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In Trump's lawsuit in Arizona:

A Trump campaign attorney conceded in court on Thursday morning that he tried to enter hundreds of dodgy form-filed affidavits into evidence, even though their own investigation found that a subset of the sworn statements that they received were filled with lies and “spam.”

... Trump campaign’s lawyer Kory Langhofer, who explained the automated process that reflected their post-election evidence hunt. It included an online form whose reliability Langhofer claimed was boosted by the fact that it included a CAPTCHA, which weeded out the bots. The attorneys then visited the complainants’ homes. The Trump campaign said it excluded the submissions of those who swore to lies, but they included the ones they could not prove were lying into evidence.

It would seem that Trump's lawyer did not print out the affidavits and then have each affiant sign it under penalty of perjury, because if he had done that then he wouldn't have needed to mention CAPTCHAs at all. So were the things the lawyer was trying to submit really affidavits? Were they intended to be some weird form of exhibit rather than testimony? Hearsay admitted under a hearsay exception?

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  • The story indicates that counsel visited the affiants personally after they completed the CAPTCHAs, so these may have been legitimate affidavits. – bdb484 Nov 14 '20 at 6:45
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So what it looks like is that some subset of affidatives were taken from people who Trump's lawyers could not prove were lying and did not submit those that they could factually prove were lying. There is a difference between the two in that, while the latter are definately lying in their statements, the former COULD be lying, but the lawyers found nothing to prove this accusations. Because you cannot prove a negative ("I did not lie" is a negative statement) they must assume that the people making affidatives are making true statements no matter how outlandish the statement seems.

Affidatives are evidence but the actual testimony of the people signing them is better evidence. If it turns out that these people were lying on the Affidative or in testomony, they can be charged with perjury but at this point, it looks like Trump's lawyers did some due diligence to vert some of the people who reached out to them before filing the case.

As for the Hearsay discussion, under the U.S. rules of evidence, Hearsay is not generally permitted but with some exceptions. One notable exception is "statements against the adversary's interests" which allows an out of court statement made by another person who could be called to testify (the standard legal definition of Hearsay) IF the statement hurts the adversary party in a case. If Alice says in court, "I heard Bob say 'I killed Charlie in the Conservatory with a pipe!'" This would be permitted as Bob would not reliably make this statement in court and Alice is providing evidence that Bob did admit that he killed Charlie. It is evidence that hurts Bob. If Alice testifis that Dave told her Bob said he killed Charlie, than this would be inpermissable Hearsay because Dave should be testifying to this, not Alice.

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  • But if Trump's lawyer visited each affiant in person and had them sign their statement, why did the lawyer mention CATCHPAs? Mentioning the CATCHPAs to the judge only makes sense to me if they didn't get signatures or meet them in person. – Matthew Cline Nov 13 '20 at 14:00
  • @MatthewCline The CATCHPAs were used by the lawyers to eliminate bot spam from flooding those coming forward with possible earnest statements. It was the first step to verify that this wasn't some hacker trying to lie en mass to unknown ends. It is not substituting for a signature on an affidative, but blocking automated mass messaging from sending them on a wild goose chase. – hszmv Nov 13 '20 at 14:15
  • But then why did Trump's lawyer mention to the judge the methods they took to filter out spam? If he visited the affiants in person and got their signatures on the statements, then the steps before getting the signature should be irrelevant to getting the judge to accept the affidavits. – Matthew Cline Nov 13 '20 at 14:19
  • @MatthewCline: If the judge is asking for the methods of how they found the affiants they are submitting. The adversarial party has a right to examine the evidence as well, so how the evidence was obtained by the other party is useful to know. Improperly obtained evidence is tossed out and inadmissiable at trial, even if the evidence is critical to proving the case. – hszmv Nov 13 '20 at 14:41
  • I feel like you are mixing Rule 801(d)(2) "opposing party statement" and Rule 804(b)(3) "statement against declarant's interest". Am I wrong that the government would be able to use alice's statement as evidence regardless of whether it is in bob's interest simply because bob is opposing party? See this wiki page "distinction between party admissions and statements against interest" en.wikipedia.org/wiki/…. – David Reed Nov 14 '20 at 12:02

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