Tag Archive for Law

The Reliability of Oral Histories–The Forensic Approach to Evaluation

July 13, 2011 Craig Family History, Genealogy

Part 2 of a three-part series.  Part 1 is here.

When last we met, we explored the issues associated with the reliability of “eyewitness testimony” in court and applied similar concepts to first-person accounts of historical and genealogical events. We discovered several issues that might make “eyewitness testimony” unreliable. Now we explore the 21st century approach to eyewitness testimony and apply a forensic approach to first-party reporting of genealogical events.

California juries are now told by judges to apply certain factors in the evaluation of eyewitness evidence. These factors focus on the ability of the witness to perceive the event; circumstances which might interfere with the witness’s ability to remember and recollect; and the empirical corroboration of the witness’s evidence. See California Criminal Jury Instruction No. 315. This jury instruction points the way to a forensic approach to evaluating the reliability of oral histories.

Taking the forensic approach to oral history, the genealogist will want to consider the following:

  • How familiar was the reporter with any of the background circumstances or parties before the event?
  • How well could the reporter see, hear, and comprehend the event?
  • What were the circumstances affecting the reporter’s ability to observe, such as lighting, weather conditions, obstructions, distance, duration of observation, and any other relevant circumstances?
  • How well could the reporter see, hear, or otherwise perceive the event?
  • Was the reporter under any type of stress when he or she made the observation?
  • What was the interval of time between the reporter’s perception of the event and his or her report thereof?
  • What was the mode of interrogation of the reporter? (open-ended questions, suggestive questions, follow-up)
  • What was the demeanor of the interrogator? (hostile, aggressive, judgmental, or not?)
  • Is the reporter’s version substantially corroborated by credible independent evidence?
  • What is the level of the reporter’s cognitive development, that is, considering the person’s age, how well is he or she able to perceive, understand, remember, and communicate?
  • Did the reporter have a relationship with someone who, inadvertently or deliberately, could have influenced the reporter’s version of events?

Not every oral history will reveal all of these factors.  But as the evaluator, one is not expecting to find “proof  beyond a reasonable doubt” as would be the case in a courtroom.

As we have said here before, nothing can be “proven.” The evaluator must judge the credibility or believability of the oral history reporter. In deciding whether the oral evidence is true and accurate, evaluators should use common sense and experience.


Coming: Part III – Second or Third Party Reporting (“Hearsay”) in Oral Histories

No comments , , , , ,

The Reliability of Oral Histories Considered

July 11, 2011 Craig Family History, Genealogy

[Music; loud with fast, heavy beat]

[Baritone voice with emergency pace and tone]:“Eyewitness News! The [Valley's][Metroplex's][Tri-State Area's][Ark-La-Tex's][Bay Area's][Central Coast's][Middle Tennessee's] Most Reliable Newscast! With the entire Eyewitness News Team! This is Eyewitness News at Six [o'clock]!”

That voicer (or words and music to that effect) has been heard on television stations all over America at one time or another in the last fifty years. See here, here, and here, for example. Indeed, if broadcast journalism is the cinema verite B-roll of history [sorry, inside gag and obscure esoteric reference], what could be better than “Eyewitness News”?

Likely, the lead story on Eyewitness News At Six, wherever in the country it may be broadcast, is a crime story. The reporter doing the standup at the court house or police station will report eagerly (but enthusiastically) that “Channel 7 has learned that there are two eyewitnesses to the crime,” or will lament in grave tones that “Police tell Channel 4 that there were no eyewitnesses.”

The genealogical equivalent of “Eyewitness News” is the oral history. And since genealogy is history, what could be better than the oral rendition of an eyewitness?

But both broadcast journalists and genealogists should take heed of what sophomore psych majors and first-year law students learn about eyewitnesses: they are notoriously unreliable.

A demonstration that has become an hoary chestnut among law professors and their counterparts in the psych department involves a surprise intrusion into the classroom by an individual who “assaults” the prof or steals her purse and runs out in a matter of a minute, if not seconds. Students are then asked to identify the “perp” by physical description or clothing worn; or to relate the sequence of the event.

Of course, both of you who had the misfortune to see Wink Martindale’s game show Instant Recall more than once, and all of you smarter than a fifth grader (mutually exclusive categories), have guessed already that the students have wildly divergent and largely inaccurate accounts of the event.

Millions of trees have given their lives to printing of scientific studies that show eyewitness testimony to be unreliable. Elizabeth Loftus, Ph.D, a pyschologist who is a professor in three research departments and the Law School at University of California, Irvine, has written extensively in this area. In her ground-breaking book, Eyewitness Testimony, first published in 1979, Loftus asserts that evidence from eyewitnesses has resulted in wrongful convictions and even wrongful executions in the criminal justice system. Her work and that of others had such a profound effect that, for a time, juries in many states were instructed to view eyewitness testimony “with caution.”  This was said to be necessary because of an odd paradox about eyewitness testimony: it was the most unreliable evidence in the abstract, yet at the same time, the most compelling for jurors.  Loftus demonstrated that factors such as the time between the event and the rendition by the witness, the mode of interrogation, reinforcement by other witnesses, and assimilation of another’s account, bear heavily on the accuracy of eyewitness testimony.

Given this scientific and legal skepticism, what implications are raised by first-person accounts of historical and genealogical events?

First of all, let’s agree that there are differences between an eyewitness who attempts to identify a criminal suspect, and a first-person reporter of an historical event. The crime witness is often questioned under unfavorable circumstances by hostile interrogators who may have their own theories of the case. There are deadlines to be met. The witness may be under the emotional stress of the event. The stakes are high and the pressure to “get it right” may lead some eyewitnesses to get it wrong. There may be a dozen times a hundred other unique factors at play concerning the reliability of eyewitness testimony in a criminal case or even a civil lawsuit.

But now let’s examine the similarities between the crime witness and the first-person historical reporter. The evidence given by both frequently relies on previously unrecorded and non-contemporaneous human memory. Some of the same factors which may affect “eyewitness” crime reporting may also affect oral history. These include the demeanor and behavior of the interrogator and the states of mind of the witness both at the time of the event and the time of reporting. The interval between event and report, stress, and overly suggestive questions may also affect both types of rendition.

Every experienced genealogist knows, and every beginning genealogist will soon know, of first-person renditions that are simply wrong. This doesn’t happen maliciously, usually; often it is the result of fading memories or time-embellished memories or of the mind supplying its own details to make sense of a complicated situation.

I’ve heard stories from people who would swear they are telling it like it was, only later to discover that the person was not even alive at the time of the reported event. I myself for years gave a first hand version of having observed a tornado that touched down in Missouri in 1955 or 1956, while my mother was hanging laundry on the clotheslines in our backyard. Oh, I was there alright and have a vivid “memory” of the event–the sky turning black and green, the winds suddenly swirling about, the frightening sounds as the funnel cloud approached. But I eventually came to question whether I had a “true” memory of that storm. Under more dispassionate analysis, I have concluded that my “recollection” of the event has been substantially influenced by my mother’s account of it, which, at some point in my childhood, I adopted as my own. [Among the factors which led me to question my own memory of this occurrence were that I cannot, of independent memory, account for the whereabouts of my younger brother; I do not recall at all how we got out of harm's way; beyond remembering--if that's what you want to call it--that I was sitting on a step at the back door, I cannot describe the house, important because we lived in two different counties in Missouri during 1955-56; and I have had a difficult time finding contemporaneous reports of the event during the time frame that I "recall" that it occurred].

How does the genealogist or historian evaluate oral history then? We can avoid the traps of the path the law first took: i.e., subjecting all eyewitness evidence to scrutiny so strict that it was more often fatal in fact. 

Next in Part II: The Forensic Approach to Evaluating Oral History

 

 

 

 

No comments , , , , , , ,

How to Sell Your Grandmother Guilt-Free

January 21, 2011 Craig Family History, Genealogy

In the last post, we told how our friend Sheri Fenley had been approached by a publisher who asked permission to use a photograph of her grandmother which had appeared on Sheri’s blog.  The publisher apparently had no intent to compensate Sheri although the publisher stood to make a fine sum of money from the publication on the cover of which the photograph would appear.  Sheri made a very generous offer and never heard from the publisher again.

What should a genea-blogger do when approached by a commercial enterprise which wants to  use some of the blogger’s content?  Each individual will come to a different conclusion as each situation will differ from others.  But here are some things to think about:

  • Is the potential user a non-profit whose cause you can support?

If so, you may feel perfectly comfortable lending your content for the greater good.  Even in this event, there are some precautions, you may want to take, which we’ll discuss below.

  • Is the potential  user a commercial enterprise that intends to make a profit from the item(s) that would include your content?

If so, you may want to consider asking for compensation for the use of your content.  To be in the best negotiating position, remembered the adage that “knowledge is power.”  You need to research the enterprise and its industry, to understand what the likelihood of a profit is, and the potential magnitude of that profit.  You need a clear understanding of how your content is likely to be used.

You also need to know what alternatives to the potential user has, because that will affect the price that the commercial enterprise is willing to pay to use your content.

To maximize your potential return, you need to have clear title and exclusive rights to the content that you might permit someone to use. So we need to consider copyright, among other things.

We have discussed copyright at length in this particular space.  I suggest a review of those posts to get up to speed on copyright.  (Just type “copyright” into the search box on this page). Remember some basics: (1) ideas cannot be copyrighted;  (2) facts cannot be copyrighted;  (3) titles cannot be copyright.  On the other hand, forms, formats, and templates can be copyrighted. A particular arrangement of factual material can be protected by copyright law.

What about photographs of people on your blog?  We’ve talked about how tricky copyright for photographs can be.  Go back and review some of those posts as well.  But keep in mind that apart from copyright, people have a privacy right in protecting the use of their likeness for commercial purposes.

In many states, the law protects a “right of publicity.” This right of publicity is simply the right of a person to control the commercial use of his or her identity. The right of publicity is a valuable property right, protecting the commercial value of a person’s identity or likeness. A person desiring to make commercial use of a celebrity’s name, voice, signature, photograph, or
likeness thus must get the consent of the celebrity. Note this applies to commercial use, and not to use in a news story, for example.

In 1979, the California Supreme Court considered two cases, Lugosi v. Universal Pictures, 25 Cal.3d 813, and Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, raising the issue of whether this right of publicity survived the death of the holder of the right. [Everyone knows that Bela Lugosi (nee Béla Ferenc Dezso Blaskó) played "Dracula" in the 1931 film of the same name; congratulations to those who knew that Rodolfo Alfonso Raffaello Piero Filiberto Guglielmi (1895-1926) was also known as Rudolph Valentino!]

In the Guglielmi case, the studio had exhibited on television a “fictionalized version” of Valentino’s life, depicting the actor’s name, likeness and personality without obtaining the prior consent of either Valentino or his legal heir. The heir sought damages and injunctive relief on the theory that the studio had misappropriated Valentino’s “right of publicity,” and that Valentino’s legal heir was the present owner of that right. In the Lugosi case, the actor’s heirs sought an injunction against and an accounting for profits from the studio which had licensed the use of the image of the actor as Dracula on a variety of commercial products.

In both cases, the California Supreme Court held that the right is not descendible and expires upon the death of the person so protected. In 1984, responding to those cases and several other similar cases, the California Legislature enacted a statute that gave to the heirs of a deceased personality the commercial rights in that deceased personality’s name, voice, signature, photograph, or likeness. As a result, if one desires to use the name, voice, signature, photograph, or likeness of, say, Elvis Presley, in a commercial context in California, one must have the permission of the Presley Estate. The heir’s rights are valid for seventy years after the death of the celebrity. A person who violates the heirs’ right may be liable for damages, including punitive damages.

Although we have discussed this in terms of “celebrities,” the right of publicity could belong to any person. Under statutory law, that right may be passed that person’s heirs.  Thus, in Sheri’s case, she controlled the right of commercial use of her grandmother’s likeness.  The publisher r understood that and that’s why they asked for permission.  Now, here’s what you need to consider:

(1) What purpose is the material going to be put to?  Is the purpose legal or morally objectionable?  Would the use place your ancestor in a false light?  Or would the use be favorable to your ancestor?
(2) Will the use serve some important artistic, scientific, literary or political merit?
(3) What’s the use worth?

Answering question number three is the toughest one of all.  Yet it’s the key to what approach you will take.  Does the potential buyer want to make a one-time use of the material?  For how long does the potential buyer want to use the material?  How many copies of the material would be may?  For how much would a copy of the materials sell?  Would distribution be limited to the United States, or would it be worldwide?  Could the potential buyer authorize others to use the material and receive royalty payments from those others?

To sell your ancestor for too little would be an insult to your ancestor; on the other hand, if you receive a tremendous amount of compensation, you  may be regarded as a callous gold-digger enriching yourself on the bones of your forebears.

In the typical case, you will want to give a license to the potential user of the material.  A license is a limited right to use the material.  You will include in the license the price for the license; the term of the license (i.e., how long it lasts); the scope of use of the material (how often they may use it, what it may be used for, where geographically it may be used).  And you will want to spell out what it cannot be used for, e.g., any used that is illegal in in the jurisdiction where it is to be used, any use that would place the subject of the material in a false light, any used that violates contemporary community standards in any community where the material might be used.  You may think of others.

The license should state whether or not the material can be used to advertise products other than the material to which it may be adhered.  The license will spell out the type of advertising that  can be used with the material.

The license should state whether it includes digital rights,  international rights, and believe it or not, some lawyers are now advising that licenses  include “galactic rights.”  The license should also state whether it is assignable or transferable to other parties.

Here’s an outline of a potential license agreement:

I.  Grant of license.
A.  license granted on condition of payment
B.   amount of payment (one-time fee and/or royalties)
C.  general term (in time) of agreement
D.  general terms of use.

II.  Rights granted
A.  permissible uses.
B.   prohibited uses.
C.  geographical scope of use.
D.  technological scope of use (i.e. digital, digital storage)

III.  Specific terms of payment (when due; where and to whom to be sent)    `

III.  Transfer and assignment

IV.  Indemnification (licensee agrees to indemnify you for any liability arising from unauthorized or other breach of the license agreement).

V.  Termination or revocation (circumstances under which the license may be terminated or revoked prior to the expiration of the term of the line of the license).

I might also put in some recital about the uniqueness and value of the material that is going to be used.  The things I’ve listed above are sort of the minimums that I would put any agreement  with a commercial enterprise who wanted to use something from your blog.

Pricing is a matter of negotiation, and here’s where having good information will help you out tremendously.  Know whether or not there are other sources of similar material that may be in the public domain or may be available at a lesser price than you would want to license for.

You can negotiate these licenses yourself; there are a number of excellent self-help web sites and books available. These include Nolo.com, Lawyers.com (which has licensing templates by state), and Allbusiness.com.  But if it seems like it’s getting too complicated,  you may want to go to a site like Rocket Lawyer.com or LegalZoom.com. In some circumstances, you may need to consult a lawyer, especially if there’s a lawyer on the other side.  Keep in mind that regardless of what the books say or what I suggest, you can put anything you want in your licensing agreement.  It’s entirely up to you.

3 comments , , , ,

Grandma for Sale: A Cautionary Tale

January 19, 2011 Craig Family History, Genealogy

A certain genealogist and  blogger (no names, please, but her initials are s.h.e.r.i.f.e.n.l.e.y.) a few months ago had an interesting proposition: she had a chance to sell her grandmother!  What would you have done?

Here’s the tale: Sher, I mean, s.h.e.r.i., had some time ago written a post about her grandmother, Maryellen Harris Skillman, who as a young woman was one of the famed Harvey Girls.  The post was illustrated with several photographs of her grandmother in her classic Harvey Girl outfit.

Quite some time later, She, uh, s.h.e.r.i., received an email from a representative of a large publisher (who really will remain nameless here; take my word for, they are BIG), who asked if our friend would allow them to use one of the photographs of her grandmother from her blog on the cover of an upcoming publication about the Harvey Girls.  This publication would be sold to schools, professional groups, and community groups who would be charged a basic fee for copies of the publication itself plus a fee for each time the subject matter of the publication was used publicly by the purchaser. (Those are the basic facts; I’m being a little vague so as not to identify the company).   The email said nothing about compensation, but instead had the breezy tone of a neighbor wanting borrow a cup of sugar.

Sheri (I’ve given up all pretense here!) wisely (or not, you decide) turned to her favorite genealogist-lawyer for a little advice. (She’s waived the attorney-client privilege for those you who worry about that kind of thing).  Fortunately, I was familiar with the publishing company and I checked out what potential there was for their proposed use of Sheri’s photograph. (I also determined that Sheri was the likely owner of the copyright of the photograph–too complex to explain here).

The publishing company stood to make a tremendous amount of money from sales of the publication and the other fees.  Sheri made them a very generous offer: basically a one-time fee of a few hundred dollars for the right to use the photo for a term of years (until the copyright expires) and some reasonable conditions to ensure that her Harvey Girl grandmother wasn’t morphed into a Hooters Girl granny.   This offer was for U.S. rights only and did not include sales of the publication to certain professional groups who themselves stood to make lots of money from their use of the publication.  There was also to be dealt with the matter of advertising the publication as well as advertising by groups who used the publication.

Sheri’s offer was very modest considering that she was being asked to authorize the use of the likeness of a revered ancestor for commercial purposes.  It was also very modest in that the photograph itself is unique.  There are sources of photographs of Harvey Girls available elsewhere, some in the public domain.  None, however, are quite as suitable or nearly iconic as Sheri’s photograph. It would be reasonable to presume that Big Publisher knew that, but wanted Sheri’s photograph for its uniqueness AND their assumption that they could get it for nothing.

So what happened in the end? Well, Sheri never heard from Big Publisher again. That was a bit disappointing. Sheri would have been proud to have her grandmother be the face of the Harvey Girls in this potentially international publication; on the other hand, she didn’t want to sell out a special relative’s likeness and reputation without some safeguards.  Sheri was not trying to profit from her grandmother’s picture. [But suppose she had? The rights she holds are valuable and Big Publisher was ready to exploit those rights.]

What would you have done?

COMING NEXT: A Few Tips on Protecting Your Rights and Your Ancestors’ Reputations

10 comments , , , ,

Federal Court Research Useless to Genealogists? We Report, You Decide

January 15, 2011 Craig Family History, Genealogy

Last week we reported about PACER, the federal courts’ Public Access to Court Electronic Records system.  We demonstrated how it works, and suggested that it may have some genealogical research value.  Reader Martin has some issues with that post.  In the comments Martin says:

How many genealogical brick walls have been broken down via federal court cases?  Not many–possibly none.  Federal law is completely searchable in appellate and supreme court cases, but those are just matters of law.  District court case opinions (about only 15% are published and maybe as much as 30% are online) are also just matters of law.  Even when you can use a database such as Pacer (and you don’t mention the date restrictions–you just say “recent”), not all facts may be in those documents and it is the facts a genealogist would need.

Stick with local and state court cases–that’s where you find genealogical gems.  And all those for the time period before 1960 are not online.  {with rare exceptions such as the Salem Witch Trials}.  Go to an Archives!!!!

Always ready for a great debate, in a most civil manner, of course, we respond:

1.  How many genealogical brick walls have been broken down via federal court cases? Martin says: “Not many–possibly none.” I have three responses to that.  First, I don’t know that anyone knows how many genealogical brick walls have been broken down via federal court cases.  I know at least one in my own research.  Second, brick walls are not broken down by any one single piece of evidence.  A federal court case that one finds on PACER may well contribute, like every other piece of evidence, to chipping at the wall to one degree or another.  Third, the point of any particular resource such as PACER or any archival matter, is not solely to break down brick walls.  It’s to add richness and texture to one’s research; it’s to ferret out the stories; it’s to make a complete portrait of an ancestor or an ancestral family.  Without those aspects, one is merely collecting names and dates.  So for example, I learned that my grand uncle Elias Bowie, as a young man, was tried and convicted in the US District Court for the District of Arizona for selling liquor to an Indian on Christmas Eve 1938. This put a little different shade on the family portrait of Elias as an entrepreneur (which clearly he was later in life).  It also told me that he was in Arizona in 1938, which came as a surprise to me.  I had long believed that he had worked in Louisiana during the 1930s, and then went into the Army in the 1940s.  So another aspect of his life was revealed to me.  Of course that raised more questions too.  What was he doing in Arizona?  Why was he in Arizona?  When did he get there and when did he leave?  And one can think of many other questions that would arise.

2.  Federal law is completely searchable in appellate and supreme court cases, but those are just matters of law. I have several responses to that.  First, it’s true that federal law is just about completely searchable in appellate and supreme court cases.  Opinions of the appellate courts (including the Supreme Court) are available in a number of places online, including PACER.  And some of these places may be easier to search than PACER, though few at the minimal cost of PACER (there are a few online places that are free).  But these are not merely “matters of law.”  Appellate cases often contain a rendition of the facts found by the trial court.  Often it is easier to find the basic facts from an appellate opinion than it is to find any published material from the trial court.  So it’s not correct to say that these are “just matters of law.”  Second, even if they are just “matters of law,” appellate cases set precedents.  Who wouldn’t want to know if their ancestor had been involved with the setting of some great precedent?  Wouldn’t that be a grand genealogical discovery!  Again, it goes to the story, and tells us about the people behind the names and birth dates.

3.  District court case opinions… are also just matters of law. This is plainly incorrect.  The trial court is where the factual record is developed.  The trial court is where witnesses are heard, exhibits are presented, and all manner of evidence may be offered and either admitted or rejected.

4.  Even when you can use a database such as PACER… not all facts may be in those documents, and it is the facts  a genealogist needs. Indeed, the great strength of PACER is that one may find hard copies of documents online, which is something that can’t be done in many other legal databases.  And, Martin is correct that not all the facts may be found in those documents, but not all the facts are going to be found in any single document or set of documents.  The documents on PACER provide facts that would be of genealogical interest.  For example, PACER records provide the obvious fact that the person was involved in a court action, but may also provide the person’s name, address, and other vital information.

5.  “… you don’t mention the date restrictions–you just say “recent” …” I beg to differ here.  In the original piece, I use the phrase “relatively recent” and qualify that by saying “especially those from the 1990s.” I also say that most courts electronic records go back a very limited period of time, most commonly to the 1980s.  But I also say that there are courts whose records go back as far as the 1930s, and I describe how to check the date limitation on any particular court.

6. Stick with local and state court cases–that’s where you find genealogical gems. I agree that one is more likely to find “genealogical gems” [doesn't Lisa Louise Cooke own that phrase?] in state court cases.  And I try to indicate that in the first piece by stating that federal courts are courts of limited jurisdiction–there are no divorce cases, very few accident cases, no juvenile cases.  But I wouldn’t say “stick” with local and state court cases, to the exclusion of federal court research; that would be to overlook a huge body of potential evidence, limited in scope though it may be.  Additionally, by sticking to state and local cases, you would overlook bankruptcy cases, which are wholly federal, and can be packed with significant family history information.

7.  Finally, Martin says, “Go to an Archives!!!” I absolutely agree with this: go to an archives, go to your local library, go to your County Clerk’s office, go to the local courthouse.  It’s not all online, but don’t overlook a potentially good resource like PACER, just because it might not have everything you need.

2 comments , ,

Finding Federal Court Records for Free [Mostly!]

January 7, 2011 Craig Family History, Genealogy

“Court records” can mean literally anything of public interest filed with the courts.  But some of the juiciest stuff is to be found in criminal cases and civil lawsuits.  Ron Arons has an excellent book out called Wanted:US Criminal Records–Sources & Research Methodology.  He describes the state and federal repositories for these records.  I’ve used his book several times in the last year to successfully find criminal records for ancestors that I have been researching.  I highly recommend Ron’s book.Wanted

There is however, a slight chance for the lucky among us, that we could find certain federal criminal records and civil lawsuits relevant to your research online–all free (or almost free), courtesy of good ole Uncle Sam.

Back to Basics

Whether you’re using Ron’s book, or you’re trying to find certain records online, it helps to remember your basic civics.  The United States has two systems of  courts: the federal courts established under the Constitution of the United States, and the state courts established under the constitutions and laws of the various states.  We are concerned here with the federal courts.  The Constitution says that the judiciary of the United States shall consist of “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The “inferior courts” include 13 courts of appeals and 94 district courts (and some other critters known as “Article I courts,” but we  will take those up at some other time).

The best way to study this pyramid is from the bottom up.  Each state and territory, as well as the District of Columbia, contains one or more federal judicial districts.  California for example, has four federal judicial districts: the Northern District, based in San Francisco; the Eastern District, based in Sacramento and Fresno; the Central District based in Los Angeles; and the Southern District, based in San Diego.  Each of these districts has a district court, which may consist of one or more district judges, and usually one or more “subordinate” judicial officers, known as magistrate judges.  These are the trial courts in the federal system: the courts of first instance. These courts are where federal judicial matters generally are first commenced (with some exceptions not relevant to our discussion here).  These courts are where witnesses are heard, juries are impaneled, verdicts and judgments reached and entered.

The 94 district courts are organized into 12 judicial circuits.  Each judicial circuit represents a court of appeals.   For example, the Ninth Circuit, the largest of the 13 circuits [okay, now, is it 12 or 13? We'll get to that in a minute.] hears appeals  from the district courts in the states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, as well as from the courts in Guam, and the Commonwealth of the Northern Marianas Islands.  Most of the circuits are identified by numbers 1 through 11. We get to 13 circuits by including the U.S. Court of Appeals for the District of Columbia Circuit*, which is like the other circuit courts of appeals, except that it hears appeals only from the U.S. District Court of the District of Columbia; and the U.S. Court of Appeals for the Federal Circuit, which is a specialized court with jurisdiction over patent cases, claims against the federal government, certain trade disputes, and other issues. There are no district courts permanently nested within the Federal Circuit.

The graphic below shows the whole U.S. federal court system with which we are concerned.

US Courts

The circuits are color-coded and within state borders, faint gray lines are visible which denote the districts within the state. For example, the close-up below depicts the 11th Circuit, comprised of the federal district courts in Alabama, Florida, and Georgia.   The 11th Circuit’s main office is in Atlanta, but the appeals court has locations in each of the three states. You can also more easily see the district lines.  Georgia, for example, has U.S. District Courts in its Northern, Middle, and Southern Districts.

US Courts - 11th Cir

And of course at the top of the heap is the United States Supreme Court.  The Chief Justice of the United States presides not only over the Supreme Court, but is also the head of the entire federal judiciary.

Over the years, and perhaps especially during the tenure of the late Chief Justice Rehnquist, the judicial branch has made tremendous strides in unifying, modernizing, and streamlining its procedures, and access to its records by the public.  One of the Rehnquist-era innovations is called PACER, which stands for “public access to court electronic records.”

PACER is a great tool for finding relatively recent federal criminal, civil, and bankruptcy filings, especially those since 1990. PACER can be found on the judicial branch’s homepage, www.uscourts.gov or on its own page, www.pacer.gov. Literally anybody in the world with an Internet connection can access PACER; you do not have to be a lawyer or a judge or in any way affiliated with the courts.

Here’s how PACER works: when attorneys file papers with the court, the papers are scanned, digitized, and organized into case files. Most federal courts have or require electronic filing of case documents.  The files are posted in the Case Management/Electronic Case Filing  (CM/ECF) system. PACER is essentially a public portal search into CM/ECF.  We will demonstrate PACER’s search functions.

But first, a couple of caveats about federal court records and PACER.  The federal courts are courts of limited jurisdiction.  That is to say that the Constitution and Congress define e the powers of the federal courts.  So, for example, you’ll find no divorce cases, no small claims cases, and generally no probate or juvenile cases in federal courts.  You may find personal injury cases, but only if the opposing parties are from two different states aand the amount of money at issue is greater than $75,000.  You can find federal criminal cases, bankruptcy cases, cases brought against the federal government and cases brought by the federal government against companies or individuals.

The second caveat is that most courts’ electronic records go back a very limited period of time, most commonly to the 1980s.  However, many courts have case documents back into the 1950s and even the 1930s.

Using PACER

Go to the PACER homepage at www.pacer.gov.  You can also reach it by clicking on the “Court Records” tab on the United States Courts web site [www.uscourts.gov]. Once at the PACER homepage, go to the “Register” tab.   You will want to register for “Case Search Only.”

Pacer home

register pacer

PACER Case Search Only

Anyone with access to a computer can register for a “case search only” account.  There is no registration fee.  However, if you download pages from PACER, the fee is eight cents per page.  But the government has a policy of not invoicing the fee unless and until the fees reach $10 in any one calendar quarter;  for most users, therefore, many searches will be free. You do not need a credit card to register.  But if you do input credit card info, you will receive your password electronically; without a credit card, you have to wait for the Pony Express to arrive.

pacer registration part 2

registration pacer credit card

Once you have your PACER login and password, click on “Find a Case.” You will have two choices here: you may either search the entire PACER locator,or you can search individual court web sites, if you have an idea where the records you seek might be.

PACER find a case 1

Let’s first try the PACER nationwide locator.  On this page, we can see that we have the choice of which types of cases, we want to search: appellate, bankruptcy, civil, criminal, or multidistrict litigation.  This last category is very rare and so we won’t go into that.

PACER find a case 2

Let’s look for criminal cases involving one of my family names, Sanford. we can search all courts, if we want; or we can be more specific.  Recalling that the Sanfords were primarily in the South, and more Texas, we’ll want to search the circuit that includes Texas. Looking at our map of the federal judiciary, we see that Texas is in the Fifth Circuit.  So we’ll start there. We scroll down to the Fifth Circuit, under “Region.”  Then we type the name Sanford in the party box, and click search. Caution: do not check the “exact match” box unless you have included a complete name consisting of at least a first and last name.

PACER Find a case 3

View video demo

Our search reveals 30 records of criminal cases involving parties with the name Sanford in the courts of the Fifth Circuit. In the column headed “Court,” there is a code which tells us, which court in the Fifth Circuit that particular case is pending.  The code is easy to read: the first two letters are the state abbreviation and the second two letters indicate the district in the state where the case is pending. For example, the first case on the list, that of Andreko Deshan Sanford, is pending in the court identified as “msndce.” that means the Northern District of Mississippi.  Going back to the US courts page,  we can ascertain that the United States District Court for Northern District of Mississippi sits mainly in Oxford, but has branches in Greenville and Aberdeen.

PACER Find a Case 4

We were looking for Texas Stanfords so we can proceed in one of several ways.  We can filter these results by court by going to the filter tab, and selecting courts that began with “tx.” Or we can start a new search. This will take us back to the first page of the Pacer case locator.  We’ll go under the criminal tab again.  Under “Region,”  we’ll scroll down to Texas without indicating a specific district.

View video demo

PACER Find a Case 5

A search for “Sanford” this time yields 19 records in all U.S. District Courts in Texas.

PACER Find a case 6

For purposes of illustration, let’s choose the case of Misty Sanford (I do not know her to be one of my Sanford relatives, but who knows?). We  click on her case number and we get the following page:

PACER Find a Case 7PACER Find a Case 7a

There is a variety of information available on this page, but most people are going to be interested  in the documents in the case. To see the documents in the case, do not go to “View a document,” unless you already know the document number [most likely you won't know the document number, because you will not have seen the docket].  Instead, go to “Docket Report” and see this page:

PACER Find a Case 7b

There’s no need to enter any additional information on this page, simply sort by the drop-down menu to “Oldest Date First,” then click on “Run Report.” The following page appears:

This shows us a summary of the case against Misty Sanford.  She’s charged with cruelty to animals, unlawful entry and failure to register her pets; not exactly the crimes of the century.  If we scroll down further, we come to a list of documents in the case.  At this point in her case there only two documents.  Before we look at them, notice the box at the bottom of the page.  It tells us that we’ve been charged eight cents for viewing the current page.  Remember we won’t be actually be charged for this, unless our charges in this calendar quarter exceed $10.  And furthermore, if a document that we pull up exceeds 30 pages, we only get charged for the first 30 pages.

The documents are numbered with hyperlinked numerals.  For example, document number one in this case is called the information. This is often the first pleading in a federal criminal case. When we click on this document, we get the following page:

PACER Find a Case 9

Note that since the document is four pages long, we been charged $0.32 for pulling it up.  Click on “View Document” and a PDF version of the document appears.

We said earlier that the most common cases were from the 1980′s and 1990′s. If you are interested in the records of a specific court, check out the tab labeled “Court Information” at the top of the Pacer case locator page. A pop-box will appear giving dates of the earliest cases in that court’s electronic file.

PACER Court Info 1

PACER Court Info 2

Some of the older cases do not have the actual documents scanned in.  Instead they have textual descriptions of the contents of the records.  This is where you want to get Ron Arons’ book and find out where the actual records are kept.

2 comments , , , , ,

GeneaBlogie 2011

January 2, 2011 Craig Family History, Genealogy

What’s coming up on this blog?

It goes without saying that here at GeneaBlogie, we regard the passing of 2010 with the attitude, “good riddance!” It was certainly not one of our better years.  But as the great Satchel Paige said, “Don’t look back, [it] may be gaining on you.”  So we look forward the to what’s coming up in this space.

First, 2011 represents the 50th year since my family moved to Albuquerque.  To put this in perspective, at the time New Mexico had not yet celebrated its 50th birthday as a State [New Mexico is the 47th State, admitted to the union on January 12, 1912].  The time that we lived in Albuquerque was a tremendous significance to our family’s history.  We lived on the southeast outskirts of the city at Sandia Base, which I have described in previous posts as the “ultimate gated community.” Our very presence there had been set in motion by historical events occurring many many years before, one being the Civil War.  How the Civil War had anything to do with our living on the nation’s principal nuclear weapons installation is a story that will be told.

Second, speaking of the Civil War, 2011 is the sesquicentennial of the start of the shooting part of the Civil War.  There are stories to be told about the war obviously in how it affected my ancestors.

Third, we’ll be writing about what I call “The Gines Diaspora.”   These posts will be my research in advance of my maternal Gines family reunion to be held in July.  If you look on the  left hand column you will see a page called “The Gines Diaspora,” but if you go there, you will for a but cautioned that the information is outdated.  I will be updating that information between now and July and reporting on it in the blog.

Fourth, the Grand Genealogy Journey will continue, although in somewhat of a nonlinear fashion.

Fifth, we will discuss some legal concepts that may be important to genealogists that we’ve yet to touch on in this space.

Those are our priorities, not necessarily in that order.  Loyal and Constant Readers (and I thank all three of you of your support through 2010!) know that we usually do a lot of other things here, and we’ll try to get back to some of that stuff in 2011.

So, no resolutions, no promises, but as always, a commitment to Learn, Share, Enjoy and Appreciate!

5 comments , , ,

The Book I’ve Been Waiting For

January 31, 2010 Craig Family History, Genealogy

It was raining as it had almost everyday about the time the mail came.  There was the usual detritus of our not-yet-paperless society and a package that looked like it had been around the world a couple of times.

“Hmm,” I thought, “this may be the book I’ve been waiting for.”  And indeed it was.  Seems I had given the sender a Zip Code that was one digit off my actual zip code.  And naturally, nobody actually reads the address except the Zip Code, so the book had been off to places exotic and mundane, but none close to the actual destination.

When I opened the battered package, I found the book had survived with nary a scratch.   It may well have been an allegorical allusion to the solid work I would find inside.

The book is called Wanted! subtitled US Criminal Records–Sources & Research Methodology. It’s the latest effort from Ron Arons (The Jews of Sing Sing).

In the Introduction,   Arons says “Whether you have a criminal ancestor in your family or are interested in learning more about a famous gangster or lesser known felon, you’ve come to the right place.”  Yes, indeed.

Arons gives several pages of practical advice on finding criminal records, but the meat of the book is its 365 page state-by-state finding aid for criminal records (he points out that most of such records are not  digitized and available directly on the Internet). In each state section one finds the name, web address, physical location and telephone number for repositories of criminal records.  For each repository, there is a table listing record types, location or call numbers, the author of the records, and of course a title and description.    Each state section also lists the federal records from that state held by the National  Archives, together with the location and contact information for the NARA facility with records from that state.

Some states are broken down to the county level.

The author has also included for every state a Web address by which to locate inmates or access a list of executions or both in that state. (The book covers all fifty states and the District of Columbia; it does not include the territories).

The records that  Arons  catalogs are prison  records, court records, parole and pardon records, and even some investigative and police reports.  He leavens the raw information with occasional photographs or documents that he has come across in his research, some of which relate to famous and notorious outlaws.  Some of these documents relate to Arons’ great-grandfather, Isaac Spier, the New York bigamist, the discovery of whose misdeeds led ultimately to the writing of The Jews of Sing Sing.

I found the book easy to use and accurate with respect to the websites and the state archives that I have had  experience with.  I have frequent need for criminal and court records and frankly, I’m waaay tired with websites that purport to give  directions to such information but are just a compilation of broken links.  Here, Arons has created a truly useful finding aid valuable to veteran researchers, librarians, archivists, law enforcement and legal historians, and biographers as well as the  occasional user.

Most people won’t stay up all night looking at this book cover-to-cover as I nearly did.   But most historical researchers sooner or later will need a finding aid to criminal records  As a lawyer and former judge, I’m glad to have this  “one-stop reference” as Arons calls it.  It really is the book I’ve been waiting for!

Wanted!  (Oakland, Calif.: Criminal Research Press 2009),

Copyright 2009, Ron Arons

Go to Ron Arons’ website, www.ronarons.com, for ordering information.

3 comments , , , , , , , , , , , ,

The Discussion about Standards, Certification, Maturity, etc.: Useful or Divisive? Elitist Envy or Intellectual Inevitability?

December 19, 2009 Craig Family History, Genealogy

Part I of Several Parts

When  I say in in my profile on this page, that I “literally have a checkered past,”  that refers to both my ancestral background (as it would to most people) and to the fact that for complicated reasons, I have been in several different professions in my working lifetime.  I have been, among other things, a military officer, a college professor (undergrad and grad), a lawyer, and a law professor.  These professions and their organizations have in common a need for self-examination which to an outsider (or even some insiders) sometimes seems obsessively paranoiac.

Law faculties and the profession of law teaching are good examples.  On a broad basis, they worry constantly about whether they are producing intelligent scholarship or merely showing their students  “a craft,” like plumbing or carpentry (and in many law faculties those honorable crafts are regarded with derision).  They worry about “credentials”: their own and those of their students.  And lately they’ve been forced (they say) by outside forces to  worry about where they “rank” among their peers.  Based on somebody’s perception of these issues, law schools have come to categorize themselves by “tiers”; i.e., the University of Texas School of Law in Austin is a “first tier” law school; the University of New Mexico School of Law is not.

Are these discussions worthwhile?

I ponder this because similar discussions take place in genealogical circles.

Recently, two writers whose work I admire, the Ancestry Insider, he of his anonymously eponymous blog, and James Tanner of Genealogy’s Star, have published provocative pieces that have drawn reaction from many more folks I admire and respect.  And, no surprise, the objects of my admiration and respect have diverse views on the issues.

James Tanner, a lawyer, asked the question “Is certification of genealogists necessary?” A very good question, indeed. Why would certification of genealogists be necessary: to give some people some additional letters to go in behind their names, or to give a competitive advantage to others, or to provide a consumer protection?

Over the next several posts, we’ll discuss those issues.  But first let’s start with a legal scenario to stoke the fire a bit.  Suppose a party is in court to demand what he believes to be a share of his rightful inheritance. This party’s case relies on proof of his relationship to the deceased.  The relationship is not obvious in any way. So the party, let’s call him Mr. Cousins, hires a genealogist to trace the family relationships.  Let’s go to the courtroom now where Mr. Cousins’ attorneys from the firm of Gried Avarice Mammon & Lust are about to present their case.

Patricia Lust (attorney for plaintiff Cousins): Your Honor, plaintiff calls Jeanne Runner.

Noe Udont (attorney for defendant  Executor):  Your Honor, we object to the testimony of this witness.  We believe that she is going to present so-called genealogical evidence.

Judge: And your problem with that is…?  You know the rules of evidence in this state say that relevant evidence is any evidence having any tendency to make more or less probable the existence of any fact it at issue in the case, and that relevant evidence is admissible,  correct, Ms. Udont?

Udont: Yes, I know that, Judge.  Those are Evidence Rules 401 and 402  But I think they’re trying to use this witness to to give testimony based on her opinion. She has no personal knowledge of plaintiff’s family history.  She wasn’t there when he was born.  She wasn’t there when his grandfather was born.  Or any of the other relatives for that matter.  And our state’s evidence rule 603 does not allow a witness to testify as to matters of which she has no personal knowledge.

Lust: Ah, but the rules of evidence in this state do allow  an expert witness to testify as to her opinion if her scientific, technical, or other specialized knowledge will assist the court to  determine a fact in issue.

Udont: Well, she’s right about that.   State evidence rule 702, however, says that the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.”  I doubt that a genealogist could be so qualified.

Judge: And the rule also says that a so-called “expert”  may give opinion testimony only if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Lust: Well, Your Honor, let me bring my witness in and we’ll see.

Judge: Okay.

(Witness is brought in and takes the stand, and is sworn)

Lust: For the record, what is your name please?

Witness: My name is Jeanne Runner.

Lust:  Are you employed, Ms. Runner?

Runner: Uh, not in the usual sense.  Mainly I stay home with my two young children.

Lust: How do you occupy your time other than spending it with your young children?

Runner: I’m a genealogist.

Udont: Objection, Your Honor.  The answer is conclusory and presupposes–

Judge: Overruled.  You may continue, Ms. Lust.

Lust: Ms. Runner, what degrees or formal education do you have in the field of genealogy?

Runner: Well, I don’t have any degree in genealogy.  I have I have a bachelors of science degree in electrical engineering.  And I’m not sure I know what you mean by “formal education in genealogy.”

Lust: How did you come by your knowledge of genealogy?

Runner: Well, about 10 years ago, I became interested in  family history.  I read a book by a woman named Elizabeth Shown Mills.  Since then I’ve read just about everything she’s ever written.  I started going to genealogical conferences, and I began tracing my own family history using census records, military records, land records, old newspaper articles, photographs, things like that, you know.

Lust: Do you belong to any genealogical societies or organizations?

Runner: Yes, I belong to the National Genealogical Society, the Association of Professional Genealogists, three different state genealogical societies, the Guild of One Name Studies, and my state’s historical society.

Lust: In the past five years, what conferences have you attended with respect to genealogy?

Runner: I’ve been to the National Genealogical Society conference, the Southern California Genealogical Society Jamboree, the annual meetings of the three state genealogical societies I belong to, and the conference of the State historical society to which I belong.

Lust: Have you published in the field of genealogy?

Runner: Yes.  I published an article in one of the state genealogical society journals about how I found my great great grandfather, who had a very common name, by using tax and land records, and old arrest records.  I also have a blog on which I publish regularly tips and hints for others who are interested in genealogy; and I have a web site where I have recorded all of my family history including sources.

Lust: Ms. Runner, have you won any awards for your work in genealogy?

Runner: Why, yes.  The article that I mention that I published in a state genealogical society journal was voted best article of the year by the members of the of the society.

Lust: What other activities you engage in regarding genealogy?

Runner: Well, I teach beginning genealogy at our local community college.  I’m a presenter every year at our local genealogical society’s  education day. And I edited the biography of the founder of our town. Oh, and I forgot to mention earlier that I am member of the Daughters of Nordic Ancestors in America an d I chair their family history education committee.

Lust: Your Honor, at this time, I would tender Ms. Runner as an expert in genealogy qualified by her training, experience, knowledge and education, to present an opinion regarding Mr. Cousins’  family history..

Udont: Before you rule on that, Your Honor, may I examine the witness?

Judge: Yes, of course.

Udont: Ms. Runner, you mentioned that you were a member of the Association of Professional Genealogists.  Would you consider yourself a professional genealogist?

Runner: You know, I’m afraid I really don’t know what is meant by the term “professional genealogist.”

Udont: Ms. Runner, is genealogy an art or science?

Runner: Well, there are aspects of both art and science in the practice of genealogy.  It’s a field of knowledge, hence the suffix “-ology.”

Udont: So you want the court to conclude that anyone who dabbles in a “something-ology” is an expert “something-ologist,” just because they say they are?

Lust: Objection, Your Honor, argumentative.

Judge: Sustained.  Watch yourself, Ms. Udont.

Udont: Sorry.  Ms. Runner, are you certified by the Board for Certification of Genealogists?

Runner: No.

Udont: Are you accredited by the international commission for accreditation of professional genealogists?

Runner: No.

Udont: Have you received certification or accreditation from any other genealogical organization in the United States?

Runner: To my knowledge, there are no other certification or accreditation bodies other than the two that  you’ve already mentioned.

Udont: How many times have you testified in court as an expert witness in genealogy?

Runner: Never.

Udont: Thank you, Ms. Runner.  I have no further questions.  Your Honor, I’ll enter my objection to her testifying as an expert.

How should the judge decide?    Keep in mind these rules:

1.  Generally, a witness cannot testify to a matter of opinion, unless the witness is an expert witness.
2.  An expert witness is one who is qualified by reason of “knowledge, skill, experience, training, or education.”

7 comments , , , , , , ,

Los Angeles County Record Request Requirements–Just Quirky? Or Unconstitutional?

May 2, 2009 Craig Uncategorized

I was alerted to this issue by a commenter on the Find-A-Grave California Discussion Forum.

If you go in person to the main office of the Los Angeles County Registrar-Recorder in Norwalk, California, and ask to view their birth, death, or marriage records, you will be required to sign a form similar to the one below (the example is for birth records, but the ones for death and marriage records contain the exact same provisions)

Los Angeles County Application to Examine Records

Los Angeles County Application to Examine Records

(click image to enlarge)

Frankly, I don’t understand most of what’s here in the section after “Please read and sign the following”.

The first item is somewhat clear, but I wonder why L.A. County wants researchers to sign it?  What effect, other than a potentially chilling one, would this have on a researcher’s ability to characterize, analyze, or describe data contained in the records?

The second item is extremely confusing.  What is meant by “any technical descriptions of the birth or death record indices”?  What are the descriptions provided by the State Department of Health Services and how would a researcher know if they are “consistent” with whatever?

I might understand that item #3 is designed to discourage commercial use of the information (a common, but  dubious governmental objective).  What, however, is meant by the phrase “otherwise transfer”?  Does that mean if I have received certain information from L.A. County’s records, I can’t tell you what it is?

Item #4 is the only one that makes any sense.

The most objectionable requirement is the fifth one, that the researcher “not post information from the [records] on the Internet.”  There is no statutory basis for this requirement that I could find in California law. Furthermore, even if
there is a statute permitting the county to impose this requirement, it’s likely unconstitutional as a violation of the First Amendment’s guarantees of free speech and free press.  It serves no compelling governmental interest sufficient to overcome an individual’s constitutional rights.  And how would the county enforce it?  Could they get an injunction blocking proposed publication on the Internet? Or a court order requiring a researcher to remove the information from the Internet?  Not likely.

Note that a researcher could broadcast the information on television or radio, or post it on a billboard in downtown Los Angeles, or publish it on the front page of the Los Angeles Times, or even email it to a million people.  You just  can’t post it on the Internet!

What makes this form all the more amazing is that persons ordering records by mail are not required to sign any such similar form!  At this link is the document needed to order records by mail from Los Angeles County.

To use the words we lawyers love to use, the Los Angeles County form contains provisions which are vague and overbroad, arbitrary and capricious, and an unlawful infringement on the right to free expression under the U.S. and
California Constitutions.  I would not sign such a form.

For this bit of foolishness, Los Angeles County and its Registrar-Recorder, Dean C. Logan, have earned a place in the Public Records Hall of Shame.  Let’s hope they redeem themselves soon!

8 comments , , , , , , , , , ,
« Older Entries