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Truth of the Matter Asserted

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In the Bradley Manning case, the government is trying to submit a snapshot from the Wayback machine showing an archive of a Wikileaks page showing Wikileaks “Ten Most Wanted” documents. The general rule of Federal Evidence is that a writing is inadmissible because it is hearsay, that is, it is an out of court statement submitted for the truth of the matter asserted. The reason is because it is not subject to cross-examination.

There are exceptions. Ancient documents, such as those at least twenty years old, may be admitted. Other documents, such as a past recollection recorded, may be used under certain circumstances. Here the Government wishes to prove that Manning was acting under Wikileaks’ (and really Julian Assange) direction. The problem is that Wikileaks has not admitted this. So how to prove it? Apparently there is no longer a Wikileaks web page listing the “Ten Most Wanted” documents. So the Government is relying on the Wayback Machine. I do not know how accurate the Wayback Machine is. Perhaps it is very accurate. But you should nevertheless have some kind of authentication of that Wikileaks file which is found on the Wayback Machine’s server. Rather than doing this, the Government is going to use a witness who will tell the Court what the Wayback Machine is and how he downloaded a file from their website. To me, this seems inadequate. How do we know that the Wayback Machine is complete?

Second of all, how do we know that the “Ten Most Wanted” document is an accurate statement of Wikileaks’ policy? Given the dissension within Wikileaks at the time, this may or may not be true. You would normally need a Wikileaks records custodian to state whether the document was in fact, an official record of Wikileaks. Otherwise, it might merely be an employee’s musings. It might be, of course, exactly what the Government says that it is, but this is not proven by downloading from the Wayback Machine.

In the Manning trial today, the Government seems to fail to recognize this distinction. They are not introducing a document for to show the effect it had on Manning–because in that case a picture of a unicorn might well have had an effect on Manning, but that picture is not an effort to show that unicorns exist–but for the truth of the matter asserted in the document, i.e, that Wikileaks wanted these particular documents.

Here is the transcript. When the Government prosecutor says, “for hearsay purposes” obviously this is a mistake. He must mean “is not hearsay” but that’s my guess. The only way to be sure–and that is why we have trials–is to ask him.

“So it is authentic or the United Statesm will be able to show it’s authentic and defense will be able to object and we’ll be able to litigate this issue, but we do have a good faith basis to believe that it is what it purports to be and it is otherwise admissible. And we believe we would not be offering it for hearsay purposes, but it’s the effect on why and what drove PFC Manning to do the searches he did, which we do have forensics for.”

Written by mokane

June 4, 2013 at 4:48 pm

Posted in Blogroll

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