RootsTech 2014

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

Sunday, May 11, 2014

Why must you prove your genealogical case?

The law of witnesses goes back to antiquity. In the Bible in Deuteronomy 19: 15 it states:
15 ¶One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.
There has been a continuity in the need to "prove your case" since these ancient times. In our modern-day law in the United States, we have very complex rules and procedures in court cases for dealing with witnesses. For example, the Arizona Rules of Evidence have 21 rule applying to witnesses. Here is a list of the subjects by heading:
ARTICLE VI. WITNESSES
AZ ST REV Art. VI, Refs & Annos
Rule 601. General Rule of Competency
Rule 602. Lack of Personal Knowledge
Rule 603. Oath or Affirmation
Rule 604. Interpreters
Rule 605. Competency of Judge as Witness
Rule 606. Competency of Juror as Witness
Rule 607. Who May Impeach
Rule 608. Evidence of Character and Conduct of Witness
Rule 609. Impeachment by Evidence of Conviction of Crime
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Interrogation and Presentation
Rule 612. Writing Used to Refresh Memory
Rule 613. Prior Statements of Witnesses
Rule 614. Calling and Interrogation of Witnesses by Court
Rule 615. Exclusion of Witnesses
Why do we go to such elaborate lengths to determine the competency and type of testimony allowed from witnesses? Basically, the law recognizes that the testimony of witnesses may or may not be truthful or even relevant to the issues. These procedures and rules have evolved in response to the need for order and justice in our legal system. There is also just as complicated a system concerning documentary evidence in court.

Genealogists have only quite recently recognized the need for a systematic methodology for establishing genealogical facts. Until the early to mid-1900s, ideas concerning the need for sources and a proof standard did not exist. The current standards owe their origin to genealogists such as Donald Lines Jacobus, who began to establish a more scientific method of research based on primary source documentation.

See Jacobus, Donald Lines. Genealogy As Pastime and Profession. Baltimore: Genealogical Pub. Co, 1968.

In addition to the ideas propounded by Donald Lines Jacobus, early in the 1900s, there was a also a movement among professional genealogists to adopt some of the same methods and language used by the legal profession into genealogical research methods. It was common for the same language used in proving a case in court to appear in the genealogical writings of those professionals. Terms such as "burden of proof," "preponderance of the evidence," and "beyond a reasonable doubt" began to appear regularly in various professional journals and articles. In addition, other genealogical publications began using the idea of "building your case" for "proving" your genealogical conclusions. Even the use of such terms as "reasonably exhaustive search" have definite legal roots. Many legal issues involving proof employ the "reasonable man" standard, again borrowed from court cases, which posits a hypothetical always reasonable person who decides what is right and wrong.

Today, we have the Genealogical Proof Standard from the Board for Certification of Genealogists. But if the discussions online about this subject are any indication, the hot topic of the day is not so much how to prove your conclusions, but how to cite the sources you use in support of those conclusions.

To gain some perspective in this area it is important to realize that professional genealogists make up a vanishingly small percentage of the wider, online genealogical community. Huge online websites, such as MyHeritage.com, claim millions of members and the total number of professionals is likely in the low thousands. It is undoubtedly the case that very, very few of the general population with their "genealogy" online have ever even become aware of the existence of a need for sources or of the existence of any sort of proof standard. Interestingly, the more "professionally aware" genealogists believe in the necessity of writing a proof argument or proof summary. Here is a quote from the Board for Certification of Genealogists' website from an article by Laura A. DeGrazia, CG entitled, Skillbuilding: Proof Arguments.
Just as mathematicians construct proofs to convince others of the truth of mathematical statements, genealogists assemble proof arguments to convince others of their genealogical conclusions. A proof argument is a detailed, written explanation of the evidence and reasoning used to reach a genealogical conclusion.
It is further noted in the article that, "Proof arguments are frequently composed with the goal of publishing and disseminating information to invite challenge to a conclusion."

As I have pointed out in previous posts, this attitude towards genealogical evidence presupposes an adversarial system, such as opposing counsel and judges in the courts. In writing such a document, you would be forced to look at the weakest portions of your case and act as your own adversary. After nearly 40 years of trial experience, I don't really believe this can be done. How do you try to prove your position and remain neutral at the same time? I realize that the intent here was to marshall your arguments in favor of your conclusion with the expectation that the arguments would be opposed. But my personal experience shows that in those types of situations, it is the natural tendency of the proponent to ignore any weakly supporting or contradictory facts, no matter how unethical that may seem to be.

The question I have at this point is whether or not it is necessary to prove your genealogy. I am not talking here about the need to cite your sources, that is an entirely different issue. What I am asking is who are we trying to convince?  There are no genealogical judges or juries. What happens if I decide that I do not believe your conclusions? What if I write my own proof statement contradicting your conclusions? Who decides the correct conclusion? The point is that genealogists have constructed this quasi-legal system of proof when there are no final arbitrators of whether or not the system has supplied the correct conclusion. I am not advocating doing away with the standards expressed by the Board for Certification of Genealogists or any of their requirements for certification, I am merely pointing out that making such proof statements really makes no impact on the larger genealogical community, who will likely be totally unaware of their existence.

But more basically, why is there a need to "prove" anything in genealogy. Genealogy is not mathematics, it is primarily history. Aren't these concepts borrowed from law and mathematics? Do they even apply to historical genealogy?


5 comments:

  1. This is old issue of what we mean by proof James (see http://parallax-viewpoint.blogspot.com/2013/12/proof-of-pudding.html). Laura DeGrazia is wrong to suggest "...mathematicians construct proofs to convince others...". A mathematical proof (assuming there are no errors in the logic) stands on its own. There is no room for personal opinion. As you rightly suggest at the end, substantiation (however rigorous) is not an absolute proof.

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  2. This is in part related to what people prefer to believe. Some of your family preferred to believe there was no polygamy in their history. Some of mine could not establish actual ancestral names, but for supremacist reasons preferred to believe in history including 1607 Jamestown settlers rather than 18th-century immigration to Delaware.

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  3. Proof statements point out that there are different ways to look at a person's life. Without them you will go on thinking that your way of looking at it is correct. Many different points of view will make you think about that life more seriously and look for more documentation. You never know what new information will turn up. Is studying the history of an event ever complete even if you are one of the witnesses?

    I don't think we have to write a proof statement for every single item, but we really should on those items that are obviously unclear or complicated to explain (as in inferential conclusions). Personally, I would be glad to have someone to discuss family history research problems with. There is no right or wrong until you've found all the documents and that will probably never happen.

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    1. I am questioning the concept of "proof." The idea of proving something is very complex. There is a huge difference between mathematical proof which involves the use of theorems that are accepted as fact and proof in court which involves weighing testimony from witnesses and documents. "Historical proof" is an oxymoron.

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    2. It's just another usage of the word, really, and so is different to both mathematics and law. I admit that this fact wrong-footed me, initially. The point I tried to make last year was that the genealogical emphasis on rigour and methodology (often viewed as scientific traits) presented a confusing image when combined with this particular usage of the word. Had it have been something like "substantiation" then maybe we wouldn't be writing about it in blogs, but it's all history now (as they say). ;-)

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