barry miller

Genealogical Evidence

In Evidence on February 17, 2011 at 9:35 pm

As the “about” part of this blog says, I practice law. I deal with questions of evidence every day. Genealogy was a hobby, and I don’t like letting work and leisure overlap. That kept me from seeing the obvious: I might be able to make headway on some of my roadblocks if I started thinking like a lawyer about genealogical evidence.

There is not a complete overlap between the evidence used in trials and the evidence that genealogists use. But some of the ways lawyers are trained to think about evidence might benefit researchers.

In particular, researchers should understand that the law does not speak in terms of conclusive evidence. Generally, a judge will allow a jury to hear evidence if it tends to prove or disprove an issue that is relevant to the case. It is the jury’s role to decide what weight to give that evidence in reaching its conclusion.

Too many of my genealogical endeavors have been hampered by the search for one piece of conclusive evidence, rather than assessing several pieces of evidence, some of which may by contradictory, and reaching a verdict. I blame this on the fact that, while I’ve spoken to juries, I’ve never actually been on one.

The family researcher must learn to play all  the roles. Like advocates, they must discover evidence. Like judges, they must decide what evidence is “admissible”—that is, relevant to an issue that is of consequence to their research. And like juries, they weigh that evidence and make a decision.

A difficult research question may be resolved if the researcher stops to consider which role they are acting in at a particular time. Do they have enough evidence? If not, time to gather more. Don’t worry about the effect of the evidence; just gather all you can. Then put on your judging robe and review each piece of evidence. Does it make any fact that you would like to establish more or less probable? Or is it attractive because it makes a good story, but doesn’t really prove anything. Finally, get in the jury box, weigh the admissible evidence, and make a conclusion.

Juries are not always right, but I am convinced that most of them do the best they can do to arrive at the truth. Some genealogical questions will never be resolved conclusively. We just make the best-informed guess at the truth that we can make.

Unlike a trial, however, genealogical is not a linear process. It is iterative. You can never be certain that you have all the evidence. Neither can lawyers. They just know that they have a court-imposed deadline after which they have to stop looking for evidence. After that it’s time to try the case. Genealogists have the luxury of going back to look for more evidence, starting the process over again.

We’ll see  if this method helps me reach a better conclusion about Barney.


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