Law of Evidence Research Paper

Relevancy

Submitted by: Deepika Parya, 35LLB16

Submitted to: Dr. Sarita Sangwan

National Law University Delhi

2019

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 Acknowledgement

I would like to thank my supervising professor, Dr. Sarita Sangwan, for giving me invaluable
guidance, inspiration and support throughout the research period of this paper. I hereby also
declare that the work presented in this research paper, is to best of my knowledge and belief,
free of any plagiarism, and all the work has been acknowledged in the text.

Deepika Parya

35LLB16

National Law University, Delhi

2019

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Contents

Acknowledgement ..................................................................................................................... 2

Introduction ................................................................................................................................ 4

Scope and applicability .............................................................................................................. 4

Literature Review:- .................................................................................................................... 5

Research Questions .................................................................................................................... 6

Hypothesis.................................................................................................................................. 6

Comparative Study..................................................................................................................... 7

Research Methodology .............................................................................................................. 7

Chapter 1 - Theory of Relevance under Indian Evidence Act ................................................... 8

Chapter 2 - The Limits of Relevance theory............................................................................ 10

Chapter 3 - Foundation Theory And Its Critics ....................................................................... 13

Chapter 4 - Foundation as a precondition of relevance ........................................................... 14

Chapter 5 - Conditional relevance and its critiques ................................................................. 16

Chapter 6 - Practical Implications............................................................................................ 18

Conclusion ............................................................................................................................... 19

Bibliography ............................................................................................................................ 20

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 Introduction
Indian Evidence Act, 1872 is a procedural law that prescribes how to use testimony and
physical objects or other material that is documentary in a judicial proceeding. This only
includes evidence that is admissible, which is also distinguished in the act. The evidence can
be presented in both, a court of law and a quasi-judicial body. Testimonies include oral or
written statements, also taking into consideration affidavits. Physical objects may include
things like guns, knives or rods. The Act covers many topics relating to evidence including
relevance, burden of proof, admissibility, mode of proof, sufficiency and weight etc of the
evidence in a legal proceeding.

Indian evidence consists of 3 major parts. The first part has sections that refer to the
relevancy and admissibility of evidence. The second part includes the types of evidence. The
third part is based on the burden of proof regarding a matter by providing evidence in court.

The current academic paper refers only to the first part – the relevance of the evidence.
Relevancy of facts is not defined in the Indian Evidence Act. It is provided from sections 1 to
55.

The concept of relevance is a criterion on the basis of which admission and use of the given
evidence is decided in the court. The evidence shouldn’t be admitted as proof for either of the
parties, if it is not directly or indirectly related to the issue at hand. So in simple terms; if the
evidence presented before the court is closely or logically connected to the issue in question
then it fulfils the conditions of the theory of relevance as per the Indian Evidence Act.
Evidence is relevant only so far as it is logically connected to the fact that is intended to be
established in the court.

Scope and applicability

The chapter II of the Act (Section 5 to 55) gives us the ways in which one fact is relevant to
the other. As per Indian Evidence Act, it is in force in whole of India, except the state of
Jammu and Kashmir (when J&K had special status) but with the Kashmir Reorganisation
Act, 2019, this will also have effect in Jammu and Kashmir now since they are two separate
union territories of India.

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 Literature Review:-
 Fitzjames Stephen, ‘Introduction to the Evidence Act” (1902) – This book makes a
very important contribution to the evidence law as Stephen makes very substantial
changes in the Act. These changes are made on those words of the act in which it now
is written. He gave various reasons for doing so for the Act to be carefully considered
and give some satisfactory result as per his view. Of course, one can always disagree
with him on his points, but there wasn’t any inadvertence.
 George Clifford Whitworth, “The theory of relevancy for the purposes of judicial
evidence” – He has done a brief analysis of the ‘Theory of Relevancy’. He doesn’t
agree with Stephen’s definition of relevancy and instead gives his own statement that
he considers to be more satisfactory and fuller when looked upon under the light of
the rules of the Act. His rules, he claims, are completely different in form but are the
same as those of the Act in the effect that they have. He employs both Indian and
European cases to prove his point.
 Woodroffe and Amir Ali, “Law of Evidence”, 14th Ed. – This is a very authoritative
and highly acclaimed commentary on the Act of 1872. It provides analysis of the
provisions in detail and up to date. It is incorporative of all legislative and judicial
developments. It keeps in mind the new era of technology and explains the relevance
of evidence in that context.
 Ho, Hock Lai, “The legal concept of Evidence”. The Stanford Encyclopedia of
Philosophy (Winter 2015 Edition), Edward N. Zalta (ed.) – This is a very intelligent
legal philosophical study in the law of evidence. It raises a lot of question regarding
what we consider evidence and why and tries to answer them in a sophisticated
manner. It questions how courts decide the weight of certain evidence in giving the
final judgement and how relevancy plays a role in that context. It discusses probative
value, degree of completeness and sufficiency in detail.
 Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001) – This is a great
commentary to understand Evidence law in India. It helps clarify the meaning of
terms used specifically in evidence law that can sometimes seem like they have two
opposite conflicting meanings. It helps with the confusion of thought that discussing
certain topics of this Act may create, especially when talking about relevancy of facts
and issues.

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  Batuk Lal, The Law of Evidence (20th, Central Law Agency, 2013) – This
commentary especially helps the reader with the concepts that are introduced in the
evidence act because of all the amendments to the law. This makes a significant part
of study of this course in context of practical applications of the theory of relevance.
 Vaughn C. Ball, The Myth of Conditional Relevancy, 14 GA. L. REV. 435 (1980). –
This paper was written by Professor Ball to talk about the topic of conditional
relevancy in evidence law. His analysis, although had negligible impact practically.
Judges and codifiers haven’t been receptive to his powerful dissection of so many
nonsense doctrines. He believed that conditional relevancy “should be dismantled at
the earliest opportunity.”
 John H. Wigmore, Evidence § 14.1 (Peter Tillers Rev. 1983) – He believed that when
he doctrine of conditional relevancy is actually applied, it leads to “exclusion of
relevant evidence.”
 Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U. L. REV. 447 (1990) –
This study basically defends the status quo against Professor Ball’s idea of re-
conceptualization of the foundation of evidence law by inexorable force.
 1992, “The Myth of Conditional Relevancy”, Loyola of Los Angeles Law Review, 25
– In this paper, the author makes two addition’s to Professor Ball’s thesis. The first
one is simply a generalization of Ball’s thesis that he failed to note. The other one is a
demonstration of how Ball over generalized his argument in one respect to a different
analytical problem. But these additions only strengthen Ball’s theory regarding
emptiness of conditional relevancy.

Research Questions
 How do the basic requirements of admissible evidence in context of their relevancy
connect to our fundamental understanding of legal claims?
 What is the basis of conditional relevancy? Is it false?
 Does foundation theory, instead of relevance, embody our fundamental understanding
of admissible evidence?

Hypothesis
The foundation theory argues that there is a requirement for the evidence to be case-specific,
assertive & probably true. Therefore, logically, it is a precondition to relevance.

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 Comparative Study
In this paper Laws of Evidence in India will be comparatively studied alongside the laws of

 United States – under the Federal Rules of Evidence

 Canada – the Canadian Judiciary System
 Australia – Uniform Evidence Act (UEA)

Research Methodology
The data was collected and generated through primary sources like legislation and case laws
along with secondary sources like articles, journals, books, commentaries, etc. All of the data
was studies and examined comprehensively in a doctrinal method of research and compiled
together in an orderly fashion to be presented in the present research paper.

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 Chapter 1 - Theory of Relevance under Indian Evidence Act
According to the Section 3 of the Indian Evidence Act, the interpretation of the word
“relevant” is “One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to the relevancy of
facts.”1

The Indian Evidence Acts does not really give any particular definition of ‘relevancy’ or
‘relevant fact’ but it simply gives a description of when a fact would become relevant to
another fact.2

In the Indian Evidence Act, Sections 5 to 55 provide many ways in which a fact could be
related to another and from these provisions we can mete out the concept of relevant fact. If a
fact is relevant to another, they are connected to each other in ways described in Sections 5 to
55.3 If two facts are not connected in any ways prescribed in these particular sections then
they are not relevant.

Any fact that may afford any ‘reasonable presumption’ as to ‘fact in issue’ or the main matter
in the dispute, then it is relevant.

 Sir Stephen is of the opinion that ‘relevancy’ means ‘connection of events as cause
and effect.’4
 Usually, any facts that are necessary for proving or disproving any facts in issue are
relevant. Such facts may be presented in evidence inferentially or directly.5
 Relevant facts are not in themselves facts in issue but are facts that may affect the
probability of facts in issue. So ‘relevant fact’ is a fact which shall have a certain
amount of probative force.6
 Relevant facts are collateral or subsidiary in their nature but probable and pertinent in
giving shape to an inference of liability or right by a process of reasoning.7

1
Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001) 95
2
ibid
3
Batuk Lal, The Law of Evidence (20th, Central Law Agency, 2013) 166.
4
Stephen, ‘Introduction to the Evidence Act’ (1902)
5
Ibid n 3
6
ibid n 1
7
ibid n 3

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There are cases when there may be a fact that is relevant because it has connection to the fact
in issue but it still may be inadmissible. For example, any information given to a spouse
during a marriage or in a professional relationship or in official capacity in relation to the
state of affairs is a privileged communication; therefore it is not admissible though it may still
be relevant to the fact in issue.8

Relevancy can be of two types: logical relevancy and legal relevancy9. When the basis of
ascertaining whether a fact is relevant or not is logic and not law, it is done through
reasonable connection between facts. But it is not enough that the criteria of logical relevancy
be satisfied only. Admissibility is found on the basis of law and not just logic. There are
many facts which are relied upon as probable and relevant but are not accepted by law as
relevant on the basis of precedent, public policy, remote relation or slight chance of probative
value.10 For example,

a) Communication that happened between advocate and client under particular

conditions
b) Communication that happened between spouses that are legally wedded
c) Confession that is made to a police officer
d) A document that is insufficiently stamped

So although all of the above facts are reasonable connected with or logically relevant to the
fact in issue; they are not legally relevant.11

On the other hand, there are facts that are admissible in the court of law which are logically
irrelevant under Indian Evidence Act12. For example,

a) When a witness is in cross examination to test their credibility or veracity, any facts or
questions that can be asked are admissible but not relevant.
b) Any facts that corroborate the witness’s evidence are irrelevant yet admissible.

8
ibid n 1
9
ibid
10
ibid
11
ibid n 3
12
ibid

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 Chapter 2 - The Limits of Relevance theory
Relevance gives a test for admissibility which largely rests on common sense13. Judges are
usually regarded as someone who can be presumed to have the capability to disregard
irrelevant matters on their own. There is a thought process that the judges must have in the
courtroom which is restated by the rule of relevance. It also helps in running the trials
efficiently by laying down a sort of code against which the stories told by the witnesses have
to be measured.14 “Relevant evidence” means “evidence that has any tendency to make the
existence of any fact that is of importance to the determination of a fact in issue more or less
probable than it would be without the evidence.” The “any tendency” standard is a test that
reminds us that no evidence can be judged to have importance in isolation.15 It will not be
sufficient to conclusively make a judgement. All the facts and the evidence and the
circumstances of a particular case have to be read together for it to be enough to meet the
burden of proving an important material fact. The “any tendency” standard also implies that
if any item of evidence is admitted to have any effect on the probability of a material fact
then it has to be considered by the judge as to how far it proves the fact in issue.16

But any relevant evidence assumes that evidence exists. But what is “evidence”? Relevancy
in itself is not a characteristic that evidence is said to have. Relevancy only exists as a form of
relation between any item of evidence and a fact in issue which is provable in a case.17 So the
concept of relevancy includes in itself the concept of “materiality” – “the tendency of an item
of evidence to make a fact of consequence more or less probable.” Still the rule of relevance
tells us nothing as to the nature of material facts: “what are they and where do they actually
come from?” These may seem like really basic questions but they are worth the consideration
to resolve the challenges that evidence law faces. There are problems with the relevance
claim that many scholars have found to be a violation of aspects of well-founded relevance
which has led to “unresolved paradoxes, ad hoc explanations, or claims that the rules of
evidence are to blame and need to be fixed.”18

13
Whitworth, G., 1881, The Theory of Relevancy for the Purpose of Judicial Evidence, Bombay: Thacker & Co.
14
ibid
15
ibid
16
Ho, Hock Lai, "The Legal Concept of Evidence", The Stanford Encyclopedia of Philosophy (Winter 2015
Edition), Edward N. Zalta (ed.)
17
Woodroffe and Amir Ali’ ‘Law of Evidence’, 14th Ed.
18
ibid

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In what is known as Nance’s Paradox19, Professor Nance hypothesizes: “If a witness claims
to know the identity of the killer in a homicide case then that is a relevant testimony, since
even if her claim is based on hearsay or on fabrication, there is also a possibility that it is
based on firsthand knowledge as long as it is not otherwise proved. If there is no proof of
fabrication or hearsay, we should conclude that the defendant likely committed the crime
given the testimony, than it would be without the testimony.”20 Nance’s paradox is based on
the plausible generalization that, “someone accused of murder by a witness is more likely to
be a murderer than someone who is not so accused.” But such evidence would never be even
offered in a real trial because it is devoid of any “case-specific, probably true assertions.”21

The Problem of De Minimis Probative Value22 is another example. In the debate of “logical”
and “legal” relevancy, the amount of discretion a judge is allowed over decision-making of
probative value has been a substantial point. It is now considered that, “the judicial discretion
to examine probative value is a precondition to admissibility of concededly logically relevant
evidence, while on the other hand seeking to limit such discretion when it comes to legally
relevant evidence.”23 But the problem still remains. ‘“Logically relevant” evidence is often
excluded under the minimal “any tendency” standard.” Consider this hypothetical: in a
murder case, the prosecution presents evidence that the accused had a sharp knife in his
kitchen. There is no other information as to the cause of the victim’s death. Relevancy theory
would suggest that people who have access to fatal weapons are more likely to commit
murder than people who don’t. Many scholars argue that this counts as evidence under the
“any tendency” standard because they have a minimum amount of probative value so they are
logically relevant, at least in a “technical sense”24. But such evidence would never be
presented in a real trial. Even if we consider the “marginally informative evidence” as “some
evidence”, this account assumes that the judge does not have any factual background
knowledge of the world we live in, which directly is in opposition to our assumption that
judges are “rational fact-finders” under the rules of evidence. Therefore, for any fact to be
relevant, it has to inform the judge beyond their general knowledge. “To be relevant,

19
Dale A. Nance, ‘Conditional Relevance Reinterpreted’, 70 B.U. L. REV. 447 (1990)
20
ibid
21
ibid
22
James Bradley Thayer, ‘A preliminary Treatise On Evidence At The Common Law’ 265 (1898)
23
ibid
24
Cf. Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation, 27 LAW & PHIL. 223, 223
(2008)

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evidence has to make a fact of consequence more probable than without the evidence in light
of what the judge already knows as a matter of commons sense and common knowledge.”25

If, instead, the evidence was more case-specific, for example, “there is a 10% chance that this
kitchen knife was used to kill the victim” can be relevant if we assume that in a previous
“state of evidence”, the existence of such knife was impossible. But then again, such an
assumption where knives just don’t exist in people’s homes is unreal. Just saying that the
victim was murdered with a knife is not enough; they have to show the knife which was the
murder weapon. Therefore, “De minimis probative value becomes a problem—a poorly
explained systematic exclusion of logically relevant evidence—where relevance theory is
divorced from foundation.”26

25
Ronald J. Allen, The Myth of Conditional Relevancy, 25 LOY. L.A. L. REV. 871, 883–84 (1992)
26
ibid

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 Chapter 3 - Foundation Theory And Its Critics
In this chapter and the coming chapters we will see how the foundation theory of evidence
resolves the problems presented in previous chapters by “replacing the ad hoc explanation
with a systematic one: only well-founded evidence, consisting of case-specific, probably true
assertions, can be relevant.”27

When you are laying the foundation for a case in the court, it is not enough for the witness to
simply state “this gun belongs to the defendant” or “this gun has the defendant’s fingerprint
on it” for it to be a complete foundation, notwithstanding it still “connects” the gun to “the
defendant.”28 There must be a theory of the case which the gun can be relevant to. For
example, some theories can be: “The victim was killed with a gun of this type.” Or “This gun
was purchased by the defendant as part of his plan to kill the victim even though he
ultimately used a different weapon.” The “any tendency” threshold is met and a complete
foundation would now include all the facts that are necessary to prove this theory through
evidence.29

Currently, the theories regarding foundation and its connection to relevance are very limited.
Scholars do recognize that foundation and relevance have a connection but what that
connection is not determined beyond the idea that a false piece of evidence is irrelevant
towards giving any proof regarding a point it would have proved if it were true.30

The idea that a piece of evidence is “fraudulent”, “untrustworthy” or “unreliable” is

considered irrelevant is in itself a corollary to the idea of foundation theory proposed here but
unexplored in a way. In various situations, it is the case that the existence of a particular
preliminary condition is a factor regarding the relevancy of an item of evidence. But no
scholars have really explained that this situation is true in all cases and as a result, foundation
is a precondition to relevancy unvaryingly. This is the relationship that is at the core of the
foundation theory proposed.31

27
Lempert, R., 1977, “Modeling Relevance”, Michigan Law Review, 75: 1021–1057
28
ibid
29
James, G., 1941, “Relevancy, Probability and the Law”, California Law Review, 29: 689–705.
30
ibid
31
Trautman, H., 1952, “Logical or Legal Relevancy: A Conflict in Theory’, Vanderbilt Law Review, 5: 385–
413.

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 Chapter 4 - Foundation as a precondition of relevance
Relevance is a characteristic of any evidence which tends to either increase the probability of
a fact in issue or decrease it through inductive reasoning. This level of inductive reasoning
would depend upon the judge’s ability to use their background knowledge and their
generalization of the world depending upon their experiences in a logical way to the facts that
are case-specific at the trial stage.32 If the judge can make an inductive connection between
the evidence that is presented and the fact in issue by relying only on generalizations such as
these, the foundation is complete. So if all the case-specific facts are in the correct order for
the evidence to be considered as relevant, then all those facts are said to consist the
foundation. Any item of evidence proffered would have probative force only by the power of
these generalizations that are part of the inferential chain that is formed between the evidence
and the fact in issue. Every generalization that is made is an insistence of a fact – not a fact
that is specific to the case per se, but a fact pertaining to “how the world works” generally.33

“Generalizations may include facts of natural science (nighttime is dark, water makes things
wet) or facts of human behavior (greed is a motive for many people). The key point about
these generalizations is that they are deemed to be matters of “common knowledge” or
“common sense”— knowledge, impressions, and intuitions that jurors are expected to have
and to use in making logical inferences about evidence at a trial.”34

For example, in a case three guards went into a cell and two came out injured. The prisoner
said it was self defence because they came into hurt him.35 If the fact that they wore work
gloves is submitted as evidence to prove that they had an intention to beat up the prisoner, the
question that the judge would have to ask himself is that whether prison guards who wore
work gloves before entering the cell of a prisoner have more probability to want to attack or
beat up the prisoner compared to the guards who don’t. To answer this question,
generalizations would come into play. The correlation between the wearing of gloves and
attacks on prisoners by guards would be checked. If it is low then the evidence would not
have much probative force but it would have much strength if such correlation was found to

32
ibid
33
ibid n 13
34
ibid n 31
35
People v. Johnson (Cal. Super. Ct., Del Norte Co., July 27, 1992)

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be high. What is important to be considered is whether the generalization held in mind while
deciding the question is true at all or not. Are there other reasons the guards would have put
on gloves like hygiene that are equally plausible? It is not absolutely necessary that such
other plausible reason completely defeat the generalization made but the generalization
should at least be true more than fifty percent of the time, for it to hold as a good reason to
come to a certain conclusion. The judge may even call experts to establish whether such a
generalization can be made in similar cases or not.36

The truth behind these generalizations is what gives the evidence any probative force for
lawyers who make arguments about the relevance of an item of evidence. Any inferences
drawn from such evidence take shape by following an inferential chain from generalizations
to facts to conclusion. Such generalizations can be challenged periodically. This is where the
importance of the foundation shines. A judge who is in a position that it is hard for them to be
convinced of the relevance of the evidence presented may ask the defence counsel to “lay
some foundation.”37

“A “conditional relevance problem” is essentially an objection that relevance cannot be

satisfactorily established based on one or more of the generalizations underlying a chain of
relevance, but must instead be substituted with evidence specific to the case.”38

Hence, foundation is the precondition to relevance anyway.

36
David A. Schum, Alternative Views of Argument Construction from a Mass of Evidence, 22 CARDOZO L.
REV. 1461, 1462, 1499–1500 (2001)
37
ibid
38
Richard D. Friedman, Assessing Evidence, 94 MICH. L. REV. 1810, 1817 (1996) (book review)

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 Chapter 5 - Conditional relevance and its critiques
The conditional relevance rule proclaims that the facts related to the foundation of the matrix
must first be proven by evidence which is sufficient to help support a discovery of the
probability of the truth. This means that a judge could find them more likely than not.
Scholars who are critics of the conditional relevance make the argument that “more likely
than not” suggests a greater than fifty percent probability, is therefore “a higher standard for
admissibility” than the “any tendency” standard, which makes any evidence with non-zero
probative value admissible, even if by itself it does not prove any other fact by a fifty percent
probability.39

Professor Ball assaults the current awareness of conditional relevance40; because “no fact is
relevant by itself, it will always be dependent on at least one other fact for relevance.” The
probability of other facts must have a probability more than zero.41 Professor Allen develops
on Ball’s statement: “Evidence is conditionally relevant only in the specific procedural
setting of judgment as a matter of law”. Like Ball, Allen makes the argument that “[n]o
evidence is simply relevant in its own right,”42 and thus “determining relevance always
requires relying on an intermediate proposition; there is therefore no logical distinction
“between relevancy and conditional relevancy.”” Therefore, there is no reason to have
different standards of admissibility. 43

Professor Nance accepts Ball’s thesis to a certain degree. Nance concludes, “The concept of
conditional relevance either simply confuses the standards for sufficiency with those for
admissibility or else serves some function distinct from spelling out the logical implications
of the basic requirement of relevance.”44 Friedman rejects Ball’s thesis. Instead, he makes the
argument that “a fact condition can only affect the probative value, not the relevance, of the
evidence depending on it.”45

39
ibid
40
Vaughn C. Ball, The Myth of Conditional Relevancy, 14 GA. L. REV. 435 (1980)
41
ibid
42
ibid n 25
43
ibid
44
Dale A. Nance, ‘Conditional Probative Value and the Reconstruction of the Federal Rules of Evidence’, 94
MICH. L. REV. 419, 431 (1995)
45
Richard D. Friedman, Conditional Probative Value: Neoclassicism Without Myth, 93 MICH. L. REV. 439,
444 n.21 (1994).

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Finally, Nance and Friedman both agree with the main part of the Ball-Allen thesis46 but are
harsh critics of conditional relevance as whole because it is not coherent and is in its core in
opposition to logical relevance. The main argument of conditional relevance critics is simply:
“The logical relevance of a fact can never be made to depend on the probable truth of any
other fact. The attack on the coherence of “conditional relevance” is thus an attack on the
concept of foundation.”47

46
“conditionally relevant evidence is always relevant so long as the fact condition remains possible; probable
truth is not required and therefore no evidence fails the a conditional relevance test”
47
ibid n 44, 45.

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 Chapter 6 - Practical Implications
The foundation theory (conditional relevance) is very helpful to both law students and legal
practitioners to get their evidence admitted in court by showing that foundation is a very
important characteristic of all evidence. Foundation requirements are not arcane, they are
intuitive. A clear understanding of what evidence is and what place it has in an overall story
of liability or guilt will show lawyers what kind of foundation is needed and also will help
her with the preparation before the trial.48

Another practical use of this theory is that it adds a factor of subjective judicial discretion to
see if the evidence is worth consideration or not when it is up against a variety of other
elements.49

Professor Nance proposes a “best evidence” requirement but it could lead to “potential
exclusions of relevant evidence”. It would require more than usual judicial oversight to
enforce it. The judges would have to continuously check if the “best evidence” was produced
by intervening in the discovery or investigation stage and if “best efforts” were made.50

The test for checking whether one type of evidence is “better” than other types of evidence is
such a subjective opinion and it is very case-specific. It would only increase the difficulty in
the application of the existing rules of evidence. This would leave to excessive discretion in
the process of exclusion of any relevant evidence.51

48
Rudolf Carnap, ‘Logical Foundations Of Probability’ 211 (2d ed. 1962)
49
ibid
50
ibid n 44
51
ibid n 48

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 Conclusion
In conclusion, we now know that the foundation theory is a solution for Nance’s paradox:
“[A] witness in a homicide case takes the stand and simply declares under oath that she
knows who the killer is and that it is the defendant.” The theory says that since there is no
foundation to the witness’s statement therefore it is irrelevant. It is already common
knowledge to the judge that the accused is held in court in a case of homicide and that there is
a witness that thinks that the accused is guilty. Witness simply pronouncing it in court does
not do anything substantial evidence-wise. The testimony has no significant information.
There are no details as to the specific factual matrix of the case. Therefore it leads to
speculation in the judge’s mind as to all the possibilities through which the witness may have
gotten that information. The judge has to be rational and look at the evidence and examine its
believability. This evidence cannot be logically relevant if it is neither assertive not probative
in its truth.52

“The truth of that narrative and the truth of the evidentiary facts necessary to sustain that
narrative are analytically indistinguishable. Once one sees that the fundamental structure of
evidence law turns out to make more logical sense than we have given it credit for.”53

52
ibid n 19
53
ibid

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 Bibliography

Books –

 Whitworth, G., 1881, The Theory of Relevancy for the Purpose of Judicial Evidence,
Bombay: Thacker & Co.

 Stephen, ‘Introduction to the Evidence Act’ (1902)

 Woodroffe and Amir Ali’ ‘Law of Evidence’, 14th Ed.

 Ho, Hock Lai, "The Legal Concept of Evidence", The Stanford Encyclopedia of
Philosophy (Winter 2015 Edition), Edward N. Zalta (ed.).

Commentaries –

 Sarkar, Law of Evidence (15th, Wadhwa and Company, 2001) 95.

 Batuk Lal, The Law of Evidence (20th, Central Law Agency, 2013) 166.

Journals –

 James Bradley Thayer, ‘A preliminary Treatise On Evidence At The Common Law’

265 (1898)

 Cf. Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation, 27
LAW & PHIL. 223, 223 (2008)
 Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U. L. REV. 447 (1990)

 Vaughn C. Ball, The Myth of Conditional Relevancy, 14 GA. L. REV. 435 (1980).

 1992, “The Myth of Conditional Relevancy”, Loyola of Los Angeles Law Review, 25:
871–884.

 1990, “Conditional Relevance Reinterpreted”, Boston University Law Review, 70:

447–507.

 Lempert, R., 1977, “Modeling Relevance”, Michigan Law Review, 75: 1021–1057

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 Ball, V., 1980, “The Myth of Conditional Relevancy”, Georgia Law Review, 14:
435–469.

 James, G., 1941, “Relevancy, Probability and the Law”, California Law Review, 29:
689–705.

 Trautman, H., 1952, “Logical or Legal Relevancy: A Conflict in Theory’, Vanderbilt

Law Review, 5: 385–413.

 David A. Schum, Alternative Views of Argument Construction from a Mass of

Evidence, 22 CARDOZO L. REV. 1461, 1462, 1499–1500 (2001)

 Richard D. Friedman, Assessing Evidence, 94 MICH. L. REV. 1810, 1817 (1996)

(book review)

 Dale A. Nance, ‘Conditional Probative Value and the Reconstruction of the Federal
Rules of Evidence’, 94 MICH. L. REV. 419, 431 (1995)

 Richard D. Friedman, Conditional Probative Value: Neoclassicism Without Myth, 93

MICH. L. REV. 439, 444 n.21 (1994)

 Rudolf Carnap, ‘Logical Foundations Of Probability’ 211 (2d ed. 1962)

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