attentive reading. Please.
R. Rowley wrote: "Mister Lake: less vituperation, more attentive reading of my posts. Please."
ReplyDeleteSorry. I thought it was clear that the prosecutor would NEVER bring up the copier or the handwriting, since the copier tests provided NO evidence relevant to the case, nor did the handwriting opinions.
But it's stupid either way.
It's stupid for a prosecutor to ask the question because (1) it's a leading question and the defense would object, and (2) there's no reason for him to ask questions about things that are not relevant to the case.
It's stupid for the defense to ask the question because (1) it's leading question and the prosecutor would object, and (2) the answer from an FBI agent cannot do his client any good.
I'm in the middle of a snow storm, I'm doing five things at once, and I may not be paying 100% attention to questions that are just new versions of questions that have been asked and answered a hundred times before.
Ed
I've checked out a few sites which claim that they answer legal questions for free. The one below sends the answers to your email inbox. They are not answered on the forum.
ReplyDeletehttp://www.lawqa.com/qa
My newsguy.com email box seems to be "down" at the moment. I don't know why. But, since giving them an email address probably means they'll flood that inbox with junk mail, I'm not going to use any other email account.
Some other web sites are:
http://answers.justia.com/
http://www.lawguru.com/
http://www.freeadvice.com/
http://www.ilawyersource.com/answers/
But, before using any of those sites, we need to figure out the simplest form of a good question.
I don't want to waste anyone's time by asking questions that we should be able to figure out for ourselves, like "What is a leading question?"
And, I don't think the question should be specifically about the Ivins case. It should be about the law in general.
Maybe:
If 10 handwriting experts were asked about a handwriting sample, and no two can agree on anything, so the handwriting findings are NOT used in evidence by the prosecution, can the defense bring up the inconclusive findings as an argument that the handwriting does not match that of the defendant?
Ed
I'm shutting down for today.
ReplyDeleteEd
Okay.
ReplyDelete-----------------------------------------
One of the strange thoughts I had this afternoon is this: if someone had asked me even 3 days ago how documents were passed from the prosecution to the defense in discovery, I would simply have shrugged my shoulders. It's a lot easier to mentally access legal stuff that you've seen dramatized countless times on TV and in the movies than it is to imagine the nitty-gritty paper trail that must be an integral part of real legal cases.
About the same time, I thought about----however briefly (no pun intended!)------what Kemp and DeGonia would have done with a given document (I still think it would at least have to be certified)received from DoJ on discovery. My conclusion? The first thing they would have done was: make (uncertified) copies!
That's because they would want 5 or 6 'working copies' for:
1)Kemp himself
2)DeGonia
3)the defendant (Ivins)
4)more junior member of the firm (unknown)
5)anyone else on the defense team (ditto)
So among the first things they would likely have done with their certified copy of the handwriting(printing) analysis document would have been to make copies (distributing them as opportunity arose), and locking the 'original' (ie the certified copy) in either a safe or a lockable filing cabinet.
Aside from being the original for any and all 'working copies' the only other (potential)use for the certified copy would be: entry into evidence if the defense so decides it wants to, as there's a 'best evidence rule' that seems to prevail on this question:
http://en.wikipedia.org/wiki/Best_evidence_rule#United_States
R. Rowley wrote: "Aside from being the original for any and all 'working copies' the only other (potential)use for the certified copy would be: entry into evidence if the defense so decides it wants to, as there's a 'best evidence rule' that seems to prevail on this question:"
DeleteYou look things up and then make wild interpretations of what they mean. I cannot be expected to explain to you that, just because you found a new phrase or term, that it doesn't necessarily mean anything to the case. That always puts me in the position of "proving the negative." I cannot prove that it is NOT the way things MIGHT be done.
When copies of discovery documents are supplied to the defense, the prosecutor is responsible for making certain the copies are "true representations" of the originals. It makes no sense that a third party would be brought in to certify anything. It's too costly and time consuming, and not necessary.
I suspect that the document copies are sealed in boxes and then transported to the office of the defense attorneys. When the defense attorneys receive the boxes, they sign for them and unseal the boxes. What they do with the documents after that is their own business.
In court, they may present a document into evidence, but it is not necessary that anything be certified or notarized. The lawyer is an "officer of the court" and is expected to obey the rules. The defense gives a copy to the prosecution and to the court clerk. That allows the prosecution to verify that the copy hasn't been doctored by some unscrupulous defense attorney.
I think this whole discussion is just a waste of time. I can't be bothered to try to show you that every term you look up does not change the basic facts of the case or the way it would be tried.
Ed
Apparently the appropriateness of 'leading questions' is more complicated than I thought! (Wiki partial)
ReplyDelete----------------------
Propriety of leading questions
[edit] United States
While each state has its own rules of evidence, many states model their rules on the Federal Rules of Evidence, which themselves relate closely to the common-law mode of examination. Rule 611(c) of the Federal Rules of Evidence provides that:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Leading questions are the primary mode of examination of witnesses who are hostile to the examining party, and are not objectionable in that context. Examination of hostile witnesses usually takes place on cross-examination. As the rule recognizes, the examination of a "hostile witness, an adverse party, or a witness identified with an adverse party" will sometimes take place on direct examination, and leading questions are permitted.
In practice, judges will sometimes permit leading questions on direct examination of friendly witnesses with respect to preliminary matters that are necessary to provide background or context, and which are not in dispute; for example, a witness's employment or education. Leading questions may also be permitted on direct examination when a witness requires special handling, for example a child. However, the court must take care to be sure that the examining attorney is not coaching the witness through leading questions.
Although Rule 611(c) of the Federal Rules of Evidence (and comparable rules of many states) do not prohibit leading questions on re-direct, some[which?] states have expressly limited the use of leading questions on re-direct. As a practical matter, it rests within the trial court's discretion as to what leading questions may be asked on re-direct. Generally speaking, leading questions will be more liberally permitted on re-direct in order to establish a foundation and call the attention of the witness to specific testimony elicited on cross examination. Additionally, on re-direct, an interrogator will often ask questions which specifically seek to elicit whether an inference resulting from questioning on cross examinations is accurate. Although these type of questions will likely result in a "yes" or "no" response, they are properly understood to be direct questions, not leading questions, and are permissible.
[edit] Exceptions to the no-leading-questions rule
1.Where the witness is hostile to the examiner, or reluctant or unwilling to testify, in which situation the witness is unlikely to accept being "coached" by the questioner.
2.To bring out preliminary matters (name, occupation, and other pedigree information).
3.Where the memory of the witness has been exhausted and there is still information to be elicited.
4.In a sensitive area, to avoid the witness from testifying to incompetent or prejudicial matter.
Mr. Rowley,
DeleteWho cares about any of this?
You are just changing the subject and rambling on about something you read that has no significance to anything.
I made a mistake of arguing with you about "leading questions" and "leading the witness."
The real issue is whether or not non-relevant materials can be brought up in court. I say no. You have a different view of what is relevant.
So, the question can probably be expressed this way:
If 10 handwriting experts were asked about a handwriting sample, and no two can agree on anything, so the handwriting findings are NOT used in evidence by the prosecution, can the defense bring up the inconclusive findings as an argument that the handwriting does not match that of the defendant?
The idea that the prosecution would bring up the handwriting is preposterous, since it proves nothing toward Ivins' guilt. You seem to want the prosecution to bring it up only so the defense can make a point about it.
That is not the way things are done. Yes, I know you can now argue that there might be some way thing it CAN be done, and I cannot prove that it would NEVER be done, but I'm not going to go there.
I'm go to try to create a "subject thread" about "relevance" where the issues can be discussed in one place without them being repeated over and over and over and over as part of every weekly blog entry.
I'm going to see what I can to do try to RESOLVE issues instead of just endlessly arguing hypotheticals and side issues.
Ed
Posted by Mister Lake:
ReplyDelete-------------------
Who cares about any of this?
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Hmmm, I CERTAINLY do, and I'm not always sure why you DON'T.
The larger take-home lesson I get from some of this stuff is:
while watching realistic TV dramas, and a few actual cases like the OJ trial on TV can give one a general feel, the law and procedures are generally more complicated than they first appear.
Sometimes vastly so.
So, for example, I had heard once or twice a lawyer say something like "Request permission to question as a hostile witness", I had no idea what that meant. Hostile witnesses evidently can be fed leading questions and I thought that leading questions were ALWAYS forbidden. Until I started reading more and stumbled upon what I posted above about that.
And I think that it does go to the heart about ONE of the things we were discussing earlier: what questions (not just in thematic contents, but in structure) can this side ask or that side? Evidently PART of the answer is based on whether the witness is hostile or friendly.
Posted by Mister Lake:
ReplyDelete---------------------------
The real issue is whether or not non-relevant materials can be brought up in court. I say no. You have a different view of what is relevant.
So, the question can probably be expressed this way:
If 10 handwriting experts were asked about a handwriting sample, and no two can agree on anything, so the handwriting findings are NOT used in evidence by the prosecution, can the defense bring up the inconclusive findings as an argument that the handwriting does not match that of the defendant?
The idea that the prosecution would bring up the handwriting is preposterous, [...]
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Probably I would agree with you, IF I thought that your presentation reflected the underlying reality. But it almost certainly does not. The Task Force bringing in 10 handwriting experts? Cut that down to 2 and I think you're close.
The underlying reality is probably: the one (or possibly two)handwriting expert(s) said it was a poor match to exemplars of Ivins' printing. This gained the label of 'inconclusive' the same way that Ivins' February of 2002 polygraph gained the label of 'inconclusive': the DoJ wanted to disown the results, for PR purposes. And---------repeat after me!--------I think the Final Report is a PR document.
The reason I'm VERY confident that the handwriting analysis showed a non-match is this: you, Anonymous, and I agree on just about nothing involving Amerithrax, yet all three of us think Ivins' printing a poor match. So there's little chance the analysis says 'good match', the only question is what, if anything, is written about the likelihood that it's POSSIBLE that it's a highly disguised version of his printing.
Speaking of which....
End Part I
Part II
ReplyDelete--------------------------------
We went over something involving this before: the Final Report DOES have a bit on Ivins' printing, on pages 89-90. We went over this before but it bears repeating:
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In addition, a witness who had received a number of packages and cards over the course of several years in the late 1990s and early 2000s was shown copies of the letters and envelopes
used in the anthrax attacks. The witness thought that the handwriting on the envelope addressed to Senator Daschle reminded the witness of Dr. Ivins’s writing. If the witness were to receive a package with that writing on it, the witness would think of Dr. Ivins. The witness noted that, in
particular, the style of the block letters with alternating heights stood out, as did the slant of the
writing. The witness said that this was the type of writing Dr. Ivins used when he disguised his handwriting as part of a joke. As the witness studied the letters, the witness noted that the “E” and the “R” in the letter to the New York Post also looked familiar. The witness stated that these letters also reminded the witness of when Dr. Ivins disguised his handwriting as a joke. The witness described this “disguised” handwriting as being similar to Dr. Ivins’s standard handwriting, and that one could tell that he was trying to disguise his handwriting to a limited extent.53 Another witness familiar with the handwriting of Dr. Ivins in many contexts said the same thing.
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As I noted on the previous occasion:
1)both of these 'witnesses' are colleagues/acquaintances, unnamed ones, and likely without any special training in handwriting analysis.
2) they AREN'T doing side-by-side comparisons as a document examiner or other professional would, they are going by their memories.
Therefore this is yet ANOTHER bit in the Final Report that would
not have been inadmissible (for the reasons of 1) and 2)).
There is no mention of PROFESSIONAL handwriting analysis having been done (the only mention of that was in Jeff Taylor song and dance answer at a press conference back in August of 2008).
R. Rowley wrote: "There is no mention of PROFESSIONAL handwriting analysis having been done..."
ReplyDeleteThere was a lot of discussion about handwriting earlier in the case. There were news reports about the handwriting and the opinions of experts. The FBI sent out fliers to over a hundred thousand people in New Jersey to see if anyone recognized the handwriting.
I recall contacting experts who were mentioned in news reports, and there were lots of on-line "professionals" who put their views on their web sites. I wrote about them in comments on my web site.
In David Willman's book he says an FBI expert or agent told him that the belief was that Ivins disguised his handwriting.
The sum-total of all this is that the handwriting evidence was inconclusive. So, it would NOT have been used in Ivins' trial.
Ed
You're giving me anecdotal stuff on it. Where's the reference in the Final Report? (There's GOT to be a paper trail on that handwriting analysis, and if I were the type to do FOIA requests---I'm not!-----that's what I'd focus on: they would have featured the analyst and his/her report front and center if there had been a match to Ivins' printing; instead it's AWOL)
ReplyDeleteR. Rowley wrote: "You're giving me anecdotal stuff on it. Where's the reference in the Final Report?
ReplyDeleteWe're talking about things that would NOT have been used in the trial of Bruce Ivins.
Have you forgotten? In court, they wouldn't have had any handwriting experts testify - unless they were testifying about who wrote labels on slants and other writings that are not the actual anthrax letters and envelopes themselves.
They may have used "anecdotal evidence" in court, however. Pages 89 and 90 of the Final Report say:
"The witness stated that these letters also reminded the witness of when Dr. Ivins disguised his handwriting as a joke. The witness described this “disguised” handwriting as being similar to Dr. Ivins’s standard handwriting, and that one could tell that he was trying to disguise his handwriting to a limited extent. Another witness familiar with the handwriting of Dr. Ivins in many contexts said the same thing."
I suppose it's possible that a witness testifying for the prosecution might state that the handwriting looked the way Ivins' handwriting looked when he disguised it. The Defense might challenge the comments, asking the witness if they are a handwriting expert. But, I don't think there's any way the Defense can prevent a witness from describing what she saw and what it looked like to her.
The point is: No "handwriting experts" would testify about the handwriting on the letters and envelopes, because other "handwriting experts" could be put on the stand to testify to a totally different evaluation. Without some consensus about the handwriting among experts, there's no point in mentioning the handwriting in court.
My "anecdotal stuff" would just CONFIRM that there is no agreement on the handwriting.
Ed