The Ins and Outs of Evidence for Genealogists -- Part Three: Evidence of what?

Utah Death Certificates, 1904-1956," index and images, FamilySearch (https://familysearch.org/pal:/MM9.1.1/XZLL-86V : accessed 8 January 2015), Mary Linton Morgan, 16 Mar 1951; citing Salt Lake City, Salt Lake, Utah, United States, certificate 180469, series 81448; Utah State Archives Research Center, Salt Lake City, Utah; FHL microfilm 2,224,907.

From a genealogical standpoint, we can't talk about the topic of "evidence" without referring to documents. I chose a death certificate from 1951. But before we get to the actual document, there is need to consider another series of questions concerning genealogical interests and activity. Since Mary Ann Linton Morgan was born now, about 150 years ago, in 1865, we can safely assume she is deceased. The issue here is why do we need a document that says she is deceased? From an attorney standpoint, I would simply ask the judge to take judicial notice of the fact that she was deceased since she was born approximately 150 years ago. As a genealogist, I am not surprised that she is dead, but I do want to prove the fact of her death and benefit from any other information that might be on the document. In doing all this, I make the assumption that I have identified the right person.

From a cursory examination of the genealogical data contained in online family trees, you could assume that the genealogical interest in death dates was not particularly high. Many of the entires say only "deceased" or give a very general "abt" (about) date for the death. However, this document is interesting from a number of standpoints. The question here is whether or not this death certificate is evidence and if so, evidence of what?

Many, if not most of those involved in genealogical research would consider this death certificate to be a basic resource for information about the deceased and diligently copy off the needed information to fill in the blanks in their genealogical form either on paper or in some genealogy database program and then, perhaps attach a copy of this certificate to the ancestor's file. One definition of genealogy or family history is cited in the Wikipedia article on Genealogy. Here is a quote:

The Society of Genealogists, while also using the terms interchangeably, describe genealogy as an "Establishment of a Pedigree by extracting evidence, from valid sources, of how one generation is connected to the next" and family history as "A biographical study of a genealogically proven family and of the community and country in which they lived".[3] Sometimes the term used is based on region, with societies in Europe often using the term "family history", and those in the United States more often using the term "genealogy".[4]

So apparently "evidence" is something that is extracted from "valid sources."

As a trial attorney, why would I be interested in a death certificate? In my own experience representing the heirs in probate actions, certified copies of the death certificate are required by financial institutions and other entities before they will release funds, give information or provide documents to the administrator or personal representative of the deceased's estate. In this case, the death certificate is considered prima facia (first hand) "evidence" of the fact that the person is dead. However, considering the copy of the death certificate above, I would have to invent some complicated hypothetical situation to find a use for an old death certificate especially when the person was born about 150 years ago and there could be no controversy over whether or not the person was dead. If for any reason, I wanted to use the information from this certificate in court, I would have to establish that the record was a properly recorded document, created and maintained by an authorized government agency. I would then have to present the document in court and avow to the judge that the document has not been modified and that it was what it purported to b.

In the Rules of Evidence, there is a specific exception to the Hearsay Rule for government documents. Here is a sample type of exception:

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. See Cornell University Law School, Legal Information Institute, Rule 803, Exceptions to the Rule Against Hearsay. 

In any event, the document above would not be considered to be evidence of anything unless the court (judge) ruled that it was "admissible" for some purpose. This means that an adequate "foundation" was laid by giving proper testimony or, in some cases, an avowal by the attorney that the document was a certified copy of the original death certificate. Only after the document was "admitted into evidence" could the contents of the document be referred to or used as evidence in the case. If I were using a document such as a death certificate to present my case in court and assuming that the court admitted the document into evidence, I would very likely be precluded for making any reference to the contents of the documents because there would be an objection that the "document speaks for itself."

So, in a legal context, a document only becomes evidence if it is admitted to be used as such in the course of litigation by the judge presiding in the case. I might mention that under the current court practices and procedures, the parties can stipulate (agree) that certain documents be admitted into evidence. This is normally done when both sides of the controversy want to refer to the same document. 

Now, it is obvious that the term "evidence" has a rather restricted meaning in a legal context. What about a genealogist? How would I look at the death certificate as a genealogical researcher? The document does contain a lot of information about the deceased. If I were using the word "evidence" in its popular and common usage, I could say that the death certificate has a lot of "evidence" about the deceased. The legal usage of the document is restricted to make sure that it is used only for specific purposes and only after authentication.

The various genealogical certification entities are very much concerned about the qualifications of those they certify. They usually have extensive requirements for certification or accreditation including an understanding of evidence. One of the supporting documents on the website for the Board for Certification for Genealogists is called, "Skillbuilding: Proof Arguments. In this rather short document, the word "evidence" appears 22 times. Here is a list of how the term is used with the repetitious terms merged:

• evidence
• complicated evidence
• indirect evidence
• conflicting evidence
• analysis and correlation of evidence
• weakness in evidence
• data collection and evidence evaluation
• pieces of evidence
• best quality evidence
• extraneous evidence
• contradictory evidence
• the order in which to present the evidence
• evidence presented in a logical sequence
• uncontested direct evidence
• analyze and correlate evidence
• the complexity of the evidence
• supporting and contradictory evidence

If I didn't know otherwise, from this list, I would assume I was reading a legal treatise on trial preparation and the use of evidence at a trial. Almost every one of these phrases would find a comfortable home in a courtroom. At this point, if I were making an argument in court about the use of legal jargon in genealogy, I would probably rest my case. But since I am not in court, I need to keep explaining my premise and my expanded argument.

One of the fatal flaws in this type of approach, i.e. using a legal model for making statements about genealogical research, is that the proof argument relies solely on conclusions drawn by the researcher. You might note a mention of "contradictory evidence." In this particular article, the researcher is urged to do the following (in part)

Choose those pieces of evidence that best support your hypothesis. Make sure the proof argument includes all the evidence upon which the conclusion is based. (However, every piece of evidence uncovered during the course of research need not be mentioned.) Be selective. Include the best quality evidence available. (For example, opt for original versus derivative records.) Take care to cull extraneous evidence and unrelated information because these will detract from the focus. Do not omit contradictory evidence. When it exists, it must be presented and discussed.

I am not faulting this advice at all. It is basically very good advice for an attorney writing a pleading or brief to the court. All I would need to do is substitute the word "pleading" for "proof argument." Not to be overly repetitious, you should note that in court, the opposing counsel (attorney) would file a response to my brief or pleading. In that response, the opposing attorney would point out all the flaws in my reasoning and mention any evidence I decided to omit. But, as I have pointed out several times already, there is no opposing counsel and no judge who will make a final decision about whether or not I am right or wrong. Essentially, the only person I have to convince in myself. 

Why do I care? Why does anyone care? One reason is that this dependence on legal jargon and pseudo-legal briefing is held out as the ultimate way to present historical/genealogical conclusions. While after spending almost 40 years in a courtroom, I would strongly disagree. Focus on the list above, there is one term that summarizes my concern: uncontested direct evidence. I fully realize that there are numerous genealogical publications and articles attempting to explain the difference between direct and indirect evidence. Who decides whether evidence is direct or indirect? Who or what is the entity that is contesting the evidence presented in the proof argument? Isn't this entire structure being built in the air? Aren't we being asked to ignore the man behind the curtain?

Genealogy is history not law. Genealogy is history not science. We may be able to use some of the tools of both law and science, but in the end its still history. If you ignore history it will come back and bite you in the end. 

So what is evidence? In the historical sense, evidence is what ever information you find about your family. It is certainly not fashionable but I think that every piece of evidence (information) should be recorded and included as sources. Every piece of information! History is not conclusive, it is always tentative and the next piece of information you find may completely undo all the conclusions you have reached. Genealogy is in reality a very specialized type of history. It is incomplete, only partially recorded and subject to revision with additional information. 

In the next post in this series I go back to the death certificate.

Here are the previous installments:

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