Getting the Facts Straight: Proof of Descent (First published in the Sisters in Crime Guppy Newsletter, First Draft) Problems of proving identity, family relationship, and the right to inherit are common elements in mystery and suspense. This month, I'll respond to questions from fiction writers on those topics. How can my character prove she is descended from a particular ancestor without a valid birth certificate? Like their flesh-and-blood counterparts, characters in novels sometimes lack legal documentation of who they are and who they descend from. When my mother applied for a passport, she discovered her birth certificate did not have her name on it--she was Baby Girl S_____. Fortunately, her father was still alive and prepared an affidavit declaring that she was that baby girl. Unfortunately, he had thirteen children and didn't remember any of their birth dates, so he used his own. The mix-up was easily resolved with a second affidavit and an amended birth certificate. In a Washington state case, a woman named Julia died, widowed and childless. Children of her cousins claimed her estate, as did the children of her late husband's siblings. As blood relatives, the cousins had a greater right to inherit than the descendants of the in-laws. But Julia had no birth certificate. She was born illegitimate in rural southern Ohio in the early 1900s. She started school named Jeanette, but changed her first name as a teenager and her last name when she married. She left no personal records except a marriage certificate. The cousins' descendants had to prove she was the Jeanette shown in their family tree and Bible. They offered an affidavit from Julia's elderly aunt who had been a girl when the baby was born. Other documentary evidence included school records, town directories, and letters. The court accepted their proof. Can family records can be used as proof? As in Julia's case, family Bibles, family trees, even letters can be used to show that a person is--or isn't--who they claim to be. Rule 803(13) of the Federal Rules of Evidence gives a list of examples:
Most states have similar rules. These items are all hearsay--that is, they are evidence of a fact that no witness is present in court to state. They are admissible in court because the circumstances of their creation--e.g., an entry on the flyleaf of a Bible that is one of a long line of entries of births, marriages, and deaths--are considered indicia of reliability. How much weight the evidence will be given depends on the circumstances, including other supporting evidence--oral or written--and any evidence to the contrary. Other records that can be used include: --a person's own statements about their ancestry, as in a family history or genealogy; --medical records, including a midwife's birth records; --letters and diaries; --oral histories. How are such records authenticated? All documentation submitted to a court must authenticated by live testimony or an affidavit establishing how the record was made and maintained. The Federal Rules of Evidence, Rule 803(16) provides that "ancient documents," those more than 20 years old that have been generally relied on as true, will be admissible. Most states have a similar rule, although the time requirement may vary. Copies of any public records must be certified or authenticated by their legal custodian, e.g., a county clerk and recorder would certify a copy of a plat or deed. Personal testimony: In my mother's case, had her identity been questioned in court, she would have been allowed to testify that she believed -- because she had always been told -- that she was the baby girl born that particular day and place, along with her twin brother, to those parents. Her credibility would have been judged like that of any other witness. Testimony must be competent in two ways: 1) the witness must be mentally competent to testify. In Julia's case, the cousins had to prove that their elderly aunt was mentally capable of knowing and telling the truth. 2) the witness must have sufficient knowledge. Had the aunt as a young girl actually known that Jeannette-Julia was her older sister's daughter? Physical testing: Handwriting analysis and examination of paper and ink are not routinely used unless there is reason to suspect an item is a forgery. Expert testimony of genealogists: Courts evaluate experts testifying on genealogy on the same grounds as any other experts, considering their credentials, experience, recognition in the field, whether their work appears thorough and their conclusions reasonable, and the court's impression of credibility and reliability. In general, legal standards are more rigorous than genealogy standards in that courts cannot consider some types of evidence which genealogists do consider. But the Rules of Evidence create exceptions for much of the kind of evidence that genealogists use, including both official and family records. The main criterion is always whether there is "sufficient indicia of reliability." As always, be sure to check the law of the state where your story is set. Since most state rules of evidence parallel the Federal Rules, start with this list of links to state rules of evidence, http://expertpages.com/news/state_rules_of_evidence.htm A 1984 graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz lives, writes, and practices law in northwest Montana. If you have a question about a legal issue in your fiction, please browse her website, www.lawandfiction.com or email her at leslie@lawandfiction.com. Site contents © Leslie Ann Budewitz webmaster@lawandfiction.com 2071 
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