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Friday, June 24, 2011

I Move Exhibit Three Into Evidence, Your Honor.

Court trials can sometimes be tedious due to the large number of exhibits. I once spent three days sitting in a trial where the lead attorney repeatedly moved hundreds of documents, one by one, into evidence. Almost every juror in that case went to sleep at some point in the presentation. As genealogists we are mostly worried about having too little evidence, the problem of too much evidence doesn't seem to come up too often. The question in the lengthy jury trial was whether or not it was really necessary to go through each item of evidence? You will have to take my word for it, it was necessary. But in doing research we often intentionally or unintentionally ask the same question over and over. Is it really necessary to gather even more evidence about any one ancestor?

This question goes to the heart of the issue of what is evidence and when is enough, enough? In one of my last posts, I wrote about the difference between information, data and facts. Following that line a little further, I will discuss how information, data and then facts become evidence. In order to have evidence you must have something to prove. That may sound tautological, but in the legal world and in research you are usually setting out to prove a point. In law, every cause of action has its elements. Part of becoming a lawyer is learning about the elements of the hundreds and hundreds of different causes of action and what elements of proof are necessary for each one. You don't memorize all the causes, you learn how to find out what they are and how to apply facts to prove them.

Unfortunately, there are no real simple examples of the elements necessary to prove a case. Each case has its own unique facts and although the facts fall into patterns and categories, you can't really generalize. When you study law, you read thousands of cases. By reading and studying the cases, you slowly learn how to apply the law to other cases that may be similar. By force of necessity, most attorneys specialize in certain particular areas, because it is impossible to learn all about everything in enough detail to be proficient. In most cases, attorneys take only certain types of cases.

Now, as a genealogist, you have a similar learning curve. You have to learn about the multitude of records that may be available to research to give you facts that might be the evidence you are seeking to prove a relationship. So when does a fact become evidence? As simply as I can possibly explain, facts become evidence when they are relevant to establishing the proof of a research question or in law, relevant to the proof of an element of a case.

So what do I mean by relevant? Relevancy is another deep and lengthy question. In a legal context, attorneys can argue endlessly about the relevancy of any particular fact. Relevant facts are those that will ultimately lead to establishing a conclusion about the validity of any research objective or will, in the realm of law, prove the case.

I will try a couple of examples. Let's say you are looking for the marriage of your grandparents. Your first job is to find out as much about them as you can from a variety of sources. If you immediately focus on trying to find just that one fact, the date of their marriage, you will ultimately be very frustrated. On the other hand, you may find that information quickly, in which case, you can move on to another fact. If you find one fact, are you finished with your search? No. You have just found one fact, that is all. Ultimately, you want to be able to know more about your grandparents, and find enough facts to move back another generation. So what kind of documents would be relevant to finding a marriage date? There are a lot of obvious choices, such as a marriage certificate or license, but the further back you go in time, the facts you gather have to be more diverse.

But even if a fact is relevant, it may not be probative. Not all relevant facts prove the object of the search. For example, you may find a tax roll listing both your grandparents as married. The tax roll is certainly relevant, but not probative of the marriage. Over time, many people have lived together as husband and wife and never been formally married. A probative fact would be one that indicated the place or date or both of the marriage.

So you move from information, to data, to facts, to relevant facts, to probative facts. In both the genealogical and legal sense, both probative facts and relevant facts are "evidence." Information, data and simple facts could become evidence but only if the facts turn out to be either probative and/or relevant.

On to more of this discussion, next time.

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