David S. Schwartz (University of Wisconsin Law School) has posted A Foundation Theory of Evidence on SSRN. Here is the abstract:
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Conventional evidence theory maintains that the relevance is the fundamental principle of evidence law, because it provides a general theory of evidentiary admissibility. Foundation is conventionally viewed as a restriction on placed on the admissibility of certain items – exhibits in particular – of otherwise relevant evidence. This article argues that foundation, if fully and properly understood, is the fundamental principle of evidence law. I argue that there is a “foundation principle” built into the structure of evidence law that evidence be “specifically assertive and probably true,” applies to all evidence and is a necessary logical precondition for the relevance of any evidence. The foundation principle flows directly from the nature of an adversarial legal claim, which itself must consist of a single, true narrative. The foundation theory of evidence advanced in this article provides a general theory of evidentiary admissibility, in a way that relevance cannot. It further resolves various key paradoxes and unexplained connections surrounding evidence law: the fact that an identical standard governs both the foundation of discrete items of evidence and judgment as a matter of law; the “conjunction paradox” in probability theory that has perplexed evidence theorists for 40 years; and the argument (known as the “conditional relevance problem”) that Federal Rule of Evidence 104(b) is incoherent and should be eliminated.
