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Wednesday, November 29, 2006

Of signatures and rubber-stamps, oaths and Bibles

Since returning to active blogging, I have, of course, stepped up my reading of some of my other favorite blogs. And I've been unable to resist the urge to comment on them. A little bit of that is fine. But of course, your long-winded host at this blog can't hold himself to a little bit, and so I find myself writing long screeds on other bloggers' comments sections. I should post those screeds here, where my readers voluntarily assume the risk (at least after their first visits) of overlong rants.

I need software that causes my keyboard to seize up and a red light to flash when I've written more words in a comment that the host wrote in the post itself. "Beldar, take it to your own bandwidth!" the digitized voice should shout.

Yesterday my rants elsewhere were over the importance — or fundamental lack thereof — of whether the judge who'd issued the warrant in the Atlanta "no-knock warrant"/elderly-woman-shooting incident had affixed a pen-and-ink signature to the warrant, or had instead approved the warrant via a rubber stamp of his signature, or a digital version thereof. Prompted by an animated .gif file on Radley Balko's blog that attempted to show a non-manual, non-unique-pen-and-ink signature, my comments spilled over onto Patterico's blog and a post by Prof. Orin Kerr at The Volokh Conspiracy. The best of my rants — which I completely spoiled by an intemperate and impolite and completely unjustifiable closing dig at Prof. Kerr (who deserves far better of me); I repeat here my apology that I later posted there — may have been the shortest, so I'll reprint most of it here (minus the dig):

Whether the signature was pen-and-ink, ink-stamped, or digital is almost certainly irrelevant under any State's law. See, e.g., Article 3, part 4, of the Uniform Commercial Code, especially § 3-401(b):

A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.

Although from a commercial instead of a criminal context, this re-states the common law on signatures and endorsements generally.

Thus, the proper question is whether whatever indication of the judge's ruling on the warrant application was intended by him or not, however that intention was manifested. If the warrant is genuinely forged — if it was completely fabricated, whether through a phony pen-and-ink signature or a hacked data cable — then it was not intended by the judge to evidence his assent, and that's another story entirely ....

And whether this judge paid enough attention to the warrant application, or whether judges in general ought to pay more attention, or whether standards for warrants ought to be changed, or whether no-knock warrants are good or bad — these are all interesting questions, but they have nothing whatsoever to do with the fact that these signatures are "suspiciously similar." That's just a complete red herring ....

That UCC provision explains why, for example, when your $10 rebate check from MegaCorp comes in the mail with a pre-printed signature from "J. Harold Bigboss," and you endorse the back of it with only your "For Deposit Only, John Doe, Acct. No. 287153982" rubber stamp, the document nevertheless flows through the banking system and results in the $10 being credited to your bank account — even though no one ever put a pen-and-ink signature to anything.

Today's victim is James Joyner of Outside the Beltway (whose co-blogger Steve Verdon I was arguing with over at Patterico's (sigh)). In my temporary insanity, it seemed that my two cents (or 400 words and six paragraphs) were essential to each of three or four over posts there, but the only comment that's possibly worth my repeating here (or that arguably was worth my posting there) had to do with the question of whether newly-elected Congressman Keith Ellison, an adherent of the Muslim faith, ought to be permitted to take his oath of office on a Koran instead of a Bible. To which I made this comment:

I’ve practiced law in Texas for 25 years. I've never once seen a witness take an oath, either in a deposition or before live testimony in court, on a Bible (or any other book).

For that matter, I've never once seen a judge bang his gavel. They all have them, but the just never, ever use them. If it came to that, they’d crook a finger at a deputy sheriff/bailiff who’s got a badge on his chest and a 9mm on his hip, but I’ve only seen that happen once.

The oath-on-a-Bible thing, dating back to George Washington [adding] an unscripted “So help me God” and kissing the Bible at his inauguration, is pure politics and show-business. It has nothing to do with actually becoming a Congressman or Senator or Supreme Court Justice or President.

The oath, by contrast, does really matter — because if you’re impeached, it’s the oath that manifested your acceptance of the duty, the violation of which duty is the basis for your removal from office.

I've got a related issue (well, it's a minor sub-issue actually) in one of my pending cases that's set for trial early next year. In it, there's a document, actually a letter, that was signed by one of the secondary players in the case, and it bears a Notary Public's seal-stamp and signature as well. My opponents keep referring to it as an "affidavit," and there's no doubt it will be admitted into evidence in my case (because it has independent legal significance, regardless of whether it's self-authenticating and otherwise admissible as an exception to the normal hearsay rules).

But the document has no other language — no indication that the Notary Public administered any sort of oath, no statement made or adopted by the "witness" to the effect that he had personal knowledge of its contents, or that he was swearing to the truth of any of the recitations in the document. It just has the letter-writer's signature, plus the Notary Public's signature and stamp. My position is that the most that can be implied by that document is that the Notary Public verified the identity of the signer (and even that may be subject to dispute; quite arguably, all by itself the Notary's signature and stamp are entirely meaningless). But I'm confident that the document couldn't support a perjury conviction even if the factual statements that were in it were lies, and I don't think it therefore can be called an "affidavit" or even a "sworn statement."

In short, I think oaths still matter, although the formalities by which they're accomplished (left hand, right hand, no hand; Bible, Koran, Das Kapital) don't necessarily. We'll see if the judge agrees with me. And I'm quite certain that pen-and-ink isn't required for a "valid" signature, but rather that what's required is a reasonably clear ("clear" from the circumstances, not the handwriting), objective manifestation of the "signer's" intention, almost however expressed. (And yes, there are indeed appellate cases upholding signatures accomplished by points-and-clicks on a computer screen as binding upon the point-and-clicker in at least some circumstances.)

Posted by Beldar at 09:22 AM in Current Affairs, Law (2006 & earlier) | Permalink


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(1) htom made the following comment | Nov 29, 2006 10:01:11 AM | Permalink

It's not the "click to sign" that I object to, but that some of these systems have very poor////bad systems for preventing alteration of the document after it's been "clicked". It may be that my problem is that I know too much about such problems, and too little about the ways of altering and recreating paper documents.

It's great to see you blogging again.

(2) Mark L made the following comment | Nov 29, 2006 12:24:21 PM | Permalink

I play a judge two or three times a year -- an election judge. My "court" is the polling place, and from 7:00 AM to 7:00 PM on election day I have as much authority as a district court judge.

For a paper ballot to be valid it must contain the election judge's "signature." For me, that means I sign EVERY ballot, by hand. Not every judge goes that route. Some use a signature stamp -- they literally rubber-stamp their signature on the ballot.

That stamped signature is just as valid in the eyes of the law as my hand-written signature. Indeed, as Beldar points out, it would be as valid on a check. (The main reason I write my signatures, even though I could get a stamp. With my luck I would lose both checkbook and signature stamp together.)

If someone wants to rant about "rubber-stamped" signatures, fine -- First Amendment and all that. DOn't tell me it reduces the validity of the document signed -- unless there was fraud involved.

(3) Phelps made the following comment | Nov 29, 2006 6:38:00 PM | Permalink

I saw a judge use his gavel once. He told us at the end of the day that it was the only time he had ever used his gavel, and seemed more upset that he used it than that he had to use it.

(4) Phelps made the following comment | Nov 29, 2006 6:43:02 PM | Permalink

I saw a judge use his gavel once. He told us at the end of the day that it was the only time he had ever used his gavel, and seemed more upset that he used it than that he had to use it.

(5) Carl Pham made the following comment | Nov 30, 2006 1:17:02 PM | Permalink

I dunno, Beldar. Your own argument can be used against you here. You're arguing it's the intent of the signer and not the exact details of how his intent is manifested (signature, rubber stamp, crude X mark) that matter.

But in the case of your notarized document, you are arguing the other side: that the specific language that is present (or in this case not present) changes it from a 'sworn statement' to something less.

Can't your opponents merely use your argument? Most people notarize a document when they are, indeed, intending to make a sworn statement. That they might leave off a sentence or two that make that clear could be argued to be as unimportant as whether a judge signs an order with a pen or a rubber stamp.

(6) Orin Kerr made the following comment | Dec 1, 2006 12:44:20 AM | Permalink


You're forgiven! (Actually, I hadn't seen your comment, so I ended up seeing your apology here before the original.) I'm just glad you're back to blogging. Very good stuff over the last few days.


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