![]() ![]() 2 Variability among jurorsīased on their genetic differences and divergences in experience, variations among jurors-a cross-section of the community under our practice-are huge. Requiring a combined descriptive explanation and an explicit percentage would likely work well for the thousands of jurors we have observed. Quantification is one way of stating the standard. The questions are (1) how high the required minimum probability should be set and (2) how should the test be articulated. In a criminal case, the law tilts in favour of defendants it prefers that some guilty go free rather than that some innocents be convicted. If, for some policy reason, the law wants to make it harder or easier for the proponent to win, it puts its thumb on the scale with a variety of burden formulations. ‘More probable than not’, with the burden of getting over equipoise, satisfies society's need for stability and is relatively easy for the jury to understand. In the usual civil case, the law does not favour either party, except that it slightly prefers the status quo. That it will be adopted in practice seems doubtful, for some of the reasons suggested by Prof. Tillers's and Jonathan Gottfried's analysis supporting a quantified jury instruction on the meaning of proof beyond a reasonable doubt is persuasive.
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