RootsTech 2014

Mocavo

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

Sunday, July 3, 2011

When is there proof?

On the 29th of May, 1919 Sir Arthur Eddington, on an expedition to the Island of Principe off the coast of West Africa, used the positions of star images near the sun to verify Albert Einstein's prediction of the bending of light around the sun from Einstein's General Theory of Relativity.  In this classic example of proof, Einstein had propounded a theory based in part on his mathematical analysis of the universe. See Wikipedia: Arthur Eddington. The idea of proof includes the concept that there is some kind of judgment and a judging body.

In science, the judge or jury can be public opinion or a scientific peer group. Scientific history is rife with theories that were never proven. The contrary is also true, there are numerous examples of theories that were originally rejected as lacking in proof that were later proven to be true by further investigation. 

In law, the concept is less complicated but the practice is more complicated, you have a judge and/or a jury and you have to prove your case to their satisfaction to obtain a ruling in your favor. In a court case tried to a jury, the jury is given specific instructions on the burden of proof and the degree of proof necessarily on each cause of action.  For example in Arizona the standard for proving fraud includes the following:
A showing of fraud requires
(1) a representation;
(2) its falsity;
(3) its materiality;
(4) the speaker’s knowledge of its falsity or ignorance of its truth;
(5) the speaker’s intent that it be acted upon by the recipient in the manner
reasonably contemplated;
(6) the hearer’s ignorance of its falsity;
(7) the hearer’s reliance on its truth;
(8) the right to rely on it;
(9) his consequent and proximate injury.
Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982). See also
Green v. Lisa Frank, Inc., 221 Ariz. 138, 156, ¶ 53, 211 P.3d 16, 34 (App. Div. 2, 2009);
Taeger v. Catholic Family & Cmty. Servs., 196 Ariz. 285, ¶ 28, 995 P.2d 721, 730 (App.
Div. 1, 1999).
 Further case law states, “Fraud may never be established by doubtful, vague, speculative, or inconclusive evidence.” Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 500, 647 P.2d 629, 631
(1982) (quoting In re McDonnell's Estate, 65 Ariz. 248, 253, 179 P.2d 238, 241 (1947)). Fraud must be proven by clear and convincing evidence.” Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, 985 P.2d 556, 562 (App. Div. 1, 1998) (citing Rice v. Tissaw, 57 Ariz. 230, 237, 112 P.2d 866, 869 (1941)). See also Elliott v. Videan, 164 Ariz. 113, 116, 791 P.2d 639, 642 (App. Div. 2, 1989).

In order to prove fraud in court, you have to prove each element of the claim, that is, all nine elements. The standard of proof, as shown by the cases, is by clear and convincing evidence. Note that for every statement, I have provided a citation of authority. This is done almost automatically in all court cases. Failure to cite authority means your argument can be disregarded by the court and jury.

In case the jury doesn't immediately know what is meant by clear and convincing evidence, there is a definition of that also: "... A party who has the burden of proof by clear and convincing evidence must persuade the jury that his or her claim is highly probable. This standard is more exacting than the standard of preponderance of the evidence, but less exacting than the standard of proof beyond a reasonable doubt." State v. Renforth, 155 Ariz. 385, 746 P.2d 1315 (App. 1987). 


Now how does all this apply to genealogy? There are some parallels and some major differences. Genealogy is more like science than law in the fact that there is no judge or jury that will pass judgment on your research. No genealogy judge will tell you that your evidence is insufficient to establish proof at any level whether it be beyond a reasonable doubt or merely a preponderance of the evidence. In this way genealogy is similar to science, proof is based on convincing the jury of your peers or those sometimes self-appointed experts that your evidence is sufficient to establish your claim. 


I can tell you from years of experience that only an extremely small percentage of genealogical proofs would be persuasive in a court of law even if the standard of proof were a mere preponderance of the evidence. Why is that? Primarily because both science and law are adversarial in nature. Science has its competing theories with its advocates and law has its advocates in the form of attorneys. Both law and science are structured to produce conclusions, right or wrong. Of course not all scientific theories are correct, in fact, all theories are just waiting around to be dis-proven. Equally, not all of those who prevail in court are "right" or "correct" if they were, there would be no need for appeals courts. 


In making my conclusions about genealogy, I am not talking about the small number of cases where the incorrect information seems persuasive and an incorrect conclusion is accepted as fact. What I mean by saying that there is little actual proof in genealogy is primarily that there is no attempt by the usual researcher to worry about proof at all. The idea of proving a lineage never occurs to the average researcher. How many researchers do you know who can produce an outline of the Genealogical Proof Standard from memory? But in law, I was required to have constant knowledge of the elements to be proven in any case, either instantly by memory or within a few minutes by referring to a case. I lived with the concept of proof every day I was in court and I went to court thousands of times (not an exaggeration). 


OK, I still haven't reached a conclusion, but it is time to stop. Tune in for more.

1 comment:

  1. James

    It seems that there is a lot of blogs that have come about letting us know that genealogy without sources etc is bad. But I have a different opinion.

    I think we need something similar to a scientific "theory".

    For instance:
    I have a dead end but have a set of parents that I think might fit. If I plug in those parents it is taken by many on the internet as gospel because it is there. Even if I put in the notes that this is only speculation. This has happened on more than one occasion. In some cases my notes have been removed and the copier has posted as if it is their original research.

    But I would like to post it on the internet as a theory so that others can look at my "theory" and decide if it is good or bad. Similar to how a scientific theory might be published in some good science magazine. Then others would look at it and see if they can also come to the same conclusion and by digging more find additional evidence.

    If we had a good way to make sure "all" who looked at this information and could easily see that it was a theory that needed additional work it would be much easier for all of us.

    Maybe we could have some type of "theory" tag or fact that would stand out in our posting and could not be removed or distorted except by the author.

    Thanks for letting me ramble.
    Roger

    ReplyDelete