Is Your Genealogy Hearsay?

papers

I am always looking for parallels between legal research and genealogical research. In my evidence and torts class this week, we studied Ohio’s Rules of Evidence regarding the admissibility of hearsay evidence. It was a loooong stretch of class, and then suddenly we got to what I mentally labeled the “genealogy exceptions.” I woke back up. The “genealogy exceptions,”  as I call them, are hearsay statements that are admissible in court, and they include a large sampling of records that we normally use, or should be using as genealogists.

We’ve all heard “Objection, your Honor. Hearsay!” on TV, but what does it really mean? According to the Ohio rules, “‘Hearsay’ is a statement1, other than one made by the declarant2 while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”3 In other words, hearsay is a statement by someone without first-hand knowledge of an event, that is given as evidence to support a specific claim.

Start with the general presumption that hearsay is inadmissible. As an example, assume Witness A saw a van run a red light, causing an accident. Witness A then tells Person B (who was not at the scene, and had no personal knowledge of the incident) what they saw. In general, the testimony of Person B will be inadmissible, at least when it is offered as evidence of the truth of the matter– in this case, as evidence of the cause of the accident. There are exceptions…there are a lot of exceptions, but in general, if you didn’t see, hear, or otherwise personally experience something, and you’re not the one making a statement, your statement is not admissible as evidence.

What are some of the exceptions that allow statements by someone other than the declarant to be admissable? Here are a few from Rule 803 I think you’ll recognize:

(8) Public records and reports. Records, reports, statements, or data compilations,
in any form, of public offices or agencies, setting forth (a) the activities of the office or agency,
or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police officers and other law
enforcement personnel, unless offered by defendant, unless the sources of information or other
circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of births,
fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to
requirement of law

(10) Absence of public record or entry. To prove the absence of a record, report,
statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a certification in accordance with
Rule 901(B)(10) or testimony, that diligent search failed to disclose the record, report, statement,
or data compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces,
deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal
or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a
certificate that the maker performed a marriage or other ceremony or administered a sacrament,
made by a clergyman, public official, or other person authorized by the rules or practices of a
religious organization or by law to perform the act certified, and purporting to have been issued
at the time of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history
contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family
portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a
document purporting to establish or affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by each person by whom it purports to
have been executed, if the record is a record of a public office and an applicable statute
authorizes the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement
contained in a document purporting to establish or affect an interest in property if the matter
stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence twenty
years or more4 the authenticity of which is established.5

Notice that almost every exception contains the language “statements of fact, ” and any of the documents listed here will contain them. What we can’t tell from any single individual document is whether or not a given statement of fact it contains is correct. If I’m a lawyer, I’m most interested in winning. The “correct” statement is whichever one most benefits my client. If other statements disagree, I’m going to be looking to keep them out of evidence or otherwise explain them away however I can. As genealogists, though ,we want to bring as many of these “statements of fact,” from as many different admissible sources as possible.6 We need to be able to examine and cross-examine (forgive the pun) each source to see what information it contains. We need to look at the information that each source contains, and what sort of evidence that information provides to help solve our case. Then we need to correlate all the various pieces of evidence from all the different sources7 to come up with the best possible argument to “prove” our case. As genealogists, we only win when we are the most accurate we can be given the all evidence available.

What does all this have to do with genealogy? It means that, in general, all those Ancestry, FamilySearch, WikiTree, or family history books are hearsay. Don’t admit them to your personal Court of Genealogy. The author or compiler of that tree, in most cases  1) did not have first-hand knowledge of the events about which which he is making a statement, and 2) is making that statement in order to offer evidence evidence to prove an assertion. The assertion in this case is kinship, asserting the correctness of a pedigree chart or family group sheet. What evidence IS admissible are all those sorts of documents that we should be using– the exceptions listed in Ohio Rules of Evidence.

Astute readers may point out a flaw here: I claimed that evidence from online or published family trees is not admissible, yet under exception 803(13), genealogies are admissible. True enough, you can admit them if you choose. But our goal as genealogists is truth, and we are looking to find and admit as much evidence as possible to get that goal. In the process of collecting evidence from all those other documents, that online of published family tree is either going to become superfluous to your argument, or it is going to be shown to be incorrect. If all you have is that genealogy, your chances of winning a case aren’t real good. That’s not to say that the genealogy won’t, in some cases, save you time building your case by pointing you to the actual admissible evidence from which the genealogy was compiled, but that is something better left in your notes than in your finished argument.

You ARE going to write out your proof argument, right? Not many court cases are won by plopping down a stack of papers on the judge’s bench and hoping that he has time to analyze it all and come to the same conclusions you did. Similarly, no matter how carefully a genealogist enters information into a database, no matter how meticulous and correct the source citations are– no one will be able to automatically divine how you determined that John, not Joseph was the father of your ancestor, or that he was married to Mary Williams, not Mary Smith. With three different documents giving two different dates, how did you conclude that the one that didn’t match was the correct date? You need to explain how all that evidence and its analysis fit together to arrive at the sound conclusion you’ve reached.8 It’s this written process of analysis and correlation that helps separate sound research from document-collecting.

 

  1. defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Ohio Rules of Evidence, Ohio Supreme Court, Ohio Supreme Court and Ohio Judicial System (www.supremecourt.ohio.gov: accessed 7 Dec 2013); Rule 802(A). []
  2. A “declarant” is a person who makes a statement. Ibid., Rule 802(B). []
  3. Ohio Rules of Evidence, Rule 801(C). []
  4. …nice to know that my own marriage record is an “ancient document.” []
  5. Ibid., Rule 803(8-16). []
  6. This is the first piece of the Genealogical Proof Standard– a reasonably exhaustive search. For all GPS references, see “Genealogical Proof Standard,” Board For Certification of Genealogists (http://www.bcgcertification.org/resources/standard.html: accessed 10 Dec 2013). []
  7. Parts 3 and 4 of the GPS– Analysis and correlation of the collected information and Resolution of conflicting evidence. []
  8. Part 5 of the GPS–Soundly reasoned, coherently written conclusion. []
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One Response to Is Your Genealogy Hearsay?

  1. avatar Jana Last says:

    Chris,

    I want to let you know that your blog is listed in today’s Fab Finds post at http://janasgenealogyandfamilyhistory.blogspot.com/2013/12/follow-friday-fab-finds-for-december-13.html

    Have a great weekend!

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