Beyond a Whisker of a Doubt

Ladies and Gentleman, you are entering the Court of the Honorable Rory. You are charged today with an important duty as jurors. By the end of this session, you will have learned the three different types of Standards of Proof used in the United States judicial system. You will also have caused justice to be done, once and for all, in the matter of the events surrounding my alleged presence on the table on the night of November 11, 2011. (I am judge and defendant, and if you have an issue with that, you can step into my chambers to discuss it. My litter-box is my chambers. That's what I thought.)

In the American legal system, we use three different standards of proof, depending on the type of case. They are generally referred to as the “preponderance of the evidence” standard, the “clear and convincing evidence” standard, and “beyond a reasonable doubt.”

Rory v. Human Male

In a civil case (i.e. your typical lawsuit), the jury is charged that they must make their decision based upon a “preponderance of the evidence.” This is a matter of likelihood. The jury, “acting as reasonable persons” must believe that “the points to be proved are more likely so than not.” Evidence Under the Rules: Fifth Edition, Christopher B. Mueller and Laird C. Kirkpatrick, Aspen Publishers p. 671.

The uncontested facts of the case are as follows: on the night of November 11, Human Male and Human Female ate pizza for dinner. Said pizza was left on the table to cool before being wrapped up and put away after dinner. The Humans left the room. At some point in the night, Rory was accosted by Human Male with a spray bottle and accused of snuffling, chewing, licking, and otherwise disturbing the pizza.

Rory has brought this lawsuit against Human Male seeking damages for emotional distress, slander, and property damage (his fur was caused to become wet). Human Male asserts that he acted in proper defense of his pizza.

“[t]he weight or preponderance of evidence is its power to convince the tribunal which has the determination of the facts, of the actual truth of the proposition to be proved. After the evidence has been weighed, that proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.” (This is an actual jury charge, or instructions given to the jury by the judge, used in Massachusetts in Stepakoff v. Kantar, 393 Mass 836 (1985).

Hmm? Let me try again:

“Another description of the state of mind which is satisfied by a fair preponderance of the evidence is a firm and abiding conviction in the truth of the plaintiff's case.” Id.

Still not clear?

Rory has to prove that his injuries were “more likely due to the negligence of the defendant than to some other cause for which he is not liable.” See id.

If you decide in favor of Rory (which, you should), it will be because you are persuaded that the evidence that you have heard here today leads you to believe that it is more likely than not that Human Male attacked Rory with the spray bottle for no good reason. If you decide against Rory, (which would be unforgivable), it will be because you are persuaded that the evidence you have heard here today leads you to believe that it is just as likely, or more likely, that Rory's injuries were caused by some cause other than Human Male's improper actions.

Human Male v. Human Female

After Rory (allegedly) snuffled, chewed, licked, and otherwise disturbed the pizza on the table, leaving tomato-y paw prints across the carpet, cheese on the chairs, and crumbs every-blessed-place, Human Male and Human Female began arguing about who was responsible for Rory's actions and the subsequent clean-up. Human Male has brought a very strange sort of child-custody case in the Probate and Family Court seeking a decision that Human Female is wholly responsible for Rory's obedience training (hahaha) and cleaning up after him.

In deciding this matter, you must use the “clear and convincing” evidence standard, which is a higher standard than the “preponderance of the evidence” standard. This standard is used in non-criminal matters where the “individual interests at stake are both particularly important and more substantial than mere loss of money.” Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). This standard comes up in cases of child-custody, paternity, and refusal of medical care, among other situations.

You have heard evidence that Human Female is a huge sucker, always shares her meals with Rory, lets him sleep on her bladder even when she has to pee, and is solely responsible for changing the litter-box. You have also heard evidence that Human Male ignores his guests to play with Rory, buys him toys whenever he buys himself ice cream, and wakes up early on weekend mornings to feed Rory.

“A party cannot meet the burden of establishing [that it is in the best interests of Rory that he be the cat's custodian] by simply producing evidence which is slightly more persuasive than that opposed to it, which would meet the burden of proof under the preponderance of evidence standard. Instead, the party must produce clear and convincing evidence which is evidence that is substantial and that unequivocally establishes the elements of [the best interests of Rory]... Clear and convincing evidence is evidence that establishes for you a very high probability that the facts asserted are true or exist.” Connecticut sample jury instructions.

State v. Rory

As it turns out, Human Male pressed charges against Rory for stealing the pizza. This case is a criminal case, and therefore, the highest standard is used: evidence “beyond a reasonable doubt.” This traces back to the due process requirements of the 5^th Amendment to the Constitution of the United States. As the Supreme Court held, this standard is necessary because “[t]he accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” In re Winship, 397 U.S. 358, 363 (1970). Furthermore, “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilty with utmost certainty.” Id at 364.

“It is not required that the prosecution prove guilt beyond all possible doubt, for it is rarely possible to prove anything to an absolute certainty. Rather the test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense. Proof beyond a reasonable doubt must be proof of such a convincing character that, after consideration, you would be willing to rely and act upon it without hesitation in your important affairs. A defendant is never to be convicted on mere suspicion or conjecture.” Alaska jury instruction.

Therefore, you must find Rory guilty only if the prosecution has established, beyond a reasonable doubt, that Rory unlawfully stole the pizza.

Now that you've seen the three standards, I ask you to take a moment to compare your decisions in each case. In your own heart and mind, what is the difference between being certain beyond a reasonable doubt, or believing something is more likely than not? How much doubt is acceptable to you, in each case? For a fascinating, and in depth look at the kind of decisions a juror goes through, I urge you to read A Trial by Jury by D. Graham Burnett, a true account of serving on a jury in a New York murder case.

Thank you for your service, ladies and gentleman. I now shall step into my “chambers.”