In response to Response Essay: Some Observations on Professor Schwartz’s “Foundation” Theory of Evidenceby Paul Rothstein.

It is an honor and a privilege, both to have garnered Professor Rothstein’s careful and sympathetic reading of my article A Foundation Theory of Evidence (hereinafter “Foundation Theory”) and to have the opportunity to respond to his thought-provoking comments in these pages. I’m gratified that Professor Rothstein has agreed with some of Foundation Theory and, while as yet unconvinced on some key points of my argument, remains open to being convinced. No one has more authority than Professor Rothstein to judge a piece of evidence scholarship and call out the thin patches in its argument, and I welcome his suggestion that I try to elaborate some aspects of my argument further in future articles.

My basic argument in Foundation Theory is that relevant evidence must be “well founded,” by which I mean “case-specific, assertive, and probably true.” Proffers to the jury cannot be “relevant evidence” without these qualities. This principle follows logically from the requirement of our legal system that a claimant can only win the imposition of liability (civil or criminal) on a defendant by proving things that probably did happen rather than things that may have happened. Claimants must present a specific narrative that includes the factual elements required by the substantive law for a particular claim. Some specific thing must have happened to give rise to liability, and the claimant must commit himself to a specific, detailed narrative of what happened. I argue further that all evidentiary facts that are necessary to proving this narrative must be probably true if the overall narrative is to be found probably true.

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