What is a Genealogical Proof?

An evidence class is one of the basic first-year requirements for graduating from law school and teaches would-be lawyers the basic rules that govern the admissibility of evidence in civil and criminal trial proceedings. After graduating from law school and over my many years of both civil and criminal trial experience, I was made painfully aware that very few non-lawyers (usually referred to as clients or potential clients) had the faintest idea about the concept of proof in the context of a civil or criminal trial. The interesting thing about proof in the legal sense is that ultimately a judge or a jury has to decide between the parties and make a decision or judgment even if they really believe that all of the parties are wrong.

I used to review this situation with my clients who were on their way to court by explaining that there was the "truth" my client believed, the "truth" of the opposing party and during the trial, the "truth" of the trial  (judge or jury) would evolve and it was entirely possible that all three were wrong and even if one of the "truths" was right, the "truth" of the trial, right or wrong, would prevail. I also observed that what I thought was the "Truth" of the case would probably not make any difference at all since I was there to represent the "truth" of my client. My job was to try to persuade the judge and jury if there was one to rule in favor of my client regardless of the ultimate concept of truth. This process was what was involved in "proving my clients' cases."

One main difference between my representation of clients in court and my work in genealogy is that I can choose my clients and thereby perhaps increase my chances of proving their cases but I cannot choose my relatives so I am stuck with what information has come down to me in the form of documents and records.

With my many years of experience trying to prove my cases, I am very skeptical about the possibility of "proving" any particular genealogical "truth."

Some time ago, I wrote a blog post entitled, "Can you prove anything?" This is part of what I wrote.

The basic answer to the question in the title of this post is both yes and no. You can believe something because of your own personal experience, but you cannot prove your experience to others unless they are willing to go through the same process you go through to achieve your own certain knowledge. When we are talking about history and historical records, we move into the area of opinion. The degree of believability of your conclusions and opinions is based entirely on the arguments you develop based on the historical records you can use to support your claims.

In law, we have three different "burdens:" the burden of production, the burden of persuasion, and finally the consolidation of those two in the burden of proof.  Initially, a party to a lawsuit has a duty of production. The party must provide evidence that supports his or her claim. On the other hand, the burden of persuasion moves beyond the burden of production to the duty of any party to a lawsuit to convince the fact-finder (judge or jury) that their case is "correct" and should prevail. i.e. that the evidence presented is credible and sufficient. The burden of proof is the obligation of each of the parties to a dispute to provide evidence sufficient to establish a prima facie case, that is, a case that is legally sufficient to require a decision by a judge or jury. Failure to carry the burden of proof of a prima facie case usually results in that party's loss. The whole process is almost infinitely more complicated but essentially these basic considerations govern everything that happens in court.

Subsequently, what has all this to do with genealogy? Almost absolutely nothing. As I have pointed out several times in past blog posts and in classes, genealogy involves historical research it is not and cannot be adversarial. There are no genealogical juries or judges. That is the point. Genealogical or historical research is not legal research and the process of consulting the records and documents and forming an opinion about what we create as our own historical reality bears no relationship to a court case.

The fact that some (or most) genealogists use legal terminology when referring to their historical research comes from a number of lawyers who were or are today genealogists. Lawyers tend to believe that their opinions can be "proved." Good lawyers (ones who know what they can and cannot do as lawyers) tend to prevail more than bad lawyers (those who put more faith in their opinions than they do the law). When good lawyers do genealogical and historical research they tend to be persuasive.

Now it is time to give some examples. Let's suppose you are looking for a birth date of one of your ancestors. Let's further suppose that this person lived in the 20th Century when there were documents we call birth certificates. Continuing on with this hypothetical situation, you actually find a birth certificate. Hmm. Have you now "proved" the date on which this person was born? Could the birth certificate be intentionally or unintentionally wrong? Who created the birth certificate? Was the person who created the birth certificate there at the time the baby was born? Let's look at a birth certificate and see if we can answer these questions.

The information in this birth certificate is certified by the signature of someone who is supposed to be an attending physician or midwife. Look at the date of the signature. Look at what is represented as the date of birth. They are a month apart. Now, what is the story I have been told about my father's birth? My Grandmother was ready to have a baby and was alone in her parents' house in the very small town of St. Johns, Arizona. She was able to make it into the kitchen where the door to the outside was open or blew open because of a thunderstorm. The baby was born on the kitchen floor with rain blowing in from the storm. When was the baby born? Did my Grandmother jump up and write all of this down? So, there was no attending physician and no midwife. Who told the person who signed the birth certificate about the birth? Do you still think that this birth certificate proves when my father was born? Does it really matter?

As genealogists, we are prone to believe that the documents we find are "evidence." In a loose way of speaking, they are evidence of something but they are not proof of anything. They may be persuasive and we may believe them, but they are not proof. Proof involves a set of rules and a judge or jury. Can you prove when you were born? In the end, aren't you relying on a document or story told to you by your parents? Does the absence of contradictory "evidence" prove the assertion of the available evidence? It does in court but I submit it does not in historical research. The next document you find may disprove everything you have assumed to be the "truth." Genealogical proof is nothing more than an accumulation of opinions and conclusions based on documents that may or may not be reliable.

For more see: "The Basic Uncertainty of all Historical Research"

Now a note about DNA testing. Isn't that scientific? Isn't that proof? That is the topic of another blog post.