Ancestry Magazine

A careful consideration of the differences between the terms sources and evidence can help greatly in establishing the true facts about family relationships.

From our earliest exposure to good genealogical techniques, we have been admonished to cite or document our sources and to evaluate our evidence. Frequently, however, these two terms are treated as if they are two different names for the same concept. The terms reflect genealogy’s mixed heritage of concepts from history and law, two disciplines to which it owes much of its methodology. A careful consideration of the differences between these terms can, however, help greatly in establishing the true facts about family relationships.

Sources
A source is the means by which information comes to a researcher. The concept comes from the social sciences, and particularly from history, to which genealogy owes much of its research methodology. History traditionally has dealt only with sources in documentary form. Recently, historians have turned to oral history-interviews with participants and witnesses-to fill in gaps in the documentary record, but they don’t use oral history material until the information has been captured in more permanent form, such as audio or video recordings, transcriptions on paper, or, at a minimum, interview notes, that can be cited as a source.

Historians separate sources into two categories:

are the first or earliest documents in which a particular piece of information was recorded-usually a manuscript or typescript, but occasionally a published work.

are published works, including those distributed electronically, either copied or compiled from primary sources, or reflecting the conclusions of a researcher based on primary or secondary sources.

Historians greatly prefer the permanence of documentary records, even to the point of ignoring oral information until it has been reduced to written form. Reflecting this value (one which genealogists share) is the word they use-documentation-for the process of citing and describing the sources relied upon.

Evidence
Evidence is the physical form in which information is presented to the senses. This concept comes from law, which has long drawn on genealogical expertise to determine rights of inheritance.

Evidence comes in three forms: testimonial, where a knowledgeable witness gives information orally; documentary, where information is contained in the documents; and physical, which is a tangible object from which an observer may draw conclusions.

The legal system requires that for information in either testimonial or documentary evidence to be accepted, it must have been given with some solemnity or formality-for example, by an oath administered by a public official authorized to administer it, by recording in a public office maintained for the purpose, or by entry into a system of records in the normal course of record-keeping.

Courts prefer testimonial evidence to information in affidavits or other documents, because the recollection of the person giving the information, as well as any bias or misrepresentation, can be tested by cross-examination. However, most facts involved in disputes over inheritance are beyond the memory of living witnesses, and law, like history, must rely on documents.

As with the historian’s sources, the lawyer’s evidence can vary from highly reliable to dubious, and the courts first separate it into two categories:

, which, by its nature, is not reliable enough to be considered in a legal proceeding; and

, by its nature worth considering, although still varying in degrees of reliability.

Under the so-called hearsay rule, evidence is generally inadmissible if the person providing the information learned it from some other source, rather than having first-hand knowledge. However, the rule has a number of exceptions, recognizing that firsthand knowledge is sometimes difficult or impossible to come by, and circumstances can give some assurance that the infor mation is accurate, even though the declarant-the one who originally gave the information-isn’t subject to cross-examination.

Many of the exceptions refer specifically to genealogical facts, since everyone can learn of his or her own parentage only from being told by parents or others. Accordingly, the following evidence, all of which genealogists routinely use, is admissible in court, even though the information in it may have come from a third party:

In these cases, except for occasional deliberate misrepresentations (such as lying about ones’ age) or officially condoned falsification, as with adoption records, the subject is sufficiently important to family members that those with knowledge can be expected to discover and correct mistakes which may occur.

Other exceptions to the hearsay rule involve circumstances where the declarant would be unlikely to misrepresent the truth: an excited utterance made under the stress of a startling event, a statement made under the belief of impending death, statements made for the purpose of obtaining medical diagnosis or treatment, or public and business records made in the course of regular activity

Many genealogists might have difficulty with some evidence that can be accepted as an exception to the hearsay rule, such as statements in documents more than twenty years old. They are admitted, presumably, on the basis that they originated long before their content could have been influenced by the current litigation, but genealogists recognize that they may wel l reflect a one-sided view of some past-controversy.

Statements in learned treatises are also admissible, but only by being brought to the attention of an expert witness who can be cross-examined about them; they can then be read into the court record. This is similar to the reserve with which genealogists accept statements in published works, even by well-respected researchers.

Genealogical Usage
The term evidence has come into common use in genealogy largely since the 1979 publication of Genealogical Evidence: A Guide to Standards of Proof by Noel C. Stevenson, a very influential work which encouraged genealogists to weight and evaluate evidence the way juries do.

Stevenson also introduced genealogists to the legal concept of primary evidence-the best evidence available under the circumstances surrounding a particular issue. In the case of a document, it is the original, made at or near the time of an event, rather than a copy made by a clerk in a recorder’s office, or information extracted from the original and certified by a vital statistics registrar. He greatly increased awareness of the dangers that the most carefully copied documents or even photocopies may lose or distort some of the original’s information content. While primary evidence, by its nature, is the most reliable, it is nevertheless subject to bias, mistake, misunderstanding, or misrepresentation, and should be evaluated accordingly.

Of the sources used by historians, some of their primary sources would be admissible evidence in court, but of their secondary sources, only “learned treatises” could qualify, and then only under the applicable restrictions.

Since the appearance of Stevenson’s book, genealogists have increasingly come to use evidence to describe, in general, documents reliable enough to be admissible in court, or, in particular, those on which they have relied to establish some genealogical fact; an d primary evidence for an original record.

While genealogists still use the term primary source in the same sense that historians use it, there is a growing tendency to use it for material that contributed to the research process, but not for the evidence or primary evidence upon which conclusions were based.

When the terms sources and evidence are used together without qualification or distinction, the former is more likely to refer to the secondary sources used to find records and documents of evidentiary value, the latter to those records and documents used to reach genealogical conclusions.

Proof
Before the appearance of Stevenson’s book on evidence, many genealogists referred to documents used as evidence as “proofs,” especially those submitted with lineage society applications.

Proof, however, is a name for a process that takes place in the mind, not for the evidence on which it is based. Depending on the purpose, proof may require more persuasive evidence and a higher level of assurance to establish a fact as true. Stevenson described several levels, all drawn from his experience as a lawyer:

Genealogists still speak of “applying the preponderance-of-evidence principle ” or “proof by preponderance of the evidence,” but in fact, as a number of recent articles have made clear, the standard of proof actually used is considerably higher than a mere preponderance, and is equivalent to the legal standard of “proof by clear and convincing evidence,” used in civil trials where a person’s liberty may be at stake, as in guardianship proceedings-a standard that Stevenson did not discuss.

How evidence is used to prove a point depends on whether the evidence speaks directly to a point at issue, or whether a conclusion about the question at issue must be drawn from evidence about other facts that have some relationship to the issue.

Direct Evidence
Direct evidence provides the answer to a question at issue without the need for additional facts or further explanation. A birth registration record, for example, states that John Evans, born 14 July 1969, is the child of Nathaniel and Mildred Evans, identified by their birth dates and birthplaces. It is direct evidence of that parent-child relationship. If the evidence is reliable and there is no contradictory evidence, the fact is proved. Indirect Evidence
Indirect evidence, sometimes called circumstantial evidence, reflects facts about other matters from which a conclusion can be drawn about the question at issue. The reasoning process that led to the conclusion must be described for indirect evidence to be persuasive. It is sometimes as convincing as direct evidence, but frequently reflects only some degree of probability.

Consider a household listing from the 1850 U.S. census showing Robert Hawkins, 35; Janet Hawkins, 33; William Hawkins, 11; and John Hawkins, 8. No record has been found showing that William is a child of Robert and Janet. There is a record of their marriage in 1838, early enough for William to be a legitimate son, and of the christening of John in 1842, but no christening record has been found for William. However, there is an 1895 court petition for division of the land of the late Robert Hawkins equally between his heirs-at-law, William Hawkins and John Hawkins, neither mentioned as sons.

Although no record directly states that William is a son of Robert, the census, parents’ marriage record, younger brother’s christening record, and land division record, together with knowledge that intestacy laws in that jurisdiction provided that children inherit equal shares, rule out any other conclusion. If William were, for example, a younger brother or orphaned nephew of Robert, he would not have received an inheritance share equal to the known son John.

This conclusion was based on four items of indirect evidence. Proof, however, requires that the evidence be accompanied by an explanation, similar to that in the preceding two paragraphs, describing how the conclusion was drawn from the other facts established by the evidence.

Summary
There’s neither general agreement nor hard-and-fast rules on use of the terms sources and evidence in genealogy. However, you can avoid confusion, both in your own mind and in communicating with others, if you use sources for the published works and manuscript compilations and abstracts that led you to reliable records. Use evidence for the records on which you have based conclusions, and primary evidence when the records are original ones. Further Reading
Richard S. Lackey. Cite Your Sources: A Manual for Documenting Family Histories and Genealogical Records. New Orleans: Polyanthos, 1980.

This slim volume is still the standard for genealogists because it covers the variety of manuscript records used by genealogists, an area neglected in the standard style manuals. However, the need for an updated manual to cover new digital and electronic sources has been apparent for several years, and a new volume is in preparation, sponsored by the Bo ard for Certification of Genealogists.

Donn Devine is the archivist of the Catholic diocese of Wilmington, DE. He is active in a number of local and national genealogical organizations, and his articles have appeared in many publications.