State v. Wilcox , 92 Wash. 2d 610 ( 1979 )

Brachtenbach, J.

Defendant was charged with first- and second-degree arson. He was committed to Western State Hospital for observation as to (1) his competency to stand trial and (2) his legal sanity at the time of the charged offenses. When the matter came to trial before the court, both sides stipulated that defendant was competent to stand trial and that he was criminally insane when the acts of arson were committed.

The criminally insane procedures statute requires a determination of whether the defendant, if acquitted because of insanity, is (1) a substantial danger to other persons, (2) whether he presents a substantial likelihood of committing felonious acts jeopardizing public safety or security and (3) whether it is in the best interests of defendant and others that he be placed in treatment less restrictive than detention in a state mental hospital. RCW 10.77.040(3), (4) and (5). If the issues are tried to the court, it must make findings in substantially the same form as set forth above. RCW 10.77.080; 10.77.110.

After hearing testimony on these issues, the court committed defendant to Western State Hospital for treatment as a criminally insane person until further order of the court. We affirm.

Defendant's argument is that the statute does not specify who has the burden of proof on the elements set forth in RCW 10.77.040 and does not specify what standard of proof must be met in order to commit him under the statute. This he contends is a deprivation of liberty without due process. We disagree.

Taken as a whole, RCW 10.77 is replete with due process concepts. RCW 10.77.010 provides applicable definitions; 10.77.020 delineates defendant's rights including the right to counsel and an indigent's right to have publicly paid professional examination on his behalf. Commitment cannot exceed the period of sentence for the underlying criminal act. RCW 10.77.020(3). His right against self-incrimination is preserved. RCW 10.77.020(4). RCW 10.77-.030(2) advises the defendant that it is his burden to prove the defense of insanity but only by preponderance of the evidence.

Turning to the specifics, is there a denial of due process by failure of the statute to assign the burden of proof to the State? There are two reasons why such is not a denial of due process. First, in this case, the State in fact assumed the burden of proof or persuasion. It went forward, the court afforded defendant the right of cross-examination and the right to present rebuttal testimony. Had the statute said that the State had the burden nothing different would have happened.

Second, quite apart from any statutory requirement, it is a fundamental precept of our system that a deprivation of liberty can occur only after affording due process. The commitment of a criminally insane person is a deprivation of liberty and subject to this constitutional guaranty of due process. We have so held in analogous situations. In re Levias, 83 Wn.2d 253, 255, 517 P.2d 588 (1973) (civil commitment proceeding); In re Quesnell, 83 Wn.2d 224, 229-30, 517 P.2d 568 (1973) (civil commitment proceeding); Johnson v. Morris, 87 Wn.2d 922, 929, 557 P.2d 1299 (1976) (juvenile commitment proceeding). The United States Supreme Court has been specific in this matter. In O'Connor v. Donaldson, 422 U.S. 563, 580, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975), in a concurring opinion it was said:

There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Specht v. Patterson, 386 U.S. 605, 608 (1967). Cf. In re Gault, 387 U.S. 1, 12-13, (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding.

Thus the State had the burden of proof which it satisfied in this case. See generally German & Singer, Punishing the Not Guilty: Hospitalization of Persons Acquitted by Reason of Insanity, 29 Rutgers L. Rev. 1011 (1976); 87 Harv. L. Rev. 1190 (1974).

The second issue is whether there is a denial of due process because the statute does not explicitly set the standard of proof which the State must meet. Defendant argues the standard must be that of beyond a reasonable doubt or at least clear, cogent and convincing evidence and contends that the trial court applied a lesser standard.

While the statute does not establish a standard of proof, it is not without guidelines which must be met — guidelines which inure to the benefit of the defendant. The trier of the fact must find that the defendant presents a substantial danger to other persons or that he presents a substantial likelihood of committing other felonious acts. Further, it is not just any felonious acts which must be likely, but only those which jeopardize public safety or security. RCW 10.77.040(3), (4); 10.77.110.

In establishing the standard of proof required, we must recognize two factors. We are dealing with a most imprecise area of human behavior and we are attempting to predict future conduct of a particular individual. See A. Stone, Mental Health and Law: A System in Transition 25-37 (1975); Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L. Rev. 1084, 1098-99 (1976); Dershowitz, The Law of Dangerousness: Some Fictions About Predictions, 23 J. Legal Educ. 24, 46 (1970).

Acknowledging that the so-called standards of proof are artificial and illusory at best, it is unreal to insist that the statutory elements be proved beyond a reasonable doubt or by clear, cogent and convincing evidence. See State v. Blubaugh, 80 Wn.2d 28, 36, 491 P.2d 646 (1971); Wiehl, Our Burden of Burdens, 41 Wash. L. Rev. 109, 117 (1966).

We hold that proof by a preponderance of the evidence of the statutory elements accords due process to the defendant. See State v. Krol, 68 N.J. 236, 257, 344 A.2d 289 (1975). This means that the State must convince the trier of the fact that it is more probably true than not that defendant is dangerous to other persons or is likely to commit felonious acts jeopardizing public safety. Those criteria were met in this case and the judgment is affirmed.

Utter, C.J., and Stafford, Wright, Horowitz, and Dolliver, JJ., concur.