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Mocavo

Some people eat, sleep and chew gum, I do genealogy and write...

Friday, October 16, 2009

Genealogical proof or merely evidence?

I find it common that genealogical researchers often confuse evidence with proof. For example, in looking for a birth date of an ancestor, the researcher finds a birth certificate. Although a birth certificate might be good evidence, it is not "proof" of the facts set forth in the document. Birth certificates have known to be wrong and errors are not uncommon. In the absence of any other evidence, the birth certificate may be persuasive as to the fact of birth, but still not be sufficient to establish the date of birth with certainty.

The distinction between evidence and proof is especially important when the evidence in contradictory. Taking the birth certificate example a little further, what if continued research finds a Bible entry, made by the mother, giving a different birth date than that shown on the birth certificate? What then? Some people would merely throw up their hands at this point and give up, saying "What difference does it make anyway?" But carried to its extreme, this attitude would allow a researcher to simply make up any missing facts. Proper identification of the individual and the birth date may be crucial in situations where there are multiple people with the same or similar names in the same community.

Although my example uses a "birth certificate" the evidence could consist of many different things. Evidence can be oral or written testimony, documents, photographs, maps or any other record that is used for the purpose of proving or disproving a question under inquiry. In this sense, evidence is objective, that is outside of the researcher's opinions or belief. Further, in order to be useful, evidence must be reproducible and subject to verification. Returning to the birth certificate example, in the case of documentary evidence, like a birth certificate, I can verify the information provided to me by the researcher by looking the original or a copy of the birth certificate. When I compare the birth certificate information to that contained in the family Bible, I must decide what weight to give each. The legal concept of weight of the evidence is a basic part of our legal system of proof. It is not enough to merely have evidence, each item of evidence must be weighed as to its relative ability to prove the fact in question. The same consideration should be given to genealogical evidence.
In considering the weight given to any particular evidence, one succinct explanation of weight is that given in a common jury instruction:
In weighing the testimony of a witness you should consider relationship to the Plaintiff or to the Defendant; interest, if any, in the outcome of the case, manner of testifying; opportunity to observe or acquire knowledge concerning the facts about which the witness testified; candor, fairness and intelligence; and the extent to which testimony has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.
Although not all of these issues apply to genealogical research, some undoubtedly do, most importantly, the ability of any witness (or creator of a document) to observe or acquire knowledge concerning the facts about which the witness (or document) testifies.

In the past, I have repeatedly encountered the attitude that "I am right because I have evidence." In the course of representing clients in a legal context, my clients have assumed that merely because they had evidence to support their position or claim, that the court had to rule in their favor. Genealogists sometimes take the same attitude, merely because you find a document that provides information, it does not follow that the information you have found is correct and either proves or disproves the inquiry.

After gathering evidence a researcher must determine if the weight to give to the evidence and whether or not to consider the evidence to be proof of the facts being researched. Genealogical research ultimately only makes sense if there is some way to establish a standard for proof which goes beyond merely accepting evidence. As I have indicated in a previous post, members of the genealogical community have tried to establish a proof standard. Unfortunately, despite the efforts of the Board for Certification of Genealogists, the Genealogical Proof Standard is not widely known and has no weight of authority to govern issues involving proof and the Board for Certification of Genealogists, does not act as a judge or jury in disputes over proof.

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