What constitutes genealogical evidence? Part Two: Proof and evidence

Do we really want genealogists to be lawyers and judges? Some genealogists seem bound and determined to convert what is essentially a historical investigation into a branch of the law. If you are one of those concerned about "proving" your ancestry, I might point out that one of the hardest lessons to learn as an attorney is that facts alone are not evidence and that proving your case is never the certain conclusion to a trial. But because of the historical involvement of attorneys with genealogy, legal jargon has permeated the genealogical community to the extent that terms such as "proof" and "evidence" are ingrained and likely inseparable, permanent fixtures.

In an attempt to illustrate the differences between law and genealogy that make the use of legal jargon inappropriate, I need to discuss some basic legal concepts.

In order to protect and preserve evidence and to see that only evidence is used in a trial, attorneys in the United States have to abide by certain Rules of Evidence. The facts that are presented at a trial conducted according to the Rules of Evidence must undergo scrutiny before being admitted. For example, if a document (source) is offered into evidence, it is only admitted after the attorney offering the document has laid a proper testimonial foundation. Is there an analogy to this legal system of evidence in the genealogical community? Do we really want to impose such an elaborate and arcane set of rules and considerations on our genealogical research?

For a further example, the ability to lay a proper foundation for the admission of evidence during a trial is a skill that is learned, usually by trial and error, after years of trial practice. Sometimes, the admission of testimonial evidence depends on the way an attorney asks the questions of a witness. I have seen an attorney break down and cry during a trial because she could not ask a question in a way to overcome my objections. Presenting competent evidence in a trial is a serious business and can be a matter of life or death. As genealogists, do we really want to incur these unnecessary burdens?

I am frequently disturbed at the way genealogists blithely use the terms "proof" and "evidence." Put into the context of genealogy, I would say that sources, in themselves, are also not evidence. In the past, I have written about my disagreement with the use of legal terminology as applied to genealogy and I am not so naive as to think that anything I say will change the genealogical landscape. But I will continue to maintain that any analogy between the practice of trial law and genealogical research is ultimately faulty. The reason this is the case is based on a fundamental difference between the two systems. Law is adversarial. Genealogy is not adversarial. In law, there is always a judge, whatever that person is called in practical reality, who decides any controversy. There are no genealogical judges. Without a decision maker (judge) there can be no "proof." Using the words does not create a reality. I can claim all I want that I have "proved" a certain ancestral relationship, but in fact, the claim still and always will remain an argument and always open to refutation by the discovery of additional sources with conflicting facts.

It is very easy for a genealogical researcher to claim that he or she had evidence that proves a particular claim. But as I have already written, the use of the term "evidence" does not, in its self, carry an probative value. In the past, genealogists have glossed over the use of quasi-legal terminology and have even resorted to the use of terminology from jury trials such as "burden of proof" and "proof beyond a reasonable doubt" to add a level of believability to their arguments. One commonly employed term is the word "reasonable" itself as in a "reasonably exhaustive search." This phrase has also been inappropriately borrowed from legal terminology. The concept comes from what is sometimes called "The Reasonable Man Doctrine" more recently modified by political correctness to "The Reasonable Person Doctrine." There are very likely tens (hundreds) of thousands of pages of legal writing discussing and debating this topic. Unfortunately, it is almost impossible to find an adequate definition of this doctrine without a circular use of the term "reasonable" itself. Can you really find even two genealogists who agree on the definition of a reasonably exhaustive search?

The use of the legal and definitely adversarial terminology in the field of genealogical research has led to the mystification of pursuit and obfustication of genealogical jargon.

But in taking this position I am quite literally swimming upstream against a very swift current.

In genealogical research, evidence is nothing more or less than what the researcher believes. Using the term "evidence" in genealogical research adds nothing to the truth or falsity of the researcher's arguments and conclusions. Let me illustrate what I mean by using a hypothetical situation.

Let's suppose your father's name birth name was Frederick. How do you know that fact? What if he never once used that name and always answered an inquiry that his name was "Fred." In fact, as you begin to do research, you cannot find one document where he signed his name using anything but the name "Fred." Nevertheless, you dutifully record his name as Frederick. Now, there is a question. If you are wrapped up in applying legal terminology to genealogy, how do you go about proving that person who is always referred to as Fred is really the same person who you find named Frederick in a birth certificate? If you are a competent genealogist, you likely come to the conclusion that the name Fred was a shortened form or nickname for Frederick and do not give the matter a second thought. You do this, even though you have nothing actually connecting the two names. Of course, this example sounds ridiculous when it is applied to your father, but it can become a major issue if the relative lived in the 17th Century. How do you know which of the different name variations you find concerning individuals who lived in the same town and the same neighborhood were actually the same person and which were different people? Who decides? You do, of course. You make your choice and get on with your research.

What if another researcher comes along and disagrees with your choice? How do you prove you are right and they are wrong? Do you write a "Proof Statement" setting forth your "evidence?" Isn't this really an attempt to mimic the arguments made by an attorney in submitting a brief to the court to support his or her case? My point is that the legal analogy is faulty for this reason. There is no arbitrator, judge, mediator or whatever in genealogy who will make the decision. You can throw around all the legal terms you like, but doing so will not change that fact.

Historical investigation involves a fundamentally different process than does proving a case in a court of law. As genealogists, we search for sources. We draw our conclusions from those sources and should realize that any conclusion we make is open to revision with the discovery of another source. There is no one out there who can say we are right or wrong, there are only different conclusions. As genealogists we often despair because so many of our compatriots seem to base their conclusions on less than all the facts (which we inappropriately call evidence). Are we judges? Who gave us the authority to decide genealogical cases? Perhaps we can persuade others to our own conclusions, but that is not necessary. There will always be those in the genealogical community that set themselves up as judge and jury of the rest of the community and they will always be ignored by the vast majority of those in the greater community that do not even know they exist.

Now we get to the issue of scientific proof. Is genealogy science or history? What about DNA evidence? Oh, and you also point out that there are forensic genealogists who act as witnesses in court cases. What about this? That is another post on another day.

But how do we discuss genealogy if we don't use legally charged terms? How do we ever know if we are right or wrong in our conclusions? Remember this is a series.