Professional Documents
Culture Documents
1 App: 1281-1292: Attitudes of Iraq and Afghanistan Veterans Toward Gay and
2 Lesbian Service Members
3
This report constitutes an 35 The report is admissible pursuant to FRE
out-of-court statement 803(18), the “learned treatise” exception.
4 offered in evidence to One or more of Log Cabin’s expert
5 prove the truth of the witnesses, whose opinions Defendants
matter asserted and is, have not objected to, rely upon the report
6 therefore, inadmissible and have established that it is a reliable
7 hearsay. authority. Finally, the report should be
admitted pursuant to FRE 807, the residual
8 hearsay exception.
9
App: 1330-1359: Draft of PERSEREC report by Michael McDaniel
10 This report constitutes an 8 The PERSEREC Report is admissible as a
11 out-of-court statement party admission and therefore non-hearsay.
offered in evidence to Even if the PERSEREC Report were not a
12 prove the truth of the party admission, it would be admissible
13 matter asserted and is, under several hearsay exceptions. First,
therefore, inadmissible the report is admissible pursuant to FRE
14
hearsay. In addition, as 803(18), the “learned treatise” exception.
15 this document is clearly One or more of Log Cabin’s expert
marked as a draft, it is not witnesses, whose opinions Defendants
16
a statement from a party- have not objected to, rely upon the
17 opponent. PERSEREC Report and have established
that it is a reliable authority. In addition,
18
the PERSEREC Report is admissible
19 pursuant to FRE 803(16), the “ancient
document” exception, as it is more than 20
20
years old. Finally, the PERSEREC Report
21 should be admitted pursuant to FRE 807,
the residual hearsay exception.
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This document states The PERSEREC Report is admissible as a
explicitly that it does not party admission and therefore non-hearsay.
4 address the military’s Even if the PERSEREC Report were not a
5 homosexual conduct party admission, it would be admissible
policy, and it is, therefore, under several hearsay exceptions. First,
6 not relevant to Plaintiffs’ the report is admissible pursuant to FRE
7 claims: “This work does 803(18), the “learned treatise” exception.
not deal with the One or more of Log Cabin’s expert
8 Department of Defense witnesses, whose opinions Defendants
9 policy that excludes have not objected to, rely upon the
homosexuals from PERSEREC Report and have established
10 military service. The that it is a reliable authority. Finally, the
11 exclusion policy is PERSEREC Report should be admitted
separate from those pursuant to FRE 807, the residual hearsay
12 policies that apply to a exception.
13 civilian being investigated
for a clearance.” App.
14 1366
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This report constitutes an The report is admissible. First, the report
out-of-court statement is admissible pursuant to FRE 803(18), the
4 offered in evidence to “learned treatise” exception. One or more
5 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
6 therefore, inadmissible rely upon the report and have established
7 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
8 807, the residual hearsay exception.
9
App. 1492-1558: U.S. Army Research Institute (AIR) Research Report 1657
10 This report constitutes an 49 The report is admissible. First, the report
11 out-of-court statement is admissible pursuant to FRE 803(18), the
offered in evidence to “learned treatise” exception. One or more
12 prove the truth of the of Log Cabin’s expert witnesses, whose
13 matter asserted and is, opinions Defendants have not objected to,
therefore, inadmissible rely upon the report and have established
14
hearsay. In addition, this that it is a reliable authority. Finally, the
15 document states on its face report should be admitted pursuant to FRE
that it does not represent 807, the residual hearsay exception.
16
the position of the Indeed, Defendants’ prior admissions
17 Department of the Army: confirm that the report has substantial
“Note, The findings in this circumstantial guarantees of
18
report are not to be trustworthiness. See, e.g., Admiral
19 construed as an official Mullen’s statements before the Senate
Department of the Army Armed Services Committee that his
20
position, unless so counterparts in countries that allow gays
21 designated by other and lesbians to serve openly report “no
authorized documents.” impact on military effectiveness.”
22
App. 1493 Plaintiff’s Statement of Genuine Issues, #
23 44.
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1 App. 1807-1876: November 2000 report by Aaron Belkin and R. L. Evans entitled
2 “The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces”
3
This report constitutes an 41, 43, 46 The report is admissible. First, the report
out-of-court statement is admissible pursuant to FRE 803(18), the
4 offered in evidence to “learned treatise” exception. One or more
5 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
6 therefore, inadmissible rely upon the report and have established
7 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
8 807, the residual hearsay exception.
9 Indeed, Defendants’ prior admissions
confirm that the report has substantial
10 circumstantial guarantees of
11 trustworthiness. See, e.g., Admiral
Mullen’s statements before the Senate
12 Armed Services Committee that his
13 counterparts in countries that allow gays
and lesbians to serve openly report “no
14 impact on military effectiveness.”
15 Plaintiff’s Statement of Genuine Issues, #
44.
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1 App. 1877-1888: 2003 Report by Aaron Belkin entitled “Don’t Ask, Don’t Tell: Is
2 the Gay Ban Based on Military Necessity”
3
This report constitutes an 41 The report is admissible. First, the report
out-of-court statement is admissible pursuant to FRE 803(18), the
4 offered in evidence to “learned treatise” exception. One or more
5 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
6 therefore, inadmissible rely upon the report and have established
7 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
8 807, the residual hearsay exception.
9 Indeed, Defendants’ prior admissions
confirm that the report has substantial
10 circumstantial guarantees of
11 trustworthiness. See, e.g., Admiral
Mullen’s statements before the Senate
12 Armed Services Committee that his
13 counterparts in countries that allow gays
and lesbians to serve openly report “no
14 impact on military effectiveness.”
15 Plaintiff’s Statement of Genuine Issues, #
44.
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1 App. 1889-1928: September 2000 report by Aaron Belkin and R.L. Evans entitled
2 “The Effects of Including Gay and Lesbian Soldiers in the Australian Armed Forces
3
This report constitutes an 43, 46 The report is admissible. First, the report
out-of-court statement is admissible pursuant to FRE 803(18), the
4 offered in evidence to “learned treatise” exception. One or more
5 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
6 therefore, inadmissible rely upon the report and have established
7 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
8 807, the residual hearsay exception.
9 Indeed, Defendants’ prior admissions
confirm that the report has substantial
10 circumstantial guarantees of
11 trustworthiness. See, e.g. Admiral
Mullen’s statements before the Senate
12 Armed Services Committee that his
13 counterparts in countries that allow gays
and lesbians to serve openly report “no
14 impact on military effectiveness.”
15 Plaintiff’s Statement of Genuine Issues, #
44.
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1 App. 1929-1935: 2009 article by Col. Om Prakash entitled “The Efficacy of ‘Don’t
2 Ask, Don’t Tell’”
3
This report constitutes an 153 The fact that Colonel Prakash’s report won
out-of-court statement the Secretary of Defense National Security
4 offered in evidence to Essay Competition for 2009 is not hearsay.
5 prove the truth of the
matter asserted and is, Moreover, the report itself is admissible.
6 therefore, inadmissible First, the report is admissible pursuant to
hearsay. FRE 803(18), the “learned treatise”
7
exception. One or more of Log Cabin’s
8 expert witnesses, whose opinions
Defendants have not objected to, rely upon
9
the report and have established that it is a
10 reliable authority. Finally, the report
should be admitted pursuant to FRE 807,
11
the residual hearsay exception. Indeed,
12 Defendants’ prior admissions confirm that
the report has substantial circumstantial
13
guarantees of trustworthiness. See, e.g.,
14 Admiral Mullen’s statements before the
Senate Armed Services Committee that
15
there “just isn’t any objective data out
16 there” regarding the effects of the policy
and its impact on military service
17
members. Plaintiff’s Statement of Genuine
18 Issues, # 9.
19 App. 1936-1973: 2010 report by Gary Gates entitled “Lesbian, Gay, and Bisexual
20 Men and Women in the U.S. Military: Updated Estimates”
21 This report constitutes an 115, 116, The report is admissible. First, the report
out-of-court statement 121, 122 is admissible pursuant to FRE 803(18), the
22 offered in evidence to “learned treatise” exception. One or more
23 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
24 therefore, inadmissible rely upon the report and have established
25 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
26 807, the residual hearsay exception.
27
28
1 App. 1982-2013: March 24, 1995 report entitled “Conduct Unbecoming: The First
2 Annual Report on ‘Don’t Ask, Don’t Pursue, Don’t Harass’”
3
This report constitutes an 20 The report should be admitted pursuant to
out-of-court statement FRE 807, the residual hearsay exception.
4 offered in evidence to
5 prove the truth of the
matter asserted and is,
6 therefore, inadmissible
7 hearsay.
8 App. 2014-2049: 1996 report entitled “Conduct Unbecoming: The Second Annual
Report on ‘Don’t Ask, Don’t Teel, Don’t Pursue, Don’t Harass’”
9
This report constitutes an 21 The report should be admitted pursuant to
10 out-of-court statement FRE 807, the residual hearsay exception.
11 offered in evidence to
prove the truth of the
12 matter asserted and is,
13 therefore, inadmissible
hearsay.
14
15 App. 2050-2089: 1997 report entitled “Conduct Unbecoming: The Third Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
16
This report constitutes an 22 The report should be admitted pursuant to
17 out-of-court statement FRE 807, the residual hearsay exception
18
offered in evidence to
prove the truth of the
19 matter asserted and is,
20 therefore, inadmissible
hearsay
21
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1 App. 2090-2168: 1998 report entitled “Conduct Unbecoming: The Fourth Annual
2 Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
3
This report constitutes an 23 The report should be admitted pursuant to
out-of-court statement FRE 807, the residual hearsay exception.
4 offered in evidence to
5 prove the truth of the
matter asserted and is,
6 therefore, inadmissible
7 hearsay
8 App. 2169-2253: 1999 report entitled “Conduct Unbecoming: The Fifth Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
9
This report constitutes an 24 The report should be admitted pursuant to
10 out-of-court statement FRE 807, the residual hearsay exception.
11 offered in evidence to
prove the truth of the
12 matter asserted and is,
13 therefore, inadmissible
hearsay
14
15 App. 2254-2340: 2000 report entitled “Conduct Unbecoming: The Sixth Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
16
This report constitutes an 25 The report should be admitted pursuant to
17 out-of-court statement FRE 807, the residual hearsay exception.
18
offered in evidence to
prove the truth of the
19 matter asserted and is,
20 therefore, inadmissible
hearsay.
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1 App. 2341-2443: 2001 report entitled “Conduct Unbecoming: The Seventh Annual
2 Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
3
This report constitutes an 26 The report should be admitted pursuant to
out-of-court statement FRE 807, the residual hearsay exception.
4 offered in evidence to
5 prove the truth of the
matter asserted and is,
6 therefore, inadmissible
7 hearsay.
8 App. 2444-2500: 2002 report entitled “Conduct Unbecoming: The Eighth Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
9
This report constitutes an 27 The report should be admitted pursuant to
10 out-of-court statement FRE 807, the residual hearsay exception.
11 offered in evidence to
prove the truth of the
12 matter asserted and is,
13 therefore, inadmissible
hearsay.
14
15 App. 2501-2561: 2003 report entitled “Conduct Unbecoming: The Ninth Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
16
This report constitutes an 28 The report should be admitted pursuant to
17 out-of-court statement FRE 807, the residual hearsay exception.
18
offered in evidence to
prove the truth of the
19 matter asserted and is,
20 therefore, inadmissible
hearsay.
21
App. 2562-2617: 2004 report entitled “Conduct Unbecoming: The Tenth Annual
22
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
23 This report constitutes an 29 The report should be admitted pursuant to
24 out-of-court statement FRE 807, the residual hearsay exception.
offered in evidence to
25 prove the truth of the
26 matter asserted and is,
therefore, inadmissible
27 hearsay.
28
1 App: 2618-2621: February 24, 2010 Los Angeles Times article entitled “Navy
2 Moves to Allow Women on Submarines”
3
This article constitutes 11 The article is not “double hearsay.” The
inadmissible double statements quoted within the article from
4 hearsay. See e.g., Green Secretary Gates are admissions and
5 v. Baca, 226 F.R.D. 624, therefore non-hearsay. The article itself
637 (C.D. Cal 2005) should be admitted pursuant to FRE 807,
6 (“Generally, newspaper the residual hearsay exception. The
7 articles and television Department of Defense has trumpeted this
programs are considered change in policy (including by virtue of
8 hearsay under Rule 801(c) reprinting news articles) on its own
9 when offered for the truth website. See, e.g., “Women to Serve on
of the matter asserted. Subs, Gates Tell Congress,” American
10 Even when the actual Forces Press Service,
11 statements quote in a www.defense.gov/news/newsarticle.aspx?i
newspaper article d=58066 (last visited April 20, 2010).
12 constitute nonhearsay, or
13 fall within a hearsay
exception, their repetition
14 in the newspaper creates a
15 hearsay problem. Thus,
statements in newspapers
16 often constitute double
17 hearsay.”)
18 App. 2773-2775: August 28, 2000 New York Times article entitled “Military
Reserves are Falling Short in Funding Recruits”
19
This article constitutes 72 The article should be admitted pursuant to
20
inadmissible double FRE 807, the residual hearsay exception.
21 hearsay.
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1 App. 2776-2777: March 31, 2010 Washington Post article entitled “A ‘Don’t Ask,
2 Don’t Tell’ Rules Complicate Survey of Troops on Policy Change”
3
This article 92 The article is not “double hearsay.” The
constitutes statements quoted within the article are
4 inadmissible admissions and therefore non-hearsay. The
5 double hearsay. article itself should be admitted pursuant to FRE
807, the residual hearsay exception. The
6 Department of Defense has posted a web page
7 (http://www.defense.gov/home/features/2010/03
10_dadt/) regarding its current “policy review”
8 of the policy that features videotaped statements
9 by both General Carter F. Ham and the
Department of Defense’s General Counsel, Jeh
10 C. Johnson, in which they comment on the legal
11 difficulties the Department faces in soliciting
feedback regarding the policy from gay service
12 members subject to the policy.
13
App. 2778-2820: Balancing Your Strengths Against Your Felonies: Consideration
14 for Military Recruitment of Ex-Offenders
15 This report 114, 117, The report is admissible. First, the report is
constitutes an out- 119, 120 admissible pursuant to FRE 803(18), the
16
of-court statement “learned treatise” exception. One or more of
17 offered in Log Cabin’s expert witnesses, whose opinions
evidence to prove Defendants have not objected to, rely upon the
18
the truth of the report and have established that it is a reliable
19 matter asserted authority. Finally, the report should be admitted
and is, therefore, pursuant to FRE 807, the residual hearsay
20
inadmissible exception.
21 hearsay.
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1 App. 2879-2881: March 14, 2007 Washington Post article “Bigotry That Hurts Our
2 Military”
3
This article 156 The fact that former Senator Simpson has
constitutes changed his view regarding the Policy is not
4 inadmissible hearsay.
5 double hearsay.
Moreover, the article should be admitted
6 pursuant to FRE 807, the residual hearsay
exception.
7
8 App. 2937-2945: January 30, 2010 transcript of CNN Interview with William Cohen
9
This transcript of 157 The fact that former Secretary Cohen has
a CNN interview changed his view regarding the Policy is not
10 constitutes hearsay.
11
inadmissible
double hearsay. Moreover, the article should be admitted
12 pursuant to FRE 807, the residual hearsay
exception.
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1 App. 2946-2993: September 15, 2004 report by Nathaniel Frank, Ph. D. “Gays and
2 Lesbians at War: Military Service in Iraq and Afghanistan under ‘Don’t Ask, Don’t
Tell’”
3
This article 113 The report is admissible pursuant to FRE
4 constitutes 803(18), the “learned treatise” exception. One
5 inadmissible or more of Log Cabin’s expert witnesses, whose
double hearsay. opinions Defendants have not objected to, rely
6 upon the report and have established that it is a
7 reliable authority. Finally, the report should be
admitted pursuant to FRE 807, the residual
8 hearsay exception. Indeed, Defendants’ prior
9 admissions confirm that the report has
substantial circumstantial guarantees of
10 trustworthiness. See, e.g. LCR App. at 1790a-
11 1790b (characterized by the Department of
Defense as a “thoughtful study” in an untitled
12 memorandum produced by Defendants at pages
13 Bates stamped OSD P&R Plans 058910-11).
14
15
16
17
App. 2994: March 29, 2010 article in Roll Call entitled “Wesley Clark Backs
18 Cunningham in North Carolina”
19 This article 158 The fact that General Clark has changed his
20 constitutes view regarding the Policy is not hearsay.
inadmissible
21 double hearsay. Moreover, the article should be admitted
pursuant to FRE 807, the residual hearsay
22
exception.
23
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25
26
27
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1 App. 2995-3093: August 1992, Update of the U.S. Army Research Institute’s
2 Longitudinal Research Data Base of Enlisted Personnel
3
This report 135 The report should be admitted pursuant to FRE
constitutes an out- 807, the residual hearsay exception.
4 of-court statement
5 offered in
evidence to prove
6 the truth of the
7 matter asserted
and is, therefore,
8 inadmissible
9 hearsay.
10 App. 3094: February 3, 1020 New York Times article entitled “Powell Favors
Repeal of ‘Don’t Ask, Don’t Tell’”
11
This article 152 The report should be admitted pursuant to FRE
12 constitutes 807, the residual hearsay exception. In any
13 inadmissible event, Defendants now admit the fact Plaintiff’s
double hearsay. cited the article to establish.
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1
Documents Cited in Plaintiff’s Genuine Issues
2 But Not Included in Its Appendix
3
Log Cabin Military Survey of Membership, produced by Plaintiff as Bates Nos.
4 LCR 001-017 and included as Exhibit B to the Declaration of Terry Hamilton
5 This “survey” is a 137 The report should be admitted pursuant to
compilation of FRE 807, the residual hearsay exception.
6 out-of-court
7 statements
introducing as
8 evidence to prove
9 the truth of the
matters asserted
10 and is, therefore,
11 inadmissible
12
Dated: April 26, 2010 WHITE & CASE LLP
13
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By: /S/Patrick Hunnius
15
Patrick Hunnius
16 Counsel for Plaintiff
Log Cabin Republicans
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