"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"...So, now I suppose I have to say that the judge's refusal to give an answer decreases the likelihood that the jury will convict. Do you agree?
The question suggests that the jurors might be stumped about whether than can convict even though a juror keeps saying something like: But, of course, it's possible to forget anything. This would be an argument against convicting based on the evidence that demonstrated the importance of what Libby contends he forgot.
This question might mean that they are arguing about how high the standard of reasonable doubt really is. But there is also concern about the kind of proof that is required. Is it enough to simply show that the thing allegedly forgotten was extremely memorable, so that the jurors have to make an inference that he is therefore lying? Someone may be demanding that there should be evidence about the mechanism of forgetting.
I would think that the correct answer about the quantity and quality of the evidence needed would tend to make a jury that would ask the question that way likely to convict.
March 5, 2007
The judge in the Libby case refuses to answer the question the jury asked. Remember, we puzzled over the question here. I wrote: