Rules Of Evidence

Why’d he (apparently) wait until Jan 17, 2023 to get this info? It was on Twitter’s servers the entire time since Trump was suspended.

— John Panzer (@jpanzer@mastodon.social) 🏅 (@jpanzer) August 9, 2023

Hmm. Was he getting viewer metadata on these? Would this help establish timeline of Trump or his team reading the debunking? pic.twitter.com/hDDjkFArgE

— John Panzer (@jpanzer@mastodon.social) 🏅 (@jpanzer) August 9, 2023

This is the boring part of trials they leave out on TeeVee/movies: “proving up the evidence.”

If you present documents in court, you need either a certified copy (if it’s a government doc), or the custodian of records from the company, to testify that what is being offered is a true and correct copy of records kept by “X” in the ordinary course of business, etc., etc. 

In “Perry Mason” you see Mason pull out a sheet of paper and say “I off this as Defense Exhibit ‘A,’ and Hamilton Berger ("Ham Burger".  Did you ever get that one?) glances at it and Mason starts asking questions from it.  Doesn't hardly work that way.

It has to be authenticated (the court can't even take evidence of what the weather was on the day in question, if that's relevant, without either testimony from a witness or reference to a recognized source for such information, like the records of the NWS; and those have to be authenticated, too.  For really old dates, an almanac that records such information can be used, if the court allows it.).  And that authentication is a process that has to be almost ritualistically followed so the court will allow the documents "into evidence," and then lawyers can start questioning witnesses about those documents and what they say.  Only until they are authenticated are the documents evidence of anything.  

The image of Andy Griffith waving a sheaf of papers and proclaiming "OH, I'VE GOT EVIDENCE!  I'VE GOT EVIDENCE" is farcical, because the rules of evidence and procedure don't allow a lawyer to do that.  But proving up evidence is dull and rather tedious and frankly takes up no small amount of time, so TeeVee and movies usually skip right over it to get to the dramatic stuff.

The court doesn't skip it, though.  So DOJ went to Xitter (! hat tip emptywheel) to get all of Trump's tweets, in part because they were no longer publicly available (Twitter shut down his account), in part because they needed an authenticatable record from the company, not screen shots from some DOJ secretary's cell phone.  Rules of evidence, ya see.

So why'd he wait?  Needed to establish probable cause that the company had information (Trump's tweets) that could show criminal activity or lead to such information (IIRC the formula correctly).  Search warrants don't issue "just because."  And was he after the "metadata"?  Eh, probably not.  Smith just needed authenticatable records so he could, if need be, use them in trial.

When you know what's going on, it's neither complicated nor secretive nor nefarious.  I know there've always been conspiracy theorists among us.  I'm beginning to realize the internet, and ignorance, have made conspiracy theorists out of more of us.  Mostly because we just want to look like we're clever, too.

After all, nobody wants to be Fredo.