Innovation Law Lab Request for Change to Article is Rejected due to Lack of Evidence

Todd Brogowski -

On April 14, 2024, Ian Philabaum of the Innovation Law Lab requested that the article Peaceful Protest of TCDF at Torrance County Commission Meeting be substantively changed. Specifically, Philabaum's requested change pertained to the following paragraph:

Philabaum's statement on behalf of the unnamed inmate with the hernia contradicts the claims made by Andres Esquivel on behalf of detainee Ricardo Gonzalez, in which it was claimed that guards kicked the detainee with a hernia and had to be pulled off the detainee by other individuals (mentioned above).

Philabaum requested that this paragraph be redacted and replaced with a statement that there were no contradictions of fact between his statement and the statement of Andres Esquivel.

On the same date as Philabaum's request, the Mountainair Dispatch requested that he provide evidence supporting his request. Philabaum did not provide evidence, instead providing hearsay statements. On April 29, 2024, Philabaum reiterated his request.

Due to insufficient evidence supporting Philabaum's request, the Mountainair Dispatch cannot make the requested change. This decision is based on the available evidence and the credibility assessment standards followed by the Mountainair Dispatch, as set forth below.

Mountainair Dispatch Credibility Assessment Standards

As part of fact-checking, the Mountainair Dispatch conducts credibility assessments of statements referenced in any given article.

The Mountainair Dispatch credibility assessment standards come from standards followed by the US Army Intelligence Center - Human Intelligence Joint Center of Excellence at Fort Huachuca, the US Department of Justice, the US Equal Employment Opportunity Commission, the 9th Circuit Court of Appeals, and training provided by the Association of Certified Fraud Examiners, the Society of Corporate Compliance and Ethics, The Reid “School” of Investigative Interviewing & Advanced Interrogation Techniques, and training by Wicklander-Zulawski & Associates. Nothing herein should be construed to reveal information, methodology, technology, or actions covered by the classification system imposed under the US National Security Act of 1947 and its subsequent revisions or to any material regarding which the author has signed a national security non-disclosure agreement.

Factors Considered

  1. Corroboration
  2. Past Record of Behavior and False Statements
  3. Plausibility
  4. Motive to Exaggerate/Falsify/Minimize
  5. Demeanor

Corroboration

Is the testimony supported by that of other witnesses or by hard evidence (documentation, forensic science, IMINT, MASINT, OSINT, SIGINT, etc.)?

Past Record

Has the person who provided the statement engaged in similar behavior (especially misconduct) in the past? Does the person have a history of fabricating false claims or engaging in deception, exaggeration, or minimization?

Plausibility

Given generally accepted scientific principles, is the person's statement logical, reasonable, or even possible?

Motive to Falsify

Are individual biases at play (racism, sexism, ageism, self-interest, friendships, vendettas, political ideology, religious ideology, etc.)?  Are organizational biases at play (labor vs. management, activists vs. government, defense vs. prosecution, etc.)?  Will the person benefit from providing a false statement?

Demeanor

What are the person's baseline physical and verbal states?  How do these states change during questioning?  Does the person's behavior indicate minimization, deception, embarrassment, or other emotions?

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Used with caution, as demeanor’s applicability changes across cultures, education levels, classes, and age groups.

References

This list of references is non-exhaustive and may not reflect all references used for a particular credibility assessment, particularly when special knowledge, skills, or abilities apply.

  • Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998)
  • Faragher v. Boca Raton, 524 US 775 (1998)
  • Mendoza v. Western Medical Center of Santa Ana, 222 Cal.App.4th 1334; 166 Cal. Rptr. 3d 720 (2014)
  • US Army, FM 2-22.3: Human Intelligence Collector Operations (2006)
  • Federal Rules of Evidence (2020) (see especially FRE 401, et seq., regarding the relevancy of evidence, and FRE 801, et seq., regarding hearsay and its exceptions)
  • EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.022 (Jun. 18, 1999) (regarding credibility assessments in employment investigations)
  • Administrative Office of the 9th Circuit Court of Appeals, 9th Cir. Manual of Model Jury Instructions in Civil Trials (2017)
  • Liz Bradley and Hillary Farber, Virtually Incredible: Rethinking Deference to Demeanor when Assessing Credibility in Asylum Cases Conducted by Video Teleconference, Georgetown Immigration Law Journal, v. 36, p. 515-569 (2022).
  • Mark Frank and Paul Ekman, The ability to detect deceit generalizes across different types of high-stake lies, Journal of Personality and Social Psychology, 72(6), 1429–1439, (1997).
  • Paul Ekman, et al., Invited article: Face, voice, and body in detecting deceit, Journal of Nonverbal Behavior, 15(2), 125–135 (1991).
  • Bella DePaulo and Robert Pfeifer, On-the-Job experience and skill at detecting deception, Journal of Applied Social Psychology 16, at 1096-1103 (1983).