Unspoken is that overriding fact that the Oxfrauds hold to themselves alone the authority to decide what the law says and whether or not respondents have documented failures of the Prima Facie brief presented.
Among several failures in the text to meet the rigors of the U.S. Federal Court's Rules of Evidence [link] is the fact that Item #9 fails to qualify as evidence in a legal prima facie brief. As I have pointed out:
Number 9 in the Oxfraudian prima facie brief That ‘John Heminges and Henry Condell state [in letters in the front matter of the First Folio] that the works in the First Folio were written by “so worthy a friend and fellow...as was our Shakespeare,”'… is not admissible as prima facie evidence in the case presented or in any case. [link]
Among the wide-ranging replies — most employing slight of hand in attempts to remove the need for the item to meet the legal standards for evidence while still asserting it meets those legal standards — is an actual argument for legal validity.
It is primarily the Oxfraudian Philip Buchan who has sought to show the item meets the rigors of Federal Rules of Evidence 901.(8) Evidence About Ancient Documents or Data Compilations [link] which requires that the party seeking to have an item authenticated by a court show
For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(The italics are mine.) The foremost question is whether the assertion "That John Heminges and Henry Condell state..." all or any particular part of the content of the 400-year-old letters can be authenticated.
Printed names at the bottom of what is styled as a letter are commonly referred to as signatures, and printing the name was the practice at the time.
What constitutes a "legal signature?" A person can legally bind themselves with a mark on a paper, or a handshake, or a verbal commitment, or a checkmark on terms and conditions December 19, 2022 @ 10:52 PM
That their names are printed in matching type-face on the page, he avers, meets the requirement of the law and qualifies as legal signatures. He has repeated this assertion throughout the debate on the matter at the Edward de Vere was Shakespeare Facebook group. I give him credit for actually taking a position that can be checked against the law to which the Prima Facie brief purports to adhere.
As might be expected, the law could not possibly leave the definition of a "legal signature" to the likes of the Oxfraudians or any other interested party. Nearly all official definitions of "signature" repeat the definition from Black’s Law Dictionary 1387 (7th ed. 1999)
(1) a person’s name or mark written by that person or at the person’s direction, or (2) any name, mark, or writing used with the intention of authenticating a document.
The names printed in type-face at the bottom of the letters in the front matter of the Shakespeare First Folio are not written by John Heminges or Henry Condell. Whether a signature is "at the person's direction" must be established upon sworn evidence.
Among Mr. Buchan's replies, the following:
But I'm only stating that Heminges and Condell agreed to the content of the letter; that is, that the letter is dedicating the work to the Herbert brothers, from Heminges and Condell. The evidence for this is that their names are at the bottom of the letter, which is how signatures were reflected in printed documents. September 18, 2022 @ 4:57 PM
But this only increases his problems. In order for the content to be accepted in the record as the testimony of Heminges and Condell it must qualify either as an affidavit or an admissible declaration. H&C did not and cannot swear to an affidavit. In order for a declaration to be admissible the declarant must sign a notarized statement affirming the he/they understand that the declaration is subject to the penalties of perjury. This, too, H&C did not and cannot do. In both cases, it was not and is not possible for the purported declaration/affidavit to be given subject to the penalties of perjury which again disqualifies it as either before the law.
For this and other reasons, a 400 year old document can never satisfy the legal requirements for an admissible witness statement. A hearsay exception may be — and often is — provided in such an instance. The letters in question may be, by this fact, admissible as "letters of a type more-or-less common in the front matter of published works circa the 17th century." Per the requirements of hearsay evidence, all that can be said concerning H&C is that "some party or parties empowered to do so had the names of John Heminges and Henry Condell printed below each letter in the same type-face as the text". Who made or endorsed, etc., any or all of the statements in the letters is a matter of hearsay to be argued at trial.
Of course, in order for any item of evidence purported in a Prima Facie brief to be allowed as actual evidence — hearsay evidence, included — the trial judge must authenticate it — must satisfy himself as to its authenticity. The plaintiff does not get to declare on their own authority that anything is evidence.
Also at Virtual Grub Street:
- “I am rubber, you are glue!”: On the Oxfraudian Playbook. January 17, 2023. "I am aware, of course, that those same tactics will be employed in an attempt to reduce quote-unquote-debate about this matter instant to so much bafflegab."
Why Have Purported Oxfraud Lawyers Demolished Their Own Evidence? January 10, 2023. "I cannot believe that such was their intention. But there it is."
Oxfraud “Prima Facie Case for Shakespeare” Revised to Comport with Federal Rules of Evidence. December 19, 2022. "The simple fact that the First Folio makes clear that it forwards William Shakspear, of Stratford-upon-Avon, makes for a strong prima facie case that he was the author of the plays."
Easing Oxfrauds into the World of Legitimate Shakespeare Authorship Debate. December 17, 2022. "Allowing Oxfrauds to debate in the Edward de Vere was Shakespeare Facebook group had been a positive choice, at first,..."
- 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.
2 comments:
(Part 1 of 2)
I don’t know where you got the notion that there’s a special elevated standard of evidence for matters that form part of a prima facie case. It’s really the opposite: the standard is that any admissible evidence can serve to support an element of a prima facie case.
As you know, prima facie means “based on the first impression; accepted as correct until proved otherwise.” Any admissible evidence at all that supports the conclusion is adequate to serve as an element of a prima facie case, and unless it’s refuted by contrary evidence, that element is likely to be affirm by the finder of fact (i.e. the judge in a bench trial or a jury.)
Your post above demonstrates that you're confused about the process and the rules of evidence. For instance, you claim:
"For this and other reasons, a 400 year old document can never satisfy the legal requirements for an admissible witness statement."
Wrong. 400-year-old documents are legally valid evidence in courts. Ancient documents are often the best and sometimes the only evidence for facts more than a couple decades old.
We’ve explained the ancient document rule to you, but you don’t seem to grasp it. You refer to the “rigors of the U.S. Federal court’s rule of evidence.” But for some reason you aren’t able to grasp the applicable rule of evidence. I’ll try to take you through it yet again, based on your own post.
You correctly state that “Of course, in order for any item of evidence purported in a Prima Facie brief to be allowed as actual evidence — hearsay evidence, included — the trial judge must authenticate it — must satisfy himself as to its authenticity.” For the dedication of the First Folio, the evidentiary rule to authenticate it is the ancient document rule. So far so good.
You correctly state the key provision of that rule: that the document “is in a condition that creates no suspicion about its authenticity.”
But you then appear to misunderstand how to apply that rule, by stating “The foremost question is whether the assertion ‘That John Heminges and Henry Condell state...’ all or any particular part of the content of the 400-year-old letters can be authenticated.”
The answer is, of course they can be authenticated—by reference to the rule stated above, and particularly, by examining the condition of the document. That you make no reference to the “condition” of the document in the rest of your piece is telling, because that’s the heart of the issue that a court would consider in determining whether to authenticate an offered ancient document as evidence.
(Part 2 of 2)
The “condition” at issue is whether the document offered in evidence “creates no suspicion about its authenticity.” The Cornell Law School’s Legal Information Institute paraphrases this requirement as whether the document “is regular on its face with no signs of obvious alterations.”
Apply that to the First Folio’s dedicatory epistle. It’s remarkably regular on its face—it could be and in parts certainly was copied from other dedications of the period. Little that Heminges and Condell said was surprising or particularly original, other than the personal comments about Shakespeare and about the two brothers to whom the book was dedicated. Nothing about those original touches is in the least suspicious, though they are revealing historical evidence. There are no alterations—the document is consistent in all the extant copies of the First Folio. That’s the only determination a court would need to make to admit the document.
You seem to believe that in authenticating the document, the court would make a determination that it is reliable evidence, and even that the document needs to meet an elevated standard to be in a “legal prima facie brief.” (SIC)
But that’s incorrect. A report of the Judicial Conference Advisory Committee on Evidence Rules (May 7, 2016), stated that “no showing of reliability needs to be made to qualify under the [ancient documents] exception.” I certainly consider the entire dedicatory epistle to be reliable evidence, but beyond demonstrating that it meets the criteria of the ancient document rule (and the corresponding hearsay exception) there’s no requirement that I provide any additional evidence on the point.
As you say: “Who made or endorsed, etc., any or all of the statements in the letters is a matter of hearsay to be argued at trial.”
Correct! The burden of proof is on you.
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