Towards an archival concept of evidence

Archivaria

Volumn 61, Issue 1, 2006, Pages 127-146

  Meehan, Jennifer ^a  

^a VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY   (United States)

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EID: 82455166398     PISSN: 03186954     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (62)

1. Sir Hilary Jenkinson, as quoted in Terry Cook, "Archives, Evidence, and Memory: Thoughts on a Divided Tradition," Archival Issues, vol. 22, no. 2 (1997), p. 177.
2. Richard Cox, "The Record in the Information Age: A Progress Report on Reflection and Research," Records & Retrieval Report, vol. 12, no. 1 (January 1996), pp. 1-16.
3. nd ed., s.v. "evidence."
4. Ian Hacking, The Emergence of Probability (London, 1975), pp. 32-34.
5. Nancy Partner, "Making Up Lost Time: Writing on the Writing of History," Speculum, vol. 6, no. 1 (January 1986), pp. 94-105.
6. An exception to this can be found in the writing of Heather MacNeil. In Trusting Records, she introduces and explicitly engages with Hacking's and Partner's ideas in the context of examining the methods and rules of the legal, historical, and diplomatic disciplines for assessing record trustworthiness.
7. Heather MacNeil, Trusting Records: Legal, Historical and Archival Perspectives (Dordrecht, 2000).
8. The notion of the rules of evidence as an "archival resource" comes from Brien Brothman, "Afterglow: Conceptions of Record and Evidence in Archival Discourse," Archival Science, vol. 2, nos. 3-4 (September 2002), p. 318.
9. Such writings include, among others, Mark A. Greene, "The Power of Meaning: The Archival Mission in the Postmodern Age," American Archivist, vol. 65, no. 1 (Spring/Summer 2002), pp. 42-55
10. Brien Brothman "Afterglow" article cited above.
11. Brien Brothman writes of the "shift in the difficult equilibrium that archivists have always needed to establish between the two poles" of the record-creator's and record-user's perspectives.
12. Brien Brothman, "Afterglow," p. 327.
13. Terry Cook discusses the "unresolved tension" between concepts of evidence and memory in "Archives, Evidence and Memory," p. 177.
14. He further suggests that the concepts of evidence and memory exist (or could exist) in "creative rather than destructive tension," a point that I will discuss later in the paper.
15. Terry Cook, "Beyond the Screen: The Records Continuum and Archival Cultural Heritage," paper delivered at the Australian Society of Archivists Conference, Melbourne, 18 August 2000; available at (accessed on 1 March 2005).
16. It is worth noting at this point that the following discussion will largely concern written records. I do not mean to suggest that these ideas do not (or could not) also apply to oral, artifactual, and other types of records, only that I have not yet had the opportunity to explore the specific ways in which they might.
17. The notion of "conceptual lens" is drawn from Barbara Craig's discussion of the concept of memory and its pertinence to archives.
18. She writes: "The concept of memory should have special resonance for archivists, and not only because it is a convenient shorthand to explain the purpose of archives to audiences unfamiliar with our work. The memorial metaphor is a powerful conceptual lens through which to view archives, as documents and as institutions, and to understand the inevitable and the potential effects of our professional economy on both"
19. Barbara L. Craig, "Selected Themes in the Literature on Memory and Their Pertinence to Archives," American Archivist, vol. 65, no. 2 (Fall/Winter 2002), pp. 280-81.
20. Even though these types of projects also made use of authoritative sources from other disciplines most notably the Pittsburgh Project, which also consulted the literature of the audit, records management, information technology, and medical professions for relevant customs, standards, and best practices related to records and record-keeping - for the purposes of this discussion, I am only concerned in highlighting the particular use of the legal rules of evidence.
21. Heather MacNeil, Trusting Records, pp. 35-50.
22. For instance, Functional Requirement #3 of the Pittsburgh Project seeks to satisfy the business records exception to the hearsay rule (United States Federal Rules of Evidence, Rule 803) by calling for record-keeping systems to be "employed at all times in the normal course of business"
23. University of Pittsburgh Electronic Records Project, "Functional Requirements for Evidence in Recordkeeping," available at (accessed on 16 March 2005).
24. Similarly, in order to ensure the reliability of records and support a circumstantial probability of trustworthiness, Rule A132 of the UBC Project requires the integration of business and documentary procedures.
25. In order to ensure the authenticity of electronic records and to satisfy the legal rules governing the identity and integrity of documentary evidence, Requirement A.1 of the Benchmark Requirements for assessing the authenticity of electronic records developed by the Authenticity Task Force of InterPARES I prescribes the capture and preservation of certain metadata elements that explicitly express the record attributes and inextricably link these to the record.
26. In order to ensure the integrity of the electronic system in which records are to be created and managed (thereby ensuring the integrity of the electronic records) and to satisfy the best evidence rule, Rule A131 of the UBC Project prescribes the design of a "recordkeeping and record-preservation system," that adheres to specific rules and procedures.
27. See Luciana Duranti, Terry Eastwood, and Heather MacNeil, Preservation of the Integrity of Electronic Records (Dordrecht, 2002)
28. Authenticity Task Force, "Establishing and Maintaining Trust in Electronic Records: The Final Report of the Authenticity Task Force," in InterPARES Project, The Long-term Preservation of Authentic Electronic Records: Findings of the InterPARES Project, Appendix 2, August 2002, available at (accessed on 1 June 2003).
29. The Pittsburgh Project's concept of "literary warrant" touches upon this aspect of the legal rules as an archival resource.
30. Wendy Duff describes "literary warrant" as authoritative statements that "describe or explain the requirements for records and recordkeeping systems," one instance of which derives from the law.
31. She argues for the archival use of "literary warrant" to highlight the connection between archival requirements and legal standards for recordkeeping in order to increase the credibility of archivists and to gain further acceptance for archival requirements for trustworthy record-keeping in electronic systems.
32. Wendy M. Duff, "Harnessing the Power of Warrant," American Archivist, vol. 61, no. 1 (Spring 1998), pp. 88-105.
33. Carl B. Joynt and Nicholas Rescher, "Evidence in History and Law," Journal of Philosophy 56 (1959), pp. 561-77.
34. Morris Forkosch, "The Nature of Legal Evidence," California Law Review 59 (1971), pp. 1356-83.
35. To avoid these dangers, it is necessary to continually ask ourselves: How well do the rules and their attendant concepts serve the broader archival endeavour? How well do they inform archival theory and methodology, and guide archival practice?
36. How well do they take into account the whole range of archival material, from organizational records to personal papers? How well do they take into account the whole range of archival treatment, from prospective analysis to retrospective treatment of records?
37. Whenever the answers to these questions (and others like them) are not satisfactory, we must re-visit the concepts themselves, re-thinking and re-working them until they fit our specific needs and purposes.
38. This paper represents an attempt to re-think evidence in order to come up with more satisfactory answers to this particular set of questions.
39. William Twining, Rethinking Evidence: Exploratory Papers (Oxford, 1990), pp. 1-31.
40. Ibid., pp. 27-28.
41. William Twining, Theories of Evidence: Bentham and Wigmore (London, 1985), pp. 19-20.
42. Ibid., pp. 51-52.
43. Jeremy Bentham, Rationale of Judicial Evidence, ed., J.S. Mill, vol. 1 (London, 1827), pp. 17-18.
44. Ibid., pp. 17+39-41.
45. Bentham also has a great deal to say about the different species of evidence, and the various degrees of trustworthiness of documentary evidence that relate to the number of securities attendant upon the creation of such and that serve to distinguish between "makeshift evidence" and "preappointed evidence"
46. Brien Brothman, pp. 53-57. However, these ideas are subordinate to his general theory of evidence, and it is at the level of his general theory that certain aspects can fruitfully be highlighted and applied to further considerations of the use and treatment of evidence.
47. John Henry Wigmore, A Treatise on Evidence in Trials at Common Law, ed. and rev. by Peter Tillers, vol. 1 (Boston, 1983), pp. 14-15.
48. John Henry Wigmore, as quoted in Twining, Theories of Evidence, pp. 125-26.
49. Brien Brothman, "Afterglow," p. 313.
50. Ibid., p. 335.
51. An archival concept of evidence cannot be meaningfully extended to all matters of evidence; rather it specifically relates to matters of documentary evidence, where it is possible to conceive of an event that produces a record and a record that is produced by and that can therefore serve as evidence of an event. It remains to be worked out how the concept might pertain to records other than written ones.
52. Luciana Duranti, "The Archival Bond," Archives and Museum Informatics 11 (1997), p. 214.
53. Stanley Raffel, Matters of Fact: A Sociological Inquiry (London, 1979), pp. 3-17.
54. Tom Nesmith, "Still Fuzzy, But More Accurate: Some Thoughts on the 'Ghosts' of Archival Theory," Archivaria 47 (Spring 1999), p. 144.
55. Verne Harris, "Law, Evidence and Electronic Records: A Strategic Perspective From the Global Periphery," address delivered to the International Council of Archives Conference, Seville, August 2000, available at , p. 14 (accessed on 1 March 2005).
56. The question for me is not so much whether or not a record has, or can be said to have, an inherent nature, but rather whether we, as archivists and users, are ever really able to know or access that supposed nature with any certainty.
57. My thinking here is influenced by Lyman Ray Patterson's discussion of the distinction between proof and evidence, in which he writes that the process of proof (or producing a conviction in the mind of the person who receives the evidence) is not based upon the evidence per se, but rather upon inferences drawn from the evidence.
58. Lyman Ray Patterson, "Evidence: A Functional Meaning," Vanderbilt Law Review 18 (1964-1965), pp. 875-91.
59. Terry Cook, "Beyond the Screen," p. 5.
60. He writes further: "For me, it is in this liberation that we find 'the heartland'. The heartlandin-general. And it is here that we find the archival heartland ... something which is both always with us and something for which we are always, and will always be, reaching"
61. Verne Harris, "Law, Evidence and Electronic Records," p. 18.
62. L. Craig, "Selected Themes in the Literature," p. 278.