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

Sunday, November 1, 2015

Do you ever have proof in a historical context?

Proof is a highly subjective term. I have been reflecting on my years of trial practice recently and this idea of proof keeps coming up in my thoughts. In the genealogical community, if you do a search on the terms "genealogy proof" you will find there are even a few books on the subject.
  • Mills, Elizabeth Shown. Genealogical Proof Standard in Action How to Build a Case When No Record Exists. Arlington, Va: National Genealogical Society], 2007. See also, Genealogical Proof Standard in Action How to Build a Case When No Record Exists. Arlington, Va.; St. Louis, MO: National Genealogical Society] ; Jamb Tapes, 2007.
  • Jones, Thomas W. Mastering Genealogical Proof, 2013.
  • Rose, Christine. Genealogical Proof Standard: Building a Solid Case. San Jose, Calif.: CR Publications, 2005.
  • Stevenson, Noel C. Genealogical Evidence: A Guide to the Standard of Proof Relating to Pedigrees, Ancestry, Heirship, and Family History. Laguna Hills, Calif.: Aegean Park Press, 1979.
When I was representing a client in a trial either before a Judge or before a jury, I would attempt to "prove my case." This involved providing testimony on each of the facts that were in dispute. I would carefully choose my questions and my exhibits (documents) to support my clients' view of the facts. I was required to do this by the Rules of Professional Responsibility or Conduct. Rule 3.1 states as follows:
Rule 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
If the court decided in my clients' favor, then I won and "proved my case." But, wait. Then the opposing attorney could appeal the court's decision. On the appeal, the appellate court could reverse the decision of the trial court. Then I didn't prove my case at all and I lost (i.e. my clients lost). Wait again, its not over yet. Then I could make a further appeal to a higher court, such as the state supreme court (or in a Federal case to the U.S. Supreme Court). The Supreme Court could then reverse the ruling of the Appeals Court and I was back in the category of proving my case and winning for my clients. So I learned that "proof" was, and is, a very slippery term.

But according to some, we are supposed to gather our genealogical evidence and then use that evidence to prove our ancestry (or the ancestry of a client if we are being paid to do research). It is really comforting to have "proved" a certain family relationship, especially if the "proof" involves the use of DNA "evidence." Then we can write about our "proof" in a "proof statement" and follow the provisions of the "Genealogical Proof Standard." However, all this seems rather silly to me especially since I am so used to having proof be a very "slippery term." It reminds me of an oral argument I had before the Arizona Court of Appeals where the opposing attorney kept claiming that his client had proved their case in the courts below. The three panel, Appeals Court Judges, were extremely uncomplimentary in their questions and statements and tried to point out to him that the lower court "proofs" meant absolutely nothing when the case was on appeal. Of course, he lost his case and I won mine, but it was very uncomfortable watching an attorney be humiliated by the Judges.

So what do genealogists really mean when they throw around terms such as "evidence" and "proof?" They can't possibly be using the terms in a legal sense since, as I have repeatedly pointed out, there are no genealogical juries or judges and there is also no appeal to a higher genealogical court. There is an obvious reason why the so-called genealogical proof statements almost never get challenged: there is no one interested in your family history other than your family. At least there is no one willing to spend the time to go through the hoops to publish a rebuttal.

But it is interesting that such rebuttals do exist. I recall that for years and years I had a certain wife recorded for one of my Mayflower ancestors, Richard Warren. His wife had been "proved" to be Elizabeth Juett or Marsh. This was recorded in books published by the General Society of Mayflower Descendants (aka the Mayflower Society) in their books. Hmm. But in 2002 further "evidence" convinced the Mayflower Society that his wife's name was Elizabeth Walker after the discovery of the will of her father Augustine Walker. See Edward J. Davies, "The Marriage of Richard1 Warren of the Mayflower", The American Genealogist, 78(2003):81-86; Edward J. Davies, "Elizabeth1 (Walker) Warren and her Sister, Dorothy (Walker) (Grave) Adams", The American Genealogist, 78(2003):274-75. The "correction" was published as a sticker that was put in the front of the book about Richard Warren. See the following:

Wakefield, Robert S, Janice A Beebe, and General Society of Mayflower Descendants. Richard Warren of the Mayflower and His Descendants for Four Generations. Plymouth, MA: General Society of Mayflower Descendants, 1991.

Perhaps all of these genealogical proof statements are really just waiting around until someone spends the time and the effort to "disprove" them and replace them with more accurate "proof statements." By the way, if I argued to a jury in court that my client had "proved" his or her case, the opposing counsel would object and the Judge would tell me to rephrase my argument. The Judge would then instruct the jury that they were the ones to decided whether or not my case had been proved. All attorneys can do (and all genealogists can do) is present the "facts" and their arguments in favor of a particular decision. As I have now said twice; proof is a slippery term.

Some time ago, my friend, Tony Proctor, wrote a post on his blog, Parallax View, entitled, "Proof of the Pudding." This is a very good statement about proof and genealogy from a scientific standpoint. His post was written, in part, as a response to the books I cite above.

I fully realize that there is nothing I can write or say that will change the status quo in the greater genealogical community about the current usage of the terms proof and evidence, but I will still keep writing and talking about the subject, nonetheless. It would be really nice if all those practicing genealogy adopted a skeptical attitude towards all genealogical conclusions and the accuracy of all historical records, but that seems extremely unlikely. For the time being, we will still have people claiming that they have "proved" their ancestry and publishing their "proof" in books, journal articles and online family trees. We will also have a core group of "professional" genealogists that will continue to teach and preach proof and evidence to the masses.


  1. James, one correction to your post: The first item you listed wasn't a book, but instead was a recording of a presentation by Elizabeth Shown Mills. (In any event, you may want to include her name in the source citation.)

    1. Thanks, I added a different format of the citation.

  2. As my comment to suggested, James, I have grown to accept the concept of 'genealogical proof' as distinct from the mathematical/scientific usage, and probably too from the legal usage (which I know less about), but you make a good point about the unintentional side-effects of using that word.

    My old article -- thanks for the link BTW -- mentions that those good works on evidence analysis do emphasise that a "proved" conclusion is not incontrovertible. However, some researchers may feel that a "proof" is just so if the researcher involved is certified -- in the genealogical sense ;-) -- or has a particularly high profile. That probably comes down to education. Those with a previous education that has involved some form of critical analysis (like yourself) will take that potential fallibility for granted, but people from other backgrounds may be more susceptible to absolute acceptance.

    1. We have been in a discussion about the conclusions of another research concerning one of my remote ancestors. She claims to have found a connection to the ancestor's family in England (1600s) because she paid a "professional genealogist" who has her convinced there is a connection. However, she has yet to provide any documentation connecting the American Tanner with a family in England. As you state, "absolute acceptance."

  3. Somehow, you seem to be ignoring the common English language definition of proof and want to redefine it. Simply put, proof is ""evidence or argument establishing or helping to establish a fact or the truth of a statement."

    That is how the word is used in genealogical research and what is generally recognized by genealogists all over the world.

    By throwing doubt into the evidence provided, you are basically saying that no records can be fully trusted and to extrapolate that further, you are saying that my own birth record (and this applies to your record, too) could have significant errors. Therefore, you may not have the parents stated in the record, or, for that matter, be the age you think you are. The same applies to me, but for some reason, I have a certain amount of trust where it comes to sourcing the information I place in a record, including the name, parentage, and events, dates, and places.

    How can you, who work for FamilySearch, take that kind of attitude toward records, and make such a large deal out of it that we now have a participant that is waving your flag, saying that there is no such thing as proof in genealogy?

    What needs to be demanded, is not hearsay, as the conclusions used for research of one of your remote ancestors, but actual documented proof supporting any records given.

    We are well aware of problems with records made after the fact, including dates on gravestones, on death certificates, in obituaries, and even in applications for organizations like the D.A.R. (who, by the way, dropped a lot of the formerly accepted claims, in 1990).

    I have an on-going problem in two of my lines, but have managed to ask that people provide the actual evidence that there is a very real and legal connection for the claims being made. In close to five years of working on these two ancestors, no one has been able to step forward with any evidence.

    Yet you question the very idea of "proof" which is evidence of names, places, and events in a person's life. Somewhere along the line, you have managed to make the claim that there is no such thing as proof and by doing so, have said, basically, that no one has to "prove" anything with actual primary or secondary sources.


    1. Thanks for your extensive comment. I suggest might want to re-read what I have to say because you have some substantial mis-impressions. Yes, I do point out that any historical document, including your own birth certificate can be wrong. Just because you choose to believe what is printed on your own brith certificate does not mean that there were no errors. On the other hand, your birth certificate may be completely reliable. Perhaps you are unaware that many adopted children have "original" birth certificates showing their adoptive parents as their "parents." Also, I do not work for neither am I a volunteer with FamilySearch. Proof is a very slippery term, think about the definition you provided above.