Q26

[lisahollchang]

When I did this question I eliminated all the answers but B and C then chose C because I found it's claim to be smaller and thus more supportable. I'm not sure if that's the wrong strategy or if there's some other reason why B is right and C is wrong?

Thanks!
Lisa

[ManhattanPrepLSAT1]

Tough question. I agree that answer choice (C) is a smaller claim and would be easier to prove than answer choice (B), if they were about the same information.

I think the quick key you were supposed to use in eliminating answer choice (C) is the term change from the passage to answer choice (C). The passage repeats the term "modern evidence law" whereas answer choice (C) is about "current laws regarding evidence." I'd use that to eliminate answer choice (C) alone.

However, i think there's another issue with answer choice (C) and that is that the passage supports the claim that some doctrines of common law would be today considered ridiculous, but this answer choice is saying something different. It says that says that some current laws do not derive from common-law doctrines. Same words, different meaning.

Does that clear this one up?

[lisahollchang]

Thanks, your reply did give me some strategies I can use in attacking future similar-but-not-the-same wrong answer choices. This was a tricky one!

[romanmuffin]

I was down to the same choices, B and C. A few questions about eliminating C

1. Does the term shift from modern evidence law to some current laws regarding evidence really warrant the answer choices elimination? I considered modern law encompassing 'some current laws regarding evidence' and not incompatible terms.

2. I thought derive was perfectly valid. Yes, the passage talks about these old ways of dealing with evidence as bizarre. But the passage also suggests that these old ways were surpassed by Bentham's approach. Line 53 and 54 talk about Bentham's method prevailing after his death, (which I took to mean being adopted) so wouldn't it be reasonable to say that some laws regarding evidence today are NOT derived from the archaic evidence laws (common-law doctrines)?

[ManhattanPrepLSAT1]

1. Does the term shift from modern evidence law to some current laws regarding evidence really warrant the answer choices elimination? I considered modern law encompassing 'some current laws regarding evidence' and not incompatible terms.

I get your point. I was focused on the term "current laws" and I think if I had read "current laws regarding evidence" I would have been a bit more forgiving.

2. I thought derive was perfectly valid. Yes, the passage talks about these old ways of dealing with evidence as bizarre. But the passage also suggests that these old ways were surpassed by Bentham's approach. Line 53 and 54 talk about Bentham's method prevailing after his death, (which I took to mean being adopted) so wouldn't it be reasonable to say that some laws regarding evidence today are NOT derived from the archaic evidence laws (common-law doctrines)?

How do you know that Bentham's method is not derived from common-law doctrine? I can't find that supported in the text anywhere. Additionally, Bentham's method is said to have been demoted from a "rule" to a "presumption."

What do you think?

[griffin.811]

I had the same issue as the above posters. Narrowed down to B and C, chose C thinking "rigidity (wd?) is extremely abstract and its definition is very open to interpretation, thus hard to justify to EVERYONE taking the test." I initially chose B, then thought it was a trick and chose C for the above reason.

[raziel]

Notice that in line 17 the passage talks about how evidence was mechanically excluded even when it was reliable and relevant (This is referring to common-law doctrines from line 4). Line 53-55 talks about the proviso about excluding evidence. This implies, along with Bentham's contribution referred to earlier, that restrictions for evidence in trials was more permissive.

I though this sounded like a good answer, then I looked at (C) and thought it was somehow a better answer

But as Matt pointed out, modern evidence laws in the passage has a different meaning than current laws. Also, notice that the question is asking about the history, and the passage talks mainly about the history of evidence laws. Hard question

I also think it is a little weird that it is talking about "some current laws". Even if we accept that Bentham somehow helped changed current law, we don't know anything about the plural "laws". The passage only talks about one proviso.

[abcde]

Could somebody explain why (A) is a wrong answer?

I thought (A) was supported by the passage because of line 51-55 and line 4-10.

Line 4-10 says "the principles of common law of evidence doctrines in 18th century forbade the parties to a case from testifying..." and so on.

Line 51-55 says that "the approach underlying modern evidence law began to prevail soon after B's death" (which I thought the modern evidence law replaced the old one). Also, the paragraph explains what the modern principle is after the colon "relevant evidence should be admitted unless there are clear grounds of policy for excluding it"

So, combining these two information, I thought I could infer that the old common law of evidence (forbidding the parties to a case from testifying) was replaced by modern principles (relevant evidence should be admitted....) ?

Thank you very much.

[leroyjenkins]

At the end of the last paragraph, we are told that Bentham's principle is influencing modern law, but was "demoted from a rule to a presumption" [lines 57-60]. Moreover, we are not told Bentham's principle was ever adopted as a "rule," per se, but merely as an approach underlying modern evidence law [lines 51-52].

From this, it should be clear that Bentham's principle had not been adopted into modern evidence law. It is not a law; it merely influences law.

So A and C should be easier to eliminate. Given that Bentham's principle is not a law, and that we are not told about any other deviations from common law, we have no grounds for inferring that common law is no longer used as the legal standard.

But we do know that evidence that would have once been excluded for arbitrary reasons can now be admitted in legal proceedings, which pretty clearly shows that 18th century evidence law was more rigid than it is today.

[aradunakhor]

How do you know that Bentham's method is not derived from common-law doctrine? I can't find that supported in the text anywhere. Additionally, Bentham's method is said to have been demoted from a "rule" to a "presumption."

What do you think?

Sorry to bring up an old thread, but I thought I saw support for C in the first-paragraph, where we are told that in the late 18th century 'among common-law doctrines' there was a principle that 'forbade parties to a case from testifying'.

Today, relevant evidence such as testimony from the involved parties is allowed (barring certain exceptions). To me it seems that the current laws regarding evidence that allow parties to testify definitely do NOT derive from the common-law doctrine in the 18th century that forbade it. The only explanation I can see for why C is wrong is that when we refer to today's common law, we exclude outdated principles that were part of common law from an earlier time (this seems a bit of a stretch to me, I had to look on Wikipedia for the definition of common law).

Am I misunderstanding something here? Thanks!

[leroyjenkins]

I think all we really know is that some common law principles that were once applied in practice are no longer applied. But we do not know whether any new laws regarding evidence have been written.

So, for argument's sake, let's say that common law consisted of 100 principles that could have influenced modern law. Along comes Bentham, and some of the principles are abandoned, so that only 95 / 100 principles are used in modern law (which is roughly analogous to what we know from the first paragraph).

It could very well be the case that modern evidence law is derived solely from those 95 principles. Knowing that some of the principles have been abandoned does not imply that any new principles had to be developed to replace them.

[aradunakhor]

Hi leoangelakos, thanks for the response.

That makes sense to me... though I have to say it seems strange to me that simply from going from 100 to 95 you switch from prohibiting involved parties from testifying to allowing them to testify. I thought this right to testify would have to be codified in a new evidence law that would necessarily have to draw on new, outside principles (since the remaining 95 when they were originally part of the old 100 together contributed to the original prohibition -- ok this reasoning does seem weak I guess).

[alex.cheng.2012]

This was a pretty tough question IMO. Here's my take:

Incorrect Answers:
(A): On my initial glance of the answers, I marked this as a contender. Nothing jumped out at me saying this answer was incorrect. Paragraph 1 talks about eliminating some common law doctrines, but it never said it was replaced by a modern principle.
Further, my understanding of the passage told me that common law rules of evidence were a body of laws, and not one singular law. The beginning of paragraph 2 talks about how much of that law talked about excluding relevant evidence. From that, we can infer there are other common laws of evidence that talk about something other than relevant evidence. The passage only talks about the laws relating to relevant evidence, and as such, we cannot say common law rules of evidence have been replaced by modern principles (I interpreted the answer as referring to all common law rule of evidence).
(C): The passage really doesn't talk about "current" laws. It's focus was more on late 18th century common laws of evidence and the influence of B's nonexclusion principle.
(D): This is straight up wrong according to the passage. Easy elimination due to the first sentence of the first paragraph.
(E): We don't really know anything about rules of evidence before the 18th century.

Correct Answer (B): My thought process during the test was: "Hmm A might work, but only because I'm not sure A is wrong, as opposed to I think A is right. B looks pretty attractive. The passage talks about how sometimes these rules were taken to an extreme, and even gives an example of a past rule that is no longer observed today. C is like A in that it might work, but not because I think it's right, but more so I cannot confidently eliminate it. D I quickly eliminated due to the first line of the passage. For E it was more like a light elimination - I'm pretty sure it's wrong, but I'm not 100% sure." I looked over the answers again, decided that the passage didn't really talk about current laws, so I light eliminated C, still wasn't too sure about A, and decided B was correct because I could find some support for it.

[deedubbew]

Can someone clarify what they mean by demoted from a rule to a presumption? And why is that significant in finding the right answer/

[maryadkins]

A rule can't be overruled: drive in the right lane, not the left; stop at stop signs.

A presumption can be overruled when there's a reason for it to be, but otherwise, it's the default: innocent until proven guilty. You are presumed innocent...UNTIL you are proven guilty.

A presumption is a way of given one side the ball. It's a good place to be, to have a presumption in your favor"”it puts the onus on the other side to prove there's a reason you shouldn't be presumed correct.

Hope this helps!

[maandychan8]

I think the correct answer C comes from lines55-56, which says ' the clear-grounds proviso allows more exclusions than B would have liked'. I think the more exclusions has the same meaning as 'less rigid'. Anyone agrees with me?

[deedubbew]

I think the quick key you were supposed to use in eliminating answer choice (C) is the term change from the passage to answer choice (C). The passage repeats the term "modern evidence law" whereas answer choice (C) is about "current laws regarding evidence." I'd use that to eliminate answer choice (C) alone.

However, i think there's another issue with answer choice (C) and that is that the passage supports the claim that some doctrines of common law would be today considered ridiculous, but this answer choice is saying something different. It says that says that some current laws do not derive from common-law doctrines. Same words, different meaning.

Even though there is a shift from modern evidence law to current laws. Can we not assume that modern evidence laws is part of the current laws regarding evidence?
Perhaps a better reason why C is wrong is due to the fact that it is possible that all current laws including modern evidence law is derived from common law evidence?
I initially found this tricky because of lines 6-8 regarding bizarre principles that are no longer in place. However, all current laws regarding evidence could still derive from other parts of common law.

I finally came to the correct answer only after Mary Adkins informed be of the difference between a rule and a presumption. This led me to choose B. Thanks Mary, I would have been stuck for a VERY long time on this one otherwise.

[abrenza123]

I had serious problems with B -

just because modern evidence law is more inclusive of evidence doesn't to me mean that it is less rigid... It could extremely rigid about what MUST included and what can be excluded. I thought that 54-55 could be interpreted as rigid - "relevant evidence should be admitted unless there are clear grounds for policy excluding it." That sounds like a rigid standard for allowing evidence to be excluded.

Like, having evidence be included/excluded just sounds like a change in form, not grounds for something being more or less rigid. The standards could still be mechanically applied...

I just don't feel like it is safe to imply that as a whole, it is less rigid ... Further, we don't know as a whole if modern day evidence law is less rigid...

Maybe I am misinterpreting?? where is the support??

Please help!!

[ohthatpatrick]

To pile on this question, a-yes you DO suck, Q26!

And to put fuel back on the flame of (C), the first freakin' sentence says "most (not all) components of modern evidence had been assembled in 1790."

The other parts of modern evidence came after 1790. When does the Common Law era end? If I assume the remaining components of modern evidence law (at least some of which must be current laws) came after 1790, after the Common Law era has ended, then I have pretty good support for the idea that modern evidence law is not 100% traceable back to common-law doctrines.

For a "must be true" standard, I can't say that
"Most components were assembled by 1790 --> Some components were assembled after 1790". But for a "supported / suggests" type stem I think that's reasonably gist-y.

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Let's shout that anger into the void and help you like (B) better!
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Don't think of 'rigidity' as the strictness with which they follow / enforce the written statute.

Think about the written statutes. When it comes to the question of "Your Honor, can I admit this evidence into your courtroom?"

Pre-Bentham judges:
"You cannot be brought forth as testimony / evidence if ...
- you're the plaintiff or the defendant
- you're hearsay, not the original source of info"

Us:
Dammmmmn, Your Honor. That protocol is rigid! You are not very permissive or indulgent. You're pretty picky about what you allow.

Post-Bentham judges:
"Shooooot .... I'm curious to hear just about anything! I mean, I got some worry warts that tell me I gotta restrict a few forms of evidence, but basically go nuts. You have a green light: a presumption in favor of the idea that I'll admit it. If it seems like the tradeoffs aren't worth it, I'll speak up. Otherwise, holler at Your Honor. I'll let the jury figure out how much weight to put on different types of evidence. They seem really up for the challenge."

Bentham's revolutionary change to 18th century was to introduce "A presumption in favor of admissibility", a "nonexclusion principle" (NO EVIDENCE SHALL BE EXCLUDED! THE DOOR IS OPEN), a "clear grounds proviso" (Hey, we're real loose -- we're gonna let you admit anything you want, unless there's a clear grounds for thinking it's a bad idea in this specific case)

[LizaK873]

Correct answer is simpler than what everyone discussed.

My process of elimination. Short and long explanations.
To clarify before hand, I summarize the entire passage simply as: 'too exclusive' (old law) --> 'too lenient' (Bentham) --> mostly lenient unless the exclusion is reasonable (current law)


---B---
Short: to prove B true, paragraph needs to say [18th century was rigid more than Bentham's, and current law].

It does by saying
1. entire 18th and part of 19th was rigid
2. Bentham's was too lenient
3. current law is somewhat lenient


Longer:
- Where everyone's confusion starts: Bentham's interest, as in, to HIM as a person, started in 18th century
- However, first paragraph actually says "too exclusive until 19th century".
- I mean, the last sentence of the first paragraph literally says "even in 19th century, important evidence was excluded".
- This implies, that Bentham's inspirations did start in 18th century, but had no effect until after 19th century.
- Last paragraph ALSO states, Bentham's lenient stuff wasn't considered until after his death. Which is probably also after 19th century, because passage guarantees that at least SOME portion of 19th century was max rigid.
- So, entire 18th century was absolutely rigid - Bentham had no influence. He only potentially had influence 19th century or later.


Wrong answers:
---A---
This literally means common-law rules of evidence doesn't exist anymore. This isn't true. It coexists with modern principles.

---C---

Short: Passage has no example of a NEW or ORIGINAL current law, completely innovated on its own, without any grounds on common law.

Longer explanation:
- This answer is correct IF: there is at least one example of a current law that does not derive from common-law.
- To reply aradunakhor's comment: cherry-picking from the past is not an example of an original rule, that is not from common-law.
- Common-law of "you can't sneeze" is abandoned --> current law says you can sneeze. This is not a new law. It is not a proof of 'no derivation', rather, just elimination or exclusion.
- Current law that not derived (only way to make C the answer): you can't blink --> has nothing to do with you can't sneeze.
- The paragraph has no example of a completely new, irrelevant law that common-law hasn't covered or thought about.

---D---
- The second sentence says "common-law regarding evidence had rules that are now abandoned' --> evidence law existed back then too.
- The second sentence of 2nd paragraph also says evidence law existed (but that it was too exclusive).

---E---
- First sentence says "something was finished by late eighteenth century".
- You cannot go from the above, to mean "nothing existed before eighteenth century".
- EG) By 5pm, car was fixed --> you cannot say car was never being fixed before 4pm.
- This answer choice is basically saying "well car wasn't fixed by 5pm, so nobody started to fix it before 5pm".