§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]



 



__________



§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).