NEW YORK, Dec 14: US President George W. Bush might characterize a video of Osama bin Laden laughing about the Sept 11 attacks as a declaration of guilt, but legal experts are debating the tape’s admissibility should Osama ever be brought to trial.
“I think it’s an extremely strong piece of evidence that the prosecution will be very happy to have,” said Richard Uviller, an expert on evidence law at Columbia University.
“It’s the words of the accused himself. This would be a very dramatic piece of evidence at the trial. It’s a much more vivid sort of evidence than a transcript or the account of another person who heard what he said.”
Still, American evidentiary laws require that such evidence be authenticated — that is, prosecutors must prove that it is in fact bin Laden depicted on the tape and that it has not been doctored.
“Somebody has to be able to lay a foundation and offer sufficient proof that the evidence is what it purports to be,” said Melanie Leslie, an expert on American evidence law at the Benjamin N. Cardozo School of Law. “It has to meet a threshold level of reliability.”
This standard, Leslie said, would be highly difficult to meet in this case.
The best way to establish the tape’s authenticity, said Ronald Goldstock, a Cornell University expert in criminal procedure, would be for the prosecution to produce whoever filmed it.
Barring that, he said, someone who was in the room at the time it was recorded could lay the proper foundation or technicians could identify bin Laden’s voice through digital technology and establish that the tape had not been edited.
“I think it would be admissible,” Goldstock said. “I think you could do all of those things. You’d have to jump through some hoops, but I think it’s doable.”
The Pentagon said the tape was probably shot near Kandahar, in November. It was located at a house in Jalalabad, in eastern Afghanistan, and released only after consultations between the White House, the Pentagon and security services.
Should Osama survive the US onslaught and be taken alive, the video could prove a bugbear for his defense team. “If I were the defense, I would be dismayed, obviously,” Uviller said. —AFP
