State v. Lotter

I concur but write separately to raise certain issues concerning this court’s application of the risk of nonpersuasion to mitigating circumstances and this court’s proportionality review.

Risk of Nonpersuasion

Our holding in State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), wherein we indicated that there is no burden of proof with regard to mitigating factors, I believe has been inaccurately stated. The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the finder of fact concerning the degree of confidence…