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Skillbuilding: Standards and Forensic Genealogy

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Michael S. Ramage, JD, CG, “Standards and Forensic Genealogy,” OnBoard 22 (September 2016): 17--18, 23.

A “forensic genealogist” applies genealogical knowledge, methods, and standards to legal problems and proceedings. When serving as an expert in a legal matter, a genealogist whose work applies the principles embodied in Genealogy Standards is well positioned to defend an expert opinion.1 The law and Genealogy Standards, the only comprehensive published set of standards in our field, are fundamental to success in forensic work.2

Most forensic genealogists---whether appearing in a court to give formal testimony or providing legal affidavits---express expert opinions that are relied on by legal professionals.3 Exploring the law applicable to expert witnesses demonstrates why adherence to standards is necessary. Hundreds of important legal decisions concerning expert testimony control forensic genealogists when they serve as expert witnesses.4

Eight “gates” (standards) are considered when determining whether an expert witness's writing or testimony is admissible in court.5 Of the eight, the reliability of an expert's opinion is most often the determining factor.6 Rule 702 (b--d) of the Federal Rules of Evidence establishes three criteria for the reliability inquiry. Expert testimony must:

b. be “based on sufficient facts and data,”
c. be “the product of reliable principles and methods,” and
d. “reliably appl[y] the principles and methods to the facts of the case.”7

In one case, application of the reliability rules deemed data unreliable when the expert did not “seem to know where they [the data] were from or what the source of them were.” The expert relied on a document prepared by his client, but he “did not know what the document was, who created it, or how it was created.”8 This is akin to requiring complete, accurate source citations.

One key reliability gate or factor is whether the expert's theory “can be (and has been) tested.”9 Ultimately, the primary requirement under this factor is that “someone else using the same data and methods . . . [must] be able to replicate the result[s].”10 Similarly, the Genealogical Proof Standard requires “Tests---through processes of analysis and correlation---of all sources, information items, and evidence contributing to an answer to a genealogical question or problem.”11

“Connective reliability,” another important standard concerning expert witnesses, requires that experts “explain their reasoning . . . to ensure that their conclusions are not deemed conclusory . . . [E]xperts should (1) make plain the information they considered and why . . .; (2) explain how they used that information; and (3) explain why their use of information leads to their conclusion.”12 These legal standards are similar to the standards embraced by leaders in the genealogical community.13

These evidentiary court rules and decisions demonstrate the importance of Genealogy Standards as a guide for the forensic genealogist. No other comprehensive genealogical manual establishes standards for planning research, collecting data, documenting genealogical research, reasoning from evidence, writing proofs, assembling results, and testing of outcomes.14

How do these rules apply to forensic genealogists in the real world? Genealogy Standards is a war chest for attacks upon any expert's report or testimony that does not rely upon these standards. An example scenario first requires discussion of one more evidentiary rule.

As a general rule, hearsay evidence (an out of court statement offered to prove the truth of the matter asserted), whether written or oral, is objectionable and is not admissible in court.15 Rule 802(18) of the Federal Rules of Evidence sets forth the generally accepted hearsay exception known as the Learned Treatise Doctrine. Statements made in learned treatises are admissible in evidence as an exception to the hearsay rule if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.16

Applicable case law supports the conclusion that Genealogy Standards would be accepted by the courts as a learned treatise providing a competent expert witness testified to its acceptance as a reliable authority in the field of genealogy.17

As an example of the rule, consider the following scenario. A forensic genealogist supporting one view of kinship involving an intestate estate proceeding testifies that Genealogy Standards is a reliable authority in the field. The attorney can now use the Learned Treatise Doctrine to engage in devastating cross-examination of the opposing expert genealogical witness who did not follow these standards, in order to wholly discredit the opposing genealogist's report and testimony.

In addition to being used as a sword, the Learned Treatise Doctrine may be used as a shield. In a case of a $22-million estate with unknown heirs, the affidavit of kinship is based on the tenets of Genealogy Standards and the Genealogical Proof Standard.18 The concluding section of the report explains:

The following general rules of genealogical evidence analysis are noted: (a) sources that are original are usually more reliable than derivative or authored sources; (b) primary (firsthand) information generally is more reliable than secondary (hearsay) or undetermined information; and (c) evidence is based upon the relevance of information to the issue and “degree of explicitness”: directly (explicit), indirectly (not explicit) or negatively (not explicit).19

Had this affidavit been challenged, it was preconditioned to easily fend off attacks by countering with accepted genealogical principles.

Genealogists engaged in non-forensic work are not required to follow the dictates of the law and the evidentiary rules surrounding expert witnesses. These researchers are free to return to the days before Donald Lines Jacobus and present family trees and kinship conclusions without citing any support whatever.20 Such work, however, is seldom respected by serious practitioners or by scholars in other fields. Elizabeth Shown Mills cogently summed up the situation in 2003, which persists today:

Obviously, genealogy is “serious” study. Why, then, does our field still fight an up­hill battle for recognition as a legitimate field of social study?

Like many prejudices, the cause lies rooted in the past and is kept alive by an educational system that has not taught Joe Citizen standards of reliable research.21

For forensic genealogy, adherence to standards and evidentiary rules underlies the acceptance of expert testimony in legal matters. The road to genealogy's standing as a serious and respected profession lies through acceptance of standards. If the work of all practicing genealogists---whether engaged in forensic or non-forensic work---incorporated the principles of Genealogy Standards, our field would be well on the way down that road.

  1. Board for Certification of Genealogists, Genealogy Standards (Nashville: Ancestry, 2014).
  2. Ibid., xiv. Also, Thomas W. Jones, “Roots of Today's Standards for Amateur and Professional Genealogy,” Crossroads 11 (Spring 2016), 4. The International Commission for the Accreditation of Professional Genealogists (ICAPGen) uses the Genealogical Proof Standard in evaluating applicant-submitted four-generation projects and exams. See “FAQs,” ICAPGen (http://www.icapgen.org/faqs/ : viewed 15 August 2016), FAQ number 22.
  3. The forensic genealogist acting as an expert in a legal matter frequently submits a report or affidavit without expectation of giving formal testimony.
  4. David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore, A Treatise on Evidence: Expert Evidence, 2nd ed. (New York: Wolters Kluwer, 2011), Table of Cases, 703--724, and (2016 Cumulative Supplement) 279--288.
  5. Harvey Brown and Melissa Davis, “Eight Gates for Expert Witnesses: Fifteen Years Later,” Houston Law Review52 (Fall 2014): 1.
  6. Legal experts state, “‘Reliability’ criteria for expert evidence pervade the rules of evidence.” See Kaye, Bernstein, and Mnookin, The New Wigmore, A Treatise on Evidence: Expert Evidence, 223.
  7. Most state court decisions and rules are the same or similar to the federal law.
  8. Montgomery County v. Microvote Corp., 320 F.3d 440, 448--449 (3rd Cir. 2003).
  9. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, n. 9 (1993).
  10. City of Pamona v. SQM N. Am. Corp., 750 F.3d 1036, 1047 (9th Cir. 2014).
  11. Genealogy Standards, 1--2.
  12. “Eight Gates for Expert Witnesses,” 292.
  13. See, for example, Thomas W. Jones, Mastering Genealogical Proof (Arlington, Va.: National Genealogical Society, 2013), 53, “Only testing helps us reliably determine which sources and information items are likely right or wrong.” Also, Elizabeth Shown Mills, Evidence Explained: Citing History Sources from Artifacts to Cyberspace, 3d edition (Baltimore, Md.: Genealogical Publishing Company, 2015), 19, “Standards of proof for family history are more akin to standards in the hard sciences, where repeated experiments will expose errors.” Also, Genealogy Standards, 1--3, the Genealogical Proof Standard.
  14. See note 2.
  15. Federal Rules of Evidence, Rule 802, “The Rule Against Hearsay.” Similar rules apply to state courts.
  16. Federal Rules of Evidence, Rule 802(18).
  17. Hall v. Florida, 134 S. Ct. 1986 (2014).
  18. Montgomery County, Pennsylvania, Orphans’ Court File 2013-X2946, Estate of Albert W. Stein, for “Genealogist’s Affidavit as to Which Morris Stein is the Father of Decedent,” 3 January 2014; Clerk of Orphans’ Court, Norristown. The affidavit’s proof argument references Genealogy Standards and other authorities such as Elizabeth Shown Mills, “Evidence Analysis, A Research Process Map” (2014) in Genealogy Standards, 81 (back flyleaf). Also, Jones, Mastering Genealogical Proof, 7--16.
  19. Ibid.
  20. Jacobus wrote, “There are several reasons why scientific methods have been unpopular with many genealogical students and writers. First in responsibility is that all-too-human trait of laziness.” Donald Lines Jacobus, “Is Genealogy an Exact Science?,” The American Genealogist, 10 (October 1933): 65--69, specifically 68.
  21. Elizabeth Shown Mills, “Genealogy in the ‘Information Age’: History’s New Frontier?,” National Genealogical Society Quarterly 91 (December 2003): 261.

 

Michael S. Ramage, JD, CG

This article was originally published in OnBoard, BCG’s educational newsletter and is protected by copyright. Individuals may download and print copies for their personal study. Educators are granted permission to provide copies to their students as long as BCG, OnBoard, and the appropriate author are credited as the source of the material. Republication elsewhere is not permitted.