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Opening Arguments

The jury is still out

It's hard to say for sure without having watched the case being presented, but it seems to me there is reasonable doubt about Scooter Libby's guilt, and the longer the jury has been out, the more likely it has become that it will reach the same conclusion. The case turns on whether we think Libby's misstatements to a grand jury were lies or the result of faulty memory. Since many of the prosecution's own witnesses displayed less than perfect recollection, a "reasonable person" should have some doubts about Libby's willful intent.

But everything depends on whether the jury can even be sure of what reasonable doubt is:

In the note, the jurors asked for further explanation of the concept of reasonable doubt, suggesting possible uncertainty or even disagreement over the core standard by which they are to measure the evidence and testimony about Mr. Libby, the former chief of staff to Vice President Dick Cheney.

“We would like clarification of the term


Mon, 03/05/2007 - 6:13am

There is no "fine line" between "preponderance of the evidence" and "beyond a reasonable doubt." The gulf is wide. Perhaps the difference will be clearer if you think of it this way:

Preponderance of the evidence: the measure of proof required before the power of the state will compel you to forfeit your money.

Clear and convincing evidence; among other things, typically the measure of proof required before the power of the state will compel you to forfeit your children.

Beyond a reasonable doubt: the measure of proof required before the state will compel you to forfeit your life.

Leo Morris
Mon, 03/05/2007 - 6:41am

Perhaps "fine line" was a poor choice of words. I just meant that, short of absolute certainty, which even "beyond a reasonable doubt" doesn't achieve, it can be difficult for those of us not in the legal profession to easily grasp the distinctions between pretty sure, sure and very sure.

Mon, 03/05/2007 - 4:01pm

The prosecution's burden falls well short of the line suggested by the juror's note:

"[I]s it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?"

I don't do criminal law, but found a couple of helpful nuggets in the Indiana Law Encyclopedia (though I don't know how applicable they are to the federal standards.)

There is no reasonable doubt where there is proof "that leaves you firmly convinced." Reasonable doubt is a greater degree of doubt than merely "possible doubt. "Reasonable doubt is a fair, actual, and logical doubt, based upon reason and common sense." "A reasonable doubt instruction which states that such doubt should be a doubt based upon reason and common sense and not upon imagination or speculation, and that since very few things are a known absolute certainty, the law does not require proof that overcomes every possible doubt, accurately states the law."

Leo Morris
Mon, 03/05/2007 - 6:12pm

"Reasonable doubt is a fair, actual, and logical doubt, based upon reason and common sense."

But I can understand the jury's question to the judge. How do we apply logical doubt, reason and common sense to a claim of memory loss? It is possible to forget anything. Do we try to distinguish between things few would forget -- such as one's own birthday -- and things most would not remember, such as what we had for lunch on Wednesday three weeks ago? Or do we try to assess the defendant's character, possible motives and history of lies or truth-telling? How much weight do we give to ambient circumstances?

Steve Towsley
Tue, 03/06/2007 - 8:10pm

The jury had a lot of time to absorb the minutiae of the case and it's usually best not to second guess people with that extensive knowledge of the evidence presented in court.

According to the juror who spoke to the press today, the jury believed Libby regarding his bad memory. Whether they were right about that, I don't know, but I tend to think that people will remember events that are key to them and forget those that are mundane.

I think the jury's job is to react to what is presented rather than to try to divine the unknowables. If a reasonable person finds a defendant's memory lapses credible, then I assume that person would come down on the side of sincerity rather than "selective memory," aka lying.

I have no doubt that jurors are sometimes deceived because they just aren't street-wise or cynical enough, but on the other hand if evidence of lying is absent from the prosecution's case, the jury may understandably be reluctant to presume lying unless the defendant is a very bad liar on the stand.