After spending a lifetime as a trial attorney, there was and is a fundamental question that I was confronted with from the very beginning of my trial career: how accurate or correct are court decisions? This question goes to the integrity of court system as a whole. In fact, this whole issue revolves around a fundamental, both religious and philosophical question and one posed by the Roman ruler Pilate in the Bible, "What is truth?" See John 18:38.
I clearly remember a jury trial I had where after a couple of days of testimony, I realized that the opposing party was lying to the court (Judge and Jury), the opposing attorney was lying and my own client was lying. Unreliable testimony at trial, where either through self-deception or intentional prevarication, witnesses did not tell truth was not all that uncommon. What was also possible, although not as common, was where well-meaning witnesses gave false testimony based on conclusions made from less than all the facts in a case.
I was reminded of this quandary when I came across an article on the JSTOR Daily entitled "How to Create False Witnesses." This article pointed out an article from the journal, Law and Human Behavior, Vol. 34, No. 5 (October 2010), pp 418-428 by Jessica K. Swanner and Denise R. Beike, entitled, "Incentives Increase the Rate of False but not True Secondary Confessions from Informants with an Allegiance to a Suspect." The thrust of this study was the conclusion that demonstrably false secondary confessions were a part of 46 percent of wrongful death-row conviction cases. In other words, a significant percentage of death-row inmates were convicted on false testimony.
Now, this may or may not be true, but as a long time trial attorney, I can certainly relate to the fact that court decisions are and were often wrongly decided on less than all of the evidence. In one very long trial, lasting more than two weeks, when I questioned the jury, several members of the jury admitted deciding the case simply on the fact that they did not "like" my clients. The jury had decided the case by ignoring the evidence and determining that my clients were less likable than the opposing parties.
I could have gotten very cynical about the entire United States legal system, but over the years, I realized that the vast majority of court decisions were what should have happened, regardless of the facts. I used to tell my clients, who would be emotionally hung up on the idea of truth and justice, that there was their truth, the opposing parties' truth and the truth as determined by the judge or jury and in the end, the truth of the case, that is the decision of the court, would become the TRUTH and what they thought may or may not be part of that TRUTH. Notwithstanding this evaluation, after nearly forty years of court cases, I still believe that our system works.
I am sure you are asking yourself what this has to do with genealogy? The answer is everything. As genealogists, we delude ourselves into thinking we are always right, when we are sitting as judge and jury over what we consider to be the facts. We are appalled when someone else comes to a different conclusion and rail against their lack of understanding of the TRUTH. After all, we have the facts on our side. We always have "sources" to support our conclusions and the other side's arguments are based on copied family trees and are mistakes or worse.
What is even more interesting in the genealogical world is the prevalence of genealogists cloaking themselves in the garb of legality by using legal terms such as proving a fact and weighing the evidence as if these terms will add veracity to their personally ascertained conclusions. My point is this: court decisions are frequently decided incorrectly, why do we then think that our own personal conclusions derived from historical sources are not as equally subject to inaccuracy?
How do I know that court decisions are frequently decided incorrectly? The answer is very easily ascertained. Our court system has a method of appealing the decision in any particular case to a higher court. Statistics show that about 40% of the tried cases in the Federal Courts are appealed. That means the parties disagree with the judgment of the lower court to that extent. See "Appealed Rates and Outcomes in Tried and Nontried Cases: Further Exploration the Anti-Plaintiff Appellate Outcomes," from the Journal of Empirical Legal Studies, Volume 1, Issue 3, 659-688, November 2004. There is no reason to believe that the percentages have varied much since this fairly old article was written, although given the topic of this post, you can certainly do so if you wish and comment with more recent data. The exact number quoted in the article is 40.9%.
If this percentage of court cases are questioned on appeal, why do we think that our conclusions, based on our own research, are so correct? My position with regard to genealogical, and hence historical conclusions, is that no historically derived "fact" is ever certain. Everything about genealogy is open to revision based on additional data. Even our own personal experiences and memories may be defective. In effect, there are no immutable, unchanging historical facts. Our record of the past is always open to revision. We may assert that a given "document" proves our personal conclusion, but we are always subject to the reliability of the document or source.
Can we survive sailing in a sea of uncertainty? Do we prevail by clothing ourselves with mantle of legal jargon? We can and should continue to gather as much as possible from the historical record, but we should always be ready to revise and re-evaluate our conclusions. Even when we attempt to erase this uncertainty by recourse to our system of genealogical judges and juries, the fact remains that the TRUTH of any case or investigation is subjective and subject to revision.
One possible definition of historical truth is to define it as the closest possible correspondence to what actually happened. See for reference, "Ways of Seeing History," by Alan Kimball. See also, Ankersmit, F. R. Meaning, Truth, and Reference in Historical Representation. Ithaca: Cornell University Press, 2012.
Genealogy is fundamentally an historical endeavor. We cannot remake it into something it is not.
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