Many thanks to good friend of the Bosque Boys, Tocqueville, who, in response to my request, offers this incisive primer on the standards of proof and some analysis in re the Scooter Libby trial and the ongoing deliberations.

Guest Blog: Tocqueville

There are generally three standards of proof in Anglo-American jurisprudence. The first, and perhaps easiest to satisfy, is proof by a "preponderance of the evidence." This simply means that something is more likely true than not. In layman's terms, this is sometimes described as 51% certainty. This is the standard of proof required for most civil trials (it is, for example, the proof required in a typical personal injury/negligence trial).

The next standard of proof is more difficult to satisfy. It is called proof by "clear and convincing evidence." In order to prove something by "clear and convincing evidence" the party with the burden of proof must convince the jury that it is substantially more likely than not that the thing is in fact true. In layman's terms, this might be described as 75% certainty. Clear and convincing is rarely used, but it does occasionally crop up in certain affirmative defenses (such as an insanity defense). It is a stricter requirement than proof by a "preponderance of the evidence," but not as rigorous as proof "beyond a reasonable doubt," which is required for a criminal trial.

Shortly before breaking for the weekend, the jury in the Scooter Libby trial asked U.S. District Judge Reggie Walton to clarify the legal definition for "reasonable doubt." When the jurors return to their deliberations on Monday, I expect that Judge Walton will most likely instruct them along the following lines:

"A reasonable doubt is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. However, proof beyond a reasonable doubt does not mean proof beyond any possible doubt or proof to an absolute certainty."

Now think about that for a moment. Proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. What are the most important of your affairs? Examples that come to mind include which school to attend, which person to marry, which job to accept, which house to purchase, which doctor to trust, which church to attend, who to leave your children with, and so on.

Now consider some of the statements the jury has heard in this trial. Byron York has done a fantastic job of laying out the case HERE. And now think about the legal standard for proof beyond a reasonable doubt. Is this jury really prepared to convict this man on these witnesses' rapidly-fading memories and conflicting recollections in a politically-charged climate? I hope not.

Monday will mark the jury's ninth day of deliberation--a remarkably long period of time for a case such as this. And every day that the jury stays out deliberating, reasonable doubt has further opportunity to circulate around the jury room, to nest deeply in someone's conscience, and to find a permanent home there. If only one juror clings to that doubt, the judge must declare a mistrial. And a mistrial in this case will be as good as an acquittal for Libby. Fitzgerald lacks both the political capital and the energy to put the country through the expense of another prolonged trial.

One thing is for sure. We will find out this week the fate of Scooter Libby.