State v. Biegenwald3/5/1987
ting factors, the court shall sentence the defendant pursuant to subsection b.
Another provision of the Act, Section c(2), provides that the State has "the burden of establishing beyond a reasonable doubt the existence of any aggravating factors," and that the defendant has "the burden of producing evidence of the existence of any mitigating factors. . . ."
The Act, in its original form, said nothing about the burden of proof in the weighing process. The trial court's charge conforms to the Act's original wording. Nevertheless, the literal reading has been the subject of criticism. For example, the initial report of the Trial Judges' Committee on Capital Causes, see State v. Ramseur, supra, 106 N.J. at 155 n. 2, called for a charge that imposed on the State a burden of proving the result of the balancing process beyond a reasonable doubt, although the Act was silent in that regard. That conclusion
was presumably based on New Jersey's traditional concern for the rights of defendants charged with capital offenses.
New Jersey has always required proof beyond a reasonable doubt in criminal prosecutions. See, e.g., State v. Bess, supra, 53 N.J. at 18; State v. Emery, 27 N.J. 348, 353 (1958) (quasi-criminal drunk driving proceeding requires proof beyond a reasonable doubt). That requirement antedates any suggestion that the Constitution compels that burden. In re Winship, supra, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368; see Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). We thus approach this statutory language with a long-standing practice in the criminal law of this state, a practice quite different from the terms of the statute.
Our construction of the statute is based to some extent on the functional similarity of aggravating factors and the weighing process itself to the traditional proof of "elements of an offense." The burden is firmly fixed in this state where an element of an offense is involved: The State has the burden to prove that element "beyond a reasonable doubt." N.J.S.A. 2C:1-13a. We note that in some other states "aggravating factors" are elements of the capital crime, and during the guilt phase of trial the State must prove beyond a reasonable doubt the existence of one or more aggravating factors before the defendant becomes "death-eligible." See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450, 482 (1981). Technically, of course, the death penalty is imposed as part of the sentencing proceeding, and under ordinary analysis, the State need not prove its contentions at the sentencing proceeding beyond a reasonable doubt, even those that are statutorily prescribed. See McMillan v. Pennsylvania, 477 U.S. , , 106 S. Ct. 2411, 2415-19, 91 L. Ed. 2d 67, 74-79 (1986) (where legislature provided mandatory sentence for visible possession of firearm, State need only prove possession by preponderance of evidence and there is not denial of due process when possession is statutorily defined as a sentencing consideration). Here, however,
the sentencing proceeding calls for a different treatment because death is "profoundly different," Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978) (plurality opinion), both in terms of its consequences and because it is a procedurally unique sentencing scheme, see Bullington v. Missouri, 451 U.S. 430, 438, 101 S. Ct. 1852, 1857, 68 L. Ed. 2d 270, 278 (1981). The statutory requirement that the State must prove aggravating factors beyond a reasonable doubt -- even though that proof is likewise part of
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