by Barry Krusch
Vincent Bugliosi, in Reclaiming History, agreed with the logic of this line of analysis in his discussion of the assassination of Robert Kennedy, and noted the importance of ancillary evidence in making a determination regarding the number of shots fired, such as additional bullet holes. As he stated in relation to that case (RH Endnotes 551):
[A]ny bullet holes observed in addition to those accounted for . . . would constitute evidence of a second gun being fired.
Bugliosi reiterated the point regarding statements he received on the number of bullets fired (including one from Thomas Noguchi, the coroner of Los Angeles) (RH Endnotes 551):
[I]n the absence of a logical explanation, these statements, by simple arithmetic, add up to too many bullets and therefore, the probability of a second gun.
He then discussed his conclusion as he stated to the media at the time, first indicating that if he was “forced to the wall” he would conclude that there was no conspiracy because bullet holes could be explained with an alternative hypothesis (even though this contradicts the first statement quoted above), but on the other hand, that that conclusion would not necessarily be the final word (RH Endnotes 551):
If I were forced to the wall, I’d say there was no conspiracy, that the additional bullets and bullet holes can be accounted for by the existence of fragments and ricochets . . . I reiterated that in the absence of official contravening evidence, we were talking about too many bullets for Sirhan to have fired them all.
While Bugliosi most likely did not believe in a conspiracy in the assassination of Robert Kennedy (notwithstanding his contradictory statements), his central point stands: if the evidence demonstrates that more bullets were fired than could have been fired by the assassin — and there is no plausible alternative explanation or evidence to the contrary — then this would be proof of conspiracy, and one’s beliefs should be modified accordingly.
ELEMENT TWO
All of the shots fired at Dealey Plaza on November 22, 1963 were fired from the sixth-floor southeast window of the Texas School Book Depository, and from no other location.
The Warren Commission claimed that at the time of the assassination, Oswald was at the sixth floor southeast window of the Texas School Book Depository. Since Oswald could not be in two places at one time, if there were shots fired from another location, the element would positively be disproven, and likewise the Lone Gunman proposition with which it is irrevocably associated.
ELEMENT THREE
Lee Harvey Oswald was the only person on the sixth floor of the Texas School Book Depository at 12:30 p.m. on November 22, 1963.
The Warren Commission claimed that Oswald was the only person on the sixth floor of the Texas School Book Depository at the time of the assassination. If another person was on the southern side of the sixth floor, this individual could have aided Oswald, and also could have fired the shots. An accomplice = conspiracy.
ELEMENT FOUR
The shots fired at Dealey Plaza on November 22, 1963 were fired from no other weapons besides Lee Harvey Oswald’s Mannlicher-Carcano.
According to the Warren Commission, Oswald had one and only one weapon, a 40” Mannlicher-Carcano. Even if Oswald had more than one weapon, he would not have had time (and obviously no inclination) to switch back and forth between weapons in the time within which the shots were fired. Accordingly, if there is evidence to show that other weapons besides Oswald’s Mannlicher-Carcano were used, the element would be positively disproven, and so would the proposition.
ELEMENT FIVE
A rifleman could plausibly have fired 3 separate shots from the Mannlicher-Carcano within the elapsed time of the shooting and corresponding with the keyframes of the Zapruder film.
The Mannlicher-Carcano allegedly owned and used by Oswald was not a rapid-fire machine gun. Before a bullet could be fired, the bolt had to be manually operated to place the bullet in the chamber before firing. This could only be done at a certain speed.
The Warren Commission estimated that the rifle could be fired no faster than 2.3 seconds between shots. Accordingly, all the shots that Oswald allegedly made had to be physically possible within the beginning and end of the shooting sequence. Moreover, the Zapruder film shows the relative timings of the shots to President Kennedy and Governor Connally. If Kennedy and Connally were struck by separate bullets faster than the 2.3 seconds, the element, and therefore the proposition, would be positively disproven.
ELEMENT SIX
There was one and only one bullet which struck Governor Connally, and that bullet (identified as CE 399) first passed through the body of President Kennedy.
The Warren Commission created a concept known as the Single Bullet Theory because it was not physically possible (based on the Zapruder film) for Oswald to make two separate shots in the time frame established by the film. The bullet which ostensibly achieved this feat was allegedly found on a stretcher at Parkland Hospital, and was identified by the Warren Commission as Commission Exhibit 399, abbreviated as CE 399. If it can be shown that the Single Bullet Theory is invalid because no bullet passed through the body of President Kennedy, subsequently striking Governor Connally, the proposition would positively be disproven.
The foregoing analysis has demonstrated why these elements of the Proposition One are necessary. Now let’s move to the elements of the Proposition Two.
Note to the reader: As of this writing in 2012, the volume that will contain the analysis on Proposition Two, Volume 4, is currently in the research stages. Consequently, the elements for Proposition Two are subject to change.
PROPOSITION TWO
Lee Harvey Oswald was the lone gunman in Dealey Plaza on November 22, 1963.
ELEMENT ONE
The key evidence in the case actually connects Lee Harvey Oswald to the assassination.
ELEMENT TWO
Lee Harvey Oswald, at the time of the assassination, was present at the window from which it was alleged that the shots were fired (the sixth floor of the southeast window of the Texas School Book Depository), and the weapon purported to be Oswald’s Mannlicher-Carcano 6.5 mm Italian rifle was in Oswald’s possession at the time it was fired.
ELEMENT THREE
A rifleman of Lee Harvey Oswald’s capabilities could plausibly have fired 3 separate shots using the Mannlicher-Carcano within the elapsed time of the shooting and with the requisite accuracy required.
ELEMENT FOUR
Lee Harvey Oswald was not framed for the murder of President John F. Kennedy.
ELEMENT ONE
The key evidence in the case actually connects Lee Harvey Oswald to the assassination.
Under normal circumstances, evidence related to this element would be incorporated as background for the legal assumption and discussed in the next two elements, but as you will see, extraordinary issues with the quality and quantity of evidence for this Proposition entails giving it its own element; analyzing all the evidence together will reveal a pattern of inauthenticity and inherent unreliability. To this latter point, if the evidence is so unreliable it won’t be admissible, we won’t get to court, and the buck stops here.
Under this element, we seek to ask two questions:
Even if the evidence is authentic, does it necessarily prove the claim with which it is associated?
Is the evidence authentic?
Let’s go to the first question. You should know that even authentic evidence does not necessarily achieve what its proponents claim that it does. Take these two examples of evidence provided as proof that Oswald was located on the floor of the depository at 12:30 p.m.:
A witness claimed to observe Oswald at the southeast corner of the sixth floor of the Depository at 12:30 p.m..
One or more fingerprints of Oswald were on the boxes in that area of the depository.
Looks pretty bad for Oswald, doesn’t it? Well, not so fast. To understand why, it is helpful to first understand the difference between direct and circumstantial evidence.
The distinction is f
airly simple: direct evidence supports the truth of an assertion directly, i.e., without an intervening inference. Circumstantial evidence, by contrast, requires one or more intervening inference(s) to support the truth of the assertion.
Below are two examples of direct evidence:
Eyewitness Identifications
Confessions
And here are examples of circumstantial evidence:
Fingerprints
Videotape
Photographs
Sound Recordings
DNA evidence
So, for example, if a witness sees Oswald in the “sniper’s nest” at 12:30 p.m., that is direct evidence Oswald was at the “sniper’s nest” at 12:30 p.m., evidence which does not require a direct intervening inference from which to draw a conclusion (though, as we are about to see, it does require one or more intervening inferences related to the authentication of that direct evidence).
On the other hand, if Oswald’s fingerprints were on the boxes in the “sniper’s nest”, that is circumstantial evidence he was at the “sniper’s nest” at 12:30 p.m, evidence which does require an intervening inference. We have to make the inductive leap that the fact that a fingerprint was placed on a box could somehow logically be linked to the time it was placed on the box.
There are problems with both these types of evidence. For example, the direct evidence could be problematic if the witness had poor vision, or had excellent vision but was located too far away to make a proper identification, or if in fact at the police lineup the witness first identified someone else as being in the “sniper’s nest” (or otherwise refused to make the identification), or if at the lineup Oswald had on a dirty T-shirt while the others in the lineup were in three-piece suits, or a witness provided an identification that would have been physically impossible given the geometric relationship of witness, witnessee, and surrounding reality in three-dimensional space (i.e. the witness reported a standing shooter when a very short opening in a window would only support a sitting shooter), or the witness had made other identifications that turned out later to be erroneous, or the witness was bribed, or was threatened, or was unduly influenced by the media, or was induced to make the claim by a group of detectives at the lineup, or had his testimony misreported.
Hmmmm . . . not as solid as we thought!! I guess now you know why a proper trial has a technique known as cross-examination, which allows the defense to probe these areas for any points of weakness.
Circumstantial evidence has its own problems. You will note that circumstantial evidence requires one or more intervening inferences: for example, to conclude that “Oswald’s fingerprints on the boxes were evidence that Oswald was located at the ‘sniper’s nest’ at 12:30 p.m.,” your intervening inference would have to be that the only time those fingerprints could have been put on the boxes by Oswald was if in fact he was located at the nest at 12:30 p.m.
However, since Oswald worked at the Depository on a day-to-day basis, he could have handled those boxes at a different time, and, additionally, we cannot be absolutely certain that those fingerprints were Oswald’s, we only assume that they were. For example, to believe that these fingerprints were Oswald’s, we would have to reject the hypotheses that the fingerprint analysis was incorrect, and/or that the fingerprints were planted on the boxes at a later time by either Dallas detectives or the FBI (and this evidence would be less likely to support the element if the fingerprints of others were also on the boxes, which could potentially implicate those others as either accomplices or “the” assassin himself).
To reject the hypotheses that the analysis was incorrect and/or that the fingerprints were planted, the evidence would need to be properly authenticated, and that takes us to our second question, is the evidence authentic?
In this regard, Federal Rule Of Evidence 901 (a) provides as follows:
As the rule states, the proponent of a claim “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” In other words, the evidence must be genuine. If the prosecution says that a defendant used this knife to stab a victim, then the prosecution must produce this knife and not some other knife that looks like that knife, and be able to prove it. If the prosecution says that the defendant shot the victim with a .22 caliber pistol, then it had better not produce as evidence shotgun pellets. If the prosecution’s proof that a defendant murdered a victim is blood on the clothes, the material on the clothes should be blood, not paint. If the prosecution says that it is Oswald’s fingerprint on the box, it should be able to prove that it was Oswald’s fingerprint, and not someone else’s, and that even if it was Oswald’s fingerprint, it was placed there by Oswald, not someone else, and if it was Oswald’s fingerprint placed there by Oswald himself, it was placed there at 12:30 p.m.
There are two techniques used to authenticate evidence, ready identification and chain of custody. Ready identification is used when an item has a unique, one-of-a-kind characteristic, and chain of custody is used when an object does not have a uniquely identifying characteristic.
As Steven Emanuel and Joel Friedman explained, “[t]he chain of custody method of authentication requires that every ‘link’ in the chain of custody — every person who has handled or possessed the object since it was first recognized as being relevant to the case — must explain what he did with it.” (Emanuel On Evidence, p. 465). This distinction was articulated by the Supreme Court of Montana in State of Montana v. Sox, 212 Mont. 488 at 491-2; 689 P.2d 252 (1984):
There are essentially two recognized methods of identifying physical evidence: ready identification and chain of custody. The former method is used when the article has a unique characteristic that makes it readily identifiable. The exhibits in the instant case lend themselves to ready identifiability; the computer components had Canadian stock stickers attached to them and one component had even had its sticker realigned in a unique manner by Barnhart. The guitar too, was very unique and easily identifiable.
In his book on evidentiary foundations, Imwinkelried assures us that when introducing a readily identifiable piece of evidence, “the foundation is complete so long as the witness testifies that he or she previously observed the characteristic and presently recalls the characteristic.” E. Imwinkelried, Evidentiary Foundations (1980), at p. 81. Only when the evidence is so commonplace as to be non-unique or when the witness has failed to observe its uniqueness is it necessary to lay a chain of custody foundation.
The Alabama Supreme Court in 1991 explained the significance of the chain of custody, as well as the significance of the concept of “links” and “missing links” (“Ex parte Holton”, 590 So.2d 918, 920 (Ala. 1991); emphasis supplied):
The chain of custody is composed of ‘link’. A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: (1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.
If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a ‘missing’ link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the ‘link’, as to one or more [of the] criteria or as to one or more links, the result is a ‘weak’ link. When the link is ‘weak’, a question of credibility and weight is presented, not one of admissibility.
How are links authenticated? Through a series of technical requirements. These technical requirements for establishing a chain of custody are extremely rigorous. Consider this description of proper protocol for a drug prosecution (“Chapter 10. Authentication And Id
entification,” “Testimony of Witness With Knowledge,” 31 Fed. Prac. & Proc. Evid. § 7106(b)(1), 38-40; paragraph separations added by author; emphasis supplied):
