The Legal View

The question is not whether the latest Osama bin Laden videotape is incriminating. It surely is by any legitimate political, moral, ethical, religious or even legal reckoning.

It's a videotaped confession, actually, only without any of the constitutional trappings which give rise to defenses like coercion or failure to Mirandize. It specifically and expressly links bin Laden to the planning of and preparation for the crime and it shows he clearly had advanced knowledge of it. It also demonstrates that a vast conspiracy was at work and the hair on the back of the neck of any potential juror in America will rise during those periods when bin Laden giggles about the attack and the casualty count.

But the same components that make it free from some legal challenges give rise to many, many others. Rather than debate how devastating the tape would be at trial, then, the real debate ought to center over whether and to what extent judges would allow the tape into evidence in the first place in any criminal trial of bin Laden or his co-conspirators?

Right now, that question cannot be answered. We simply don't know enough about the circumstances in which the tape was acquired by the US military.

But what we do know led several prosecutors and defense attorneys Thursday afternoon to agree that it will be very difficult, but not impossible, for the feds to get the contents of the tape before a jury.

That analysis holds if the feds try to prosecute bin Laden himself in federal court (he was indicted in the African Embassy bombings, remember) or if and when they go after any one of his alleged co-conspirators, including Zacarias Moussaoui, now under indictment in Alexandria, Virginia. Indeed, the first legal skirmishes over the tape likely will come in the Moussaoui case sometime next year - if prosecutors try to use it in that case and I suspect that they will.

What are some of the legal concerns? First, authenticity. Usually, when one side or the other wants to show a videotape to the jury, the person who shot the video shows up in court to authenticate it, to testify in a manner which "supports a finding that the matter in question is what its proponent claims," according to Rule 901 of the Federal Rules of Evidence.

Usually, that's easy. The witness tells the Court, among other things, that he or she shot the video, that the video is an accurate reflection of what he or she saw, and that the actual physical cassette to be inserted is a true reflection of the images captured. Usually, the process takes a few minutes or is stipulated to by the parties.

Imagine how that mundane, almost ministerial function would be played out with to this tape. No one really knows who shot the video, or at least no one is really saying. And no one knows precisely how it came to be placed in a home in Khandahar. Even if the Special Forces unit that reportedly secured the tape took perfect care of it, in the way that the best chain-of-custody exerts would, the original genesis of the tape and the date of its creation may remain unknown.

Looking at the tape from this point of view, an argument could be made that who's to say with legal certainty that the video isn't a fraud, dumped in an empty house in Kandahar, in order to dupe overeager American forces?

But that's just the beginning of the authentication problems prosecutors might have when it comes to the tape. By their own admission, federal authorities note that the tape was taped over, so that it is not in chronological order.

A defense attorney, or a judge, almost surely would ask how the government knows that the tape was not tampered with and even if the feds secure the services of a video or audio expert, it may not be enough to ensure that the tape really is what it purports to be: an accurate, reliable reflection of actual events.

Let's say that the feds get beyond the authentication issue. The next hurdle would probably involve objections raised by defense attorneys under federal hearsay rules, which generally prohibit out-of-court statements from coming in as evidence except in certain limited circumstances.

Clearly, the tape is an out-of-court statement made by someone (bin Laden) who presumably won't be available to be cross-examined by the defense (especially in the Moussaoui case). Is it hearsay or not, and if it is a hearsay statement, is it admissible anyway?

In the Moussaoui case, the court likely will have to determine first under Rule 801 of the Federal Rules of Evidence whether bin Laden's statements are those of "a co-conspirator of a party (Moussaoui) during the course and in furtherance of the conspiracy."

If they are, then those statements are not hearsay and much more likely to get to a jury. That's troublesome, at best, for prosecutors, however. Moussaoui already was in custody for about a month when the attacks occurred and bin Laden's remarks clearly were made several weeks or even months after the attacks.

Was the conspiracy over when bin Laden made the statements on the tape? After all, its aims had already been achieved by the time bin Laden was quoted, right? One prosecutor unrelated to any of these cases told me she might argue in this context that the tape was made for al-Qaida recruiting purposes and thus still could be in furtherance of an ongoing conspiracy. Defense attorneys say it's a fairly weak argument, especially since the only conspiracy for which Moussaoui is charged is the one that resulted in the Sept. 11 attacks.

If the courts aren't willing to buy the government's "furtherance of the conspiracy" argument, there are other hearsay problems as well when it comes to the Moussaoui case. He is not mentioned in the tape, as near as I can tell, nor are most of the rest of the unindicted co-conspirators named in his indictment. And it's not like the feds are going to be able to argue with a straight face that tape was made in the "regular course" of al-Qaida usiness or was otherwise a routinely recorded business record.

In fact, going through the list of recognized exceptions to the hearsay rule, Rule 803 for those of you scoring at home, the juxtaposition is almost funny. "Records of religious organizations" can come before a jury even though they may be hearsay - will the government argue that the tape was a record of a religious organization?

There are other likely objections as well but you get the idea. It won't be easy to get this tape before a jury under federal law. But it will be significantly easier to get this tape before a military tribunal since the Federal Rules of Evidence won't necessarily apply to those tribunals.

Indeed, the discovery of the tape offers a great way to illustrate how -justice might work differently in the two venues. "Evidence" like this - incriminating but perhaps susceptible to all the barriers our domestic legal system has set up for all the right reasons - is precisely why the Administration might opt in future cases to try to prove its points before military courts. Actually, it all but guarantees it.

By Andrew Cohen © MMI, CBS Worldwide Inc. All Rights Reserved