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: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.
(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.
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.