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

Monday, June 20, 2011

What is evidence? What is proof?

I have been very circumspect in writing about legal matters, primarily because I was still actively practicing law. But, I am almost completely retired from the law practice and do not have to be so concerned about writing on one side or another of a topic that might impinge on one of my legal cases.  This is the case because I have only two matters left to resolve before I formally retire.

In almost 37 years of legal practice as a trial attorney (less a few years running a computer retail store) it was always painfully apparent to me that outside of the legal profession, almost none of the clients I was representing understood the concept of evidence or proof. This was very understandable given the pain and suffering I went through in law school to learn about those subjects. However, this lack of understanding is also widely apparent in the genealogical community. Now that I am free to write without the concern that my opinions might be used in a legal case against the interests of my clients, I will spend so considerable time exploring the legal and genealogical concepts of evidence and proof.

I will begin with an example. When the genealogical community uses the terms "primary evidence," "secondary evidence," "direct," and "indirect" those terms are being borrowed, in part, from the practice of law. This is understandable because the foundation for modern genealogy in the United States originates with Donald Lines Jacobus (1887-1970), widely known as the "dean of American genealogy" during his lifetime and was the first person elected to the National Genealogy Hall of Fame. He was the author of the influential book,

Jacobus, Donald Lines. Genealogy As Pastime and Profession. New Haven, Conn: Tuttle, Morehouse & Taylor Co, 1930

which borrows heavily from the legal concepts of evidence and proof. This relationship to the legal realm is further noted by Elizabeth Shown Mills in the book,

Mills, Elizabeth Shown. Evidence Explained: Citing History Sources from Artifacts to Cyberspace. Baltimore, Md: Genealogical Pub. Co, 2007 at page 18.

I do not mean to infer that genealogy is based entirely on the concepts and ideas of the legal profession, to the contrary, genealogy is more of a social science and belongs firmly in the general area of history. Although, as I have noted in the past, genealogy is not fully accepted as a scholarly pursuit, especially by the academic historians. I could at this point begin yet another discussion of the reasons for the lack of respect accorded genealogy by the purely academic world of university professors, but suffice it to say that pedigrees going back to Adam are not helping the acceptance of genealogy as a valid academic pursuit. I would also credit the more inclusive and democratic atmosphere of the genealogical community, which to some extent is the antithesis of the exclusive and rigorous academic community.

To the extent that genealogy borrows the trappings of the law, it is important to understand not only the concepts as they are used in the legal world, but how those concepts apply both in a theoretical and practical sense to the pursuit of genealogical research. I fully realize that writing about the topic of evidence and proof may in no way influence even the most minute portion of those practicing in the field of genealogy, but rather than neglect the subject altogether simply because of lack of interest, I feel compelled by my background to try to put the relationship of genealogy and law into a workable perspective. So to the title of this post. When is something considered to be evidence? When is a "fact" proven? What do we mean by the concept of evidence? How does evidence relate to proof? and so forth.

In my discussion of the legal concepts of evidence and proof, I will rely on court decisions, including where appropriate, those of the United States Supreme Court. Please understand, I am very much aware that there are substantial differences between the legal systems of various countries. Although the U.S. legal system derives in large part from English Common Law, the law of England and the United States has diverged on many even basic issues. It also is important to note that U.S. law is more than substantially different from that of Latin countries and many other legal traditions throughout the world. But, obviously, I am constrained by my background and experience to write entirely from and perspective of the law in the United States. Perhaps, those who are reading this in other countries of the world could comment on some of the differences.

Well, it looks like I am well into my introduction. I suppose I will have to keep going in subsequent posts, with appropriate breaks for any news of the day or issues that might arise. I hate to characterize this post as the beginning of a series, because I do not intend, at this time, to write sequentially. I will be exploring topics as I come upon them, just as I would do in the practice of law.

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