The Ins and Outs of Evidence for Genealogists -- Part Five: Admissibliity

The legal concept of admissibility is one of the fundamental concepts necessary to an understanding of the entire process of presenting evidence in a trial context. The idea is that not all of the information developed during the discovery process conforms to the Rules of Evidence and can be used at trial. These limitations are independent of the beliefs of any of the parties to the lawsuit. Very frequently, my clients would be adamant that I use certain documents or that they be allowed to present certain testimony that they "knew" to be the absolute truth. They had a very difficult time when I told them that it would be very unlikely that the judge would allow the proffered evidence either documentary or testimonial. The idea that some information cannot be admitted is very difficult to understand.

Equally, in genealogy, researchers find information that should really be disregarded. Especially when the data presented appears to be contradictory, something has to give. Some records either turn out to be inapplicable or unreliable.

Surprisingly, there are some types of litigation that are not subject to the Rules of Evidence. For example, in Arizona, administrative law actions, which otherwise seem to be just like civil trials, are wide open, Old West, shootouts. During my years as an attorney, I handled perhaps over a hundred such cases, usually before Arizona's Registrar of Contractors.

Why do I bring this up in the context of a post on genealogical evidence? The answer will take some explanation and background. I have pointed out in previous posts that the restrictions imposed on the presentation of a law case are designed to make sure both the judge and a jury, if one is present, allow only information to enter into their deliberations that has passed the historical requirements imposed on such information, i.e. the Rules of Evidence. At least in Arizona, government agencies make their decisions based on a different set of rules and it is rather amusing to see how attorneys who have never been in an administrative hearing react to this lack of structure and rules.

If I were going to try to draw analogies between litigation and genealogy, I would not rely on regular court cases for my analogies. Relying on legal concepts such as the burden of proof and beyond a reasonable doubt are not productive and at the very least, misleading to a genealogical researcher. In response, some genealogists claim that we have used the words evidence, proof etc. and even though they are borrowed from legal terminology, we can assign different meanings. At the same time, they infer that what happens in a trial court somehow relates to genealogy. My discussion so far on this topic indicates that I do not believe that analogy to work at all. It is a false analogy.

But what about the open forum such as conducted in an Arizona administrative law case? There are some formal procedures, but in any type of information is admitted. There are no restrictions on what is said in the course of the hearing or in the types of documents considered. Isn't that a little closer to what we experience in genealogical research? My response is simple. Even in an administrative hearing, there are opposing parties with different interests and there is an administrative law judge who "decides" the case. As I have indicated previously in this series, it is the absence of advocacy and a decision made by a third party that differentiates genealogy from law. Even in the wide open venue of administrative law, where there are almost none of the historical restrictions imposed in court actions, there is still a judge who will make a decision and advocates for each side of the contested facts. See "Historical Foundations of the Law of Evidence: A View from the Ryder Sources" by John H. Langbein, 96 Colum. L. Rev. 1168 1996.

Now let's suppose that we are stuck with some, if not all, the jargon baggage imposed on genealogy by the writers and experts of the past, which we most certainly are. What can we do about it?

In recent posts, I have noted that I have been attending the Salt Lake Institute of Genealogy. Genealogists come from all over the United States to attend classes given by some of the most experienced and qualified professional level instructors. I am definitely an outsider to this group. One interesting observation. In recent genealogy conferences, I am used to most of the attendees pulling out their computers and iPads etc. Here I am seeing pencils and paper. I think there have been only one or two other devices in my class, other than my own computer. In fact, there is only one electrical outlet in the class and there are only two of us using it at a time.

So, there is this level of genealogical pursuit in the United States that involves academics and certified professionals that barely acknowledges the existence of people like me. Not that I am at all surprised at seeing this, I am abundantly used to the idea of being an outsider. So why would I "take on" the establishment? There is one thing I have learned over the years and that is that knowledge is a great leveler. Many of the people and instructors at this conference seem to be oblivious to the online genealogical world. Hence, no blogs or at least very few.

Do I really differ in my views on evidence and proof from the mainstream of academic genealogy? That is part of what I am exploring with this series. What I hope you, as a reader, get from this discussion is a desire to think more clearly about the process we all need to go through to make the best possible conclusions from all of the information we find about our families. We need to be more skeptical and evaluate information before we incorporate that information into our beliefs about the history of our ancestors.

What I am certain about is that borrowing jargon from law and science does not help genealogist reach accurate conclusions. Historical truth is elusive. What we believe about the past is often colored by our present experience so thoroughly that we have little or no accurate understanding of what happened. In the extreme, genealogists (or would-be genealogists) ignore the need to evaluated and weigh the value of information entirely and become automatons and almost exclusively involved in copying information from one place to another. Unless we interpose a substantial degree of reflection and evaluation into this process, we have no hope of discovering anything that approximates the truth about our ancestors.

Here is another question, if I am convinced of a particular set of facts about my ancestors, am I therefore compelled to express my views to the world in form of writing or discourse? Boiled down, this question asks whether there is some fundamental need or requirement to "prove to the world" that my conclusions are correct. In a strange way, this question goes to the issue of arguing admissibility. In the evaluative process, as I do research into my family, I accept and reject information based on certain evaluative criteria that I alone possess. Those criteria may include my own cultural and historical biases. Any formal presentation of my viewpoint, will, of necessity include a fair measure of my personal bias. Shouldn't I then merely present the information I have gathered and leave the interpretation to the reader?

This dichotomy between a need to express an opinion about our research and the research itself is another one of the interesting fact of life in the genealogical world. In supporting this analysis, those who have written about genealogy have once again borrowed terms from law and imposed an idea of direct versus indirect evidence and primary versus secondary sources and then added shades of differences. Do the concepts of direct versus indirect evidence and primary versus secondary sources add anything to our ability to evaluate the information we find about our family?

In the next installment, I will investigate the traditional historical approach to the evaluation of information to create history and the importance of understanding this approach as it applies to genealogy.

Here are the previous installments:

The Ins and Outs of Evidence for Genealogists -- Part Four
The Ins and Outs of Evidence for Genealogists -- Part Three
The Ins and Outs of Evidence for Genealogists -- Part Two
The Ins and Outs of Evidence for Genealogists -- Part One