Asymmetrical Information

You've got to be joking. Good one. As if all law gobbledygook is legit. I re-submit: When the process is more important than the OUTCOME, the process is broken and obsolete. Think about it.

Thomas,

Shortsight thinking! When you discard process for the convenience of outcome. You will enjoy the first outcome; but pretty soon subsequent outcomes will not be to your liking. And the later outcomes will only get progresively more unjust and perverse. Taking shortcut has consequence.

I think it's a maximization issue. If the process if fair, then you maximize the number of fair outcomes. If you eliminate fairness in the process, then outcomes become far more skewed. Now, one person may like the skewing for a while, but in the long run fairness will not be served.

Of course, I'm assuming fairness is what's desired in one's outcomes. I could be wrong.

Unbelievable. Hitler had a process. Taliban have a process. Dems and Pubs have a process.

Process has to be legit. Otherwise the outcome is assured, and flawed.

When the process is more important than the outcome,the process is broken. Again, think about it.

Hitler also had a dog. Does that mean I have to shoot mine?

One of the major problems with Hitler is that he *didn't* have a process of the type I'm talking about. The Nazis started with the answer--the Party--and then worked backwards to whatever process would give them that answer. Likewise the Taliban.

Starting with the conclusion--Ken Lay and JEff Skilling are guilty, because I lost a lot of money--and then working backwards to a theory of their guilt, is not a process I'd want directed at me. Nor would I care to live in a society where it was acceptable.

Well Jane, I never suggested anything of the sort. For an "economist", you don't seem very logical.

Woah, woah, woah! Thomas, isn't that exactly what you're arguing for? And if not, could you please explain yourself more clearly, rather than spend your time insulting our hosts, which from where I'm standing (over here, under an awning, to keep the sun off) it looks like she's got you all beat.

Thomas,

The Nazis and the Taliban are illustrations why process is important. You are wrong. In both cases, the outcomes were more important than process - not the other way around. In both cases, due to the desirability for stability during chaotic time; both societies looked for a desirable outcome, completely ignoring process.

To say that Hitler and Mullah Omar came to power because of process is ignorant of history. There was never any process in Hitler Germany or Taliban Afghanistan.

Well, I assume from that comment, you are a called-upon friend of the host. I have nothing against the host, only against her agruments on this, which don't show much logic. Shoot your dog?

Cherishing a process...any process... which regularly produces invalid outcomes contrary to the purpose of the intention of the process, is flawed, and should be changed. Example: You can murder 20 people, in plain view of 100 witnesses, and go free because a lawyer can convince a carefully-selected jury that you were not properly read your Miranda rights. That's a flawed system, because the blindly-revered process is considered more important than the validity of the outcome. Dig?

When the process is more important than the outcome, the process is broken.

Thomas is right. The whole argument about why our process is good is not because it's a process, but because we believe it to be a *just* process. Now, *just* is defined by what? well, one answer is maximizing just outcomes. if you ignore the justice (or lack thereof) of the outcomes, you can make no claims about the justice of the process.

Do we have reason to believe Thomas More said that? or merely the A Man for All Seasons' adaptation?

Thomas,
You will most assuredly NOT go free in the scenario you suggest. If you were not advised of your rights by the police and confessed, or were denied access to an attorney your confession might not be admissible. But the testimony of the 100 witnesses would be. That would most likely secure a conviction.

You seem to be arguing that the for the process to be valid it must be created with the intention of securing a worthy end. Our process was created to secure the rights of the individual against the state. We ere on the side of letting the guilty go free. That's why the accused is presumed innocent under the law.

You also seem to be arguing that the End should justify the means, that process shouldn't be allowed to get in the way of just results. That's not hard in an extreme example. It's the case on the margin that we need the process. Think about it.

Take this from a process modeler. If the output is bad then the process is to blame. When I need 2x4 lumber from giant, old-growth forests, I expect 2x4 lumber. If an inspection shows some other result, I change the process. Period.

If we inspect the results of the legal process and they are not as expected, we change the process. Through our elected, legal representation in Congress. Happens all the time.

Regards,

JJ

Jane Galt, so you don't like the process of jury trials to determine guilt. It is obvious that jury trials have flaws so if all you are claiming is that jury trials sometimes make errors that is pretty trivial. Do you have suggestions for improvement or are you just whining because the world is imperfect?

Call it a hunch, but I suspect the Thomas in this thread (i.e., not Sir Moore) is below age 20 and still reads the "That's Outrageous!" column in Reader's Digest.

I could be wrong about that.

Yes, wrong. I'm 44. Not sure what age would have to do with anything regarding this disagreement, though. And I doubt that anony-mouse is anonymous; call it a hunch.

All I would say to Thomas based on his comments so far is to remember that anything that the government can do FOR you, it can do TO you. Insist on results-oriented process, and it'll be fine when you like the result... and tyranny when you don't.

I read the book about the collapse of Enron and it painted Fastow as the main culprit.

One the charges against Lay was that he committed fraud when he told employees to invest in Enron in the long haul and buy stock (supposedly knowing at the time Enron would collapse) And because it was done over teleconferencing it was wire fraud. What a horrible extention of an unintended law.

To clarify the point, in the prior comments and the post itself, each occurence of "outcome" and "result" should be preceeded by the word "predetermined". "Process" should be preceeded by "Due"

If trials of notorious figures don't turn out the way the public wants them to does not mean that the system is broken. It could mean that the public was incorrect.

Trials have to be more than show trials, which means the possibility of the guilty being acquitted must be a possible outcome.

Otherwise you may as well dispose of due process and go back to witch hunts, inquisitions, and lynch mobs. And god help you if you end up on the wrong end of one of those.

I thing a lot of the conflict here about the desirability of "process" over ends comes from the fact that not all processes are equal, and this is because not all processes are designed to perform the same function. The process which is used in a totalitarian society is typically one which is used to justify a pre-ordained result. In essence, we're going to crush this guy and now we're going to create a public show demonstrating just what a scum bag he is so as to justify it. On the other hand, you do have legal processes in which the ultimate result is not known beforehand; it all depends upon the application of rules which are (or should be) rigidly applied to come to a conclusion. Whether or not anyone, and especially the people in power, like that outcome is immaterial. That is the Western notion of the rule of law. And when the rules become outmoded, they can be changed.

And what alternative is there to a rule-based system of law? Its just someone in a position of power who isn't bound by any rules at all. That's tyranny by anyone's definition.

And just because you agree with the tyrant's decision today doesn't mean you will agree with what they decide tomorrow. And then where are you? If ends mean more than process, then you have to think about what people will be deciding what ends are most just, and it will be someone in a high position of power, not you or me. Do you want George W. Bush to be making the decisions? And if this is fine with you, turn the page and decide whether you would want John Kerry making the decisions. I'd much rather have rules rather than personalities governing me. Anytime.

Paul: You are saying that I should not insist on a results-oriented legal process? Should I insist on anarchy then?

And I doubt that anony-mouse is anonymous; call it a hunch.

Right you are. I'm not anonymous; I'm a mouse. It says so right there in the signature line. Squeak, squeak; scare elephants; etc. I should be around for a while -- you're quite full of cheesy goodness.

I read the book about the collapse of Enron and it painted Fastow as the main culprit.

Which book? There are several. Are you perchance referring to Kurt Eichenwald's?

I agree with you and Sir Thomas More. Think about how this applies to waterboarding, etc.

i can't believe this is even a discussion.

processes are repeatable, outcomes are not.

if the means do not justify the end, then you've got the wrong end. if you're searching for punishment based on upon your personal moral judgement as an end, than "due process" certainly is not your means.

i think i'm starting to see why Brad DeLong deletes comments.

"Injustice is relatively easy to bear; what stings is justice." - H.L. Mencken (1880-1956)

"Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those others that have been." - Winston Churchill

Substitute "guilt determination" for "Government" and "the American System of Justice" for "democracy" in Churchill's aphorism and you have about the best argument for the present system one can devise.

Many forms of guilt determination have been tried, and will be tried in this world of sin and woe. No one pretends that the American System of Justice is perfect or all-wise. Indeed, it has been said that the American System of Justice is the worst form of guilt determination except all those others that have been.

Thomas,

Part of the problem is that, in all those 44 years, you haven't learned to express yourself clearly.

Is the "process" of criminal trials more important than "justice," the outcome they are intended to promote? No. If the process is producing fewer just than unjust results, we should change it.

Is the process more important than the outcome of any single trial? Yes, of course. We know full well there will be injustice under a system of jury trials, but we tend to think it is better than alternatives. So we accept the imperfections of our system because the imperfections of other systems are even more severe.

Now, maybe you want to argue that jury trials (or the common law more generally) should be replaced with something else; fine, you might be right. If jury trials are regularly producing tons of injustice, it would be foolish to cling to them rather than find a new way of doing business. But you need some process other than "I like result X," which seems to be what you're suggesting as a replacement.

On the other hand, your erroneous murder example suggests you don't know all that much about the law to begin with, so it may be that the imperfections you object to don't exist.

It seems to me that Jane and Thomas are not actually disagreeing with each other at all.

My interpretation is that, contrary to what Thomas seems to think, Jane is not claiming that the legal process that we have, or any process, should not be changed regardless of the outcome. But rather outcomes which are generally felt to be bad can be indicative of flaws in the process and in this case the focus should be on reforming the process not on any specific outcome.

And Thomas, contrary to what many of the commentators seem to think, is not claiming that we should ignore process in order to engineer the outcome that we want in any given case, rather that if undesirable outcomes commonly result from the process then the process is probably wrong.

Both of which seem eminently reasonable, and wholly compatible, viewpoints.

Shawn nailed it.

I would add that that those who believe the ends do not justify the means have simply not considered all the ends. Jane has an end (outcome) in mind. Its just a bigger end than the results of one particular trial.

anonymous wrote: " ...It seems to me that Jane and Thomas are not actually disagreeing with each other at all...."

Yeah, I had the same feeling. They aren't disagreeing, so much as talking past each other. And also, "Thomas" hasn't expressed himself very clearly.

I would suggest that if the process **consistently** gives wrong results, then it's broken and unjust.

That said, I tend to feel that the criminal justice system in the USA *does* give consistently give unjust results and it *is* broken & unjust -- especially at the Federal level. When white-collar criminals (and other non-violent offenders) get more severe punishments than murderers, forcible rapists, etc., etc.; then something is horribly wrong with the whole system.

In particular, the Jury system has become a pathetic joke. The voir dire system ensures that juries are stacked with people who are either brain-dead and/or reflexively pro-government in their outlook. Jurors are not informed of the fact that they have the right to acquit a defendant who is technically guilty if they think that a conviction would be unfair under the circumstances.

And the plea-bargaining system, combined with mandatory minumum sentences, has transferred much too much power away from the Judicial branch and into the Executive branch. Prosecutors have become judges & juries as well as accusers, while Judges have become rubber stamps.

Jurors are not informed of the fact that they have the right to acquit a defendant who is technically guilty if they think that a conviction would be unfair under the circumstances.

Possibly this is because juries don't have that right, although there is literally nothing anyone can do to stop them, and it is indeed part of why juries are a good idea.

Also, not too many murders or rapes are prosecuted at the Federal level, which means that the (alleged) disparity between murder and stock fraud sentences is not the fault of a single system, but of comparisons being made between two systems.

i think the misunderstanding is akin to the principle/goal distinction. we have certain principles we adhere to b/c we think doing so reaches a desireable end (don't lie, don't kill others, etc.). however, people sometimes make the mistake of elevating the principle over the goal they serve, which is getting it backward (you can lie to save a life, you sometimes can kill to save yourself or hundreds of others (yes, there's a whole other debate in there), etc.). so i read both thomas and jane to recognize that where the process doesn't serve the end as it should, we question the process, because the end is more important than the process even if the process may be the best way to ensure we reach our end in the highest number of cases (leaving aside the problems posed by the recursive nature of the end defined in our constitution via due process).

john w. said:

"That said, I tend to feel that the criminal justice system in the USA *does* give consistently give unjust results and it *is* broken & unjust -- especially at the Federal level. When white-collar criminals (and other non-violent offenders) get more severe punishments than murderers, forcible rapists, etc., etc.; then something is horribly wrong with the whole system."

Since most people unlike you and Jane Galt think long sentences for the likes of Skilling and Lay are perfectly appropriate it is hard to see how you can say the system is broken just because you personally disagree.

Incidentally, white collar criminals in general do not get more severe sentences than murderers and rapists.

A "results oriented legal system" sounds a lot like: "X is guilty as sin. He should be punished regardless of the stupid jury says." That sounds a lot more like anarchy to me than the alternative: "The jury was mistaken to find X not guilty, but the rule of law is more important than any given outcome."

If you don't mean "X is guilty as sin....", you might want to be clearer in what you do mean.

BTW, 2X4 seems to be an inapt analogy. Outside observers know what a 2X4 is supposed to look like, every time. Therefore, if the machine is set on 2X4 and it churns out a 2X6 we categorically know that it is doing something wrong. Outside observers cannot know the proper outcome of any trial with absolute certainty, so one cannot make that judgement based on given result.

Rob: Juries don't have the right to nullify?

Not explicitly, no. But since they can, without any ability to stop them, do it, there's not much difference.

(The Judge cannot, after all, say "Hey, you didn't find the guy guilty like I think you should have, so we're going to try him again until you get it right!", thanks to the double jeopardy prohibition.

So, in practice there's a power to nullify that can't, in any obvious way, be removed without removing the power of the jury entirely, or the protection against double jeopardy. Seems like an effective right to nullify, at least.)

James: Do those "most people" have any detailed understanding of the actual charges against and actions in evidence by Lay, for instance? Or just the vague idea that "he stole a bunch of money and made people poor"?

If their understanding of the charges and actions is incorrect or terribly vague, does that imply we should still give a fig for their opinions about sentencing and the justice of any given penalty?

(To make the point clearer, I'm sure plenty of people would have supported the death penalty for the proverbial black man accused of raping a white woman, on evidence that would never convict a white man, in Georgia in 1940. Would that wide support make it just to carry out the sentence?

Assuming you disagree, that rather takes the power out of "it's a popular verdict", doesn't it?)

Sigivald,

As I recognized in my earlier comment, juries have an unquestionable power to nullify. But John W wants the judge to make that explicit, by telling them they have the right to nullify. That's very different.

I'm strong enough to beat up my wife, so I have the power. This does not mean that I have the right, or that a judge should declare me to have that right based on the fact that I have the power.

Rob Lyman wrote: " ...I'm strong enough to beat up my wife, so I have the power. This does not mean that I have the right, or that a judge should declare me to have that right based on the fact that I have the power...."

That is an extremely poor analogy. Beating your wife is morally wrong and legally wrong, therefore having the power to do it, clearly does not imply the right to do it.

It would seem to me that if you have the power to do "x" and if "x" is neither illegal nor immoral, then it follows logically that you have the right to do "x." To say otherwise is semantic quibbling.

Furthermore, the whole purpose of a jury system is to stand between the individual defendant and the (virtually) unlimited power of the State. jurors are supposed to be "the conscience of the community," and if jurors sense that the State is putting "Law" above Justice, they have the power and the moral obligation to refuse to go along.

John,

Quibble semantically all you want. Words have meanings for a reason, and "power" does not mean the same thing as "right." I think "not immoral or illegal" probably is the same thing as "you have a right," an the question of power is irrelevant either way.

But note: You've got some work to do in showing that it is "not illegal or immoral" for juries to nullify. If the people's elected representatives pass a law, it is signed by the elected head of government, and then the (often elected) DA brings charges, then it seems to me a bit doubtful that the 12 randomly selected retirees in the box do nothing legally or morally questionable by deciding to ignore the law.

Which is not to say that they should never nullify, just that the notion that they have the "right" to do so requires more than proof that they have the power.

Part of the problem here is that all too often, laws get written that then get put into effect in ways that were never originally intended by the writers of those laws.

_That_ is why I believe in jury nullification. If the jury feels that it would be unjust to convict someone, they should vote to acquit.

Most people don't seem to understand that a judge is not bound to accept the jury's finding's either.

Those of you questioning whether juries have the right to acquit in spite of the evidence may be interested in the actual histroy of the matter.

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts. " U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided."

The previous paragraph is excerpted from http://www.personal.psu.edu/faculty/j/p/jph13/JuryNullification.html

Try googling for John Peter Zenger

--mad

Tolbert, that's true EXCEPT that the judge can't find someone guilty in a criminal trial if the jury finds him/her not guilty or there is a hung jury. The judge can only overturn a guilty finding.

Unbelievable. Hitler had a process

So you're saying that it would have been ok if he'd slaughtered those 6 million Jews all willy-nilly instead of being systematic about it?

Mike Davis wrote: " ...Try googling for John Peter Zenger."

Yes, and they could also try googling on 'fugitive slave laws.' This was another historical area where jury nullification helped to prevent massive injustice.

Do all you jury nullification fans agree that a jury has the right to convict Lay and Skilling because the jury thinks they belong in jail even if their conduct was not technically illegal? Should the judge tell the jury this?

James B Shearer asks, "Do all you jury nullification fans agree that a jury has the right to convict Lay and Skilling because the jury thinks they belong in jail even if their conduct was not technically illegal? Should the judge tell the jury this?"

I think this would be an abuse of the juries power and and abrogation of their duty. However, I don't think there is a way to avoid the possibility this outcome without creating a system that is even worse. Certainly the judge should not mention this possibility to the jury.

The larger point is that there is a fundamental difference between finding an existing law unjust, and finding the absence of a law unjust. The former case has historically been a question for the jury to decide, as I posted above. The latter would be a legislative question. I would interpret the latter case as an application of an "ex post facto" law. There would certainly be grounds for an appeal, in my non-lawyerly opinion.

When I was on the jury that I described in a post on the earilier dicussion not only did my jury hang because of what was seen as unfairness but 2 previous juries had also. It may comfort the opponents of jury nullification that the jury splt on age, with everyone under 40 voting guilty and everyone over 50 voting not guilty. So it may be less common in the future.

I write code. There is a very useful maximum when programming: "Optimize for the average case". This applies quite broadly in many areas, including justice systems.

Every process has flaws, but a good process on average produces good results. A having a good process is more important than having any individual good result. If one can propose a process that on average produces better results, it should be considered for adoption. However, it is foolish to propose a process that produces a better result in a single or a small number of instances but lowers the average qualilty of the results.

There is a human tendency against optimizing for the average case. It's the process that wants to tear down our criminal justice system because we don't like the outcome of one or a small number of cases, it's the tendency to want to scrap our entire medical care system because it appears to fail to serve about 10-15% of the population. It's the tendency to rail against any system that produces good average results but some poor ones.

Now of course one can be slightly more nuanced and ask about the width of the distribution around the average case. If the distribution of results averages to a good result, but has a significant percentage of VERY bad results, perhaps it should be reconsidered. But to base your system on outliers is really bad practice.

quadrupole, well in this case Jane Galt is not even asserting the process gave a bad result, she is just complaining about appearances.

Mr. Shearer has put it in a nutshell. "Somebody must pay" was the cry after the Enron bubble collapsed, and Schilling and Lay were the obvious targets. Likewise, Martha Stewart's cnviction was on dubious legal grounds, but "an example" had to be made. Robert Bolt's words ring powerfully to me, and I thank you, Ms Galt, for provoking this discussion.

Jane Galt is not even asserting the process gave a bad result, she is just complaining about appearance

She's complaining that the process used to arrive at the result was more likely to have been "let's find some scapegoats and string 'em up" rather than "let's examine the evidence and reach an informed conclusion as to who did what".

It isn't just a matter of appearances. If you have nine white women and one Arab Muslim man in a room and you know one of them's the terrorist, you *could* just shoot the Arab and go home -- ninety-nine times out of a hundred you'll get the right person with that technique. But as a process for determining guilt, doesn't it leave something to be desired?

Trackbacks are always zero because trackbacks do not work.

Dan said:

"It isn't just a matter of appearances. If you have nine white women and one Arab Muslim man in a room and you know one of them's the terrorist, you *could* just shoot the Arab and go home -- ninety-nine times out of a hundred you'll get the right person with that technique. But as a process for determining guilt, doesn't it leave something to be desired?"

If there is a 99% chance that Lay and Skilling are guilty that is good enough for me. It is also good enough for juries in most cases. What probabilty of guilt would you require for a conviction?

What probabilty of guilt would you require for a conviction?

"Beyond a reasonable doubt" still works for me. Excluding the rather high MTBF of the human cogs for a moment, isn't that supposed to be the standard for this machine in criminal cases?

"Beyond a reasonable doubt" still works for me. Excluding the rather high MTBF of the human cogs for a moment, isn't that supposed to be the standard for this machine in criminal cases?

Could you convert that to a percentage for me? My subjective impression is that 99% is already beyond a reasonable doubt. YMMV, of course, which is why I am soliciting *your* percentage-equivalent.

James, as a nullification fan, I agree with Mike Davis. No I do not think the jury has the right to convict for reasons unrelated to the charge they are supposed to be judging. Of course, they do have that power, and there's nothing you can do to prevent them abusing it, other than to try to impress them with the seriousness of what they are supposed to be doing. Or, to not bring bogus charges to a jury in the first place.

There's a deep asymmetry of power between the state and an individual. This is part of what Jane is getting at with the Bolt quote. The entire point of the jury, as mentioned in John W.'s post, is to act as a brake on the power of the state. It's a raw form of democracy. Nullification is an aspect of that, both for good and for ill. Historically, nullification has had both good outcomes and bad. But it always has served to prevent the state from punishing in unpopular ways.

It's worth noting that the notion of jury-as-shield-against-state only really makes sense in a world with police forces investigating crimes and public prosecutors bringing them to court.

In the US, that's a 20th century invention. In 1789 virtually all prosecutions would have been carried out by ordinary people and the lawyers they hired--usually the victims and their families. That's why the grand jury has historically been so important, protecting you from persecution at the hands of your annoying neighbors.

So the principal justification for nullification in 2006 didn't apply when John Jay was praising it.

Happy to see that the debate goes on.

Anyone see yesterday that Ivan Gotti just got his third mistrial in a year? Hung jury, yet again. One dissenter. I don't know the motive for the dissention. I do know that often the motive goes along racial, ethnic, or economic lines. Is this not ridiculous? And at what cost? Considering the evidence against him, justice has yet again not been served by this process that we seem to revere above the validity of the outcomes.

Thomas,

Re; "...justice has yet again not been served by this process..."

How do you know that? Answer; you don't. Because your human brain is limited in space and time. Your experiences just lead you to believe there is a high probability that he is guilty.

And to which "outcome" do you refer? The outcome of this specific trial? The outcome of maintaining a "justice" system which recognizes our limitations? The outcome of a society which is in compliance with the dictates of nature or some supreme being? Personally, I'll go with the second. My preferred outcome is to maintain a system which can maintain order while recognizing our limitations.

Space and time? Compliance with the dictates of nature or some supreme being? OK. Carry on.

Thomas,

Imagine I show you an object. You can see that it is yellow. Now I move the object behind my back and ask you, what color is the object? Or I ask you tomorrow, what color was the object that you saw yesterday? Or what color will the object be tommorrow? You can answer with reason and experience. You can even act based on reason and experience. But outside of immediate perception, your judgement will have its basis in probability, not fact.

Our justice system (process) recognizes our limitations. And the system (process) has a broad outcome in mind when allowing for the possibility (probability) that some specific outcomes may be incorrect.

If there is a 99% chance that Lay and Skilling are guilty that is good enough for me

But first you have to get to the part where you establish that the odds of their guilt are 99%. :)

Judges and lawyers alike steer clear of assigning a percentage to "reasonable doubt", and for good reason. You see, it varies. In some cases, 90% is a good threshold; in other cases 80% is a good threshold. Some people think that the threshold is 99%. But you are not allowed to argue percentages to the jury.

The problem with assigning percentages is that reasonable doubt is not really defined that way. The way lawyers tend to argue it, at least the prosecutors, is that you can have doubt and convict. What you have to do is assess whether the doubt is reasonable or not. If you have doubts, but they are not reasonable, you must convict. Whichever lawyer, prosecutor or defense, explains reasonable doubt the best is ahead of the game.

"Preponderance of the evidence" (used in most civil cases) does have a percentage attached to it: 50%. If the jurors believe that the case comes down to 50.5% one way and 49.5% the other way, the 50.5% wins under this standard.

So, in the OJ trial, the prosecution confused the jury with its overly technical evidence, while the defense "clarified" the evidence in a simplistic manner and raised reasonable (to the jurors) doubts on several issues. (The prosecution was also hampered by the muddled investigation.) But in the civil trial, under the lower standard of evidence, OJ lost.

There are other standards used for different things: more likely than not, clear and convincing, heightened scrutiny, etc., but I'm not going to go into them.

If you are really interested, go to your local law library (most courthouses; some public libraries; most law schools), find the model jury instructions (usually done in one set for criminal cases and another set for civil cases), and read them.

Rex, judges don't define reasonable doubt in percentage terms because there is no consensus on what the appropriate percentage is. So each in effect juror uses whatever percentage he thinks is appropriate. Of course if you ask a juror what percentage he is using you may not get a sensible answer. This is becuase many people are not good at thinking in terms of probabilities. Also once a juror has decided to vote for conviction he will tend to exaggerate the probability of guilt so as to sleep better. So he may claim to be using a much more stringent standard than he actually is.

I personally would attempt to use a standard of 95% probability of guilt which I expect is a bit higher than the actual standard used by a typical juror. I don't believe convictions where objectively there is a 1% chance of innocence are at all rare or improper.

I submit that process and policy are our greatest enemy in the mid-east right now (re: we are our own worst enemy). But that is an entirely different situation.

The problem with reconstruction efforts is that they are too slow to leave the bureaucracy behind.

As the anonymous commenter at 9:53 a.m. September 27th wrote, Thomas and Jane are not really so much in disagreement than they are misinterpreting each other's positions.