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From: "Richard A. Pence" <>
Subject: Re: [APG] Re: Preponderance of Evidence
Date: Mon, 6 Dec 2004 22:02:29 -0500
References: <20041206073824.8729.qmail@web53507.mail.yahoo.com>


Langdon Hagen-Long <> wrote:

>> I hope no one "abandons" preponderance of evidence, as one standard of
>> proof. Not only is it used in courts everyday, but I don't 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.<<

The following appears to be mostly a matter of terminology, but if you go to
this web page at BCG, you will see an article headlined "Board Abandons the
Term 'Preponderance of Evidence.'"

http://www.bcgcertification.org/resources/prepond.html

You'll want to read the article yourself, but my interpretation was that the
Board felt the use of this particular legal term could be misleading. At the
end there is a reference to an article by Madam Mills - and I see she has
already responded to you (so I will tread lightly! <g>).

>> In civil court, judges use the preponderance of evidence to render
>> judgments. If a judge feels that no evidence outweighs any other
>> evidence in a case, he/she is empowered to render a decision based on
>> nothing more than impressions of the demeanor and believability of the
>> parties. A judge must make a decision, but a genealogist doesn't.
>> Sometimes there is simply not enough evidence available to reach a belief
>> "beyond a reasonable doubt". . I. wouldn't throw my files away. I would
>> just call it what it is; insufficient evidence, or proof by a
>> preponderance of evidence.<<

My problem with the term "preponderence of evidence" is that in a civil case
the decision could be decided in favor of the party which has evidence that
only slightly outweighs that of the other party's evidence. A 6-5, jury
vote can result from "prepondernce of evidence." A genealogy built on such a
standard won't make the grade.

Several years ago I wrote an article on the topic of genealogical evidence
and in prepping myself for it I ran across an article dealing with heirship
cases in a newsletter for Pennsylvania lawyers. This article put forward
some concepts that I have found helpful in evaluating evidence.

The article said:

A claimant seeking to show that he or she is a legal heir
to an estate would have to provide "a fair preponderance
of credible, trustworthy and satisfying evidence. The
proof should be clear, precise and definite."

Thus, not only must there be a preponderance of evidence, but that evidence
must be "fair, credible and trustworthy" so as to allow a "clear, precise
and definitive" conslusion.

Richard P.
Fairfax, VA


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