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

Tuesday, October 20, 2015

What is "Indirect" Evidence?

From time to time I hear genealogists banter about using direct or indirect evidence to prove their conclusions. Of course these are legal terms created in whole cloth using the terms that are defined in the Rules of Evidence. Unfortunately, nearly all those who use the terms are not lawyers or even paralegal assistants to lawyers. So how do they know what the two terms mean? Where did they get this amazing insight into complicated legal jargon?

First a word about the Rules of Evidence. The Federal Rules of Evidence govern the admissibility of evidence in federal trials. Each state in the United States has its own version of the rules, most of which are based on the Federal Rules. Trial practice and evidence are complex courses studied in law schools across the country. The strategy necessary to have a crucial piece of evidence admitted in a trial can become one of the most challenging aspects of trial practice. Many cases are decided on a decision by the Judge to admit or exclude a single piece of evidence. I have seen an attorney break down into tears in frustration at not being able to ask questions in a way to overcome objections to evidence.

Legal terms are rigorously defined by thousands of law cases and hundreds of years of accumulated legal experience. Genealogists who use those terms have no idea what they are talking about. I was recently listening to a presentation by a genealogist who used a lot of legal terminology. My silent comment was that I would love to have him as an opponent in a trial because he would lose no matter what client or issue he was representing. Merely using legal terminology does not confer on the speaker the ability to understand and appreciate what those words mean.

There are many examples of where the use of legal terms by those who do not understand the meaning of the words causes great harm and injustice. In genealogy the misuse of legal terminology leads to confusion, arrogance, apparent superiority, and becomes an obstacle to communication. Now, there are some with a strong legal background that can use the terms in an appropriate way, but those lawyers who do use the terms correctly are apparently forgetting that there are no genealogical judges and juries. Likewise, there are no opposing parties represented by their own legal jargon spewing genealogical attorney. Do we really want genealogists to be forced to follow the Rules of Evidence? Do we really want to create our own ad hoc rules of evidence?

Now, back to direct and indirect evidence. In law, the term "indirect evidence" is usually called "circumstantial evidence." The issue in a court case concerning direct and circumstantial evidence is addressed in Rule 401 of the Federal Rules of Evidence. Here is Rule 401:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Here is an additional quote from the Notes of the Advisory Committee on Proposed Rules. These notes are often used to amplify or explain the rules.
Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand. James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this relationship as a “tendency to make the existence” of the fact to be proved “more probable or less probable.” Compare Uniform Rule 1(2) which states the crux of relevancy as “a tendency in reason,” thus perhaps emphasizing unduly the logical process and ignoring the need to draw upon experience or science to validate the general principle upon which relevancy in a particular situation depends.
If this loses you, you are certainly normal. Many experienced attorneys avoid trial practice because it is too stressful and difficult. However, the genealogists who spout this quasi-legal jargon are completely unaware of the difficulty of living in a trial environment.  Can you tell from the quote of Rule 401 and the partial explanation contained in the note that they are talking about direct and indirect evidence (circumstantial evidence)?

In some cases, legal terminology has become part of our common speech. We use the terms in a general unsophisticated and certainly not legal way. I can say something, such as, "I found some evidence that my grandfather came from Germany" and no one misunderstands what is being conveyed. Here, the term "evidence" means merely that you found a document or other record indicating your grandfather's origin. Detective fiction is full of references to legal terms as are fictional accounts about lawyers and court cases. I was a great fan of Perry Mason in my youth and probably watched every episode. Now, after years spent in trial practice in real courts, Perry Mason looks ridiculously naive and he is commonly shown to violate almost every rule of evidence.

Is there a definition for "indirect evidence?" Yes, you can start by reading these books.
  • Twining, William. Theories of Evidence: Bentham and Wigmore. Stanford, Calif: Stanford University Press, 1985.
  • Imwinkelried, Edward J., Richard D. Friedman, and John Henry Wigmore. The New Wigmore: A Treatise on Evidence : Evidentiary Privileges. Austin: Wolters Kluwer Law & Business, 2010.
Then you might want to read about two or three hundred cases about evidence. That would be a good start.


  1. While I understand the point you're making, James, I'm not sure what your ultimate objective is. Do you agree that genealogy is all the better for having guidelines (I deliberately didn't use the term 'rules' in a genealogical context) for the assessment of evidence? The terms may be similar but they there are 'rules' in the legal use because of the importance of the consequences of a judgement, and hence there is much training and qualification required. As you point out, most genealogists do not have any legal training, but they still need guidance and best-practices for the assessment of evidence in their regime. It may be unfortunate that the terms are the same -- as with 'proof', etc -- but it's not without precedent that the same terms are applied differently in different fields.

    1. Those are good questions. I think the terminology influences the way the information is viewed. Obviously, there needs to be a distinction based on the reliability of the source, but the researcher should realize that his or her conclusions are not proof of an ultimate truth. Genealogy is not adversarial. I have a long list of subjects on this topic. I guess I have been thinking about it a lot recently.

  2. Did the word "evidence" exist before its legal usage or was it invented for that specific purpose>?

    1. Middle English: via Old French from Latin evidentia, from evident- ‘obvious to the eye or mind’ (see evident). The issue is not the use of the word, per se, but the idea that using the words somehow implies a degree of certainty that is not achievable. We do not prove our genealogy with evidence, we draw our own conclusions from the documents we are able to find. Thanks for the comment.

    2. James, it was great to meet you last month in SLC!

      In my opinion, your last comment is splitting hairs. Let's look at your side of it: "we draw our own conclusions from the documents we are able to find." I agree with that simple way of putting it. But we are not really using *documents* but the *information* held within those documents. And really those items of information are not by themselves anything more than individual claims made by documents (like witnesses in a court case)---it is only through a process of examining each of those claims in the context of other supporting or conflicting claims held in other documents (the statements of other witnesses), and determining which of these various claims appears to be the most reliable, that we "draw a conclusion." The information in documents does serve as evidence---evidence that is weighed against other evidence logically. (Also, as a side note, if any genealogist tells you that the mere existence of evidence implies any degree of certainty, then they do not know what they are talking about. Evidence can be flat-out wrong. And it often is.)

      The term "proof" (and "prove" etc.) as used in genealogy or other humanities fields is different from the same term used in science, math, jurisprudence, or even common vernacular. To judge (no pun intended) the use of any term in one field by the standards of another field is a straw man argument. No one who uses the term in a genealogical sense claims that it is the same usage as in any of these other fields.

      As for the adversariality of genealogy, both here and in your other recent post ("Do you ever have proof in a historical context?"): Ideally, genealogists should *at least* be serving this role themselves. We should be trying to disprove our theories as earnestly as we are trying to prove them. However, if this is too difficult (as it may be for some who lack a certain level of impartiality toward their ancestors), there are several ways of enlisting others to peer-review our work: the accreditation and/or certification processes, and publishing in refereed journals. Unfortunately, I agree that there are too few such opportunities and the vast majority of genealogists do not take advantage of the opportunities that exist. I believe that if you were to do so, perhaps your opinion on the existence of adversariality in genealogy may change significantly.

    3. Thank you very much for your response. In essence you are stating that the genealogical researcher takes the part, by analogy, of both the Judge and/or the Jury in a legal case. From my own experience both in law and in genealogy, I am merely pointing out that the conclusions reached by a researcher in this context are merely a personal opinion. If you wish to use the word "proof" for your conclusion, you are certainly free to do so. But the use of legal terms, which are much more extensively used by genealogists, than just the terms "proof" and "evidence" do not add any credence to the accuracy of the conclusions.

      I certainly agree that genealogists should be more skeptical of their own work than many appear to be. If the term "proof" as used in genealogy is different than the same term used in law, they why have genealogists adopted a consistent pattern of using legal terminology to support their personal conclusions? For example, prove beyond a reasonable doubt, a reasonably exhaustive search, burden of proof, and many other terms that are used extensive in the genealogical writings.

      Thanks again, it is always nice to have a coherent and well thought out response to a post. I may not agree but you do provide a supported alternative position.