Why Have Purported Oxfraud Lawyers Demolished Their Own Evidence?

First, I thank the members of Oxfraud who represent themselves as professional lawyers expert upon rules of evidence for waiting until after the holidays, as I suggested, before reviving their insupportable claims. I thank them still more for apparently being unable to read the law with comprehension. The case law to which they referred me fully agrees with my points in the ongoing debate of the group's “Prima Facie Case” brief¹. 

The case law resoundingly supports the position that Item 9 in the Oxfraud PFC brief — 'Heminges and Condell state that the works in the First Folio were written by “so worthy a friend and fellow...as was our Shakespeare”' — cannot be authenticated therefore is not admissible as evidence. I cannot believe that such was their intention. But there it is.

The main case cited is US vs. Habteyes (https://casetext.com/case/united-states-v-habteyes). By way of introduction the Memorandum of Opinion, the Court provides the following guidance:

To satisfy the requirement of authenticating an item of evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claim it is.”

*

Thus, at the motion in limine stage, “[t]he district court's role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.

The first point made in the Memorandum of Opinion, then, is that the plaintiff was obligated to positively authenticate its purported items of evidence in limine (“at the threshold” before entering into the case). This notwithstanding the Oxfraudian claim that no such requirement existed and that purported evidence was credited as evidence unless and until rebutted.

The second point made in the Memorandum is that the plaintiff is invited to present expert testimony as the primary means of establishing the criteria for authentication. By way of reminder, those criteria are listed in Federal Rules of Evidence 901(8) Evidence About Ancient Documents or Data Compilations. (https://law.cornell.edu/rules/fre/rule_901)

For a document or date compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old.

This puts to rest the bizarre Oxfraud claim that expert witness testimony is "extrinsic evidence" thus not admissible.  The evidence in question, US vs. Habteyes, was a Ledger. The plaintiff's expert witness attested to the Ledger meeting the above criteria.

In the Oxfraud PFC brief, the evidence in question is two letters in the front matter of the Shakespeare First Folio. On my part, I have accepted to stipulate that the letters meet the three criteria. The following correctly describes the evidence in question:

9) Two letters in the front matter of the Shakepeare First Folio. One letter is designated a Dedication.²

At this point, then, we have stipulated to the authenticity of the two letters as described above.

In US vs. Habteyes the respondent objects to the evidence on the grounds of the Ledger's content. The Court overrules the objection on fundamental grounds:

Defendant also argues that the condition of the Ledger raises suspicion as to its authenticity because, according to defendant, the signature corresponding to “Mergia Negussic” does not match the defendant's signature. This argument fails because Rule 901(b)(8)(A)'s requirement that a document be free of suspicion “goes not to the content of the document, but rather to whether the document is what it purports to be.” United State v. Kairys, etc.

The objection fails because in limine authentication only refers to the physical Ledger. No characterization of details of the contents, pro or con (or otherwise), can qualify as evidence at the pre-trial stage. It is a matter for argument during the trial itself after which the judge and jury will decide whether it finds any or all allegations regarding content of the Ledger rise to the level of admissibility.

This is foundational to the Authentication of Evidence. The evidence in question is the physical document, or, having only a copy, the physical copy.

The proponent's burden to show an item of evidence is authentic "is not high—only a prima facie showing is required." United States v. Vidacak , 553 F.3d 344, 349 (4th Cir. 2009). This is so because, as the Fourth Circuit has explained, "the factual determination of whether evidence is that which the proponent claims is ultimately reserved for the jury."

The admissibility of the contents of the physical evidence can only be decided by the judge and jury after the parties have submitted their arguments pro and con during the trial phase. "[T]he factual determination of whether evidence is that which the proponent claims is ultimately reserved for the jury."

General characterization of the contents as a whole can be part of the authentication process. First of all, ancient documents are admitted by case law precedent to be, by definition, hearsay evidence. Precedent further makes an exception, in the instance of ancient documents, to the standard prohibition against hearsay. As the result, this is codified as Federal Rule of Evidence 803(16)³ for documents “whose authenticity is established.” (https://law.cornell.edu/rules/fre/rule_803)

So then, in US vs. Habteyes the physical Ledger is authenticated. Any and all details of the contents of the Ledger are matters for argument between the parties at trail. In Oxfraud vs. Oxford, the physical letters are duly authenticated. Any or all specific details of the content of the letters are matters held over for argument between the parties at trail.

The Court's Memorandum of Opinion is even far more damaging to the Oxfraud case than has been pointed out thus far. In Section III the Court further addresses matters of Hearsay Evidence inherent in ancient documents.

when a party seeks to introduce a document that contains hearsay within hearsay, any double hearsay statements are inadmissible unless a hearsay exception applies to each level of hearsay. Accordingly, any statements in the Ledger that constitute "first-level hearsay" are admissible under Rule 803(16), but any statements in the Ledger that constitute hearsay within hearsay are inadmissible unless a separate hearsay exception applies.

A footnote heightens the point:

the two courts of appeals that have addressed the issue—the Third and Seventh Circuits—have both held that the ancient documents exception applies only to "first-level hearsay" statements within the ancient document and that under Rule 805 any hearsay within hearsay contained in the ancient document must satisfy an independent hearsay exception. Langbord v. United States Dep't of Treasury , etc.

The Oxfraud PFC brief's claim that 'Hemmings and Condell state that the works in the First Folio were written by “so worthy a friend and fellow... as was our Shakespeare”.' is unlikely to meet the definition of evidence at all. But, if it might, it is hearsay evidence within an ancient document. Ancient documents being by definition, in the law, hearsay, claims concerning who signed onto the statement “so worthy a friend and fellow... as was our Shakespeare,” or whether anyone did, are double-hearsay and utterly inadmissible under the law and Federal Rules of Evidence 805. (https://law.cornell.edu/rules/fre/rule_805)

By law, item number 9 of the Prima Facie Case brief of the purported Oxfraud legal team, is stipulated to as follows:

9) Two letters in the front matter of the Shakepeare First Folio. One letter is designated a Dedication.

Or, more precisely,

9) Two letters in the front matter of the Shakepeare First Folio. One letter (a) designated “The Epistle Dedicatorie”. The other letter (b) designated “To the great Variety of Readers”.

The physical letters, thus described, are hereby authenticated in accordance with Federal Rules of Evidence 901(8). The contents of the letters can only be addressed at trial.

1“The Prima Facie Case for Shakespeare.” https://oxfraud.com/sites/PrimaFacie.html

2Purdy, Gilbert Wesley. 'Oxfraud “Prima Facie Case for Shakespeare” Revised to Comport with Federal Rules of Evidence.' Virtual Grub Street, December 19, 2022. https://gilbertwesleypurdy.blogspot.com/2022/12/oxfraud-prima-facie-case-for.html

3Rule 803. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless whether the declarant is available as witness:...

Rule 803(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Also at Virtual Grub Street:

• Ben Jonson and the Dedication to the Shakespeare First Folio. December 12, 2022. “Country hands reach foorth milke, creame, fruites, or what they have:...”.

• Labeo and Shakespeare on the Ladies' Toilette. November 13, 2022. “What woman would be anything but offended to be described in such a way?”

• The Gossip from Queen Elizabeth's Court, May 11, 1573. November 5, 2022. “My Lord of Oxford is lately grown into great credit; for the Queen's Majesty delighteth more in his personage, and his dancing, and valiantness, than any other.”

• Edward de Vere and Marlowe’s Dido of Carthage. July 5, 2022. “It was an historical effort and an historical two years for Elizabethan theater.”

• How Shakespeare gave Ben Jonson the Infamous Purge. November 7, 2021. “Of course, De Vere could not openly accuse Jonson of having outed him as Shakespeare.”
• Check out the Shakespeare Authorship Article Index for many more articles and reviews about this fascinating time and about the Shakespeare Authorship Question.
• Check out the Letters Index: Edward de Vere, 17th Earl of Oxford for many letters from this fascinating time, some related to the Shakespeare Authorship Question.