Evaluation of Evidence *

I. GENERAL BACKGROUND

      The best point to begin our discussion is with some basic definitions.

    Evidence:  Something that relates to or provides proof concerning a matter in question. We use evidence to prove facts. In law, evidence may be a weapon, an object, a photograph, a record, a document, the testimony of a witness, the opinion of an expert, the existence of a known fact, even circumstances. In genealogy we obtain evidence from these same sources, but if the fact or issue in question relates to remote ancestors beyond the recollection of living witnesses, then most evidence must come from records, documents, and circumstances.

    Fact:  The circumstance or event as it actually occurred. Fact relates to actuality, as distinguished from supposition or opinion.

    Proof:  The effect of evidence. We prove the facts with the evidence.

    Presumption:  An inference of a proposition or fact based on probable reasoning, in the absence of actual certainty. Though few things can be proved with absolute certainty, many things in both law and genealogy are presumed to be true and are accepted as fact in the absence of actual proof. For example, we always presume that a woman's husband is the father of her child ‑ unless there is good evidence to the contrary. This is considered a rebuttable or disputable presumption. Presumptions have the same effect as evidence.

II. TYPES OF EVIDENCE

A. Primary and Secondary Evidence

    Primary and secondary evidence are most easily discussed together. Primary evidence is sometimes also called "best evidence." It is the best evidence available to prove the fact in question, usually in an original document or record. The so‑called "best evidence rule" says that the highest possible degree of proof must be produced. The rule is realistic in its approach to evidence inasmuch as it does not ask the impossible, but rather looks at each question individually, on its own merits and circumstances. For example, it does not require evidence from a birth certificate to establish genealogical fact if the birth in question took place before birth registration. If, however, the primary evidence is from a document or record, rather than from first‑hand testimony of an eye‑witness, then the person who created that record (or who provided the information for its creation) must have been an eye‑witness to, or have had a special immediate interest in, the eventrecorded.

    Secondary evidence is harder to define meaningfully. In essence it is all that evidence which is inferior in its origin to primary evidence (i.e., not the best evidence). That does not mean secondary evidence is always in error, but there is a greater chance of error. A copy of an original record provides secondary evidence, as does oral testimony of the record's contents. Published genealogies and family histories, as this definition should make clear, also provide secondary evidence.

    Classifying evidence as either primary or secondary does not tell us anything about its accuracy or its ultimate value. This is especially true of secondary evidence. Thus it is always a good idea to ask the following questions:

        1. How far removed from the original is it (when it is a copy)?

       2. What was the reason for the creation of the source which contains this evidence?

     3. Who was responsible for creating this secondary evidence and what interest did he have in its  accuracy?

    There are some situations where secondary evidence might be of even greater worth than primary evidence. These include those situations where the creator has carefully collected information from many sources (actually working with the primary evidence) into one place, such as a good family history.

    B. Direct and Circumstantial Evidence

    Direct and circumstantial evidence are also best discussed together. Direct evidence is the very best evidence you can get. It is proof of facts resulting from the timely testimony of an eye‑witness or a first‑hand witness of an event. This evidence, standing alone, tends to show the existence of the fact in question without any further analysis of circumstances. It should also be stated, in this regard, that after the passage of time eye‑witnesses can provide much better evidence of some things than they can of other things. Generally the evidence they provide on relationships is much better than the evidence they provide on dates.

    Circumstantial (or indirect) evidence relates to the specific circumstances from which the existence of certain facts is inferred. It is significant and important evidence and is not less evidence than if it were direct. It is, however, important to recognize it for what it is and not accept these inferences as the ultimate answers without additional evidence to support them. A good example of this is found in the federal population censuses. Let's suppose that in the 1850 census you find the household of Walter Potelli. The record shows a woman about his age (who could be his wife), a group of seven children (of age to be his children), and an older woman named Potelli (of age to be his mother). Because no relationships are stated in the 1850 census you do not have direct evidence that these individuals are Mr. Potelli's wife, children, and widowed mother, but you can infer such from the circumstances. However, because of the absence of direct evidence of these connections, other records must be searched for the evidence necessary to verify their accuracy.

    This is the area of greatest concern to seasoned genealogists as they consider the work of the inexperienced. Too often circumstantial evidence is given more weight than it deserves. Sometimes it looks so good‑it is so convincing on its face, especially if it provides the answer you have been seeking‑that it is accepted without question, as if it were direct evidence, and erroneous pedigree connections are innocently made.  We are too ready to accept the circumstance as absolute proof and call off the search.

    As good as circumstantial evidence may be (or may appear to be) in some cases, it is not to be casually accepted as absolute proof of fact. Though there are times when you can establish proof through the use of circumstantial evidence, one piece of such evidence (or one isolated circumstance) will not do it. Often circumstantial evidence will lead you to other sources or suggest possibilities for further research. These should be pursued. Other sources of potential evidence must be searched. Then, after all available sources are exhausted, you can reconsider your circumstantial evidence in a new light, adding to it any other discovered circumstances. This may include the very fact that nothing else was found. Where circumstantial evidence is concerned, what you don't find in some cases is just as significant as what you do find.

C. Collateral Evidence

    Collateral evidence is evidence found in a source that has nothing to do with that record itself and the purpose for which the record was created. Such evidence is usually unexpected but is always welcome. An example is Henry Hershey's will in which he mentioned his wife's father, Ralph Dayton, as the source of a particular tract of land in Henry's ownership. This is direct evidence of the identity of Mary Hershey's father and, if the will you have access to is the original, it also provides primary evidence of that relationship.

D. Hearsay Evidence

    Hearsay evidence is widely misunderstood by genealogists (as well as others). It is evidence which is based not on the witness's personal knowledge but on information given to him by another source. I (the author] was once asked to review a manuscript for a genealogical text (which I do not believe was ever actually published) wherein I found the following erroneous statement near the beginning of a discussion on evidence:

    Care should be taken in genealogical research not to rely on hearsay evidence.

    In actual fact, if I could not accept hearsay evidence, I could not be a genealogist. For every publication, record, and document which I would wish to rely upon contains only hearsay evidence. Only oral testimony from family members who personally know the specific genealogical facts is not hearsay.

    The question is asked how the will prepared by John Hicks is hearsay evidence, or how the birth certificate of Sarah Bailey, prepared from information provided directly by her mother, can contain hearsay evidence. The answer is simply that John Hicks and Sarah Bailey's mother are not in fact the witnesses we are relying on. We are relying on the documents ‑ documents which themselves know nothing except what somebody "told" them. They contain only second‑hand information‑hearsay evidence. A document cannot verify its own accuracy nor can it respond to questioning or cross‑examination to verify that it is telling the truth.

    The general rule of law (the "Hearsay Evidence Rule") is that hearsay evidence is not reliable because of the witness's lack of personal knowledge. It is thus considered inadmissible‑unacceptable‑for legal proof unless an exception to the rule applies.

    In genealogy we pay little attention to the hearsay evidence rule. Hearsay evidence is essentially all we have‑we must use it. The issue is not whether the data found constitutes hearsay evidence, but (1) whether it is relevant to the issue at hand and (2) how much weight it should be given (based on such factors as whether it is primary or secondary or whether it is direct or circumstantial, etc.).

    Few of us will ever go to court to prove a pedigree and have to overcome the apparent obstacles of the hearsay evidence rule. But even if it were necessary to do so, we could come out quite satisfactorily. There are important exceptions to the hearsay evidence rule which the law has developed. It turns out, in fact, that in many instances the rule is observed in its exceptions more than in its applications. These exceptions have been developed in the law because, in the circumstances in which the evidence exists, (1) it is most likely to be accurate, (2) there is no other place to get the same information, and (3) it originated before the present question arose.

    I shall not go into detail on these exceptions but will mention some that I feel are of most interest. As I observed earlier, I believe that the issue of whether or not the evidence presented is hearsay is of little import. It is more an academic question than a useful one.

    Some notable exceptions to the hearsay evidence rule are:

    1. Ancient document exception: Documents over thirty years old coming from a natural and reasonable official custody are considered reliable. Only the original copy of a deed or will can be an ancient document, not the recorded copy.

    2. Public records exception: Records made by trusted public officials are considered trustworthy also. It is presumed that those who file or record documents about their personal and business affairs do not falsify them. There is also an issue here of necessity, as there may be no other source of this same evidence.

    3. Certified copy exception: A document certified by proper authority to verify its origin and content is usually considered authentic and is thus admissible evidence, if other conditions are satisfied, especially in these days when most copies are made by the photoduplication process.

    4. Dying declarations exception: Statements made by a person when on his deathbed are given special credence in many jurisdictions because of the belief that there is seldom reason to lie when one stands on the brink of eternity. In some states dying declarations are admissible only in criminal cases.

III. STANDARD OF PROOF

    Many discussions of genealogical evidence become exercises in semantics and meanings of words. I hope that such is not the result of this discussion. Such is not the intent. After all, it is the final result which is the most important ‑ not how we define certain words or describe certain principles. It doesn't really matter how the principles are described or defined if they are followed and the results are acceptable.

    Many ask a question that is impossible to answer: "How many pieces of evidence are necessary to prove a genealogical fact?" That is a silly question because it does not take into account the differences either in the nature of problems, or in the nature and availability of evidence. If I have one piece of primary direct evidence on a particular issue, that may be sufficient, while if my direct evidence is secondary it must not be considered sufficient by itself. Corroborating evidence must be sought. Keep in mind also that secondary evidence from several sources (especially published sources), even though in agreement, may in many instances be inadequate for proof. You may have a case, such as we have all seen, where these published sources are merely relying on one another. Seek primary evidence to establish all proof.

    There will be, however, as every genealogist knows, those situations where your case must be built on circumstantial evidence. In these cases it is important that your evidence be primarily primary.

    You do the best you can, you search every available source, and you analyze your evidence with great care. You look for possible flaws in your theory and seek to remove all obstacles to your thesis. If those obstacles cannot be removed then you must consider their magnitude. Be realistic. Face the fact that insurmountable obstacles cannot be surmounted no mater how much you like your theory.

    In the law there are two standards of proof used‑one for civil cases and another for criminal cases. In civil cases the facts are proven based on "the preponderance of the evidence," while criminal cases require proof "beyond reasonable doubt." There is a great deal of difference between those two standards. You can have the preponderance of the evidence on your side but still have much room for doubt, even reasonable doubt. In fact the reasonable man might have serious doubts about the conclusion. We have already discussed the fact that absolute proof is not possible in genealogy or in many other things in life. But just how far should we go? Which of the two standards should be applied?

    If a genealogical matter were being litigated in court, the civil standard (the preponderance of the evidence) would certainly apply. That is the same standard required of you in your research. But remember that the preponderance is based more on weight and power of evidence than on sheer numbers. You must consider the nature of the source. You can consider all relevant evidence, but you cannot give all of it the same weight.

    If you wish to apply the higher standard (beyond reasonable doubt) that is your business. In many cases this will not be an issue. Your evidence, if you have done good research, will be clear and convincing. The time when you will have to deal with the issue is in the hard cases‑after exhaustive research but less‑than‑satisfying results.

* Greenwood, Val D., "The Researchers Guide to American Genealogy, 2^nd Edition,," 1999, Genealogical Publishing Company, Baltimore, MD.  pages 62-68