§701-116 Proving applicability of the Code. When the application of the Code depends on the finding of a fact which is not required to be found beyond a reasonable doubt:
(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and
(2) The fact must be proved by a preponderance of the evidence. [L 1972, c 9, pt of §1]
COMMENTARY ON §701-116
The draft follows the Model Penal Code in defining a standard of proof of facts called for in application of the Code. It would cover, for example, a finding that the defendant lacks mental capacity to proceed.[1] It logically places the burden of proof on the side whose interest or contention would be furthered if the finding is made. Proof must be by a preponderance of the evidence. Thus when facts making the defendant subject to increased penalties must be proved,[2] the prosecution need not prove them beyond a reasonable doubt, but only by preponderant evidence. The Model Penal Code draftsmen explain:
... proof that satisfies the court is not likely to leave room for a substantial doubt; and this, in our view, affords an adequate protection in an area where we deliberately have sought to broaden the discretion of the court.3
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§701-116 Commentary:
1. Cf. §§704-403 to 406.
2. Cf. §706-662.
3. M.P.C., Tentative Draft No. 4, comments at 114 (1955).