RootsTech 2014


Thursday, November 1, 2012

Primary and Secondary Sources -- Continuing the discussion

The concept of secondary versus primary sources is a tremendous oversimplification of the process of evaluating evidence and determining validity. The complexity of this subject, in general, can be illustrated by reference to evidence presented in a litigation or court situation. In the U.S. court system the whole question of proof is governed by the various Rules of Evidence throughout the country. Most of the local or state rules regarding the presentation of evidence in court are patterned after the Federal Rules of Evidence.

Since the days of Donald Lines Jacobus in the 1930s, the discussions in the genealogical community about evidentiary matters, have centered around a model of evidence patterned, to some extent, after that used by the U.S. legal system. I do not have the time nor would I want to fully discuss the background and present rules of evidence in the United States. Books on the subject, such as

McCormick, Charles T., Kenneth S. Broun, and George E. Dix. McCormick on Evidence. St. Paul, MN: Thomson/West, 2006.

can run into the thousands of pages. Even after years of study in law school, it takes attorneys years of practice to really grasp the intricacies of the law of evidence. It is unfortunate, to some extent, that genealogy has superficially "borrowed" some of the terminology of the law of evidence and the principles set forth in the Rules of Evidence. Incorporation of the substance of the law would put the concepts of genealogical proof, way beyond the average researcher and even most of the advanced. 

The entire legal structure concerning evidence and its presentation in the court system is based on the premise that there is a judge (or jury) deciding a "case" and that certain kinds of evidence should be allowed or not allowed to be considered in making a decision. The analogy, of course, is that the genealogist is "presenting his or her case" for lineage and that the reader of the "arguments" will decided the "case." To some extent, this is a false analogy. Very, very few genealogists possess the level of training of a State or Federal Court Judge on the issues pertaining to the presentation of evidence. Weighing the evidence and making a determination based on advocated arguments is mostly entirely missing from the average genealogical research project. Even when a jury of non-lawyers is presented a case in court, the Court gives extensive instructions about how to consider and weigh the evidence. No one reading a genealogical treatise is given that same type of instruction.  

Even if a genealogical researcher becomes aware of conflicting evidence and sophisticated in its evaluation, there is no entity, even vaguely resembling a judge, out there to make a decision regarding the validity of the arguments for or against one of the conflicting source or another. The situation is that genealogists are given the mandate to evaluate evidence (and properly cite it) without being given to tools to do so. Just try giving a copy of Mills, Elizabeth Shown. Evidence Explained: Citing History Sources from Artifacts to Cyberspace. Baltimore, Md: Genealogical Pub. Co, 2007 to a new budding researcher and see what happens!

The solution of this problem concerning the evaluation of evidence and the levels of confidence has been the subject of a huge amount of discussion in the genealogical community over the years. There are literally hundreds, perhaps thousands, of articles discussing the need to have some sort of Standard of Proof and how to implement it. However, I would guess that nearly all of this discussion and even the existence of a Standard of Proof, is almost entirely lost on the community at large. 

The threshold to understanding the need for evaluating evidence is an awareness that no sources can be trusted to have conveyed correct information. Even if you make a general statement such as "primary sources are more reliable than secondary sources" you are stating something that may be the exact opposite in practice. A so-called primary source, could be entirely fabricated, while a so-called secondary source may be accurate and reliable. Take for example the issue of illegitimate children. Who can be relied on to give accurate information concerning the father? 

Unless we want all genealogists to become lawyers, I would suggest that analogizing to the rules of evidence in constructing a system of evaluating sources and evidence in the genealogical context is futile and can be grossly misleading. Take for example, the issue of hearsay. My experience is that the common, folklore understanding of hearsay bears almost no resemblance to the reality of this complex subject. But when genealogists get into a discussion of original versus derived sources or primary versus secondary, that discussion is mirroring the complicated procedures concerning hearsay used in courts, but without the foundation of the Rules of Evidence.

Wait, this discussion is far from over. I will continue with future installments. 

1 comment:

  1. I completely agree that we need to have "rules of evidence" that are appropriate to genealogy and history. Stories, rumours and hearsay are part of how we all make sense of ourselves and invaluable if we are really to capture even a little of the lives of our ancestors. Look forward to next post.