¶1(dissenting in part). This case represents another chapter in my continuing dialogue with my colleagues over the fundamental “burden of proof” issue in *268involuntary civil commitments. I am constrained to voice my grave concern here, as in State v. Carter, 64 N. J. 382, 410 (1974) (concurring and dissenting opinion), that in moving a step forward by recognizing rights of mental patients we not take two steps backward by neglecting the evidentiary rules necessary to safeguard those rights. The Court today runs the risk of doing precisely that by applying an inappropriate burden of proof and by overruling sub silentio those New Jersey cases which have called for a reasonable doubt standard in involuntary commitments.
¶2While I concur in the Court’s resolution of the essential constitutional issues with which it has now come to grips, I disagree with the emphasized part of the following from the majority opinion:
If, following a hearing, the court finds that the State has shown by a preponderance of the evidence that defendant is mentally ill and is likely to pose …■ a danger [to himself or to society], it should order suitable restraints placed upon defendant’s liberty so as to protect the public and provide defendant with appropriate treatment (emphasis added; footnote omitted). [ante at 257.]
¶3This “preponderance of the evidence” language must be read into our revised B. 4:74-7 governing civil commitment, which was under consideration at the same time as our deliberations on the instant case. It has now been adopted to take effect September 8, 1975. The Rule reads in pertinent part as follows:
(f) Final Judgment of Commitment, Review. If the court finds from the evidence presented at the [commitment] hearing that the institutionalization of the patient is required by reason of his being a danger to himself or the community if he is not so confined and treated, it shall enter a judgment of commitment to an appropriate institution. … *
¶4The Rule being silent on burden of proof,
¶5*270While I appreciate the necessity of formulating a constitutional and workable procedure for disposition of persons acquitted by reason of insanity in light of our declaration of the unconstitutionality of N. J. S. A. 2A:163-3, I would have preferred to be favored with the views of the parties on .at least the “burden of proof of dangerousness” phase of that procedure. That issue was never briefed or argued — understandably, because all defendant sought by way of relief in this Court was a remand for the purpose of determining if his “condition had improved to the extent that he should be conditionally released.” The parties never reached nor apparently even contemplated the burden of proof issue. No reason has been offered why we should not follow our frequent practice of calling for at least briefs and perhaps additional oral argument on the question. To exercise that minimal caution seems the better practice when we either undertake to change the established law or start treading on unfamiliar soil, both of which we are doing here. The practical consequences of our own recent administrative directives, revised Rules, and holdings in the area of mental health law are but dimly perceived. As might be expected, the people most intimately involved as participants in the legal process have at this early stage some sharply divergent perceptions of that process itself and of their roles therein. Compare Stanton, “Involuntary Civil Commitment Proceedings: Á Trial Judge’s View,” 98 N. J. L. J. 425 (1975), with Singer, “Civil Commitment Proceedings: A Response to ‘A Trial Judge’s View,’ ” 98 N. J. L. J. 553 (1975). We should invite the parties to share with us their views. However, under the circumstances I must announce my position without the benefit of counsel’s research and efforts at persuasion.
¶6I start with the notion, now firmly established, that for all the reasons which Justice Pashman has so aptly set forth in the majority opinion, and to which he adverted in his opinion for the Court in State v. Carter, supra, 64 N. J. at *271401, our law treats one in the position of this defendant precisely the same way as any other patient facing involuntary commitment to a mental institution. No one, I daresay, would deny due process to people in that circumstance. What “process” is “due” in a particular factual context turns in large part upon what interests are involved. At stake in any involuntary commitment are the security of the community on the one hand and, on the other, the patient’s liberty, “an interest of transcending value.” Speiser v. Randall 357 U. S. 513, 525, 78 S. Ct. 1332, 1341, 2 L. Ed. 2d 1460, 1472 (1958). When personal liberty may be lost and the defendant faces the possible stigma of a criminal conviction,
¶7Mr. Justice Harlan’s concurring opinion in Winship exposes by meticulous analysis the basic policy considerations which lead to selection of what standard of proof should be applied in a given situation.
¶8*273Can we carry this analysis over to the involuntary commitment context F I believe we can. The fact that the proceeding for commitment is "civil" in nature rather than "criminal” presents no obstacle. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and In re Winship, supra, both involving juvenile proceedings civil in nature, have put to rest any suggestion that the measure of due process which must be afforded a defendant is to he determined by the label under which the proceeding parades. *274See Murel v. Baltimore City Crim. Ct., 407 U. S. 355, 364, 92 S. Ct. 2091, 2095, 32 L. Ed. 2d 791, 796-97 (1972) (Douglas, J., dissenting). Gaultstresses the restraint of liberty to which the party is exposed. Mr. Justice Portas said:
A boy is charged with misconduct. The boy is committed to an' institution where he may be restrained of liberty for years. It is of no constitutional consequence — and of limited practical meaning — that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes “a building with whitewashed walls, regimented routine and institutional hours … Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and “delinquents” confined with him for anything from waywardness to rape and homicide (footnotes omitted). [387 U. S. at 27, 87 S. Ct. at 1443, 18 L. Ed. 2d at 546.]
¶9Not much different, I submit, from what may be found in some parts of our mental institutions. And the period for which a mental patient’s liberty may be restrained is not fixed in any sense but rather is termed “permanent,” B. 4: 74-7 (e), subject to periodic review, B. 4:74-7(f), or, as more accurately (if no less disquietingly) labelled by the majority, “indefinite,” ante at 257.
¶10Much more important to me is that element on which Judge Tamm focuses in In re Ballay, supra, 482 F. 2d at 664-67, “the very nature of the evidence presented.” He discusses the difficulties implicit in proving “dangerousness,” emphasized in both of the opinions in Carter and the majority opinion herein. The point as I see it is that the impulse of the psychiatrist is to err on the side of finding “dangerousness” more often than not, see State v. Carter, supra, 64 N. J. at 426-27 n. 7 (concurring and dissenting opinion) ; that the psychiatric community is in frequent disagreement on diagnostic conclusions, see Diamond, “The Psychiatric Prediction of Dangerousness,” 123 U. Pa. L. *275Rev. 439 (1974); Ennis and Litwaek, “Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom,” 62 Calif. L. Rev. 693 (1974); Rosenhan, “On Being Sane in Insane Places,” 13 Santa Clara Law. 379 (1973); and that in making a determination of dangerousness (largely undefined and even less susceptible of proof than mental illness) the finder of fact “may unduly reflect clinical definitions and conclusions rather than the appropriate judicial exegeties and community values.” In re Ballay, supra,482 F. 2d at 665. The difficulty in making the critical determination, that defendant is mentally ill and poses a danger to himself or society if not restrained, militates in favor of the higher burden of proof beyond a reasonable doubt to reduce the substantial opportunity for error, particularly when, as here, the consequence of that error is loss of liberty. See, in addition to the cases recognized by the majority in footnote 9, ante at 357, as representative of the recent trend to require a burden of proof greater than bare preponderance of the evidence, Davis v. Watkins, 384 F. Supp. 1196 (N. D. Ohio 1974); Lynch v. Baxley, 386 F. Supp. 378 (M. D. Ala. 1974); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky. App. 1964). See also People v. Burnick, 14 Cal. 3d 306, 121 Cal. Rptr. 488, 535 P. 2d 352 (1975) (requiring proof of dangerousness heyond a reasonable doubt for commitment under a “civil” mentally disordered sex offender statute).
¶11In line with these decisions are several New Jersey eases holding that reasonable doubt is the appropriate standard for confinement: In re Heukelekian, 24 N. J. Super. 407 (App. Div. 1953); In re J. W., 44 N. J. Super. 216 (App. Div.), certif. den., 24 N. J. 465 (1957); In re Perry, 137 N. J. Eq. 161 (Ch. 1945).
¶12The appellant in In re Heukelekian, supra, sought reversal of a declaration of insanity resulting in her commitment to the State Hospital at Marlboro. The trial judge had found that “the evidence by a preponderance of the *276proof established the insanity of the subject.” 24 N. J. Super. at 409. The Appellate Division reversed and remanded, pointing out that to support continued confinement, there had to be a showing that “if the person is liberated she will probably imperil her own safety or the safety or property of others,” with “a reasonable doubt of a person’s insanity [to] be resolved in her favor.” Id.
¶13In re J. W., supra, held that the medical certificate on the basis of which plaintiff was involuntarily confined in a mental hospital was inadequate to prove the requisite mental conditions justifying detention. Judge Conford, citing Perry, supra, wrote “we are bound to seek the clearest legislative authorization before we can accord judicial sanction to the deprivation of personal liberty in a given factual situation,” 44 N. J. Super. at 225-26; and, significantly, “[w]here the right of liberty is involved a reasonable doubt as to the applicability of the statute to the facts presented should be resolved in favor of the subject.” Id. at 226.
¶14In In re Perry, supra, a writ of hateas corpus activated proceedings to secure the release of one confined to the New Jersey State Hospital at Trenton. Vice-Chancellor Jayne was called upon to determine whether the man was sane or insane. Specifically in issue was whether, if liberated, Perry was “likely to appreciably menace the safety of himself or that of the person or property of others.” 137 N. J. Eq. at 164. The court decided he was not, observing that “[e]ertainly with the right of liberty involved, a reasonable doubt of [Perry’s] insanity should be resolved in his favor.” Id.
¶15If these precedents are to be cast aside, as they have been today, they deserve more than a statement of some new standard mentioned almost in passing and conspicuously unencumbered by analysis or exposition of the reasons for its adoption.
¶16One final thought. The trial judge is to make the critical determination of dangerousness. Some may contend that in so doing the judge will likely not differentiate between *277bare preponderance and reasonable donbt, but will merely announce whatever standard happens to comport with his visceral reaction; and that under these circumstances this dissent which emphasizes the distinction between the two burdens of proof is simply theoretical and so much academic claptrap. I think that type of response by a trial judge most unlikely. First, that notion does not square with my confidence in the intellectual honesty of our bench (I look forward to a record in one of these cases wherein the hearing judge reflects on how he makes his decision and lets us know whether he is being given sufficient guidance). Second, the experience in at least one landmark case demonstrated that a trial judge, sitting without a jury, was perfectly capable of differentiating between the requirements of the respective standards. In In re Winship, supra, it is pointed out that “the trial judge’s ability to distinguish between the [reasonable doubt and preponderance] standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt.” 397 U. S. at 367, 90 S. Ct. at 1074, 25 L. Ed. 2d at 377.
¶17For the reasons presented I dissent from so much of the Court’s opinion as would permit involuntary committees to be “taken from their families and deprived of their constitutionally protected liberty under the same standard of proof applicable to run-of-the-mill automobile negligence actions.” Murel v. Baltimore City Crim. Ct., supra, 407 U. S. at 359, 92 S. Ct. at 2093, 32 L. Ed. 2d at 794 (Douglas, J., dissenting) (footnote omitted).
¶18For reversal and remandment — Chief Justice Hughes, Justices Mountain, Sullivan and Pashman and Judge Coneoed — 5.
¶19Dissenting in part — Justice Clieeobd — 1.
¶20The decision to leave the Rule silent on burden of proof runs counter to the specific recommendation of the Supreme Court Committee on Civil Practice, whose report appears at 98 N. J. L. J. 377 *269(1975). The Committee’s suggested language was “If the court finds beyond a reasonable doubt from the evidence presented at the hearing that the institutionalization of the patient is required by reason of the probability of the patient being a danger to himself or the community "" …” (emphasis added). While I recognize of course that we are not bound by our committees’ recommendations, nevertheless it is not without significance that this Committee’s thoughtful report indicated complete unanimity of its distinguished members on this point. Rather than the language of the Rule as finally adopted, which leaves out all reference to burden of proof, I would have preferred a version suggested by Professor Robert A. Carter of Rutgers Law School, a member of the Committee. Professor Carter wrote to the Clerk of the Supreme Court upon receipt of a suggested revision of the Rule, made by the Court after receipt of the Committee’s report. That revised draft left out the “probability” element and called for a finding simply of “dangerousness” beyond a reasonable doubt (the other end of the spectrum from where today’s decision leaves the matter). Professor Carter pointed out that the Committee sought to recognize between facts and the reasonable inferences to be drawn therefrom a distinction which might be brought more sharply into focus by this suggested alternative:
If the court finds, beyond a reasonable doubt, from evidence presented at the hearing, facts from which it can be inferred that the institutionalization of the patient is required by reason of his being a danger to himself or the community ….
¶21I think the distinction between a finding of dangerousness beyond a reasonable doubt and a finding beyond a reasonable doubt of facts from which the likelihood of dangerousness may reasonably be inferred is a real one and that a standard of proof based on the latter is, as urged by Professor Carter, a most workable standard.
¶22While Chief Justice Burger wrote, in 1964 when then a Judge of the District of Columbia Circuit, that to him “the arguments on the stigma of a guilty verdict are largely emotional nonsense,” “Psychiatrists, Lawyers, and the Courts,” 28 Fed. Prob. 3, 9 (1964), members of that same court later pointed to the depressing evidence that the stigma associated with involuntary civil commitment is at least as severe as the stigma born of a criminal conviction, and observed that only an “enlightened minority” has been persuaded to accept mental illness as a disease similar to any physical ailment of the body. In re Ballay, 157 U. S. App. D. C. 59, 482 F. 2d 648, 668 (D. C. Cir. 1973).
¶23The discussion is so illuminating that I run the risk of unduly burdening the reader by setting forth part of it at some length:
[Ejven though the labels used for alternative standards of proof are vague and not a very sure guide to decisionmaking, the choice of the standard for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.
*272To explain why I think this so, I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. The intensity of this belief — the degree to which a factfinder is convinced that a given act actually occurred — can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.
A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff’s favor. The criminal analogue would be the acquittal of a guilty man.
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation *273should, in a rational world, reflect an assessment of the comparative social disutility of each.
When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.”
In a criminal ease, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the dis-utility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U. S. 513, 525-526, 78 S. Ct. 1332, 1341-1342, 2 L. Ed. 2d 1460, 1472 (1958):
“There is always in litigation a margin of error, representing error in fact finding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden * … of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.”
In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation (emphasis in the original; footnotes omitted). [397 U. S. at 369-72, 90 S. Ct. at 1075-1077, 25 L. Ed. 2d at 378-81.]