by Barry Krusch
Now let’s move on to the categories of evidence reducing confidence level related to credibility.
Credible
Altered Evidence
The phrase “credible evidence” is in some sense redundant, because if evidence is not credible, then it doesn’t count as evidence at all, in the same way that counterfeit money doesn’t count as real money. Again, by definition, when evidence is altered it reduces the credibility of the evidence to the extent of the alteration. To take a simple example, if the goal of a prosecutor is to prove that a person was at a certain location on January 3, and the prosecutor produces a receipt from a store near that location that shows the defendant purchased an item on January 3, the defense irrevocably negates the credibility of the receipt by conclusively showing that the date had been altered.
Evidence based on data of suspect validity
Related to the point above, some data may not be altered intentionally, but it might be based on sources that in and of themselves have had demonstrable issues with validity (for example, an uncalibrated radar gun used to justify speeding tickets).
Below are a few examples of suspect data:
Witnesses who inherently lack credibility (Example: witnesses who change their stories).
Coached witnesses (Example: witnesses led to make a statement by the prosecution or defense).
Bribed witnesses (Example: statements made by witnesses who have been paid for the remarks).
Intimidated witnesses (Example: statements by witnesses who have been threatened).
Tests performed which don’t match actual conditions A test designed to demonstrate the viability of an action must duplicate the conditions under which the action was to be performed precisely. If the conditions are dissimilar, the confidence level of the test must be reduced in proportion to the dissimilarity. One example: repairing a broken rifle (supposedly used by the defendant) before it is first tested for accuracy.
Evidence derived from deviations from accepted procedure
Precisely due to cases such as the above, procedures have been created to help guarantee the authenticity of handled evidence. In certain cases, though, the process by which evidence is handled and gathered deviates so greatly from accepted procedure that it raises a doubt as to the validity of the evidence simply by virtue of the deviation. For example, if the normal procedure when a suspect is interrogated is to have a court reporter or stenographer or tape recorder present, the lack of a court reporter or a stenographer or tape recorder during an interrogation provides prima facie evidence of deviation from procedure, which reduces confidence because a procedure designed to maintain integrity was ignored. Other examples:
Oral confirmation rule
If a rule of evidence is that no drawing may be admitted which does not have simultaneous oral testimony that the drawing accurately represents reality, any drawing admitted into evidence without that simultaneous oral testimony lacks credibility simply by virtue of the deviation from the established procedure.
Hearsay rule
According to the Federal Rules Of Evidence § 802, hearsay evidence is generally not admissible, with certain well-defined exceptions. 1 Evidence which is admitted which is not part of these categories of exceptions is by definition non-credible evidence.
Chain of custody rule
An important evidentiary rule regards the chain of custody, that a piece of evidence must be able to be directly tracked from its first discovery to its entry into evidence without any gaps in possession, and if that rule is broken, then the evidence is automatically suspect due to the deviation from the established procedure.
Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
You can only convict someone with evidence. However, certain phenomena are erroneously characterized as evidence. This general category can capture any examples not listed above, for example, opinions, particularly uninformed ones, and particularly opinions as to conclusions, which are not in and of themselves evidence.
The classical example of this is the phenomenon known as begging the question, a close variant of circular reasoning. We saw an example of begging the question earlier, when Vincent Bugliosi made the statement (paraphrasing) “since the single bullet theory is true, any conclusions to the contrary based on the Zapruder film must be false.” The key problem with Bugliosi’s remark is that the statement “the single bullet theory is true” is in fact a conclusion, not evidence. And if that conclusion is itself contradicted by the outstanding evidence (which it is), it’s not a particularly legitimate conclusion either.
To give another example, the Warren Commission stipulated the conclusion Oswald killed Tippit as evidence supposedly justifying their argument that Oswald killed Kennedy (see WR 20), but since Oswald had never been tried for that crime, that conclusion had not been proven, and therefore could not possibly be legitimately used as evidence.
Evidence which violates the laws of physics
As a final example of evidence which automatically demonstrates what is at times an utter lack of credibility, you can find no finer example than evidence which violates the laws of physics. If, for example, we shoot a bullet into the bone of a human skeleton 500 times, and it comes out deformed every time, then a bullet entered into evidence with no deformity — with the simultaneous claim that it was shot into a human bone — is automatically suspect due to the fact that it seemingly contradicts the laws of physics.
One point that should be noted at this stage is that these criteria of comprehensive and credible evidence do not necessarily exist independently, but in fact can be combined and contrasted with other criteria to magnify their significance.
Let us imagine there is a jurisdiction shown to have an uncalibrated radar gun (no big leap of the imagination here). Suppose in our defense of a client for speeding we ask that jurisdiction for statistics related to arrests for speeding, which they initially resist producing. Suppose that when they do eventually produce the statistics, we find the statistics show far more people have been arrested for speeding in that jurisdiction than would be expected based on state averages. It is not implausible to expect that the same jurisdiction that could have had an increase in arrests due to a failure to calibrate its radar guns (credibility) would likewise suppress the evidence of this failure (comprehensiveness).
This is a classic case of the whole being greater than the sum of its parts, where the simultaneous presence of the lack of credibility and comprehensiveness reduce confidence level even more than each would have done on its own!
There is an inevitable conclusion that one can draw from the previous examples. A fact that many people are not aware of is that Oswald’s defense could now be centered exclusively on the inadequacy of the evidence offered by the prosecution, and evidence of violations of procedures, and/or manipulation or destruction of evidence, with no need to offer any additional counter-evidence! This is because the burden of proof is on the prosecution, which can only meet its burden with legitimate evidence, and if it is shown that that prosecution-generated evidence is for one reason or another illegitimate, the case for the prosecution is not, and cannot, be made, and a verdict of not guilty must be returned solely on that basis.
Now let’s look at the remaining categories.
Sufficient
Insufficient evidence for the primary proposition
Due process of law, and, in fact, logic, demand that every proposition be justified by evidence. If the evidence for a proposition is insufficient, then by definition there is reasonable doubt, because there is always doubt for propositions without adequate evidence.
There are some surprising implications derived from this requirement. For example, in the Kennedy case, it is said that Governor Connally was struck by a bullet at virtually the same time as President Kennedy, but Connally (unlike Kennedy) did not immediately react, a “delayed reaction” hypothesis postulated to add credence to the single bullet theory. Well, that is one thing to claim, but it
is another to prove.
The need to offer evidence for the alleged delayed reaction by Connally is obvious, but what may not be obvious is that evidence must also be offered to prove that Kennedy did not have a similar delayed reaction, because obviously if they both had a reaction identically delayed, the central point would not hold!
Of course, you will quickly note that to prove this latter point regarding Kennedy the prosecution is going to have to enter evidence contradictory to its central point regarding Connally, which will leave the prosecution with completely contradictory testimony, one by one doctor stating that there was a delayed reaction, and one by another doctor, stating that there wasn’t!
Perhaps because of this reason, no evidence for the point was offered, which is a telltale sign that the conclusion is not justified.
Irrelevant evidence (evidence which does not relate to the conclusion [(non-sequitur)])
Some evidence does not relate to a conclusion. For example, offering into evidence the notion that Oswald was a member of the Communist Party supposedly implicates him in the crime of murder. But Oswald was also a Marine. Should that implicate him in the crime of murder as well? If evidence such as this is offered, then the prosecution must also offer evidence that Communists (or Marines) are more likely to assassinate Presidents than other groups of people. As it stands, the evidence on its own is irrelevant.
Evidence that can support multiple conclusions
Some evidence can support multiple conclusions, surprisingly enough. And, when evidence can support multiple conclusions, it obviously is not sufficient to support just one conclusion. Take this example: a witness sees a man who “looks like Oswald” get into a station wagon. A second witness sees a man who “looks like Oswald” board a bus. These sightings are so close in time that at least one of these sightings cannot be Oswald himself. From this evidence, we could conclude:
Oswald entered a station wagon, and an Oswald look-alike boarded a bus.
An Oswald look-alike entered a station wagon, and Oswald boarded a bus.
An Oswald look-alike entered a station wagon, and an Oswald look-alike boarded a bus.
In supporting all these conclusions, the evidence does not truly support any one of them.
Having examined these three criteria, let’s look at our final criterion.
Consistent
Contradictory Evidence
We have finally arrived at the evidence which undoubtedly provided the rationale for the image of the scales of justice: evidence which is inconsistent with or conflicts with another piece of evidence. By definition, this situation automatically creates doubt. Let’s say you are accused of shooting a man, and the evidence presented is that you fired two bullets. However, four bullets are found. That’s two bullets short! It’s contradictory — and confidence-reducing.
If the case is centered around a lone assassin, this discrepancy automatically creates reasonable doubt regarding the proposition related to a “lone” assassin.
Other examples of contradictory evidence include:
Multiple eyewitness testimony deviating from the proffered conclusion (Example: if the proffered conclusion is that there was only one murderer (located behind the victim), and there are multiple witnesses who can testify that they saw shots fired from the front of the victim, reasonable doubt is created).
Fundamental change in testimony (vacillating testimony) (Example: a doctor testifies that the shot which killed the victim entered in the chest, and later changes his testimony and now says that the shot which killed the victim entered in the head).
Evidence inconsistent with a conclusion
Some evidence positively disproves a conclusion (for example, an FBI report says a bullet did not transit, but the conclusion of the investigatory body was that it did). And, though it is extremely rare, you will occasionally find introduced into the record evidence which completely disproves the proposition that it seeks to support!
For example, a ballistic panel reports that a wound could not be caused by a pristine bullet, and the conclusion of the investigatory body accepting that report is that the wound was caused by a pristine bullet.
Summary
We just seen numerous examples of how categories of evidence and meta-evidence can easily reduce confidence level. While I have attempted to categorize these categories of evidence and meta-evidence in relationship to the criteria I believe are most relevant, the reader should not get too hung up on which category corresponds with which criterion. The bottom line is this:
When you come across suppressed evidence, it reduces confidence level;
when you come across destroyed evidence, it reduces confidence level;
when you come across altered evidence, it reduces confidence level;
when you come across contradictory evidence, it reduces confidence level;
when you come across evidence based on data of suspect validity, it reduces confidence level;
when you come across evidence derived from deviations from accepted procedure, it reduces confidence level;
when you come across evidence inconsistent with a conclusion, it reduces confidence level;
when you come across evidence that can support multiple conclusions, it reduces confidence level;
when you come across evidence which violates the laws of physics, it reduces confidence level;
when you come across insufficient evidence for the primary proposition, it reduces confidence level;
when you come across irrelevant evidence (evidence which does not relate to the conclusion), it reduces confidence level;
when you come across non-evidence: phenomena seen as evidence which are not, that reduces confidence level;
when you come across tests not performed which would have the capability to exonerate the defendant, that reduces confidence level!
Remember these categories, because as we proceed through this book, you're going to see further examples of all of them.
Now, as damaging as these categories are to confidence level, they are pikers compared to the next and final category we will discuss, a category so devastating it deserves a chapter all its own.
Chapter 6
Essential Background:
Government-Manufactured Reality
We have just seen several examples of categories of evidence that must reduce confidence. However, there is one category we did not explore, because its seismic impact raises entirely new issues. The category is that of manufactured evidence.
This is another area where the Bible steps in with words of wisdom. The 9th commandment says “Thou shalt not bear false witness against thy neighbor.” The manufacturer of evidence says, “try to stop me!”
There is perhaps one thing that everyone can agree on, no matter what their orientation in terms of the Kennedy assassination, and that is when the government is shown to have manufactured evidence, it positively obliterates the prosecution’s case. Because it demonstrates malicious intent, manufactured evidence has a radioactive, toxic quality that spreads to all evidence:
Where there is malicious intent on the part of the prosecution, how can any evidence be trusted?
Just as a counterfeiter who passes counterfeit money devalues the real money he passes, so do prosecutors who pass along counterfeit evidence devalue any real evidence they happened to possess.
As it turns out, there are two types of manufactured evidence: evidence manufactured after a crime has been committed (to make convictions more probable), and, much worse, evidence manufactured before a crime has been committed (which demonstrates intent on the part of the fabricators not just to put an innocent person in jail, but also to commit the crime itself!).
Even the least of these is devastating to the prosecution’s case. The Supreme Court held in Napue v. Illinois, 360 U.S. 264 (1959) that
[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment,
Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Curran v. Delaware, 259 F.2d 707. See New York ex rel. Whitman v. Wilson, 318 U. S. 688, and White v. Ragen, 324 U. S. 760. Compare Jones v. Kentucky, 97 F.2d 335, 338, with In re Sawyer’s Petition, 229 F.2d 805, 809. Cf. Mesarosh v. United States, 352 U. S. 1. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Alcorta v. Texas, 355 U. S. 28; United States ex rel. Thompson v. Dye, 221 F.2d 763; United States ex rel. Almeida v. Baldi, 195 F.2d 815; United States ex rel. Montgomery v. Ragen, 86 F.Supp. 382. See generally annotation, 2 L.Ed.2d 1575.
The law on this point is clear, and requires no further elucidation. But would officers of Government, charged with upholding the constitution, intentionally violate it? The answer, sadly, is yes.
Category 1: Manufacturing Reality After The Fact
Yes, Virginia, reality can be manufactured, and that’s when you know you’re not in Kansas anymore, which is why we have a problem, Houston. We are going to look at a few examples at how the criminal justice system takes a page out of the Hollywood playbook, but before we do, let’s take a look at how the pros in Hollywood have perfected their dark arts. Consider this example:
You decide to watch a few “reality” shows on TV. The first show you turn to is The Dating Experiment. You start watching just in time to see Jennifer say how much she loves Todd. Commercial. You flip the channel, and land on the show Blind Date, just in time to see how bored Frank is on his date with Yvette. But will love eventually conquer his temporary torpor? Tune in tomorrow!
