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By the time Bentham turned his interest to the subject, late [#permalink]
09 Jul 2005, 09:14
By the time Bentham turned his interest to the subject, late in the eighteenth century, most components of modern evidence law had been assembled. Among common-law doctrines regarding evidence there were, however, principles that today are regarded as bizzare; thus, a well-established (but now abandoned) rule forbade the parties to a case from testifying. Well into the nineteenth century, even defendants in criminal cases were denied the right to testify to facts that would prove their innocence.
Although extreme in its irrationality, this proscription was in other respects quite typical of the law of evidence. Much of that law consisted of rules excluding relevant evidence, usually on some rational grounds. Hearsay evidence was generally excluded because absent persons could not be cross-examined. Yet such evidence was mechanically excluded even where out-of-court statements were both relevant and reliable, but the absent persons could not appear in court (for example, because they were dead)
The morass of evidentiary technicalities often made it unlikely that the truth would emerge in a judicial contest, no matter how expensive and protracted. Reform was frustrated both by the vested interests of lawyers and by the profession's reverence for tradition and precedent. Bentham's prescription was revolutionary: virtually all evidence tending to prove or disprove the issue in dispute should be admissible. Narrow exceptions were envisioned: instances in which the trouble or expense of presenting or considering proof outweighted its value, confessions to a Catholic priest, and a few other instances.
One difficulty with Bentham's nonexclusion principle is that some kinds of evidence are inherently unreliable or misleading. Such was the argument underlying the exclusions of interested-party testimony and hearsay evidence. Bentham argued that the character of evidence should be weighed by the jury: the alternative was to prefer ignorance to knowledge. Yet some evidence, although relevant, is acutally more likely to produce a false jury verdict than a true one. To use a modern example, evidence of a defendant's past bank robbieries is excluded, since the prejudicial character of the evidence substantially outweights its value in helping the jury decide correctly. Further, in granting exclusions such as sacramental confessions, Bentham conceded that competing social interests or values might override the desire for relevant evidence. But then, why not protect conversations between social workers and their clients, or parents and children? [line 50]
Despite concerns such as these, the approach underlying modern evidence law began to prevail soon after Bentham's death: relevant evidence should be admitted unless there are clear grounds of policy for excluding it. This clear-grounds proviso allows mroe exclusions than Bentham would have liked, but the main thrust of the current outlook is Bentham's own nonexclusion principle, demoted from a rule to a presumption.
25) The author mentions "conversations between social workers and their clients" (lines 49-50) most probably in order to
A) suggest a situation in which application of the nonexclusion principle may be questionable
B) cite an example of objections that were raised to Bentham's proposed reform
C) illustrate the difference between social interests and social values
D) demonstrate the difference between social interests and social values
E) empahsize that Bentham's exceptions to the nonexclusion principle covered a wide range of situations.
27) The passage is primarily concerned with which one of the following?
A) suggesting the advantages and limitations of a legal reform
B) summarizing certain dificiencies of an outmoded legal system
C) justifying the apparent inadequacies of current evidence law
D) detailing objections to the nonexclusion principle
E) advocating reexamination of a proposal that has been dismissed by the legal profession.
28) According to the fourth paragraph of the passage, what specifically does Bentham characterize as preference of ignorance of knowledge?
A) uncritical acceptance of legal conventions
B) failure to weigh the advantages of legal reform
C) exclusion of sacramental confessions
D) refusal to allow the jury to hear and assess relevant testimony
E) rejection of exceptions to Bentham's nonexclusion principle.
Please provide your explanations on why you picked/rejected an AC.