hey wanted to; it is a silly business
and it is not common sense. What the jury feels is that the judge's
charge is leaving it to them without any trouble about the law. But
wait a moment, the judge is going on to tell them about the law as
applied to the particular facts before them.

The important principle of law they are being told is what is known as
the preponderance of evidence and the burden of proof. The judge goes
on at great length about the weight of evidence. The weight of
evidence, he says, is the preponderance of proof and the preponderance
of evidence is the weight of evidence, and the man who has the burden
of proof must have the weight of evidence and the weight of evidence
being the preponderance of evidence is also upon the man who has the
burden of proof. And the preponderance of evidence does not mean proof
beyond a reasonable doubt, as in criminal actions, but that the proof
must be heavier on one side than the other and the one who has the
burden of proof must sustain the preponderance of evidence. That is
the law; the judge has said it. What it means the jury give up. The
lawyers nod their heads wisely. The judge has stated the law
correctly.

The judge may go on a little further and tell them more about the
burden of proof and the preponderance of evidence. He may say that the
weight of evidence does not mean the number of witnesses. The mere
fact that one side has six and the other side only two does not mean
that the jury are to believe the side who has six. The jury know that
when probably they are all exaggerating somewhat they are going to
decide the way the thing happened. Then the judge tells them, having
seen the witnesses, "That they may consider their bearing on the stand
and their manner of giving testimony." Surely they are going to do
that. Is not the best way of knowing whether a man is telling the
truth to look at him and watch him while he is talking? There is
little sense in the judge advising them to consider his bearing on the
stand.

Another thing the judge says is that they are not to be governed by
sympathy or prejudice in arriving at their verdict. This is a caution
that the judge thinks necessary. He forgets that when they are in the
jury-room, with locked doors and no one to disturb them, they are
going to do exactly as they are inclined. Prejudice and sympathy are
for unintelligent people who do not know what they are about. Both
lawyers have been telling the jury