...if the torturers and bureacrats of the dungeons and the camps are able to treat their victims like animals destined for the slaughterhouse, with whom they themselves, the well-nourished criminals, have nothing in common, it is because the victims have indeed become such animals. What had to be done for this to happen has indeed been done. That some nevertheless remained human beings, and testify to that effect, is a confirmed fact. But this is always achieved precisely through enormous effort.
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[3] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.
The importance of the role of counsel in alerting the court to the possibility of a defendant's incompetence has long 315*315 been recognized. State v. Lambert, 275 N.J. Super. 125, 129, 645 A.2d 1189 (App.Div. 1994) (citing Drope v. Missouri, 420 U.S. 162, 177 n. 13, 95 S.Ct. 896, 906 n. 13, 43 L.Ed.2d 103, 116 n. 13 (1975)). In fact, defense counsel is ordinarily "in far better position than the trial judge to assay the salient facts concerning the defendant's ability to stand trial and assist in his own defense." State v. Lucas, 30 N.J. 37, 74, 152 A.2d 50 (1959). Likewise, defense counsel is in a better position to alert the court when a mentally ill defendant is competent to stand trial, yet not competent to proceed pro se. When a bona fide doubt is raised as to the competence of a mentally ill defendant to proceed pro se, counsel should be appointed to aid in the competency determination, as well as to assist the defendant in trying the case.
Where a defendant demonstrates a history of psychiatric problems and a current thought disorder, creating a reasonable basis to question his or her competency to stand trial or to raise a defense centering on mental condition, the court is obligated to conduct a further inquiry either by appointing counsel or directing that a psychiatric examination be conducted. Under such circumstances, it is irrelevant that a defendant is not facing a "consequence of magnitude" and is therefore ordinarily not entitled to appointment of counsel. A municipal court should not permit a clearly mentally ill defendant charged with a disorderly persons offense to proceed pro se, even absent the possibility of imposing "consequences of magnitude." Such a defendant should be assigned an attorney, even if by providing counsel he or she is given greater protection than that afforded to a defendant without a psychiatric disability.
