In response to my recent article, Simply Saying Something Is So Does Not Make It So” — Judge Land, Rhodes v. Obama, I received some inquiries on whether the computer-imaged Certificate of Live Birth (COLB) can be presented to the Court for it to authenticate. I have also been asked whether one can present that document to the Court and argue that it is not valid because Obama or his agents have altered its serial number by blackening it out. Hence, with such COLB not being valid, there is no evidence existing of any kind as to where Obama was born. These questions deserve a response. So as to provide a service to the public, litigants, and the courts, the public should be informed as to how a case against Obama should proceed in a court of law. Hence, I have written this article.
Our nation is now debating whether our currently sitting Putative President, Barack Obama, is an Article II “natural born Citizen.” Depending on who has the burden of proof, this means that there must first be a showing that he is or is not a “citizen of the United States” under the Fourteenth Amendment or some Act of Congress and then ultimately a showing that he is or is not an Article II “natural born Citizen.” Before the Court will entertain any issue about documents and evidence, the plaintiff has to first have a comprehensive complaint filed with the Court that raises all possible factual and legal issues to be argued and proven. The plaintiff then has to properly serve that complaint upon all defendants, in both their individual and official capacities, whatever may be the case. Given that the defendants will most likely, rather than file an Answer, file a motion to dismiss the complaint on various threshold issues (not the merits), the plaintiff will also have to prove to the Court that it has subject matter jurisdiction (e.g., standing) and have to overcome other threshold issues (e.g. immunity) before the Court will allow any argument on documents or discovery in general. An exception to that general rule is if the plaintiff needs documents or other discovery to prove to the Court that it has standing or that the defendant is not, for example, immune (the issues yet to be decided by the Federal District Court of New Jersey in the Kerchner et al v. Obama et al suit).
Unless exempt by court rule from having to do so, a party must by court rule provide discovery of various information and documents (name individuals who have information and what that information is, list and provide documents to be used during trial, state what damages are claimed, and list if there are any insurance agreement that may be used to satisfy any possible judgment) to the other party without awaiting a discovery request. There are strict time limits on providing this preliminary information to the other party. With a defendant initially filing a motion to dismiss the complaint, this automatic discovery obligation may be put on hold until the Court rules on that dismissal motion. If necessary, a party can file a motion to have this automatic discovery obligation stayed pending the Court’s ruling on the motion to dismiss. If the Court denies the defendants’ motion to dismiss and is therefore satisfied that it has jurisdiction and that the plaintiff has prevailed on all other threshold issues, the Court will require that the defendant file an Answer and also allow the automatic discovery and other forms of discovery (depositions, interrogatories, production of documents, physical and mental examinations, and requests for admissions) to proceed.
The Court does not do the work of the litigating parties in this regard. The Court is a neutral party and cannot engage in developing or defending a case on behalf of any litigant. It is up to a party to bring relevant and admissible evidence and controlling and relevant law to the Court. Depending on who has the burden of proof, the party is expected to produce for the Court evidence that a document (the computer-imaged COLB or the underlying original Certificate of Live Birth, if that is the type of birth record that exists) is either false or authentic. That is initially done by utilizing an expert who renders a report containing his/her findings and opinions and the factual basis therefore. The proposed expert must be sufficiently qualified in the subject matter. A party must also use an expert witness to prevail on any other issue which is beyond the common knowledge of and to assist the trier of fact. The expert must render a legally sufficient report to the adversary or else the expert will upon a party’s motion be precluded by the Court from testifying in Court. During the discovery phase, the adversary party will expect the party proposing to produce the expert for trial to provide it with a copy of that expert’s report and all types of other information (documents and non-documentary) regarding that expert's qualifications and the basis for his/her opinions. This is done with interrogatories and a notice to produce documents. The adversary party will also normally take that expert's deposition for the purpose of finding fault and weakness in his/her opinion which will then serve the basis for a motion for summary judgment and/or pre-trial motion to strike his/her report and opinion, for the adversary party has the right to attack by appropriate pre-trial motions the report and opinion as legally insufficient given the rules of evidence and current state of scientific knowledge. If the Court denies the adversary's pre-trial motions to strike the report and opinion, the adversary will still have an opportunity to do so during trial.
Usually after discovery is completed (it can be before) and before the matter actually goes to trial, any party can file with the Court a motion for summary judgment, arguing that the operative facts are not in dispute and that as a matter of law that party deserves to win the case. The Court decides this motion based on admissible evidence and legal arguments contained in legal briefs that the parties present to the Court. Depending on what issue the moving party has asked the Court to decide, the plaintiff or defendant can either win the whole case or just one or more issues it deems ultimately important to winning the whole case. If neither of the parties files any motion for summary judgment (the facts may be or may be perceived to be in dispute) or if it is denied by the Court, the case will move forward to be disposed of by a trial.
Assuming the Court preliminarily (pre-trial) accepts an expert’s report as legally sufficient, the expert will be allowed to testify in Court as to the opinions and their factual foundation as contained in his report. The adversary party has the opportunity to cross examine the expert to test the truth and basis of his/her opinions. Following the expert's testimony, the adversary party can always make trial motions to have the expert's testimony stricken as inadmissible under the applicable evidence standard. If the offering party is able to withstand all trial attacks by the adversary, the expert's testimony will be accepted by the Court and will be ultimately weighed and assessed by the trier of fact.
The trier of fact can be either the trial judge or a jury, depending on whether the law allows a jury trial for the type of case that is before the Court and whether or not at least one party has timely requested a jury trial when it is allowed. If the jury is the trier of fact, the judge will instruct the jury at the end of the case presentations by both the plaintiff and defendant to accept the expert's opinion as evidence. If the judge is the trier of fact, he/she will simply accept that evidence. While the judge will instruct the jury that it must accept the expert's testimony as evidence, the judge will also instruct the jury (or will simply do so itself if the judge is the trier of fact) that only the jury will ultimately determine whether the expert was credible (believable) or not and whether to accept or reject his/her underlying opinion. It is during secret jury deliberations that the jury determines the expert's credibility and whether to accept or reject his/her opinion. If the judge is the trier of fact, he/she would do his/own analysis, study, weighing, and contemplation regarding the expert's credibility and whether or not to accept his/her opinion. The expert's opinion, along with all other admissible factual evidence and legal arguments presented by the parties to the judge and/or jury, will allow the plaintiff to ultimately either win or lose the case.
Hence, we can see that we cannot get the Court to so easily consider the computer-imaged COLB (assuming that this computer image even exists in the real world, I guess one could bring a lap top to the Court, bring up the image [real or Photoshopped forgery?], and show it to the Court) or any other Birth Certificate and expect it to take some action on it that is favorable to the plaintiff. Given what I have outlined above, we can just imagine what kind of response we would get from a competent judge. We have to bring competent and admissible evidence to the Court that the COLB or any other birth certificate is not valid in and of itself or if so valid then not valid for the purpose for which Obama has offered it or is now offering it (again depending on who has the burden of proof).
Regarding the blacked-out serial number contained on the first computer-released COLB, after receiving objections regarding that blacked-out number, Obama did cause to be internet published nine (9) digital photographs (not scanned images) of the same or different version of his COLB which did not have the sequence number blacked out. We do not know whether those digital photographs were of the same "COLB" that was initially published by Obama or of another COLB. The below quote from "Dr. Polarik" which appeared on FreeRepublic.com (h/t TheObamaFile.com) explains the sequence of events:
"It is a statement of fact, and admission therewith, that the OBama Campaign, aka Obama for America, did create a minimum of three (3) false identification document copies and distributed said copies to the Daily Kos, Factcheck, and Politifact; and, additionally, posted the original false identification document on Obama’s own website, 'My.BarackObama.com' and also on a separate website known as, 'Fight The Smears.' Furthermore, two months after the creation and distribution of these false identification documents, Obama for America, in collusion with Factcheck,org [sic], a subsidiary of the Annenberg Public Policy Center, owned by the Annenberg Foundation and funded by billionaire George Soros, created and posted nine (9) photographs of what they further alleged was the same, false identification document that they had earler [sic] alleged was a scanned facsimile of Obama’s original birth certificate — thus compounding their earlier offenses with further violations of the same statutes."
As I have explained above, "Dr. Polarik" or some other expert would have to render an expert's report that is preliminarily legally acceptable as to form and factual basis by a Court and then testify in that Court as to his/her opinions and the factual basis for those opinions. Of course, Obama would have his own expert do the same. The trier of fact will ultimately decide which expert to believe, basing its decision on that expert's testimony and all other competent and admissible evidence that both parties present to the Court.
Since the Obama eligibility question has both a factual and Constitutional legal component, with a jury trial, after the jury finds what the facts are, the Court and not the jury will render a legal opinion, with both parties being given the opportunity to present legal briefs to the Court in which each argues why their client should win on the facts and the law. If the trial judge is the trier of fact, the Court will give the parties an opportunity to present to it their respective findings of facts and conclusions of law. The trial judge would then ultimately decide what are the facts and the law and render a decision accordingly. Either party can then appeal the final decision of the trial Court to the Circuit Court of Appeals, provided the appeal is filed within 30 days from the day the trial Court enters judgment. While an appellate court will rarely disturb a jury’s factual findings, it will normally review a trial court’s legal conclusions de novo (from anew). An appeal directly to the U.S. Supreme Court may also be explored or done after an appeal to the Circuit Court is exhausted. Only after exhausting such a procedural and legal process can our justice system appropriately decide the factual question of Obama’s birth location and the Constitutional legal question of whether he is an Article II "natural born Citizen." But before any of that can be done which would allow the Court to decide whether plaintiff’s case has any underlying merit, the plaintiff has to first prove to the trial Court (the first Court) that it has jurisdiction and, assuming the defense raises such issues, that there do not exist any other threshold issues that give the Court grounds to dismiss the complaint (e.g. justiciability, political question, separation of powers, abstention, and more).
I hope this information brings more understanding and perspective to the procedural, evidence, and legal problems that must be overcome to be able to utilize the computer-imaged COLB and/or the original long-form Certificate of Live Birth or any other alleged Birth Certificate in a Court proceeding and to be able to bring to justice the ultimate question of Obama's Article II eligibility to be President and Commander in Chief.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831