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3794
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VETOES
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existence of one or more aggravating circumstances beyond
a reasonable doubt, by clear and convincing evidence, by
substantial evidence, by a preponderance of the evidence,
or by some other standard. Similarly, the statute does
not deal with the burden of proof applicable to a
determination of whether one or more mitigating
circumstances are present. Finally, assuming one or more
aggravating circumstances are demonstrated, by whatever
burden of proof is applied, and one or more mitigating
circumstances are established, by whatever burden of
proof is applied, the statute fails to tell us what
standards should be applied in weighing the aggravating
against the mitigating circumstances.
In this respect Senate Bill 106 shares a defect
present in the Florida statute, upheld as facially
constitutional in Proffitt v. Florida, supra. The
Supreme Court of Florida in State v. Dixon, 283 So.2d 1,
9 (1973) partially answered the burden of proof question
under the Florida law as follows:
"The aggravating circumstances of Fla. Stat.
Sec. 921.141(6) actually define those crimes - when
read in conjunction with Fla. Stat. Section
782.04(1) and 794.01(1) - to which the death penalty
is applicable in the absence of mitigating
circumstances. As such they must be proved beyond a
reasonable doubt before being considered by judge or
jury."
The Court in Dixon went on to describe the process of
weighing aggravating and mitigating circumstances without
truly defining the quantum or weight of evidence or
burden on either of the parties to prove or disprove the
existence of mitigating circumstances or to show that
they do or do not outweigh any aggravating circumstances
found to exist. 20 It may well be that the Maryland
Court of Appeals would follow the holding in State v.
Dixon that aggravating circumstances must be proved
beyond a reasonable doubt, and we consider such a result
likely if not certain. While we incline towards the view
that the burden of proof with respect to mitigating
circumstances and the weighing process will be some
lesser standard, we cannot predict with any degree of
certainty just what standard the Maryland Court of
Appeals may ultimately require. 21 Just as we are left
to speculate, so too will trial court judges, as they
preside over capital punishment trials — at least until
the first occasion on which the Court of Appeals
addresses the question. Until that question is
definitively resolved, as it should have been in Senate
Bill 106, trial court judges will proceed to fashion jury
instructions which they believe to be appropriate and
will apply the burdens and standards which they believe
are applicable to their own sentencing decision, but they
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