C O M P A R AT I V E S T U D Y defence and other defences by a “preponderance of evidence.”303 This standard also referred to as the “balance of probabilities,” is satisfied if there is a greater than fifty percent chance that the proposition is true.304 In raising an insanity defence, the US Supreme Court has held that it is not a violation of due process rights for a state to require the accused to establish the insanity defence beyond a reasonable doubt.305 However, notwithstanding the constitutionality of imposing such a high burden on the accused in raising an insanity defence, the majority of states in the US require a much lower evidentiary threshold.306 Similarly, in the UK, judges are not required to leave to the jury “every facile mouthing of some easy phrase of excuse” submitted by the accused,307 nor claims for which there is no “scintilla of evidence.”308 For instance, when raising a defence of insanity, the accused has to establish it by a preponderance of evidence.309 Put differently, whether the accused has discharged its burden of production in putting forward a defence is not an issue of fact for the jury. It is an issue of law. The judge decides the legal issue as to whether there is sufficient evidence to instruct the jury to consider the factual issue and make a finding of fact. If the accused adduces the requisite amount of 303 See generally Martin v. Ohio, 480 US 228 (1987), requiring the proof by a preponderance of evidence for self-defence; Patterson v. New York, 432 U.S. 197 (1977), requiring the proof by a preponderance of evidence for the affirmative defence of extreme emotional distress. 304 Miller v. Minister of Pensions [1947] 2 All ER 372. For further discussion on the standards and burdens of proof see generally James P. McBaine, Burden of Proof: Degrees of Belief, 32(3) Cal. L. Rev. 242 (1944); William Trickett, Preponderance of Evidence and Reasonable Doubt, 10 Forum 75, 86 (1905-1906) (hereinafter “Trickett”); Jefferson Ingram, Criminal Evidence 73 (Routledge, 2014); Ronald Bacigal, Criminal Law and Procedure: An Overview 13 (Cengage Learning, 2008). 305 See Leland v. Oregon, 343 U.S. 790, 791 (1952), where the US Supreme Court held that the state’s requirement to establish the defence of insanity beyond a reasonable doubt was not a violation of due process rights. The US Supreme Court cited Henry Weihofen, Insanity as a Defence in Criminal Law 148-151, 172-200 (1933), listing twelve states as requiring proof by a preponderance of the evidence, four as requiring proof “to the satisfaction of the jury,” two which combine these formula, one where by statute the defence must be “clearly proved to the reasonable satisfaction of the jury,” one where it has been held that the jury must “believe” the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule. Twenty-two states, including Oregon, are mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of evidence. 306 Requiring preponderance of evidence, see Lackey v. State, 615 So. 2d 145, 151-152 (Ala. Crim. App. 1992); McCarlo v. State, 677 P.2d 1268, 1272 (Alaska App. 1984); Diaz v. State, 508 A.2d 861, 863 (Del. 1986); Flowers v. State, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State, 209 Ga. App. 514, 516, 433 S.E.2d 717, 719 (1993); Requiring “clear and convincing evidence,” see Mitchell v. State, 323 Ark. 116, 120, 913 S.W.2d 264, 266 (1996); Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995). As the US Supreme Court reasoned: “Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defence beyond a reasonable doubt. Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of evidence or some similar, measure of persuasion. While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question.” Leland v. Oregon, 343 U.S. 790, 798 (1952). 307 Bratty v. Attorney-General for Northern Ireland, [1963] AC 386, 416-417. 308 DPP v. Walker¸[1974] 1 W.L.R. 1090, 1094. See, generally, Richard May, Criminal Evidence mn. 4-08 – 4-46 (Sweet & Maxwell, 3rd ed. 1995). 309 Sodeman v. Regem, [1936] W. N. 190, requiring the proof on the balance of probabilities (preponderance of evidence) to establish the defence of insanity. See also Timothy H. Jones, Insanity, Automatism, and the Burden of Proof on the Accused 11 L. Q. Rev. 475 (1995), criticizing this standard as applied to the defence of insanity as conflicting with the presumption of innocence. 69