26.
It can be inferred, based on their titles, that the relationship between which one of the following pairs of documents is most analogous to the relationship between passage A and passage B, respectively?
Passage A
Why do some trial court judges oppose conducting
independent research to help them make decisions?
One of their objections is that it distorts the adversarial
(5) system by requiring an active judicial role and
undermining the importance of evidence presented
by the opposing parties. Another fear is that judges
lack the wherewithal to conduct first-rate research
and may wind up using outlier or discredited
(10) scientific materials.
While these concerns have some merit, they do
not justify an absolute prohibition of the practice.
First, there are reasons to sacrifice adversarial values
in the scientific evidence context. The adversarial
(15) system is particularly ill-suited to handling specialized
knowledge. The two parties prescreen and compensate
expert witnesses, which virtually ensures conflicting
and partisan testimony. At the same time, scientific
facts are general truths not confined to the immediate
(20) cases. Because scientific admissibility decisions can
exert considerable influence over future cases,
erroneous decisions detract from the legitimacy of the
system. Independent research could help judges avoid
such errors.
(25) Second, a trial provides a structure that guides
any potential independent research, reducing the
possibility of a judge’s reaching outlandish results.
Independent research supplements, rather than
replaces, the parties’ presentation of the evidence, so
(30) the parties always frame the debate.
Passage B
Regardless of what trial courts may do, appellate
courts should resist the temptation to conduct their
own independent research of scientific literature.
(35) As a general rule, appellate courts do not hear
live testimony. Thus these courts lack some of the
critical tools available at the trial level for arriving
at a determination of the facts: live testimony and
cross-examination. Experts practicing in the field may
(40) have knowledge and experience beyond what is
reflected in the available scientific literature. And
adverse parties can test the credibility and reliability
of proffered literature by subjecting the expert witness
to the greatest legal engine ever invented for the
(45) discovery of truth—cross-examination. The trial judge
may even participate in the process by questioning
live witnesses. However, these events can only occur
at the trial level.
Literature considered for the first time at the
(50) appellate level is not subject to live comment by
practicing experts and cannot be tested in the crucible
of the adversarial system. Thus one of the core
criticisms against the use of such sources by appellate
courts is that doing so usurps the trial court’s fact-
(55) finding function. Internet sources, in particular, have
come under criticism for their potential unreliability.
When an appellate court goes outside the record
to determine case facts, it ignores its function as a
court of review, and it substitutes its own questionable
(60) research results for evidence that should have been
tested in the trial court. This criticism applies with
full force to the use of outside-the-record texts and
treatises, regardless of the medium in which they
are found.