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Wednesday, July 14, 2010

Objecting to Evidence

One of the most difficult things about representing a client in a jury trial is the process of objecting to the admission of evidence under the Rules of Evidence. The legal Rules of Evidence are designed to help the trier of fact, either a judge or jury, to make a just decision in a case. There are are lot of parallels between the consideration of evidence in the legal sense and in the context of genealogy. So how then do the legal Rules of Evidence apply to genealogical research, if they do? This topic was suggested by a comment from a fellow attorney concerning one of my earlier posts.

In the United States, the Federal Rules of Evidence provide a framework of rules governing the admission of testimony or other evidence to establish the facts of a case in the federal court system. The Rules of Evidence are a relatively recent development in the law and date back to 1975, the year I was admitted to the Arizona State Bar to practice law. The various states have adopted similar rules since that time.

There are two parts to the law in a trial, the legal principles involved commonly referred to as the law, and the facts or evidence in the case. This distinction between law and facts is one of the most difficult concepts to understand about our legal system. Essentially, the Judge decides the law and either the judge or a jury, depending on whether the case is tried to a jury, decide the facts. To give a somewhat simple example, a fact might be whether or not one of the parties paid a debt owned to another party. The law of contracts would then be applied to that fact to determine if the court would award a judgment to the party owed for the amount of the debt.

I could get really lengthy at this point, but let's just say that facts are important. In my previous example, if the debt turns out to have been paid, then all the law in world is not going to help obtain a judgment. The rules of evidence operate as the gatekeeper of the facts, hopefully, letting only those facts into testimony in the court that will help the jury or judge decide the case properly. I realize that there is a lot of skepticism about the efficacy of the legal system, but all in all, the system works.

In this sense, the rules of evidence are totally irrelevant to genealogical research. As researchers, we certainly do not want to have evidence of any degree of relevancy excluded from our consideration. Even seemingly irrelevant facts from third and fourth hand sources can be of help in solving genealogical mysteries. So why then do we talk about evidence rules in genealogy? Because not all evidence is created equal. The rules of evidence are designed to filter out facts that would mislead or be inaccurate. Likewise, in genealogical investigation, we would like to know whether or not a conclusion made by someone about a relationship or historical fact can be relied on to be correct or not. By providing a source for information obtained, a researcher allows others who examine the information at a later date, to determine the reliability of the information. Lack of source reference renders the genealogical information practically useless to subsequent researchers. This is especially true in situations such as those created by online family history aggregators. Contradictory information is rather common in the larger sites that allow individuals to upload their family trees. Absence of evidence, i.e. source citations, is rampant.

Acknowledging that we already have a rather highly developed system of determining the reliability of evidence in our legal rules of evidence, understanding the basis for these rules allows us to be more precise and reliable in our own use of genealogical evidence. Obviously, there is no judge in genealogy, other than the passage of time and subsequent research, but sloppy research with a lack of sources should be ruled inadmissible by any standard.

Another example, there are rules about admitting hearsay as evidence in court. Hearsay, simply put, is second or third (or more) hand information. The further removed from the original source, the more unreliable the information is considered to be.

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