OCTOBER TERM, 1995
Syllabus
COOPER
v. OKLAHOMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA
No. 95-5207. Argued January 17, 1996-Decided April 16, 1996
Oklahoma law presumes that a criminal defendant is competent to
stand trial unless he proves his incompetence by clear and
convincing evidence. Applying that standard, a judge found
petitioner Cooper competent on separate occasions before and during
his trial for first-degree murder, despite his bizarre behavior and
conflicting expert testimony on the issue. In affirming his
conviction and death sentence, the Court of Criminal Appeals
rejected his argument that the State's presumption of competence,
combined with its clear and convincing evidence standard, placed
such an onerous burden on him as to violate due process.
Held: Because Oklahoma's procedural rule allows the State
to try a defendant who is more likely than not incompetent, it
violates due process. Pp.354-369.
(a) It is well settled that the criminal trial of an incompetent
defendant violates due process.
Medina v.
California,
505 U. S. 437,
449, establishes that a State may presume that the defendant is
competent and require him to prove incompetence by a preponderance
of the evidence. Such a presumption does not offend a "'principle
of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental,'"
id., at 445, for it
affects the outcome "only in a narrow class of cases ... where the
evidence that a defendant is competent is just as strong as the
evidence that he is incompetent,"
id., at 449. This case,
however, presents the quite different question whether a State may
proceed with a criminal trial after a defendant has shown that he
is more likely than not incompetent. Pp. 354-356.
(b) Oklahoma's rule has no roots in historical practice. Both
early English and American cases suggest that the common-law
standard of proof was preponderance of the evidence. That this same
standard is currently used by 46 States and the federal courts
indicates that the vast majority of jurisdictions remain persuaded
that Oklahoma's heightened standard is not necessary to vindicate
the State's interest in prompt and orderly disposition of criminal
cases. The near-uniform application of a standard that is more
protective of the defendant's rights than Oklahoma's rule supports
the conclusion that the heightened standard offends a deeply rooted
principle of justice. pp. 356-362.
349
(c) Oklahoma's rule does not exhibit "fundamental fairness" in
operation. An erroneous determination of competence has dire
consequences for a defendant who has already demonstrated that he
is more likely than not incompetent, threatening the basic fairness
of the trial itself. A defendant's inability to communicate
effectively with counsel may leave him unable to exercise other
rights deemed essential to a fair trial--e.
g., choosing to
plead guilty, waiving his privilege against compulsory
self-incrimination by taking the witness stand, or waiving his
rights to a jury trial or to cross-examine witnesses-and to make a
myriad of smaller decisions concerning the course of his defense.
These risks outweigh the State's interest in the efficient
operation of its criminal justice system. Difficulty in
ascertaining whether a defendant is incompetent or malingering may
make it appropriate to place the burden of proof on him, but it
does not justify the additional onus of an especially high standard
of proof. pp.362-367.
(d) Although it is normally within a State's power to establish
the procedures through which its laws are given effect, the power
to regulate procedural burdens is subject to proscription under the
Due Process Clause when, as here, the procedures do not
sufficiently protect a fundamental constitutional right.
Patterson v.
New York, 432 U. S. 197,
distinguished. The decision herein is in complete accord with the
ruling in
Addington v.
Texas, 441 U. S. 418, that due
process requires a clear and convincing evidence standard of proof
in involuntary civil commitment proceedings. That ruling protects
an individual's fundamental liberty interest, while the ruling in
this case safeguards the fundamental right not to stand trial while
incompetent. Pp. 367-369.
889 P. 2d 293, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
Robert A. Ravitz argued the cause and filed briefs for
petitioner.
W A. Drew Edmondson, Attorney General of Oklahoma, argued
the cause for respondent. With him on the brief was
Sandra D.
Howard, Assistant Attorney General. *
*Briefs of
amici curiae urging reversal were filed for
the American Association on Mental Retardation et al. by
James W
Ellis and
Barbara E. Bergman; and for the National
Association of Criminal Defense Lawyers by
Charles D.
Weisselberg, Dennis E. Curtis, Denise Meyer, and
Larry
J. Fleming.
A brief of
amicus curiae urging affirmance was filed for
the State of Utah et al. by
Jan Graham, Attorney General of
Utah,
J. Kevin Murphy,
350
JUSTICE STEVENS delivered the opinion of the Court.
In Oklahoma the defendant in a criminal prosecution is presumed
to be competent to stand trial unless he proves his incompetence by
clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B)
(1991). Under that standard a defendant may be put to trial even
though it is more likely than not that he is incompetent. The
question we address in this case is whether the application of that
standard to petitioner violated his right to due process under the
Fourteenth Amendment.
I
In 1989 petitioner was charged with the brutal killing of an
86-year-old man in the course of a burglary. After an Oklahoma jury
found him guilty of first-degree murder and recommended punishment
by death, the trial court imposed the death penalty. The Oklahoma
Court of Criminal Appeals affirmed the conviction and sentence.
Petitioner's competence was the focus of significant attention
both before and during his trial. On five separate occasions a
judge considered whether petitioner had the ability to understand
the charges against him and to assist defense counsel. On the first
occasion, a pretrial judge relied on the opinion of a clinical
psychologist employed by the State to find petitioner incompetent.
Based on that determination, he committed petitioner to a state
mental health facility for treatment.
Assistant Attorney General, and
Carol Clawson, Solicitor
General,
John M. Bailey, Chief State's Attorney of
Connecticut, and by the Attorneys General for their respective
States as follows:
Gale A. Norton of Colorado,
M. Jane
Brady of Delaware,
Margery S.
Bronster of Hawaii,
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas,
Michael C.
Moore of
Mississippi,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Tom Udall of New Mexico,
Betty D.
Montgomery of Ohio,
Thomas W Corbett, Jr., of
Pennsylvania,
Jeffrey B. Pine of Rhode Island, and
James S.
Gilmore II I of Virginia.
351
Upon petitioner's release from the hospital some three months
later, the trial judge heard testimony concerning petitioner's
competence from two state-employed psychologists. These experts
expressed conflicting opinions regarding petitioner's ability to
participate in his defense. The judge resolved the dispute against
petitioner, ordering him to proceed to trial.
At the close of a pretrial hearing held one week before the
trial was scheduled to begin, the lead defense attorney raised the
issue of petitioner's competence for a third time. Counsel advised
the court that petitioner was behaving oddly and refusing to
communicate with him. Defense counsel opined that it would be a
serious matter "if he's not faking." App. 6. After listening to
counsel's concerns, however, the judge declined to revisit his
earlier determination that petitioner was competent to stand
trial.
Petitioner's competence was addressed a fourth time on the first
day of trial, when petitioner's bizarre behavior prompted the court
to conduct a further competency hearing at which the judge observed
petitioner and heard testimony from several lay witnesses, a third
psychologist, and petitioner himself.1 The expert concluded that
petitioner was
1 During the hearing petitioner, who had refused to change out
of prison overalls for the trial because the proffered clothes were
"burning" him, Tr. of Pretrial Motions and Competency Hearings 3-4
(May 4-5, 1992), talked to himself and to an imaginary "spirit" who
petitioner claimed gave him counsel. On the witness stand
petitioner expressed fear that the lead defense attorney wanted to
kill him.
In his argument at the close of the proceeding, defense counsel
reminded the court of an incident that occurred during petitioner's
testimony:
"Every time I would get close to his space where he is seated in
this little witness enclave ... he would stand up and he would get
away from me as far as he could and so I would back off and I'd
give him a little space .... So, I've approached him from every
side .... except I haven't approached him from the front. So
yesterday, I approach him from the front. And that's the last thing
I did. I regret doing that.
"He stood up and he got as far back against the rail behind the
witness chair as he could get. I edged closer. He got as far back
and he got up
352
presently incompetent and unable to communicate effectively with
counsel, but that he could probably achieve competence within six
weeks if treated aggressively. While stating that he did not
dispute the psychologist's diagnosis, the trial judge ruled against
petitioner. In so holding, however, the court voiced
uncertainty:
"Well, I think I've used the expression ... in the past that
normal is like us. Anybody that's not like us is not normal, so I
don't think normal is a proper definition that we are to use with
incompetence. My shirtsleeve opinion of Mr. Cooper is that he's not
normal. Now, to say he's not competent is something else.
"But you know, all things considered, I suppose it's possible
for a client to be in such a predicament that he can't help his
defense and still not be incompetent. I suppose that's a
possibility, too.
"I think it's going to take smarter people than me to make a
decision here. I'm going to say that I don't believe he has carried
the burden by clear and convincing evidence of his incompetency and
I'm going to say we're going to go to trial." Id., at
42-43.
on that rail. So I've got him up on the rail and I'm thinking,
hey, what can I lose? Let me just see what he does now because he
can go no further back, but as the Court knows, there's a space of
about two-and-ahalf feet behind this rail and a marble wall.
''Without looking for his safety at all and looking what's
behind him, when I moved the least bit and I didn't move very far
towards him, he fell to get away from me. He fell. He hit his head.
The thud on that marble when he jackknifed backward off of that
railing into that marble could be heard at the back of that
courtroom ....
''We got him back up here in the witness enclave, he's just
busted his head, tears are streaming down his eyes and he does not
respond in any normal fashion." App.37-38.
353
Incidents that occurred during the trial,2 as well as the sordid
history of petitioner's childhood that was recounted during the
sentencing phase of the proceeding, were consistent with the
conclusions expressed by the expert. In a final effort to protect
his client's interests, defense counsel moved for a mistrial or a
renewed investigation into petitioner's competence. After the court
summarily denied these motions, petitioner was convicted and
sentenced to death.
In the Court of Criminal Appeals, petitioner contended that
Oklahoma's presumption of competence, combined with its statutory
requirement that a criminal defendant establish incompetence by
clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B)
(1991),3 placed such an onerous burden on him as to violate his
right to due process of law. The appellate court rejected this
argument. After noting that it can be difficult to determine
whether a defendant is malingering, given "the inexactness and
uncertainty attached to [competency] proceedings," the court held
that the standard was justified because the "State has great
interest in assuring its citizens a thorough and speedy judicial
process," and because a "truly incompetent criminal defendant,
through his attorneys and experts, can prove incompetency with
relative ease." 889 P. 2d 293, 303 (1995). We granted certiorari to
review the Court of Criminal Appeals' conclusion that appli-
2 Petitioner did not communicate with or sit near defense
counsel during the trial. Through much of the proceedings he
remained in prison overalls, crouching in the fetal position and
talking to himself.
3 Section 1175.4(B) provides, in relevant part: "The court, at
the hearing on the application [for determination of competency],
shall determine, by clear and convincing evidence, if the person is
incompetent. The person shall be presumed to be competent for the
purposes of the allocation of the burden of proof and burden of
going forward with the evidence."
Section 1175.4 was amended in 1991, during the pretrial period
of petitioner's prosecution. The amendment did not alter the text
of subsection B.
354
cation of the clear and convincing evidence standard does not
violate due process. 516 U. S. 910 (1995).
II
No one questions the existence of the fundamental right that
petitioner invokes. We have repeatedly and consistently recognized
that "the criminal trial of an incompetent defendant violates due
process."
Medina v.
California, 505 U. S. 437, 453
(1992);
Drope v.
Missouri, 420 U. S. 162, 171172
(1975);
Pate v.
Robinson, 383 U. S. 375, 378
(1966). Nor is the significance of this right open to dispute. As
JUSTICE KENNEDY recently emphasized:
"Competence to stand trial is rudimentary, for upon it depends
the main part of those rights deemed essential to a fair trial,
including the right to effective assistance of counsel, the rights
to summon, to confront, and to cross-examine witnesses, and the
right to testify on one's own behalf or to remain silent without
penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171-172
(1975)." Riggins v. Nevada, 504 U. S. 127, 139-140
(1992) (opinion concurring in judgment).4
The test for incompetence is also well settled. A defendant may
not be put to trial unless he "'has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding ... [and] a rational as well as factual understanding
of the proceedings against him.'''
Dusky v.
United
States, 362 U. S.
402, 402 (1960)
(per curiam}.5
4 Indeed, the right not to stand trial while incompetent is
sufficiently important to merit protection even if the defendant
has failed to make a timely request for a competency determination.
See
Pate v.
Robinson, 383 U. S. 375, 384
(1966).
5 The Oklahoma statute defines competence as "the present
ability of a person arrested for or charged with a crime to
understand the nature of the charges and proceedings brought
against him and to effectively and
355
Our recent decision in
Medina v.
California,
505 U. S. 437
(1992), establishes that a State may presume that the defendant is
competent and require him to shoulder the burden of proving his
incompetence by a preponderance of the evidence.
Id., at
449. In reaching that conclusion we held that the relevant inquiry
was whether the presumption "'offends some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental.'"
Id., at 445 (quoting
Patterson v.
New York, 432 U. S. 197, 202
(1977)). We contrasted the "deep roots in our common-law heritage"
underlying the prohibition against trying the incompetent with the
absence of any settled tradition concerning the allocation of the
burden of proof in a competency proceeding. 505 U. S., at 446. Our
conclusion that the presumption of competence offends no recognized
principle of "fundamental fairness" rested in part on the fact that
the procedural rule affects the outcome "only in a narrow class of
cases where the evidence is in equipoise; that is, where the
evidence that a defendant is competent is just as strong as the
evidence that he is incompetent."
Id., at 449.6
The question we address today is quite different from the
question posed in
Medina. Petitioner's claim requires us to
consider whether a State may proceed with a criminal trial after
the defendant has demonstrated that he is more likely than not
incompetent. Oklahoma does not contend that it may require the
defendant to prove incompetence beyond a reasonable doubt.7 The
State maintains, however, that the clear and convincing standard
provides a reasonable accom-
rationally assist in his defense." Okla. Stat., Tit. 22, §
1175.1(1) (Supp. 1996).
6 In her concurring opinion, JUSTICE O'CONNOR expressed the view
that placing the burden on the defendant in this limited group of
cases was permissible because it provided the defendant with an
incentive to cooperate with the information-gathering process
necessary to a reliable competency determination.
Medina,
505 U. S., at 455.
7 Tr. of Oral Arg. 46-48.
356
modation of the opposing interests of the State and the
defendant. We are persuaded, by both traditional and modern
practice and the importance of the constitutional interest at
stake, that the State's argument must be rejected.
III
"Historical practice is probative of whether a procedural rule
can be characterized as fundamental,"
Medina, 505 U. S., at
446. In this case, unlike in
Medina, there is no indication
that the rule Oklahoma seeks to defend has any roots in prior
practice. Indeed, it appears that a rule significantly more
favorable to the defendant has had a long and consistent
application.
We turn first to an examination of the relevant commonlaw
traditions of England and this country. The prohibition against
trying the incompetent defendant was well established by the time
Hale and Blackstone wrote their famous commentaries. 4 W.
Blackstone, Commentaries *24 ("[I]f a man in his sound memory
commits a capital offence ... [a]nd if, after he has pleaded, the
prisoner becomes mad, he shall not be tried: for how can he make
his defence?"); 1 M. Hale, Pleas of the Crown *34-*35 (same). The
English cases which predate our Constitution provide no guidance,
however, concerning the applicable standard of proof in competency
determinations. See
Trial of Charles Bateman (1685),
reported in 11 How. St. Tr. 464, 467 (1816), and Hawles,
Remarks
on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476
(1816) (noting that the court in the 1685 trial incurred "censure"
for proceeding to trial with a doubt as to the defendant's
competence);
Kinloch's Case (1746), 18 How. St. Tr. 395, 411
(1813);
King v.
Steel, 1 Leach 452, 168 Eng. Rep. 328
(1787).
Beginning in the late 18th century, cases appear which provide
an inkling of the proper standard. In
King v.
Frith,
22 How. St. Tr. 307 (1790), for example, the court instructed
357
the jury to "diligently inquire ... whether John Frith, the now
prisoner at the bar ... be of sound mind and understanding or not
.... "
Id., at 311. Some 50 years later the jurors received
a nearly identical admonition in
Queen v.
Goode, 7
Ad. & E. 536, 112 Eng. Rep. 572 (K. B. 1837): "'You shall
diligently inquire, and true presentment make ... whether John
Goode ... be insane or not .... '"
Id., at 536, n.
(a), 112 Eng. Rep., at 572-573, n.
(a)2.8 Similarly,
in
King v.
Pritchard, 7 Car. & P. 303, 173 Eng.
Rep. 135 (1836), the court empaneled a jury to consider "whether
the prisoner is mute of malice or not; secondly, whether he can
plead to the indictment or not; thirdly, whether he is of
sufficient intellect to comprehend the course of proceedings on the
trial .... "
Ibid. See also
King v.
Dyson, 73
Car. & P. 305, n.
(a), 173 Eng. Rep. 135-136, n.
(a) (1831);
Queen v.
Southey, 4 F. & F.
864, 895, 176 Eng. Rep. 825, 838 (1865);
Queen v.
Berry, 1 Q. B. Rep. 447, 449 (1876).
Ibid.9
These authorities, while still speaking less clearly than we
might wish, are instructive. By phrasing the inquiry in a simple
disjunctive,
Frith, Goode, and
Pritchard suggest that
traditional practice required the jury to determine whether the
defendant was "more likely than not" incompetent. Nothing in the
jury instructions of these cases will bear the interpretation of a
clear and convincing standard. What is more, the cases contain no
indication that the use of a pre-
8 Courts often referred to the prisoner's insanity (or present
insanity) rather than incompetence, even when the proceeding
concerned the defendant's competence to stand trial. Beginning with
the earliest cases, the issue at a sanity or competency hearing has
been "whether the prisoner has sufficient understanding to
comprehend the nature of this trial, so as to make a proper defence
to the charge."
King v.
Pritchard, 7 Car. & P.
303, 304, 173 Eng. Rep. 135 (1836).
9 In 1800 England codified the common-law rule that a court
could empanel a jury to determine whether a defendant charged with
treason, murder, or a felony offense was competent to stand trial.
Criminal Lunatics Act, 1800, 39 & 40, Geo. 3, ch. 94, § 2.
358
ponderance standard represented a departure from earlier
(pre-Constitution) practice.10
Modern English authority confirms our interpretation of these
early cases as applying a preponderance standard. Relying on
"principles ... laid down in a number of cases," including
Pritchard and
King v.
Dyson, 7 Car. & P.
305, n.
(a), 173 Eng. Rep. 135, n.
(a) (1831), the
court in
Queen v.
Podola, 43 Crim. App. 220, 3 All E.
R. 418 (1959), ruled:
"If the contention that the accused is insane is put forward by
the defence and contested by the prosecution, there is, in our
judgment, a burden upon the defence of satisfying the jury of the
accused's insanity. In such a case, as in other criminal cases in
which the onus of proof rests upon the defence, the onus is
discharged if the jury are satisfied on the balance of
probabilities that the accused's insanity has been made out."
Id., at 235, 3 All E. R., at 429.11
10 Indeed, although in
Medina we concluded that it is
permissible for a State to require the defendant to shoulder the
burden of demonstrating his incompetence, we noted that some
19th-century English authorities placed the burden on the
prosecutor once competence was put in issue.
Medina v.
California, 505 U. S., at 447. See
Queen v.
Davies, 3 Car. & K. 328, 329, 175 Eng. Rep. 575, 575
(1853) (judge ruled that "[the prosecutor] should begin, and call
his witnesses, to show that the prisoner is sane, and capable of
pleading");
Ley's Case, 1 Lewin 239, 240, 168 Eng. Rep. 1026
(1828) (" 'If there be a doubt as to the prisoner's sanity ... you
cannot say that he is in a fit state to be put upon his trial' ").
See also Halsbury, 10 Laws of England 403 (3d ed. 1955) ("Where a
jury is so empanelled [to determine competency], the onus is on the
prosecution to prove the sanity of the defendant"). But see
Queen v.
Podola, 43 Crim. App. 220, 236, 3 All E. R.
418, 430 (1959) (explicitly rejecting the suggestion that the
prosecutor must prove the defendant's competence to stand trial).
Given the disagreement among English courts concerning which party
bore the burden of proof, it is unlikely that in cases in which the
burden was placed on the defendant that burden was as weighty as
clear and convincing evidence.
11 The
Podola court opined that the tests laid down in
Pritchard "have been followed so often that they may be said
to be firmly embodied in our law." 43 Crim. App., at 238, 3 All E.
R., at 431.
359
Likewise, we are aware of no decisional law from this country
suggesting that any State employed Oklahoma's heightened standard
until quite recently. Rather, the earliest available sources
typically refer to English authorities, see,
e. g., Freeman
v.
People, 47 Am. Dec. 216, 223-225 (N. Y. 1847),
State v.
Harris, 78 Am. Dec. 272, 272-275 (N. C.
1860) (adopting procedures outlined in
King v.
Dyson,
7 Car. & P. 305, n.
(a), 173 Eng. Rep. 135, n.
(a) (1831), and
King v.
Pritchard, 7 Car.
& P. 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive
language used by the English courts, see,
e. g.,
Commonwealth v.
Hathaway, 13 Mass. 299
(1816);
People v.
Kleim, 1 N. Y. 13, 15 (1845);
Harris,
78 Am. Dec., at 275;
United States v.
Chisolm, 149
F.2d 4, 290 (SD Ala. 1906).12 By the turn of the 20th century,
however, American courts were explicitly applying a preponderance
standard. In 1896, Ohio juries were instructed that "[t]he burden
is upon the prisoner to show by a preponderance of the proof that
he is insane."
State v.
O'Grady, 5 Ohio Dec. 654, 655
(1896).13 Some 15 years later, the Tennessee Supreme Court
described the competency determination as
12 In
Commonwealth v.
Braley, 1 Mass. 102, 103
(1804), a case decided shortly after the Constitution was ratified,
the court instructed the jury to consider "whether [the accused]
neglected or refused to plead to the indictment against him for
murder, of his free will and malice, or whether he did so neglect
by the act of God." This instruction may be a precursor to the
"sane or insane" disjunctive.
13 See also
State v.
Tyler, 7 Ohio N. P. 443,444
(1898) ("What I mean by the preponderance of the evidence is that
the accused must show that he is now at the time of this trial
probably not sane"). Cf.
People v.
Ah Ying, 42
Cal. 18, 20 (1872) (jury should find defendant presently insane if
"satisfied" by the evidence supporting that conclusion).
Both
Tyler and
State v.
O'Grady are
instructive concerning the proper interpretation of the authorities
which articulate no standard of proof but phrase the inquiry in the
disjunctive. In each case the jury was told that its task was to
determine whether the accused "is or is not sane,"
Tyler, 7
Ohio N. P., at 443, see also
O'Grady, 5 Ohio Dec., at 654,
and then explicitly instructed that the defendant bore the burden
of proof by a preponderance of the evidence.
Tyler, 7 Ohio
N. P., at 443;
O'Grady, 5 Ohio Dec., at 655.
360
"controlled by the preponderance of the proof,"
Jordan v.
State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911), and the
highest court of Pennsylvania held that competence is "decided by a
preponderance of the evidence,"
Commonwealth v.
Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913).14 These
early authorities are bereft of language susceptible of supporting
a clear and convincing evidence standard. 15
Contemporary practice demonstrates that the vast majority of
jurisdictions remain persuaded that the heightened standard of
proof imposed on the accused in Oklahoma is not necessary to
vindicate the State's interest in prompt and orderly disposition of
criminal cases. Only 4 of the 50 States presently require the
criminal defendant to prove his incompetence by clear and
convincing evidence.16 None of the re-
14 See also
State v.
Arnold, 12 Iowa 479, 484
(1861) ("A doubt must be raised whether at the time there is such
mental impairment ... as to render it probable that the prisoner
can not, as far as may devolve upon him, have a full, fair and
impartial trial");
People v.
McElvaine, 125 N. Y.
596, 608, 26 N. E. 929, 933 (1891) (the court "was familiar with
the appearance and conduct of the prisoner during the period of
that trial, and had sufficient grounds before it to judge as to the
probability of his present sanity"). See also
Crocker v.
State, 19 N. W. 435, 436 (Wis. 1884);
United States
v.
Chisolm, 149 F.2d 4, 290 (SD Ala. 1906).
Several of the early cases explicitly mention the common-law
roots of the State's statutory procedure for determining
competency. See
People v.
McElvaine, 125 N. Y., at
608, 26 N. E., at 932 ("We do not think the Code of Criminal
Procedure has made any radical change in the mode of procedure or
the character of the [competency] proceedings");
French v.
State, 67 N. W. 706, 710 (Wis. 1896) ("The statute ...
providing for an inquisition, where there is a probability that the
accused is, at the time of his trial, insane, and thereby
incapacitated to act for himself, to determine whether he is so
insane, is substantially a provision in affirmance of a power the
court had at common law in such cases, as abundantly appears from
the authorities").
15 Oklahoma all but concedes that early common law and statutory
decisions employed a standard of proof lower than clear and
convincing. See Brief for Respondent 21-23.
16 Conn. Gen. Stat. § 54-56d(b) (1995); Okla. Stat., Tit. 22, §
1175.4 (1991); 50 Pa. Cons. Stat. § 7403(a) (Supp. 1995); and R. 1.
Gen. Laws § 40.1-5.3-3 (Supp. 1995). The adoption of the clear and
convincing evidence standard
361
maining 46 jurisdictions imposes such a heavy burden on the
defendantP Indeed, a number of States place no burden on the
defendant at all, but rather require the prosecutor to
by Oklahoma and Connecticut may have been a response to this
Court's decision in
Addington v.
Texas, 441 U. S. 418 (1979). We
discuss
Addington infra, at 368-369.
17See
Lackey v.
State, 615 So. 2d 145, 151-152
(Ala. Crim. App. 1992);
M cCarlo v.
State, 677 P. 2d
1268, 1272 (Alaska App. 1984); Cal. Penal Code Ann. § 1369(f) (West
1982); Colo. Rev. Stat. § 16-8-111(2) (1986);
Diaz v.
State, 508 A. 2d 861, 863 (Del. 1986);
Flowers v.
State, 353 So. 2d 1259, 1270 (Fla. App. 1978);
Johnson v.
State, 209 Ga. App. 514, 516, 433 S. E. 2d
717, 719 (1993); Haw. Rev. Stat. §§ 704-404 and 704-411 (1993);
Ill. Compo Stat., ch. 725, § 5/104-11 (c) (1992);
Montano V.
State, 649 N. E. 2d 1053,1057-1058 (Ind. App. 1995);
State V.
Rhode, 503 N. W. 2d 27,35 (Iowa App. 1993);
State V.
Seminary, 165 La. 67, 72,115 So. 370, 372
(1927);
Jolley V.
State, 282 Md. 353, 365, 384 A. 2d
91, 98 (1978);
Commonwealth V.
Prater, 420 Mass. 569,
573-574, 651 N. E. 2d 833, 837 (1995); Minn. Rule Crim. Proc. 20.01
(1995);
Griffin V.
State, 504 So. 2d 186, 191 (Miss.
1987);
State V.
Zorzy, 136 N. H. 710, 714-715, 622 A.
2d 1217, 1219 (1993);
State V.
Lambert, 275 N. J.
Super. 125, 129, 645 A. 2d 1189, 1191 (1994);
State V.
Chapman, 104 N. M. 324, 327, 721 P. 2d 392, 395 (1986);
People V.
Santos, 43 App. Div. 2d 73, 75, 349 N. Y.
S. 2d 439, 442 (1973);
State V.
Heger, 326 N. W. 2d
855, 858 (N. D. 1982); Ohio Rev. Code Ann. § 2945.37 (1993);
State V.
Nance, 466 S. E. 2d 349, 351 (S. C. 1996);
S. D. Codified Laws §23A-10A-6.1 (1988);
Jordan V.
State, 124 Tenn. 81, 89,135 S. W. 327,329
(1911);
Blacklock V.
State, 820 S. W. 2d 882, 886 (Tex. App.
1991); Utah Code Ann. § 77-15-5(10) (1995); Va. Code Ann. §
19.2-169.1(E) (1995); Wash. Rev. Code § 10.77.090 (1994); W. Va.
Code §27-6A-2(b) (1992); Wis. Stat. § 971.14(4)(b) (1985 and Supp.
1995);
Loomer V.
State, 768 P. 2d 1042, 1045 (Wyo.
1989).
The burden imposed in the remaining States is unclear. Nothing
in the competency statutes or case law of these States suggests,
however, that the defendant bears the burden of proving
incompetence by clear and convincing evidence. See Ariz. Rule Crim.
Proc. 11.5 (1987 and Supp. 1995);
Mitchell V.
State,
323 Ark. 116, 120, 913 S. W. 2d 264, 266 (1996); Idaho Code §
18-212 (1987); Kan. Stat. Ann. § 22-3302 (1995); Ky. Rev. Stat.
Ann. § 504.100 (Michie 1990); Me. Rev. Stat. Ann., Tit. 15, § 101-B
(Supp. 1995); Mich. Compo Laws § 330.2020 (1992);
State V.
Clark, 546 S. W. 2d 455, 468 (Mo. App. 1976); Mont. Code
Ann. §46-14-221 (1992 and Supp. 1995); Neb. Rev. Stat. §29-1823
(1989); Nev. Rev. Stat. § 178.415 (1992); N. C. Gen. Stat. §
15A-1002 (1988); Ore. Rev. Stat. §§ 161.360-161.370 (Supp. 1994);
and Vt. Stat. Ann., Tit. 13, §4817 (1974).
362
prove the defendant's competence to stand trial once a question
about competency has been credibly raised.18 The situation is no
different in federal court. Congress has directed that the accused
in a federal prosecution must prove incompetence by a preponderance
of the evidence. 18 U. s. C. §4241.
The near-uniform application of a standard that is more
protective of the defendant's rights than Oklahoma's clear and
convincing evidence rule supports our conclusion that the
heightened standard offends a principle of justice that is deeply
"rooted in the traditions and conscience of our people."
Medina v.
California, 505 U. S., at 445 (internal
quotation marks omitted). We turn next to a consideration of
whether the rule exhibits "'fundamental fairness' in operation."
Id., at 448 (quoting
Dowling v.
United States,
493 U. S. 342, 352 (1990)).
IV
Contemporary and historical procedures are fully consistent with
our evaluation of the risks inherent in Oklahoma's practice of
requiring the defendant to prove incompetence by clear and
convincing evidence. In
Addington v.
Texas, 441 U. S. 418, 423
(1979), we explained that:
"The function of a standard of proof, as that concept is
embodied in the Due Process Clause and in the realm of factfinding,
is to 'instruct the factfinder concerning the degree of confidence
our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication.' In re
Winship, 397 U.
S. 358, 370 (1970) (Harlan, J., concurring)."
The "more stringent the burden of proof a party must bear, the
more that party bears the risk of an erroneous decision."
18 See,
e. g., Haw. Rev. Stat. §§ 704-404 and
704-411 (1993); Ill. Compo Stat., ch. 725, §5/104-11(c) (1992); S.
D. Codified Laws §23A-10A-6.1 (1988); Wis. Stat. § 971.14(4)(b)
(Supp. 1994 and Supp. II 1995).
363
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, 283
(1990). For that reason, we have held that due process places a
heightened burden of proof on the State in civil proceedings in
which the "individual interests at stake ... are both 'particularly
important' and 'more substantial than mere loss of money.'''
Santosky v.
Kramer, 455 U. S. 745, 756 (1982)
(termination of parental rights) (quoting
Addington, 441 U.
S., at 424).19
Far from "jealously guard[ing],"
Jacob v.
New York
City, 315 U. S.
752, 752-753 (1942), an incompetent criminal defendant's
fundamental right not to stand trial, Oklahoma's practice of
requiring the defendant to prove incompetence by clear and
convincing evidence imposes a significant risk of an erroneous
determination that the defendant is competent. In
Medina we
found no comparable risk because the presumption would affect only
the narrow class of cases in which the evidence on either side was
equally balanced.
19 See also
Addington v.
Texas (involuntary civil
commitment);
Woodby v.
INS, 385 U. S. 276, 285-286
(1966) (deportation);
Chaunt v.
United States,
364 U. S. 350,
353 (1960) (denaturalization);
Schneiderman v.
United
States, 320 U. S.
118, 125 (1943) (denaturalization).
Our opinions in
Cruzan v.
Director, Mo. Dept. of
Health, 497 U. S.
261 (1990), and
Ohio v.
Akron Center for Reproductive
Health, 497 U. S.
502 (1990), are not to the contrary. In
Cruzan we held
that the Due Process Clause does not prohibit Missouri from
requiring a third party who seeks to terminate life-sustaining
treatment to demonstrate by clear and convincing evidence that the
incompetent person receiving such treatment would wish that step to
be taken. 497 U. S., at 280. We reasoned that the heightened
standard of proof was permissible because the decisionmaker was a
surrogate for the incompetent individual,
id., at 280-281,
and because the consequences of an erroneous decision were
irreversible,
id., at 283. In
Akron Center for
Reproductive Health we upheld an Ohio statute that required an
unmarried, unemancipated minor woman who sought to obtain an
abortion without notifying a parent to prove by clear and
convincing evidence that judicial bypass of the notification
requirement was appropriate in her case. We approved the heightened
standard of proof in that case largely because the proceeding at
issue was
ex parte. 497 U. S., at 515-516.
364
"Once a State provides a defendant access to procedures for
making a competency evaluation," we stated, there is "no basis for
holding that due process further requires the State to assume the
burden of vindicating the defendant's constitutional right by
persuading the trier of fact that the defendant is competent to
stand trial." 505 U. S., at 449. Unlike the presumption at issue in
Medina, however, Oklahoma's clear and convincing evidence
standard affects a class of cases in which the defendant has
already demonstrated that he is more likely than not
incompetent.
For the defendant, the consequences of an erroneous
determination of competence are dire. Because he lacks the ability
to communicate effectively with counsel, he may be unable to
exercise other "rights deemed essential to a fair trial."
Riggins v.
Nevada, 504 U. S., at 139 (KENNEDY, J.,
concurring in judgment). After making the "profound" choice whether
to plead guilty,
Godinez v.
Moran, 509 U. S. 389, 398
(1993), the defendant who proceeds to trial
"will ordinarily have to decide whether to waive his 'privilege
against compulsory self-incrimination,' Boykin v.
Alabama, 395
U. S. 238, 243 (1969), by taking the witness stand; if the
option is available, he may have to decide whether to waive his
'right to trial by jury,' ibid.; and, in consultation with
counsel, he may have to decide whether to waive his 'right to
confront [his] accusers,' ibid., by declining to
cross-examine witnesses for the prosecution." Ibid.
With the assistance of counsel, the defendant also is called
upon to make myriad smaller decisions concerning the course of his
defense. The importance of these rights and decisions demonstrates
that an erroneous determination of competence threatens a
"fundamental component of our criminal justice system" 2°-the basic
fairness of the trial itself.
20 United States v.
Cronic, 466 U. S. 648, 653
(1984).
365
By comparison to the defendant's interest, the injury to the
State of the opposite error-a conclusion that the defendant is
incompetent when he is in fact malingering-is modest. To be sure,
such an error imposes an expense on the state treasury and
frustrates the State's interest in the prompt disposition of
criminal charges. But the error is subject to correction in a
subsequent proceeding and the State may detain the incompetent
defendant for "the reasonable period of time necessary to determine
whether there is a substantial probability that he will attain
[competence] in the foreseeable future."
Jackson v.
Indiana, 406
U. S. 715, 738 (1972).21
The Oklahoma Court of Criminal Appeals correctly observed that
the "inexactness and uncertainty" that characterize competency
proceedings may make it difficult to determine whether a defendant
is incompetent or malingering. 889 P. 2d, at 303. We presume,
however, that it is unusual for even the most artful malingerer to
feign incompetence successfully for a period of time while under
professional care.22 In this regard it is worth reiterating that
only four jurisdictions currently consider it necessary to impose
on the criminal defendant the burden of proving incompetence by
clear and convincing evidence. Moreover, there is no reason to
believe that the art of dissimilation is new. Eighteenth and
nineteenth century courts, for example, warned jurors charged with
making competency determinations that "'there may be great fraud in
this matter,'"
King v.
Dyson, 7 Car. & P. 305, n.
(a), 173 Eng. Rep., at 136, n.
(a) (quoting
21 Under
Jackson, if the defendant regains competence or
is found to be malingering, the State may proceed to trial.
22 Sir John Rawles, Solicitor General to King William III (who
reigned from 1689-1702), noted that "there is a great difference
between pretences and realities, and
sana and
non sana
memoria hath been often tryed in capital matters, and the
prisoners have reaped so little benefit by their pretences, it
being always discovered, that we rarely hear of it." Rawles,
Remarks on the Trial of Mr. Charles Bateman (1685), 11 Row.
St. Tr. 474, 478 (1816).
366
1 Hale, Pleas of the Crown, at *35), and that "[i]t would be a
reproach to justice if a guilty man ... postponed his trial upon a
feigned condition of mind, as to his inability to aid in his
defense,"
United States v.
Chisolm, 149 F., at 288.23
Although they recognized this risk, the early authorities did not
resort to a heightened burden of proof in competency proceedings.
See Part III,
supra.
More fundamentally, while the difficulty of ascertaining where
the truth lies may make it appropriate to place the burden of proof
on the proponent of an issue, it does not justify the additional
onus of an especially high standard of proof. As the
Chisolm
Court continued,
"[I]t would be likewise a reproach to justice and our
institutions, if a human being ... were compelled to go to trial at
a time when he is not sufficiently in possession of his mental
faculties to enable him to make a rational and proper defense. The
latter would be a more grievous error than the former; since in the
one case an individual would go unwhipped of justice, while in the
other the great safeguards which the law adopts in the punishment
of crime and the upholding of justice would be rudely invaded by
the tribunal whose sacred duty it is to uphold the law in all its
integrity." 149 F., at 288.
A heightened standard does not decrease the risk of error, but
simply reallocates that risk between the parties. See
Cruzan
v.
Director, Mo. Dept. of Health, 497 U. S., at 283. In
cases in which competence is at issue, we perceive no sound basis
for allocating to the criminal defendant the large share of the
risk which accompanies a clear and convincing evidence standard. We
assume that questions of competence will arise in a range of cases
including not only those in which one side will prevail with
relative ease, but also those in which it is more likely than not
that the defendant
23 See also
People v.
Lake, 2 N. Y. 215, 220, 222
(1855);
State v.
Harris, 78 Am. Dec. 272, 274 (N. C.
1860);
State v.
Tyler, 7 Ohio N. P., at 444.
367
is incompetent but the evidence is insufficiently strong to
satisfy a clear and convincing standard. While important state
interests are unquestionably at stake, in these latter cases the
defendant's fundamental right to be tried only while competent
outweighs the State's interest in the efficient operation of its
criminal justice system.
v
Oklahoma makes two additional arguments in support of its
procedural rule that warrant discussion. First, Oklahoma correctly
reminds us that it is normally within the power of the State to
establish the procedures through which its laws are given effect,
including those related to the burden of producing evidence and the
burden of persuasion. See
Patterson v.
New York, 432
U. S., at 201-202. In
Patterson we upheld New York's
requirement that in a prosecution for second-degree murder the
defendant must bear the burden of proving the affirmative defense
of extreme emotional disturbance in order to reduce the crime to
manslaughter.
Id., at 207-208. After observing that the rule
was consistent with common-law practice,
id., at 202, we
held that "[t]he Due Process Clause ... does not put New York to
the choice of abandoning [statutory] defenses or undertaking to
disprove their existence in order to convict of a crime which
otherwise is within its constitutional powers to sanction by
substantial punishment,"
id., at 207-208.
Although we found no violation in
Patterson, we noted
that the State's power to regulate procedural burdens was subject
to proscription under the Due Process Clause if it "offends some
principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental,"
id., at 201-202
(internal quotation marks omitted). This case involves such a rule.
Unlike
Patterson, which concerned procedures for proving a
statutory defense, we consider here whether a State's procedures
for guaranteeing a fundamental constitutional right are
sufficiently protective
368
of that right. The deep roots and fundamental character of the
defendant's right not to stand trial when it is more likely than
not that he lacks the capacity to understand the nature of the
proceedings against him or to communicate effectively with counsel
mandate constitutional protection.
Finally, Oklahoma suggests that our decision in
Addington
v.
Texas, 441
U. S. 418 (1979), in which we held that due process requires a
clear and convincing standard of proof in an involuntary civil
commitment proceeding, supports imposition of such a rule in
competency proceedings. The argument is unpersuasive because
commitment and competency proceedings address entirely different
substantive issues. Although we have not had the opportunity to
consider the outer limits of a State's authority to civilly commit
an unwilling individual,
O'Connor v.
Donaldson,
422 U. S. 563,
573574 (1975), our decision in
Donaldson makes clear that
due process requires at a minimum a showing that the person is
mentally ill and either poses a danger to himself or others or is
incapable of "surviving safely in freedom,"
id., at 573576.
The test for competence to stand trial, by contrast, is whether the
defendant has the present ability to understand the charges against
him and communicate effectively with defense counsel.
Dusky
v.
United States, 362 U. S., at 402. Even if we were to
uphold Oklahoma's imposition of the clear and convincing evidence
rule in competency proceedings, the comparable standards in the two
proceedings would not guarantee parallel results.24
More importantly, our decision today is in complete accord with
the basis for our ruling in
Addington. Both cases concern
the proper protection of fundamental rights in circumstances in
which the State proposes to take drastic action against an
individual. The requirement that the grounds for civil commitment
be shown by clear and convincing evidence
24 For example, a mentally retarded defendant accused of a
nonviolent crime may be found incompetent to stand trial but not
necessarily be subject to involuntary civil commitment.
369
protects the individual's fundamental interest in liberty. The
prohibition against requiring the criminal defendant to
demonstrate incompetence by clear and convincing evidence
safeguards the fundamental right not to stand trial while
incompetent. Because Oklahoma's procedural rule allows the State to
put to trial a defendant who is more likely than not incompetent,
the rule is incompatible with the dictates of due process.25
VI
For the foregoing reasons, the judgment is reversed, and the
case is remanded to the Oklahoma Court of Criminal Appeals for
further proceedings not inconsistent with this opinion.
It is so ordered.
25We note that
Addington did not purport to resolve any
question concerning the rights of the defendant in a criminal
proceeding. To the contrary, in his opinion for the Court, Chief
Justice Burger contrasted the appropriate standard in civil
commitment proceedings with the rules applicable in criminal cases
in which "the interests of the defendant are of such magnitude that
historically and without any explicit constitutional requirement
they have been protected by standards of proof designed to exclude
as nearly as possible the likelihood of an erroneous judgment." 441
U. S., at 423.
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