What is the "probable" standard for the use of the word "might" in the context of a new trial?

2 We have cited this case just once, and then only as authority for the "probable" standard. See United States v. Sloan, 465 F.2d 406, 407 (9th Cir. 1972) (per curiam).

While we have employed "might" language in two cases, neither of these is dispositive of the issue before us. In Mejia v. United States, 291 F.2d 198 (9th Cir. 1961), the appellant had made an admission of guilt which he had unsuccessfully attempted to explain away at trial. When the appellant subsequently produced an alibi witness, we ordered a new trial, observing that "the jury might in view of (the alibi witness') testimony, accept the appellant's story that he was a mere braggart, and not telling the truth when he asserted" that he had engaged in criminal activity. Id. at 201. We made it very clear, however, that we decided that case only "upon the special and peculiar facts" before us there. Id. at 201 n.3. No such "special and peculiar facts" are present here.