discussed Cited "see" State v. Lawrence (2×) Furthermore, of those states adopting the higher standard, a number have failed to make clear whether their decisions are constitutionally based; see Bradley v. Commonwealth, 439 S.W.2d 61, 64 (Ky.1969), cert. denied, 397 U.S. 974 , 90 S.Ct. 1091 , 25 L.Ed.2d 268 (1970); State v. Phinney, 117 N.H. 145, 146 , 370 A.2d 1153 (1977); State v. Owens, 148 Wis.2d 922, 929-30 , 436 N.W.2d 869 (1989); or have done so expressly on nonconstitutional grounds.

discussed Cited "see" State v. James The substantial majority 31 of states to have considered this issue have followed Lego v. Twomey, supra, 404 U.S. 477 , and have adopted the preponderance standard under state law. 32 Furthermore, of those states adopting the higher standard, a number have failed to make clear whether their decisions are constitutionally based; see Bradley v. Commonwealth, 439 S.W.2d 61, 64 (Ky. 1969), cert. denied, 397 U.S. 974 , 90 S. Ct. 1091 , 25 L.