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Monday, October 5, 2009

"I'll believe it, if you can prove it" applies to genealogy

For the past 34 years, every time I walk into a trial or an evidentiary hearing, I am aware of the burden of proof. Whether the case is tried to a judge or to a jury, it makes no difference. If I want to win my case, I have to prove it to the satisfaction of the trier of fact, judge or jury. At the same time I am always acutely aware that the opposing counsel will be working just a hard to prove his case and to persuade the judge or jury that his or her side is correct. Our legal system, inherited almost entirely from the English common law, is based entirely on an adversarial system of justice. Whether you believe the adversarial system to be good or bad, the system forces the participants to support their positions with evidence, supporting authority or sources and argument.

Unfortunately, there is no clear adversarial system to test the participants in genealogical research. As the old saying goes, "he who represents himself, has a fool for a client." Applied to genealogy, this principle shows why so much of what comes out of research lacks substance. If researchers were forced, like attorneys, to prove their cases every time before a judge or jury, perhaps they would think twice before accepting flimsy or non-existent evidence.

I guess I just had one too many researchers show me his or her file dating back to Charlemagne or Adam or whatever. Without a system of proof, there is no guarantee that any information, even with the best intentions, could possibly be totally accurate and correct. (By the way, I have the same criticism of doctors and some scientists, if they had to prove their theories in court, we would have better medicine and science). If you want to believe you have traced your ancestral like back to Adam, that is your privilege, but do not expect me to believe it or pat you on the back for your accomplishment.

But, you will say, I had a court case and I was right and still lost. (It must have been your attorney's fault) We all like to blame everyone but ourselves. Our adversarial system of justice is not best system in the world, it is just better than anything else we have tried. Try looking at your genealogical research and asking yourself, if I were a judge or on a jury, would I believe my evidence? I once received an appellate brief, where every statement must be supported by authority by rule of law, that had no citations to sources at all. As simple as that might seem to refute, it was really very difficult. In the absence of supporting authority to the law (or to primary source material in genealogy) you have nothing more than mere argument and that is sometimes hard to counter.

What do we mean by evidence? In law as in genealogy or any other historical pursuit, primary or original documents rule the day. What use is an unsigned contract or will? Perhaps to show intent but it will always be over come by showing the signed original. This search for priority in source is entirely codified in our rules of evidence. We do not allow hearsay in court, hearsay or second (or third or whatever) hand testimony should be questionable in genealogy. How about making a reasonably exhaustive search for source records. If I submit a copy of a will to the court for probate, I must sign an affidavit testifying that I have made a reason effort to find the original will. How about such a rule in genealogy? What if we all had to sign an affidavit attesting that we had made reasonable efforts to find information about our ancestors and not just copied something from our great aunts or whomever.

Like my example above, if I go into court without a complete and accurate citation of sources, I might have more experiences like the time I walked into a hearing and had the judge hand me a copy of a case I had missed in my brief and asked me what I thought about it. It disproved my case entirely and I had missed it in my research. Just as in law, we need to be complete and accurate in our citation of sources and honest enough to include those that do not support our position.

How about spending some time analyzing the piles of collected information you have available before drawing a conclusion. In law we do extensive legal research on virtually every issue. The same should be true to prove a case in genealogy. How about ensuring that the conclusion you have reached reflects all of the evidence, not just the part you like.

One time sitting in trial, I realized that my client was lying. I had interviewed him carefully, but apparently not asked the right questions. I felt like hiding under the counsel table. If there is conflicting evidence, a resolution of the fact is not possible. Simple as that sounds, it is every day that I see family group sheets rife with conflicting evidence. Let's spend some time resolving the conflicts before we present our conclusions as fact.

Subjectively, we need to think about our research in an adversarial way, always questioning whether or not what we have written is sufficient to convince anyone of its validity. The more valid sources, the weightier the arguments. We cannot allow our petty biases or preconceptions influence what we put on the family group record or pedigree chart. There is too much junk out there in the world already, we don't need another generation of it online or on paper.

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