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State v. Biegenwald3/5/1987
a sentencing proceeding -- is some indication of the Legislature's appreciation of that difference, and of its probable intention to impose the same burden on the weighing process itself. The Legislature, in recognizing this functional equivalence by requiring proof beyond a reasonable doubt of any aggravating factor, demonstrated the appropriateness of attaching the protective requirements ordinarily confined to the determination of guilt to the sentencing proceeding as well. There may be analogous determinations made by a judge, of great import, that are governed by a standard that is not "beyond a reasonable doubt," see, e.g., N.J.S.A. 2C:43-6b; but in New Jersey, where the jury is charged with making that value judgment, a determination of death despite reasonable doubt as to its justness would be unthinkable. We can think of no judgment of any jury in this state in any case that has as strong a claim to the requirement of certainty as does this one.
It is one thing to impose this burden of proof, beyond a reasonable doubt, where the statute is silent on the question; it is another to require the State to prove that the aggravating factors outweigh the mitigating factors when the Act provides, quite clearly, that the State must prove that the aggravating factors are not outweighed by the mitigating factors. The two formulations differ in result only when the jury finds that the aggravating factors and mitigating factors are in equipoise. If the State must prove the aggravating factors outweigh the mitigating factors, then equipoise will not result in a death sentence; if the State must prove that the aggravating factors
are not outweighed by the mitigating factors, then equipoise does result in a death sentence. That single point on this shifting balance between aggravating and mitigating factors may make the difference between life and death. More than that, we believe that the phrasing of the question is more disadvantageous to the defendant than is suggested by the logical analysis wherein the only difference results where the factors are "in equipoise." It is not a very substantial change in a juror's mind that is required to transform "you must find, beyond a reasonable doubt, that the aggravating factors are not outweighed by the mitigating factors" to "you must find, beyond a reasonable doubt, that the mitigating factors outweigh the aggravating factors."
This potential for confusion brings us to the strongest reason for interpreting the Act to require the State to prove,
beyond a reasonable doubt, that the aggravating factors outweigh the mitigating. In no proceeding is it more imperative to be assured that the outcome is fair than in these cases. It is difficult to believe that the Legislature thought it fundamentally fair that a defendant be executed except where the mitigating factors outweigh the aggravating; the concept of executing him where the explanations for his misconduct (the mitigating factors) were equally as significant as the culpable aspects of that misconduct (the aggravating factors) is foreign to what the Legislature would certainly intend. We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of "beyond a reasonable doubt," and therefore appropriately applicable to fact-finding, the weighing process really is not fact-finding at all but a judgmental determination by the jury, based on conflicting values, of whether defendant should live or die. See Barclay v. Florida, 463 U.S. 939, 950, 103 S. Ct. 3418, 3425, 77 L. Ed. 2d 1134, 1144 (1983) (plurality opinion) ("It is entirel
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