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From: Langdon Hagen-Long <>
Subject: Re: [APG] Preponderance of the Evidence (was Courthouse Ledgers )
Date: Mon, 6 Dec 2004 16:01:17 -0800 (PST)
In-Reply-To: <200412061712.iB6HCxHp025327@mail.rootsweb.com>


Elizabeth, I agree with using the Genealogical Standard of Proof. However, I dont think it is possible to reach that standard without first reaching lesser degrees of proof, along the way. When you say genealogists no longer use the term preponderance of the evidence, I think you must mean, they no longer use POE as their standard of proof. [?] It is the standard of proof used, consciously or not, in each stage of research, before one gets to the point of having enough evidence for a proven case. More importantly, in real life, when I do a final report for a client, some parts of that report may be proven to the degree of the Genealogical Standard, while other are proven only to the degree of Preponderance of the Evidence. Although the Genealogical Standard is a goal, it is usually not possible to meet it, in every aspect. For example:



In the Chancery case Im working on, the Commissioner asked for more information on two missing heirs. The final report concludes that they have not been seen for 20 30 years respectively, and are probably dead, but with possible unknown heirs. The Commissioner specifically allowed for the possibilty that the missing heirs had children. The judge, who almost always concurred with the Commissioner, concurred. I found evidence in another state, that suggests one of the missing heirs had a child, an heir missed by the court. I have only a slight preponderance of evidence. This is how I have to leave it, unless the client wants to pursue the issue.



Common law helps me think within a logical framework, and within the framework in which our ancestors operated. [with the exception of ancestors from Louisiana!]. As an artist and former ballet dancer, without even a nodding acquaintance with any form of logic, I found common law a great framework in which to work and good discipline for an untrained brain. If I can dream up a scenario, which makes sense, using the available evidence, I know I dont have acceptable proof.



I have heard genealogists question how they can be sure they have met the Genealogical Standard of Proof on an issue. I have wanted to say: If you move from being merely convinced of a fact, to believing the fact, you have proof that meets the Genealogical Standard. We can become convinced of something, without sufficient evidence. In Common law, there is differentiation between convinced, meaning swayed to a conclusion, [scales tipping], and belief, which implies there is an assurance of a fact, based on sufficient evidence. I admit, when I see convinced in connection with absolute proof, it confuses me. If, [and I admit it is a big IF] everyone adopted these meanings for genealogy, wouldnt it explain the principals simply, while at the same time keeping us within the same frame of reference our ancestors used? Although these arent the words and meanings used in the Genealogical Standard, isnt it essentially the same principal?



Langdon

Mills <> wrote:Langdon wrote:
"I hope no one abandons preponderance of evidence, as one standard of
proof. Not only is it used in courts everyday, but I dont think it is
possible to get to a conclusion of, beyond a reasonable doubt, .without
reaching a conclusion of a lesser standard first at least once.
[Conclusive evidence is rare]

"Preponderance of evidence should be used for evaluation, at every stage of
research, from evaluating one piece of evidence, to building a case, on
several issues, using a body of evidence. Evaluating every sentence, every
phrase of each sentence, every mark on the page, and every error, creates
some impression of the value of the evidence. It might tend to tip the
scale to one side or another, and make us convinced of something. Usually,
it doesnt. When there are several pieces of evidence, the whole body of
evidence can be weighed, using each part of each item, until the evidence is
convincing."



Langdon,
Not to worry! Nobody's abandoning the evidence principles you describe here.
You're "right on" about the value of these detailed evaluations and how we
often have to build a case, just as in a court of law. However, most
genealogists no longer use the term "preponderance of the evidence" because
that term has parameters within the law that are not acceptable in
genealogy. (Legally, something could be just slightly more believable than
not and a jury would still be expected to convict on that *slight* basis. In
genealogy, we expect a much stronger case than "just slightly" more
believable.

To fulfill the needs of genealogists (and to mollify all those attorneys who
didn't like us redefining their legal concept), those who write on
genealogical evidence use the term "Genealogical Proof Standard" for the
same process and proof-level that attorney Noel Stevenson started calling
the POE back in the 70s when some standard was so badly needed.

Elizabeth

------------------------------------------
Elizabeth Shown Mills, CG, CGL, FASG
*Evidence! Citation & Analysis for the Family Historian*
*Professional Genealogy: A Manual for Researchers,
Writers, Editors, Lecturers and Librarians
Isle of Canes
"You'll never look at history the same way again"--*Historical Novels
Review*






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