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Response Essay: Some Observations on Professor Schwartz’s “Foundation” Theory of Evidence

Professor David Schwartz’s A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be “case-specific, assertive, and probably true.” His shorthand for the tripartite requirement is that evidence must be “well founded.” Hence, he calls his theory the “foundation theory of evidence” and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges’ rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.

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There will be those, steeped in the traditions of Evidence, who will feel he has not made the case that most evidence must be case-specific, assertive, and probably true. Nor will they be convinced that this is why supporting evidence in the “conditional relevancy” situation is required. I think a follow-up article will be required to beef up his argument for the traditionalists, and even for fence-sitters like myself. But I trust that even his detractors will agree that he has revealed a widespread phenomenon that has gone under the radar: that evidence which could not be found to be probably true by a jury is usually excluded, or not offered, though the rationale may be fuzzy or varied. This is enormously useful for litigators to know. Further, even the skeptics will find his analysis along the way to be intriguing and full of other
valuable insights.

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