For reversal -- Chief Justice Hughes, Justices Jacobs, Mountain, Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Mountain, J.
Defendant was convicted of second degree murder. On appeal the conviction was reversed by the Appellate Division in an unreported opinion. We granted the State's petition for certification, 66 N.J. 324 (1974), specifically limiting our review, however, to the single issue considered by the Appellate Division and set forth in the paragraph immediately below.
The facts presented at trial left no doubt that defendant had committed the killing; his only substantial defense was alleged insanity. The sole reason given by the Appellate Division for reversal was that the trial judge had failed to define for the jury the meaning of the term "preponderance of the evidence."
This State follows the rule that in criminal cases insanity is an affirmative defense which the defendant must establish by a preponderance of the evidence. Most recently this Court restated the rule in these terms:
New Jersey adheres to the rule that in a criminal case the State does not have to prove that the defendant is sane. If insanity is raised as a defense, the defendant has the burden of proving insanity and unless he does so by a preponderance of the evidence he stands in the position of a sane person responsible in law for his actions. [ State v. DiPaglia, 64 N.J. 288, 293 (1974)]
In his main charge the trial judge instructed the jury as to the test to be applied in determining legal insanity. He
did not, however, refer to the defendant's burden of proof. Defense counsel took exception to this failure and requested a supplemental charge. To this the judge acquiesced and said to the jury,
At that point defense counsel indicated that he was satisfied with the charge. Accordingly the issue reached the Appellate Division and comes before us as plain error. R. 2:10-2. By the terms of this rule an "appellate court may in the interests of justice notice plain error not brought to the attention of the trial or appellate court." We have defined plain error as being
The State readily concedes that preferable practice requires under the circumstances of a case such as this that the phrase "preponderance of the evidence" be defined. This may be done in a number of ways. For instance, our own Model Jury Charge, Criminal, 3:180 states as follows:
The term "fair preponderance of the evidence" means the greater weight of credible evidence in the case. It does not necessarily mean the evidence of the greater number of witnesses but means that evidence which carries the greater convincing power to our minds.
Any other satisfactory definition would suffice. See, for instance, 9 Wigmore, Evidence (3rd ed.), § 2498, as well as the provocative discussion by Judge Frank in Larson v. Jo Ann Cab ...