PrepTest 150, Section 4, Question 22

Working the answers

• A
  Correct

  A expressly says a trial's structure guides independent research. B's objection to appellate research is that it bypasses trial-level testing: experts cannot comment live and opposing parties cannot probe the new material through cross-examination. Both therefore support subjecting any judicial research to the constraints of a trial, even though B leaves its view of trial judges' research unstated.

• B

  Both accounts identify risks of unreliable research. Neither establishes that judges' research is typically confined to dependable sources. A concern about what might go wrong is not evidence that ordinary practice already avoids it.

• C

  This reverses A's explicit supplement-versus-replacement distinction. B also objects to new appellate findings replacing evidence that should have been tested at trial.

• D

  This puts the two authors' separate positions together and attributes the combined recommendation to each. A says nothing about appellate research, while B expressly sets aside what trial courts may do. We cannot give both authors that full position.

• E

  B describes outside-the-record appellate research as usurping trial fact-finding. A's trial research is meant to supplement the process, not take it over. A criticism of one kind of research is not a shared description of all judicial research.