I have had the opportunity to read the two essays above and heartily endorse them. They make good points, and come from men of great learning and experience, with decades of having taught and guided college students and law students. They present trustworthy information to be carefully considered.

 

The Standards of Evidence Admissibility in Court

 

As one who has labored in the trenches of presenting and defending cases in state and federal courts for over 40 years as a civil trial lawyer, of which the last 21 years were in a government office with over 40 criminal prosecutors, I wish to expand on the points made by Scott Cameron. Because of the sometimes extreme consequences of the decisions that courts must regularly make, we hold them to the highest standards known to modern civilization of ferreting out the truth of the often competing claims presented to our courts. To help assure that the decisions they make are reliable and grounded in truth, rules have been developed over centuries to guide what evidence is deemed admissible in court. What follows is a brief overview of some of those rules and the reasons that support them, along with an application of such standards to a mistaken claim that has unfortunately gained a following among some people.

 

Initially, consider that all testimonial evidence presented in court must first be sworn by oath or affirmation to be true, on penalty of perjury if knowingly false information is shared. In considering claims made in everyday life outside of court settings, we would do well to ask ourselves if there are any comparable safeguards to what is being said. For example, is the person a making a claim subject to any form of punishment if it turns out that he or she is knowingly making a false claim? Such punishment might include termination from employment, demotion, loss of an important privilege, or other significant consequence that the person making the claim would not want to happen. If there is no such adverse consequence for what is being claimed, we would do well to regard it with skepticism.

 

Next, consider that courts normally only allow testimony of matters that have been experienced firsthand. In other words, hearsay is not allowed, subject to a few exceptions in circumstances where there is a strong reliability that hearsay testimony would be accurate, such as a statement made against the interest of the person stating the matter. The reason for this safeguard against hearsay is manifest to anyone who has played the telephone game. Verbal statements relayed from person to person almost invariably get distorted, even without any bad motives on the part of the person hearing and then passing along what they thought they heard, because the recipient of the information may not have paid good attention to what they were told, or misheard, or misinterpreted it. 

 

Next, consider that courts carefully decide how much weight or significance to give to the evidence presented, based on the circumstances of the testimony. Even a good and conscientious witness may have been hampered in their ability to perceive, recall, and recount what they thought they experienced, if conditions were not good for them to accurately experience and later tell about what they encountered. You likely have heard about the array of blind people who touched an elephant, and gave greatly varying descriptions of what they felt. That is why courts normally don’t allow or discount testimony from children or other immature or handicapped persons, who may lack the ability and experience to accurately perceive and present their experience. Memories that are not recent are more likely to be subject to unintended error, simply because of the difficulty of accurately remembering all the information acquired a long time ago, or under circumstances of some kinds of stress that may distort the memory.

 

Next, courts consider and weigh the source of the information. Did it come from a person with a bias, motive, or intent to distort the truth or lie? In that regard, what is the reputation of the source? Is the source a person with a history of lying or not being credible in what they say? If so, the information from that source may be ignored or disregarded or discounted where appropriate.

 

Next, courts consider whether the evidence can be verified or corroborated with other reliable evidence and whether it is coherent and makes sense in light of all the surrounding circumstances, when carefully viewed in the dispassionate atmosphere of the courtroom. If not, it may properly be ignored or discounted as appropriate.

 

Courts also consider whether the evidence is a form of testable or historic fact, or merely a statement of opinion or belief. Opinions are normally only allowed as admissible evidence from experts who have demonstrated that their opinions are based on testing and methods generally accepted and found to be reliable by others practicing in the same field as the expert.

 

Finally, judges and juries are tasked with and often instructed that evidence found to be reliable after passing all of the tests above and any others that may be applicable should be accepted even if it goes against what the finder of fact may want the outcome to be from a purely personal view.

 

Also, readers should know that criminal prosecutors are held to a higher standard of how and what they present to the court than criminal defense attorneys, whose only job is to present the defense(s) most likely to get an acquittal for the person being criminally accused. As stated by Justice George Sutherland (from Utah) of the U.S. Supreme Court in an opinion that is very often quoted still today almost 90 years after it was written, both in training and refresher course for criminal prosecutors and also in appeals where it is claimed that a prosecutor may have acted improperly:   

 

“[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935).

 

As prosecutors today overwhelmingly adhere to the standard outlined above, with but few exceptions that are almost always caught and reversed on appeal, the results of criminal convictions should be deemed trustworthy. And even decisions of courts trying civil cases are rightfully entitled to a high degree of confidence, and should normally be trusted.

 

How Such Standards Correct A Mistaken Claim About January 6, 2021

 

In light of these standards, now let us consider the claim accepted by many, now shown to be wrong, that the FBI supposedly helped direct and influence the large crowd that forcefully invaded and damaged the United States Capitol on January 6, 2021, overwhelming and injuring a large number of the Capitol police trying to keep the crowd out of restricted spaces, all while the electoral votes from the states for the office of U.S. President were starting to be counted in Congress that afternoon, as specified in the U.S. Constitution and federal law. This claim that the FBI was so involved originated with the circumstances surrounding the actions of one James Ray Epps, Sr., a 60-year-old former Marine living with his wife on a five-acre ranch in Arizona in early 2021.

 

Ten years earlier, Mr. Epps in 2011 was the leader of the Arizona chapter of the Oath Keepers, then a recently-formed group of current and former military, police, and other first responders, nominally dedicated to defend the U.S. Constitution from what they deemed to be attacks on it. Oath Keepers have since been characterized as an extreme right-wing group often involved in anti-government activities. But within a year or so after 2011, Mr. Epps no longer associated with the Oath Keepers.

 

Mr. Epps voted for President Trump in both 2016 and 2020. He got most of his news from Fox News and believed the mistaken news reports made by its reporters and others in late 2020 that the Presidential election had been stolen from Mr. Trump. In early January of 2021, Mr. Epps decided at the urging of his wife to fly to Washington D.C. to join his son Jim and a friend of his son there, to exercise their rights to protest what they believed to be a stolen election. He flew to D.C. on January 4, 2021.

 

On the evening of January 5, 2021, Epps attended a rally in D.C. after his son let him know what was happening there. According to Epps’s own later court filing against Fox News (which may now be found publicly online here), a few Trump supporters there were “becoming confrontational with police and Black Lives Matter protestors. Epps decided to see if he could help calm the situation because, according to Epps, “Marines are always in the front.” When Epps arrived at the scene, a half dozen or so Trump supporters among a larger group were yelling at police and highly agitated. The lead provocateur was [Tim Gionet, who] Epps would later learn called himself Baked Alaska. Epps engaged with Baked Alaska, who, unbeknownst to Epps, was livestreaming the encounter—his regular modus operandi. Based on his observations of Baked Alaska that night, Epps believed Baked Alaska was seeking to incite violence against the police, calling the officers names and telling them and the crowd that the police had broken their oath. Epps challenged him, telling Baked Alaska and the crowd that attacks on the police and violence were not what their effort was about. As Baked Alaska began to turn the crowd of a dozen or so Trump supporters against him, Epps sought to prove that he was on their side so that he could de-escalate the situation—to find common ground with them.”

 

At that rally, Epps was filmed saying “Tonight, you can bring shame on us. That’s not what it’s about.” Another person challenged Epps, citing the fact that the American Revolution was sparked by something as minor as taxes on tea. Epps responded:

 

“We’re far beyond that. In fact, tomorrow—I don’t even like to say it because I’ll be arrested—we need to go IN to the Capitol. We’re here to defend the Constitution. [. . .] I’m going to put this out there. I’m probably going to jail for it. Tomorrow, we need to go IN to the Capitol. IN to the Capitol. Peacefully.””

 

In response, Baked Alaska starts to lead the crowd in a chant of “Fed! Fed! Fed!” Epps emphasizes, “Peacefully!”

 

Epps himself later clarified that he made his remarks about going IN to the Capitol with the idea that it would be open to the public, and that he never intended for any entrance to be done by force or against the law.

 

Nonetheless, Epps was filmed on January 6 urging Trump supporters attending the President’s speech at the National Mall to go to the Capitol to protest the election of President Biden. Epps was also later filmed at the Capitol helping the crowd to force a big Trump sign in a metal frame with big heavy casters towards the Capitol police to deter them from fighting the crowd back. He also was filmed helping the crowd to push against those police. While Epps later admitted to going into restricted spaces outside the Capitol, he never entered the building and was also filmed at least five times that afternoon urging the crowd to not hurt the police or others. A more detailed account of these events of January 5-6, 2021, is set forth in the sentencing memo filed in federal court on January 2, 2024 concerning Epps, written by a federal prosecutor, after Epps admitted to violating the law by knowingly entering restricted spaces at the Capitol on January 6, 2021. That court memo may be found online publicly in April 2024 here.

 

On January 8, 2021, after Epps was back home in Arizona, and after he was informed that a photo of him had been posted by the FBI online on its list of wanted persons on January 6, he voluntarily called the FBI that same day and gave a short interview. Two months later he gave a longer voluntary interview in person to the FBI while he was accompanied by his attorney. And months after that, he was interviewed voluntarily by the House Committee investigating the events of January 6th on two occasions, first in November of 2021, and then again in January of 2022. The transcript of the second of those interviews is now publicly online here. But all those interviews were private and not known to the public. It was only at least late January of 2022 or later before the transcript of the second House Committee interview was made public. In the meanwhile, the FBI removed the online photo of Epps in early July of 2021 from the FBI list of wanted persons, months after his two interviews with the FBI.

 

Yet starting back in late June of 2021, a post on Twitter was made falsely suggesting that Epps had been a federal employee. Until then, the name of Mr. Epps was not known to the general public for any association relating to the events of January 6, 2021. See Fact Checker article published by the Washington Post on January 19, 2022, publicly available online here.  

 

A few months later, in October of 2021, according to the Post article, “Rep. Thomas Massie (R-Ky.) picked up the thread and combined a bunch of videos featuring Epps, which he aired at a congressional hearing. Among the clips is one of Epps on Jan. 6, standing at the corner of 15th Street and Constitution Avenue and wearing Marine desert camo, signaling to people as they walked past: “As soon as our president is done speaking, we are going to the Capitol, where our problems are. It’s that direction. Please spread the word.” Massie confronted Attorney General Merrick Garland and asked whether federal agents agitated the crowd to attack the Capitol. Garland responded that he couldn’t comment on an ongoing investigation.” All experienced federal legislators, including Massie, know that the Department of Justice officials never comment on any ongoing investigation, so Massie could suggest almost anything and not get any denial or confirmation.

 

Again according to the Post Fact Checker article, “Four days after Massie aired the video, the right-wing website Revolver published a long article on Epps (a “Fed-Protected Provocateur”) by Darren Beattie, a former Trump speechwriter who had been fired because it was learned he had appeared at a conference with a white supremacist.”

 

This then led to Tucker Carlson of Fox News to start publicly suggesting, again falsely and without reliable evidence, in December of 2021 that Epps had been an FBI agent, supposedly fomenting the violence of the crowd on January 6. Carlson repeatedly suggested this many times in January of 2022 and later, apparently in an attempt to scapegoat Epps to divert blame from Trump and his supporters. This led to some Trump supporters sending such threatening messages to Epps that he sold his Arizona property below market value and went into hiding, living in an RV somewhere in Utah. 

 

Yet both Epps and his attorney publicly stated starting by early 2022 that Epps had never been an FBI agent. The House Committee confirmed that. And later, after Epps was formally charged in September of 2023 with violating federal law by being in a restricted area at the Capitol on January 6, 2021, he promptly pled guilty to that charge and the Department of Justice attorneys then also confirmed that he had never been an FBI agent or informant and that his only federal “employment” was the four years he served as a United States Marine ending in about 1983. The judge in that criminal prosecution sentenced Epps to one year of probation, an obligation to pay restitution in the amount of $500, and a small fine of $25. See more .

 

So to summarize, a person who never knew Epps (“Baked Alaska”) merely assumed on the evening of January 5 that Epps might be a federal employee, and shouted out “Fed,” simply because Epps was trying to calm the crowd that evening. Then the next day Epps first encouraged people to march to the Capitol and again tried to calm the crowd at the Capitol after he realized how out of control things were getting. This led to the photo of Epps being posted by the FBI, which was later removed months later after Epps had given two interviews to the FBI. But now some assumed on the basis of rank hearsay that Epps must be FBI merely because his photo had been removed and he had not yet been charged with any crime in 2021. Then a politician and later Fox News took up and repeated the claim that Epps must have been FBI, all apparently without anyone doing any serious checking to try to verify that claim. It would have been simple for them to contact Epps before the threats led him to go into hiding, or to check with his attorney then or later. People making the unfounded claim also ignored that the House Committee had also stated that Epps was not a government agent. And anyone still thinking that Epps was an undercover agent of the federal government on January 6 is totally ignoring that Epps has been criminally prosecuted and that the federal prosecutor in that case further confirmed that Epps was never acting as a government agent in January of 2021.

 

The flimsy assumptions and claimed “evidence” to support the claim that Epps acted as a government agent at the Capitol would never have passed muster in any court. It is now long past the time to put that unfounded claim to permanent rest.

 

John K. Mangum is a former Assistant U.S.  Attorney for Utah