Dear Don:

Well, it is a very classic way of recognizing records. But it was used by
NARA's lawyer Jason Baron in winning the case about GS20 in 1997.

As to the comparison between records and evidence, I think that it is an
apple vs orange comparison. Evidence is a relationship between a fact to be
proven (factum probandum) and the fact that proves it (factum probans). Such
relationship may take the form of a record, a document, raw data, an object,
a weapon, oral testimony, anything, as long as it is relevant to the case,
and declared authentic in oral testimony. Documents are generally considered
hearsay because they cannot be cross-examined and can only tell you what has
been told to them and therefore their content must be confirmed by the oral
testimony of a neutral third party. However, an exception to the hearsay
rule admits automatically business records because they are documents (all
records are documents, but not all documents are records) that are 1.
created in the usual and ordinary business 2. by somebody who is responsible
for doing so and 3. at the time of the fact. Business records only have to
pass the relevance test (note that this confirms that even business records
are not evidence, but can be used as evidence) as they are considered
authentic by default.   

Now, the admissibility rules I mention above are only valid in common law
countries. In civil law countries, all documents are automatically
admissible as evidence. Civil law does not have admissibility rules. This
might be one of the reasons why Natasha and I disagree. The two of us are
speaking from a different juridical context and "context is all"! Even so,
records and evidence are completely different concepts. The word evidence
comes from e-video (I see from) and it means "ground for belief", something
presented in support of an assertion--a much broader concept than record and
a relationship rather than a fact. 

When records are used as evidence, they constitute the most reliable
evidence, because they were not created for the purposes for which they will
be later used in a court of law, but for the purposes of the activity they
carry out or participate to (this is what Jenkinson calls the "impartiality"
of the records). Per se, records are not even evidence of themselves
existing as records because such evidence is determined by their context (if
they are treated as records). I wrote all this almost 20 years ago in "The
Archival Bond", which you can find here:
https://www.academia.edu/5404673/The_Archival_Bond

To refer in general to the ability of records to reveal what is going on, we
can avoid using the term evidence, which has legal connotations, and say
that all records are sources of information, both explicit, in their
content, and implicit, in their form. This is clearly discussed in Angelika
Menne-Haritz's article in the American Archivist 57 (Summer 1994).  

As usual I went on for too long. I apologise. Cheers,

Luciana

Dr. Luciana Duranti 
Professor, Archival Studies
School of Library, Archival, and  Information Studies
The University of British Columbia | The Irving K. Barber Learning Centre
470-1961 East Mall, Vancouver, BC V6T 1Z1
Phone 604 822 2587 | Fax 604 822 6006
[log in to unmask] | www.slais.ubc.ca |
Director I Centre for the International Study of Contemporary Records and
Archives
www.ciscra.org
This message is confidential to the parties I intend it to serve.



-----Original Message-----

With this definition in mind, how would you distinguish 'record' from
'evidence'? Or do you believe that's an 'apple vs. oranges' comparison?

Thanks,
Don

Don Lueders, CRM, CDIA
Chantilly, VA
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