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3795
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MARVIN MANDEL, Governor
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will do so at some risk. There is no assurance
whatsoever that one trial judge will adopt the same
burdens of proof and instructions as another trial judge,
and it is distinctly possible that defendants will be
tried in various jurisdictions throughout the State under
different burdens of proof and different jury
instructions. While this may all be resolved one day by
the Court of Appeals, the uncertainty which will exist in
the meantime, and the uneven application of the death
penalty statute which is likely to occur, will hardly be
conducive to the kind of fair and evenhanded
administration of a capital punishment law which the
Supreme Court has set forth as the constitutional
objective which must be pursued by a valid statutory
scheme. 22
Having expressed these very grave concerns about the
uncertainties which may prevail in determining the
appropriate burdens of proof, we must note that the
Supreme Court in its opinion in Proffitt v. Florida,
supra, did observe that "the directions given to judge
and jury by the Florida statute are sufficiently clear
and persuasive to enable the aggravating circumstances to
be weighed against the mitigating ones." This
represented the Court's response to several related
contentions, one of which was that the statute failed to
assign any specific weight to the various aggravating and
mitigating circumstances to be considered and weighed.
While the Court's general observation might be read as
reflecting a lack of constitutional concern over the
absence of statutorily identified burdens of proof, we
cannot say with any real confidence that such is the
case. To the extent that any burden of proof question
was squarely presented to and considered by the Supreme
Court, it was against the background of prior decisions
of the Florida Supreme Court articulating to some extent
the burden of proof standards and the adoption by Rule of
the Supreme Court of Florida of pattern jury instructions.
This background would clearly undercut any argument that
capital punishment in Florida was imposed in an uneven
and inequitable manner because of inconsistencies and
uncertainties with respect to the burden of proof
question. 23
CONCLUSION
without question Senate Bill 106, patterned as it is
so closely on the Florida statute, would meet the basic
Supreme Court tests of constitutionality and does afford
the three principal requirements specified by the Court:
1. a bifurcated sentencing proceeding;
2. a procedure permitting the sentencing
authority to focus on the circumstances of the offense
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