The High Court in Belfast has held a hearing on whether or not to extend the injunction barring the UK authorities from receiving materials produced by the US in response to the UK’s request under the two countries’ mutual legal assistance treaty. The BBC is reporting that the judge has set another hearing for next week and has extended the injunction pending the upcoming hearing.

It appears that much of the hearing turned on whether Anthony McIntyre was indeed at a heightened personal risk on account of the possible disclosure of the Belfast Project materials. But the hearing also took a twist, as Ed Moloney submitted an affidavit asserting, apparently for the first time, that in her interview, Dolours Price “did not once mention the name ‘Jean McConville’” or “the subject of that unfortunate woman’s disappearance [ellipsis] nor that she received orders to disappear people from Gerry Adams or from any other IRA figure.”

It’s a little curious for Moloney to be making these assertions now, after insisting on the confidentiality of the interviews for so long. He says he is free “to reveal what the interviewes did not disclose,” but that seems a bit forced. In any event, I am wondering what the court in Belfast will do with this new affidavit. In the United States, it strikes me that the affidavit would not be admissible to prove the contents of the Price interview, because the tape itself is the best evidence of what it contains.¹FRE 1002 provides: “An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.” FRE 1004 makes exceptions for cases where the the recording is unavailable for various reasons or where the recording “is not closely related to a controlling issue.” FRE 1007 allows the use of the statements of an adverse party to prove the contents of a recording. None of these exceptions seem to apply. This case actually provides a great example of the rationale for the rule—Moloney and McIntyre know what the tape says, but their opponents in court don’t, so it’s not proper for the court to permit Moloney and McIntyre to rely on their own say-so in the absence of some sound reason why the original shouldn’t be produced in court. Do they still have the best evidence rule in Northern Ireland?

According to the BBC, the judge instructed McIntyre to file his own affidavit by Monday addressing the assertions Moloney has made about the contents of the Price interview. I’ll have more news on this as it happens.

All my prior coverage is at this link.

Update: Perhaps the Best Evidence Rule point is a bit more complex, since the tape is now in BC’s possession. Could McIntyre produce it if he wanted to? It’s unclear.

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  FRE 1002 provides: “An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.” FRE 1004 makes exceptions for cases where the the recording is unavailable for various reasons or where the recording “is not closely related to a controlling issue.” FRE 1007 allows the use of the statements of an adverse party to prove the contents of a recording. None of these exceptions seem to apply.