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Friday, August 7, 2020

Evidence and Proof: Genealogical or Legal?


Over the past few years, I have written a number of posts about the difference between legal notions of evidence as expressed by the Federal Rules of Evidence and the reality of drawing conclusions from historical records and documents. Genealogical research has been overlayed for many years by a succession of genealogists/lawyers that have heavily influenced genealogical terminology and thinking about the way research is done and the methodology of coming to conclusions. For example, one influential book is as follows:
Stevenson, Noel C. 1989. Genealogical evidence: a guide to the standard of proof relating to pedigrees, ancestry, heirship and family history. Laguna Hills, Calif: Aegean Park Press.
The influence legal terminology has become so pervasive in current genealogical writings that the use of legal terminology passes as the norm without comment on its inapplicability to adequately characterize historical/genealogical research methodology and terminology. 

Let me begin with a few illustrations of the issue of using legal terminology and definitions in the realm of genealogical research. I will start with a U.S. Federal Census Record from 1880. 

But before I get into asking a number of questions about this commonly used type of historical record, I need to discuss some legal terms that are commonly applied to historical documents by some genealogists. First of all the U.S. Federal Rules of Evidence apply to proceedings in the U.S. Federal Court system. Every state in the United States has its own system and its own rules of evidence and of course, these rules in both the Federal and local state courts have rules that differ from those of any other country around the world. I will use only the Federal Rules in order to simplify this example. The first question is based on the Federal Rules of Evidence, how would the Federal Courts view the submission of a census record in a trial? As with almost anything having to do with Courts, the Rules of Evidence are complex and require, at least, one or more specialized, required, classes in a three-year law school curriculum. 

The problem with even asking such a question is that there is no quick and easy answer. The Rules of Evidence are just that: rules. They are like the rules of a very complex game that is played between two or more adversaries with a judge as a moderator and decision-maker. As a participant in a court case, you do not get to set the rules of procedure or modify them to accommodate special circumstances. Likewise, you don't ever get to decide if your position about the facts is right or wrong. The judge always decides the case and there are no judges in genealogy. 

The first and probably most misunderstood of the evidentiary terms is "hearsay" which refers to repeating the oral statements of a witness not in court. Of course, genealogists use hearsay evidence almost continually by using quotes and stories from ancestral sources. In court, the issue is whether or not the judge or jury can use "hearsay" testimony and the rules are specific about when and how the testimony can be used. See Rule 803, Federal Rules of Evidence. In the world of genealogy, the concept of hearsay is usually expressed in terms of primary sources, secondary sources, and when referring to "evidence" as direct and indirect. The concept is that the reliability of the "evidence" is contingent on the time and manner in which the statement was made or the document was created. During a trial, almost all testimony that is judged to be hearsay is excluded from consideration by the judge or jury unless the statements fall within the specifically defined exceptions set forth in Rule 803. Obviously, there is no such rule in genealogy and every statement or writing made by anyone under any circumstances may be and usually is considered by a researcher. 

Now we get to the census record in the screenshot above. Would this document be admissible in court to prove the birth date of any of the people listed? Is there any information on this document that would be admissible? What would an attorney proposing to use this document have to say or do to render this document admissible? 

Well, this document was written in 1880 and all of the people who either compiled this document or are listed on this census page are now dead and so they are unavailable to testify in court about the way the document was compiled or anything about the accuracy of the content. The document is clearly hearsay under the Rules of Evidence since the census enumerator was recording what people said. Does the document fall into the Public Records exception of Rule 803? Here is that section:
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a
criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

By the way, there are several exceptions in Rule 803 for documents relating to family history. OK, now in order to come to some conclusion in a reasonable period of time, I have to say that a U.S. Census record does not fall within any of the exceptions to the Hearsay Rule as to the accuracy of the information recorded about the people listed. Without some additional documentation or a family history document, the census record, by itself, is not self-proving and would not be admissible. 

Now, what about the genealogical direct and indirect evidence rule, primary vs. secondary, and what about original vs. a copy? How reliable is a U.S. Federal Census record? Unfortunately, the patina of legality does not add anything to the accuracy of the document. The fact that is was compiled by someone who worked for the U.S. government does not add anything at all to accuracy either. The real evaluation of this record is that it is inherently unreliable. 

So what does looking at a document using all of the legalese do for a researcher? Not much, if anything. In fact, it is extremely unusual if we can identify the "informant" for the information in a census record, i.e. the person who gave the information to the enumerator. 

Do I use the information in a U.S. Census document without going through all this quasi-legal stuff about it reliability? Of course, I do. However, I do not rely entirely on any one record. So how does historical or genealogical research relate to what goes on in court? Not at all. You are the judge and jury. You decide what is and what is not reliable. You determine was is and what is not evidence and unless you happen to be an attorney, you probably have not concepts of hearsay, hearsay exceptions, or all the other legal issues involved in proving a legal case. It is also unlikely that you think much about primary vs. secondary or all the other distinctions made in the genealogical literature. 

So how do we know we are "right?" The key here is all genealogical (historical) conclusions are tentative and subject to finding additional information. What did we think about who we were related to before DNA tests became readily available? DNA testing is a good example of a development that overturn even the most certain opinions and conclusions. 

Why do I keep explaining my opinion on this subject? Because I keep seeing people trying to categorize historical records using a quasi-legal methodology that is really meaningless. I can stare at that census record image above for days and analyze it to death but the information still remains recorded as it was recorded and the next document that comes along my completely contradict the information and challenge my conclusions. 

Now, you say, what about comparing two documents? Hmm. Now we are back to the beginning of the whole issue. If the two documents agree then they reinforce our opinion. If they disagree, we are back to the beginning. Do we work on the premise of the majority rule? Not if all the documents come from the same source. For example, I often see several marriage records about the same married couple. But, ultimately all of the records unless made for different reasons all report the same event. OK, I know all about banns, marriage bonds, etc. and those are different records which may or may not agree. But just because a record was copied does not add to its accuracy. 

I could go on indefinitely but the conclusion is this: using legalese and making distinctions about the origin of documents does not add to their accuracy. A court proceeding is not the same as historical or genealogical research. 

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