OCTOBER TERM, 1991
Syllabus
MEDINA
v. CALIFORNIA
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 90-8370.
Argued February 25, 1992-Decided June 22,1992
Before petitioner Medina's trial for,
inter alia,
first-degree murder, the California court granted his motion for a
competency hearing pursuant to a state law that forbids a mentally
incompetent person to be tried or punished, establishes a
presumption of competence, and placed on petitioner the burden of
proving incompetence by a preponderance of the evidence. The jury
empaneled for the competency hearing found Medina competent to
stand trial and, subsequently, he was convicted and sentenced to
death. The State Supreme Court affirmed, rejecting Medina's claim
that the competency statute's burden of proof and presumption
provisions violated his right to due process.
Held:
1. The Due Process Clause permits a State to require that a
defendant claiming incompetence to stand trial bear the burden of
proving so by a preponderance of the evidence. Pp. 442-453.
(a) Contrary to Medina's argument, the
Mathews v.
Eldridge, 424 U. S. 319, test for evaluating procedural due
process claims does not provide the appropriate framework for
assessing the validity of state procedural rules that are part of
the criminal law process. It is not at all clear that
Mathews was essential to the results in
United States
v.
Raddatz, 447 U. S. 667, or
Ake v.
Oklahoma, 470 U. S. 68, the only
criminal law cases in which this Court has invoked
Mathews
in resolving due process claims. Rather, the proper analytical
approach is that set forth in
Patterson v.
New York,
432 U. S. 197, in
which this Court held that the power of a State to regulate
procedures for carrying out its criminal laws, including the
burdens of producing evidence and persuasion, is not subject to
proscription under the Due Process Clause unless "'it offends some
principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.' "
Id., at
201202. Pp. 442-446.
(b) There is no historical basis for concluding that allocating
the burden of proof to a criminal defendant to prove incompetence
violates due process. While the rule that an incompetent criminal
defendant should not be required to stand trial has deep roots in
this country's common-law heritage, no settled tradition exists for
the proper allocation of the burden of proof in a competency
proceeding. Moreover, con-
438
Syllabus
temporary practice demonstrates that there remains no settled
view on where the burden should lie. Pp. 446-448.
(c) Nor does the State's allocation of the burden of proof to a
defendant transgress any recognized principle of "fundamental
fairness" in operation. This Court's decision in
Leland v.
Oregon, 343 U.
S. 790which upheld a State's right to place on a defendant the
burden of proving the defense of insanity-does not compel the
conclusion that the procedural rule at issue is constitutional,
because there are significant differences between a claim of
incompetence and a plea of not guilty by reason of insanity.
Nonetheless, once the State has met its due process obligation of
providing a defendant access to procedures for making a competency
evaluation, there is no basis for requiring it to assume the burden
of vindicating the defendant's constitutional right not to be tried
while legally incompetent by persuading the trier of fact that the
defendant is competent to stand trial. Pp. 448-449.
(d) Allocating the burden to the defendant is not inconsistent
with this Court's holding in
Pate v.
Robinson,
383 U. S. 375,
384, that a defendant whose competence is in doubt cannot be deemed
to have waived his right to a competency hearing, because the
question whether a defendant whose competence is in doubt can be
deemed to have made a knowing and intelligent waiver is quite
different from the question presented here. Although psychiatry is
an inexact science and reasonable minds may differ as to the wisdom
of placing the burden of proof on the defendant in these
circumstances, the State is not required to adopt one procedure
over another on the basis that it may produce results more
favorable to the accused. In addition, the fact that the burden of
proof has been allocated to the State on a variety of other issues
implicating a criminal defendant's constitutional rights does not
mean that the burden must be placed on the State here.
Lego
v.
Twomey, 404
U. S. 477, 489, distinguished. Pp.449-452.
2. For the same reasons discussed herein with regard to the
allocation of the burden of proof, the presumption of competence
does not violate due process. There is no reason to disturb the
State Supreme Court's conclusion that, in essence, the challenged
presumption is a restatement of that burden. Pp. 452-453.
51 Cal. 3d 870, 799 P. 2d 1282, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment, in which
SOUTER, J., joined,
post, p. 453. BLACKMUN, J., filed a
dissenting opinion, in which STEVENS, J., joined,
post, p.
456.
439
Michael Pescetta, by appointment of the Court, 502 U. S.
955, argued the cause for petitioner. With him on the briefs was
Sarah Plotkin.
Holly D. Wilkens, Deputy Attorney General of California,
argued the cause for respondent. With her on the brief were
Daniel E. Lungren, Attorney General,
George
Williamson, Chief Assistant Attorney General,
Gary W
Schons, Senior Assistant Attorney General, and
Pat
Zaharopoulos, Supervising Deputy Attorney General. *
JUSTICE KENNEDY delivered the opinion of the Court.
It is well established that the Due Process Clause of the
Fourteenth Amendment prohibits the criminal prosecution of a
defendant who is not competent to stand trial.
Drope v.
Missouri, 420
U. S. 162 (1975);
Pate v.
Robinson, 383 U. S. 375 (1966). The
issue in this case is whether the Due Process Clause permits a
State to require a defendant who alleges incompetence to stand
trial to bear the burden of proving so by a preponderance of the
evidence.
I
In 1984, petitioner Teofilo Medina, Jr., stole a gun from a
pawnshop in Santa Ana, California. In the weeks that followed, he
held up two gas stations, a drive-in dairy, and a market, murdered
three employees of those establishments, attempted to rob a fourth
employee, and shot at two passersby who attempted to follow his
getaway car. Petitioner was apprehended less than one month after
his crime spree
*Edward M. Chikofsky and
William J.
Rold filed a brief for the Committee on Legal Problems of
the Mentally III of the Association of the Bar of the City of New
York as
amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
United States by Solicitor General Starr, Assistant Attorney
General Mueller, Deputy Solicitor General Bryson, and Paul
J. Larkin, Jr.; and for the Criminal Justice Legal
Foundation by Kent S. Scheidegger and Charles L. Hobson.
440
began and was charged with a number of criminal offenses,
including three counts of first-degree murder. Before trial,
petitioner's counsel moved for a competency hearing under Cal.
Penal Code Ann. § 1368 (West 1982), on the ground that he was
unsure whether petitioner had the ability to participate in the
criminal proceedings against him. 1 Record 320.
Under California law, "[a] person cannot be tried or adjudged to
punishment while such person is mentally incompetent." Cal. Penal
Code Ann. § 1367 (West 1982). A defendant is mentally incompetent
"if, as a result of mental disorder or developmental disability,
the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner."
Ibid. The statute establishes a
presumption that the defendant is competent, and the party claiming
incompetence bears the burden of proving that the defendant is
incompetent by a preponderance of the evidence. § 1369(f) ("It
shall be presumed that the defendant is mentally competent unless
it is proved by a preponderance of the evidence that the defendant
is mentally incompetent").
The trial court granted the motion for a hearing and the
preliminary issue of petitioner's competence to stand trial was
tried to a jury. Over the course of the 6-day hearing, in addition
to lay testimony, the jury heard conflicting expert testimony about
petitioner's mental condition. The Supreme Court of California
gives this summary:
"Dr. Gold, a psychiatrist who knew defendant while he was in the
Arizona prison system, testified that defendant was a paranoid
schizophrenic and was incompetent to assist his attorney at trial.
Dr. Echeandia, a clinical psychologist at the Orange County jail,
doubted the accuracy of the schizophrenia diagnosis, and could not
express an opinion on defendant's competence to stand trial. Dr.
Sharma, a psychiatrist, likewise expressed doubts regarding the
schizophrenia diagnosis and leaned toward a finding of competence.
Dr. Pierce,
441
a psychologist, believed defendant was schizophrenic, with
impaired memory and hallucinations, but nevertheless was competent
to stand trial. Dr. Sakurai, a jail psychiatrist, opined that
although defendant suffered from depression, he was competent, and
that he may have been malingering. Dr. Sheffield, who treated
defendant for knife wounds he incurred in jail, could give no
opinion on the competency issue." 51 Cal. 3d 870, 880, 799 P. 2d
1282, 1288 (1990).
During the competency hearing, petitioner engaged in several
verbal and physical outbursts. App. 62, 81-82; 3 Record 671, 699,
916. On one of these occasions, he overturned the counsel table.
App.81-82.
The trial court instructed the jury in accordance with § 1369(f)
that "the defendant is presumed to be mentally competent and he has
the burden of proving by a preponderance of the evidence that he is
mentally incompetent as a result of mental disorder or
developmental disability." App. 87. The jury found petitioner
competent to stand trial.
Id., at 89. A new jury was
empaneled for the criminal trial, 4 Record 1020, and petitioner
entered pleas of not guilty and not guilty by reason of insanity,
51 Cal. 3d, at 899, 799 P. 2d, at 1300. At the conclusion of the
guilt phase, petitioner was found guilty of all three counts of
first-degree murder and a number of lesser offenses.
Id., at
878-879,799 P. 2d, at 1287. He moved to withdraw his insanity plea,
and the trial court granted the motion. Two days later, however,
petitioner moved to reinstate his insanity plea. Although his
counsel expressed the view that reinstatement of the insanity plea
was "tactically unsound," the trial court granted petitioner's
motion.
Id., at 899,799 P. 2d, at 1300-1301. A sanity
hearing was held, and the jury found that petitioner was sane at
the time of the offenses. At the penalty phase, the jury found that
the murders were premeditated and deliberate and returned a verdict
of death. The trial court imposed the death penalty for the murder
convictions and sentenced
442
petitioner to a prison term for the remaining offenses.
Id., at 878-880, 799 P. 2d, at 1287-1288.
On direct appeal to the California Supreme Court, petitioner did
not challenge the standard of proof set forth in § 1369(f), but
argued that the statute violated his right to due process by
placing the burden of proof on him to establish that he was not
competent to stand trial. In addition, he argued that § 1369(f)
violates due process by establishing a presumption that a defendant
is competent to stand trial unless proven otherwise. The court
rejected both of these contentions. Relying upon our decision in
Leland v.
Oregon, 343 U. S. 790 (1952),
which rejected a due process challenge to an Oregon statute that
required a criminal defendant to prove the defense of insanity
beyond a reasonable doubt, the court observed that "the states
ordinarily have great latitude to decide the proper placement of
proof burdens." 51 Cal. 3d, at 884, 799 P. 2d, at 1291. In its
view, § 1369(f) "does not subject the defendant to hardship or
oppression," because "one might reasonably expect that the
defendant and his counsel would have better access than the People
to the facts relevant to the court's competency inquiry."
Id., at 885, 799 P. 2d, at 1291. The court also rejected
petitioner's argument that it is "irrational" to retain a
presumption of competence after sufficient doubt has arisen as to a
defendant's competence to warrant a hearing and "decline[d] to hold
as a matter of due process that such a presumption must be treated
as a mere presumption affecting the burden of production, which
disappears merely because a preliminary, often undefined and
indefinite, 'doubt' has arisen that justifies further inquiry into
the matter."
Id., at 885, 799 P. 2d, at 1291-1292. We
granted certiorari, 502 U. S. 924 (1991), and now affirm.
II
Petitioner argues that our decision in
Mathews v.
Eldridge, 424
U. S. 319 (1976), provides the proper analytical framework for
determining whether California's allocation of
443
the burden of proof in competency hearings comports with due
process. We disagree. In
Mathews, we articulated a
three-factor test for evaluating procedural due process claims
which requires a court to consider
"[f]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail." Id., at
335.
In our view, the
Mathews balancing test does not provide
the appropriate framework for assessing the validity of state
procedural rules which, like the one at bar, are part of the
criminal process.
E. g., People v.
Fields, 62 Cal. 2d
538, 542, 399 P. 2d 369, 371 (competency hearing "must be regarded
as part of the proceedings in the criminal case") (internal
quotation marks omitted), cert. denied, 382 U. S. 858 (1965).
In the field of criminal law, we "have defined the category of
infractions that violate 'fundamental fairness' very narrowly"
based on the recognition that, "[b]eyond the specific guarantees
enumerated in the Bill of Rights, the Due Process Clause has
limited operation."
Dowling v.
United States,
493 U. S. 342,
352 (1990); accord,
United States v.
Lovasco,
431 U. S. 783,
790 (1977). The Bill of Rights speaks in explicit terms to many
aspects of criminal procedure, and the expansion of those
constitutional guarantees under the open-ended rubric of the Due
Process Clause invites undue interference with both considered
legislative judgments and the careful balance that the Constitution
strikes between liberty and order. As we said in
Spencer v.
Texas, 385 U.
S. 554, 564 (1967), "it has never been thought that [decisions
under the Due Process Clause] establish this Court as a rulemaking
organ for the promulgation of state rules of criminal
444
procedure." Accord, Estelle v. McGuire,
502 U. S. 62, 70 (1991);
Marshall v. Lonberger,
459 U. S. 422, 438, n. 6
(1983).
Mathews itself involved a due process challenge to the
adequacy of administrative procedures established for the purpose
of terminating Social Security disability benefits, and the
Mathews balancing test was first conceived to address due
process claims arising in the context of administrative law.
Although we have since characterized the
Mathews balancing
test as "a general approach for testing challenged state procedures
under a due process claim,"
Parham v.
J. R.,
442 U. S. 584,
599 (1979), and applied it in a variety of contexts,
e. g.,
Santosky v.
Kramer, 455 U. S. 745 (1982)
(standard of proof for termination of parental rights over
objection);
Addington v.
Texas, 441 U. S. 418 (1979)
(standard of proof for involuntary civil commitment to mental
hospital for indefinite period), we have invoked
Mathews in
resolving due process claims in criminal law cases on only two
occasions.
In
United States v.
Raddatz, 447 U. S. 667 (1980), we
cited to the
Mathews balancing test in rejecting a due
process challenge to a provision of the Federal Magistrates Act
which authorized magistrates to make findings and recommendations
on motions to suppress evidence. In
Ake v.
Oklahoma,
470 U. S. 68
(1985), we relied upon
Mathews in holding that, when an
indigent capital defendant has made a preliminary showing that his
sanity at the time of the offense is likely to be a significant
factor at trial, due process requires that the defendant be
provided access to the assistance of a psychiatrist. Without
disturbing the holdings of
Raddatz and
Ake, it is not
at all clear that
Mathews was essential to the results
reached in those cases. In
Raddatz, supra, at 677-681, the
Court adverted to the
Mathews balancing test, but did not
explicitly rely upon it in conducting the due process analysis.
Raddatz, supra, at 700 (Marshall, J., dissenting) ("The
Court recites thee] test, but it does not even attempt to apply
it"). The holding in
Ake can be un-
445
derstood as an expansion of earlier due process cases holding
that an indigent criminal defendant is entitled to the minimum
assistance necessary to assure him "a fair opportunity to present
his defense" and "to participate meaningfully in [the] judicial
proceeding."
Ake, supra, at 76.
The proper analytical approach, and the one that we adopt here,
is that set forth in
Patterson v.
New York, 432 U. S. 197 (1977),
which was decided one year after
Mathews. In
Patterson, we rejected a due process challenge to a New York
law which placed on a criminal defendant the burden of proving the
affirmative defense of extreme emotional disturbance. Rather than
relying upon the
Mathews balancing test, however, we
reasoned that a narrower inquiry was more appropriate:
"It goes without saying that preventing and dealing with crime
is much more the business of the States than it is of the Federal
Government, Irvine v. California, 347 U. S. 128, 134 (1954)
(plurality opinion), and that we should not lightly construe the
Constitution so as to intrude upon the administration of justice by
the individual States. Among other things, it is normally 'within
the power of the State to regulate procedures under which its laws
are carried out, including the burden of producing evidence and the
burden of persuasion,' and its decision in this regard is not
subject to proscription under the Due Process Clause unless 'it
offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.'
Speiser v. Randall, 357 U. S. 513, 523
(1958); Leland v. Oregon, 343 U. S. 790, 798
(1952); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)."
Patterson v. New York, supra, at 201-202.
Accord,
Martin v.
Ohio, 480 U. S. 228, 232
(1987). As
Patterson suggests, because the States have
considerable expertise in matters of criminal procedure and the
criminal process is
446
grounded in centuries of common-law tradition, it is appropriate
to exercise substantial deference to legislative judgments in this
area. The analytical approach endorsed in
Patterson is thus
far less intrusive than that approved in
Mathews.
Based on our review of the historical treatment of the burden of
proof in competency proceedings, the operation of the challenged
rule, and our precedents, we cannot say that the allocation of the
burden of proof to a criminal defendant to prove incompetence
"offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."
Patterson v.
New York, supra, at 202 (internal
quotation marks omitted). Historical practice is probative of
whether a procedural rule can be characterized as fundamental. See
432 U. S., at 202;
In re Winship, 397 U. S. 358, 361
(1970). The rule that a criminal defendant who is incompetent
should not be required to stand trial has deep roots in our
common-law heritage. Blackstone acknowledged that a defendant "who
became 'mad' after the commission of an offense should not be
arraigned for it 'because he is not able to plead to it with that
advice and caution that he ought,'" and "if he became 'mad' after
pleading, he should not be tried, 'for how can he make his
defense?'"
Drope v.
Missouri, 420 U. S., at 171
(quoting 4 W. Blackstone, Commentaries *24); accord, 1 M. Hale,
Pleas of the Crown *34-*35.
By contrast, there is no settled tradition on the proper
allocation of the burden of proof in a proceeding to determine
competence. Petitioner concedes that "[t]he common law rule on this
issue at the time the Constitution was adopted is not entirely
clear." Brief for Petitioner 36. Early English authorities either
express no view on the subject,
e. g., Firth's
Case (1790), 22 Howell St. Tr. 307, 311, 317-318 (1817);
Kinloch's Case (1746), 18 Howell St. Tr. 395, 411 (1813), or
are ambiguous.
E. g., King v.
Steel, 1 Leach 452, 168
Eng. Rep. 328 (1787) (stating that, once a jury had determined
447
that the defendant was "mute by the visitation of God" (i.
e., deaf and dumb) and not "mute of malice," there arose a
"presumption of ideotism" that the prosecution could rebut by
demonstrating that the defendant had the capacity "to understand by
signs and tokens").
Nineteenth century English decisions do not take a consistent
position on the allocation of the burden of proof. Compare
R. v.
Turton, 6 Cox C. C. 385 (1854) (burden on
defendant), with
R. v.
Davies, 3 Carrington &
Kirwan 328, 175 Eng. Rep. 575 (1853) (burden on prosecution); see
generally
R. v.
Podola, 43 Crim. App. 220, 235-236, 3
All E. R. 418, 429-430 (1959) (collecting conflicting cases).
American decisions dating from the turn of the century also express
divergent views on the subject.
E. g., United States v.
Chisolm, 149 F.2d 4, 290 (SD Ala. 1906) (defendant bears
burden of raising a reasonable doubt as to competence);
State v.
Helm, 69 Ark. 167, 170-171, 61 S. W. 915,
916 (1901) (burden on defendant to prove incompetence).
Contemporary practice, while of limited relevance to the due
process inquiry, see
Martin v.
Ohio, supra, at 236;
Patterson v.
New York, supra, at 211, demonstrates
that there remains no settled view of where the burden of proof
should lie. The Federal Government and all 50 States have adopted
procedures that address the issue of a defendant's competence to
stand trial. See 18 U. S. C. § 4241; S. Brakel, J. Parry, & B.
Weiner, The Mentally Disabled and the Law, Table 12.1, pp. 744-754
(3d ed. 1985). Some States have enacted statutes that, like §
1369(f), place the burden of proof on the party raising the issue.
E. g., Conn. Gen. Stat. § 5456d(b) (1991); Pa. Stat. Ann.,
Tit. 50, § 7403(a) (Purdon Supp. 1991). A number of state courts
have said that the burden of proof may be placed on the defendant
to prove incompetence.
E. g., Wallace v.
State, 248
Ga. 255, 258-259, 282 S. E. 2d 325, 330 (1981), cert. denied, 455
U. S. 927 (1982);
State v.
Aumann, 265 N. W. 2d 316,
319-320 (Iowa 1978);
State v.
Chapman, 104 N. M. 324,
327-328, 721 P. 2d 392, 395-396
448
(1986); Barber v.
State, 757 S. W. 2d 359, 362-363
(Tex. Crim. App. 1988) (en bane), cert. denied,
489 U. S. 1091 (1989).
Still other state courts have said that the burden rests with the
prosecution.
E. g., Diaz v.
State, 508 A. 2d 861,
863-864 (Del. 1986);
Commonwealth v.
Crowley, 393
Mass. 393, 400401,471 N. E. 2d 353, 357-358 (1984);
State v.
Bertrand, 123 N. H. 719, 727-728, 465 A. 2d 912, 916 (1983);
State v.
Jones, 406 N. W. 2d 366, 369-370 (S. D.
1987).
Discerning no historical basis for concluding that the
allocation of the burden of proving incompetence to the defendant
violates due process, we turn to consider whether the rule
transgresses any recognized principle of "fundamental fairness" in
operation.
Dowling v.
United States, 493 U. S., at
352. Respondent argues that our decision in
Leland v.
Oregon, 343 U.
S. 790 (1952), which upheld the right of the State to place on
a defendant the burden of proving the defense of insanity beyond a
reasonable doubt, compels the conclusion that § 1369(f) is
constitutional because, like a finding of insanity, a finding of
incompetence has no necessary relationship to the elements of a
crime, on which the State bears the burden of proof. See also
Rivera v.
Delaware, 429 U. S. 877 (1976).
This analogy is not convincing, because there are significant
differences between a claim of incompetence and a plea of not
guilty by reason of insanity. See
Drope v.
Missouri,
supra, at 176-177;
Jackson v.
Indiana, 406 U. S. 715, 739
(1972).
In a competency hearing, the "emphasis is on [the defendant's]
capacity to consult with counsel and to comprehend the proceedings,
and ... this is by no means the same test as those which determine
criminal responsibility at the time of the crime."
Pate v.
Robinson, 383 U. S., at 388-389 (Harlan, J., dissenting). If
a defendant is incompetent, due process considerations require
suspension of the criminal trial until such time, if any, that the
defendant regains the capacity to participate in his defense and
understand the proceedings against him. See
Dusky v.
United States, 362 U. S. 402
449
(1960) (per curiam). The entry of a plea of not
guilty by reason of insanity, by contrast, presupposes that the
defendant is competent to stand trial and to enter a plea.
Moreover, while the Due Process Clause affords an incompetent
defendant the right not to be tried,
Drope v.
Missouri,
supra, at 172-173;
Pate v.
Robinson, supra, at
386, we have not said that the Constitution requires the States to
recognize the insanity defense. See,
e. g., Powell v.
Texas, 392 U. S. 514, 536-537 (1968).
Under California law, the allocation of the burden of proof to
the defendant will affect competency determinations 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. See
United States v.
DiGilio, 538 F.2d
972, 988 (CA3 1976), cert. denied, 429 U. S. 1038 (1977). Our
cases recognize that a defendant has a constitutional right "not to
be tried while legally incompetent," and that a State's "failure to
observe procedures adequate to protect a defendant's right not to
be tried or convicted while incompetent to stand trial deprives him
of his due process right to a fair triaL"
Drope v.
Missouri, 420 U. S., at 172, 173. Once a State provides a
defendant access to procedures for making a competency evaluation,
however, we perceive 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.
Petitioner relies upon federal- and state-court decisions which
have said that the allocation of the burden of proof to the
defendant in these circumstances is inconsistent with the rule of
Pate v.
Robinson, supra, at 384, where we held that a
defendant whose competence is in doubt cannot be deemed to have
waived his right to a competency hearing.
E. g.,
United
States v.
DiGilio, supra, at 988;
People v.
McCullum, 66 Ill. 2d 306, 312-314, 362 N. E. 2d 307,310-311
(1977);
State
450
v.
Bertrand, supra, at 727-728, 465 A. 2d, at 916.
Because " 'it is contradictory to argue that a defendant may be
incompetent, and yet knowingly or intelligently "waive" his right
to have the court determine his capacity to stand trial,'" it has
been said that it is also "contradictory to argue that a defendant
who may be incompetent should be presumed to possess sufficient
intelligence that he will be able to adduce evidence of his
incompetency which might otherwise be within his grasp."
United
States v.
DiGilio, supra, at 988 (quoting
Pate v.
Robinson, supra, at 384).
In our view, the question whether a defendant whose competence
is in doubt may waive his right to a competency hearing is quite
different from the question whether the burden of proof may be
placed on the defendant once a hearing is held. The rule announced
in
Pate was driven by our concern that it is impossible to
say whether a defendant whose competence is in doubt has made a
knowing and intelligent waiver of his right to a competency
hearing. Once a competency hearing is held, however, the defendant
is entitled to the assistance of counsel,
e. g., Estelle v.
Smith, 451 U.
S. 454, 469-471 (1981), and psychiatric evidence is brought to
bear on the question of the defendant's mental condition, see,
e. g., Cal. Penal Code Ann. §§ 1369(a), 1370 (West
1982 and Supp. 1992); see generally Brakel, Parry, & Weiner,
The Mentally Disabled and the Law, at 697-698. Although an impaired
defendant might be limited in his ability to assist counsel in
demonstrating incompetence, the defendant's inability to assist
counsel can, in and of itself, constitute probative evidence of
incompetence, and defense counsel will often have the best-informed
view of the defendant's ability to participate in his defense.
E. g., United States v.
David, 167 U. S. App. D. C.
117, 122,
511 F.2d
355, 360 (1975);
United States ex rel. Roth v.
Zelker, 455 F.2d
1105, 1108 (CA2), cert. denied, 408 U. S. 927 (1972). While
reasonable minds may differ as to the wisdom of placing the burden
of proof on the defendant in these circumstances, we believe that a
State
451
may take such factors into account in making judgments as to the
allocation of the burden of proof, and we see no basis for
concluding that placing the burden on the defendant violates the
principle approved in
Pate.
Petitioner argues that psychiatry is an inexact science, and
that placing the burden of proof on the defendant violates due
process because it requires the defendant to "bear the risk of
being forced to stand trial as a result of an erroneous finding of
competency." Brief for Petitioner 8. Our cases recognize that
"[t]he subtleties and nuances of psychiatric diagnosis render
certainties virtually beyond reach in most situations," because
"[p]sychiatric diagnosis ... is to a large extent based on medical
'impressions' drawn from subjective analysis and filtered through
the experience of the diagnostician."
Addington v.
Texas, 441 U. S., at 430. The Due Process Clause does not,
however, require a State to adopt one procedure over another on the
basis that it may produce results more favorable to the accused.
See,
e. g., Patterson v.
New York, 432 U. S., at 208
("Due process does not require that every conceivable step be
taken, at whatever cost, to eliminate the possibility of convicting
an innocent person");
Snyder v.
Massachusetts,
291 U. S. 97, 105
(1934) (a state procedure "does not run foul of the Fourteenth
Amendment because another method may seem to our thinking to be
fairer or wiser or to give a surer promise of protection to the
prisoner at the bar"). Consistent with our precedents, it is enough
that the State affords the criminal defendant on whose behalf a
plea of incompetence is asserted a reasonable opportunity to
demonstrate that he is not competent to stand trial.
Petitioner further contends that the burden of proof should be
placed on the State because we have allocated the burden to the
State on a variety of other issues that implicate a criminal
defendant's constitutional rights.
E. g., Colorado v.
Connelly, 479
U. S. 157, 168-169 (1986) (waiver of
Miranda rights);
Nix v.
Williams, 467 U. S. 431, 444-445,
n. 5 (1984)
452
(inevitable discovery of evidence obtained by unlawful means);
United States v.
Matlock, 415 U. S. 164, 177-178,
n. 14 (1974) (voluntariness of consent to search);
Lego v.
Twomey, 404 U. S. 477, 489 (1972)
(voluntariness of confession). The decisions upon which petitioner
relies, however, do not control the result here, because they
involved situations where the government sought to introduce
inculpatory evidence obtained by virtue of a waiver of, or in
violation of, a defendant's constitutional rights. In such
circumstances, allocating the burden of proof to the government
furthers the objective of "deterring lawless conduct by police and
prosecution."
Ibid. No such purpose is served by allocating
the burden of proof to the government in a competency hearing.
In light of our determination that the allocation of the burden
of proof to the defendant does not offend due process, it is not
difficult to dispose of petitioner's challenge to the presumption
of competence imposed by § 1369(f). Under California law, a
defendant is required to make a threshold showing of incompetence
before a hearing is required and, at the hearing, the defendant may
be prevented from making decisions that are normally left to the
discretion of a competent defendant.
E. g., People v.
Samuel, 29 Cal. 3d 489,495496, 629 P. 2d 485, 486-487
(1981). Petitioner argues that, once the trial court has expressed
a doubt as to the defendant's competence, a hearing is held, and
the defendant is deprived of his right to make determinations
reserved to competent persons, it is irrational to retain the
presumption that the defendant is competent.
In rejecting this contention below, the California Supreme Court
observed that "[t]he primary significance of the presumption of
competence is to place on defendant (or the People, if they contest
his competence) the burden of rebutting it" and that, "[b]y its
terms, the presumption of competence is one which affects the
burden of proof." 51 Cal. 3d, at 885, 799 P. 2d, at 1291. We see no
reason to disturb the Califor-
453
nia Supreme Court's conclusion that, in essence, the challenged
presumption is a restatement of the burden of proof, and it follows
from what we have said that the presumption does not violate the
Due Process Clause.
Nothing in today's decision is inconsistent with our
longstanding recognition that the criminal trial of an incompetent
defendant violates due process.
Drope v.
Missouri,
420 U. S., at 172-173;
Pate v.
Robinson, 383 U.
S., at 386; see also
Riggins v.
Nevada, 504 U. S. 127, 139 (1992)
(KENNEDY, J., concurring in judgment). Rather, our rejection of
petitioner's challenge to § 1369(f) is based on a determination
that the California procedure is "constitutionally adequate" to
guard against such results,
Drope v.
Missouri, supra,
at 172, and reflects our considered view that "[t]raditionally, due
process has required that only the most basic procedural safeguards
be observed; more subtle balancing of society's interests against
those of the accused ha[s] been left to the legislative branch,"
Patterson v.
New York, supra, at 210.
The judgment of the Supreme Court of California is
Affirmed.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins, concurring in
the judgment.
I concur in the judgment of the Court, but I reject its
intimation that the balancing of equities is inappropriate in
evaluating whether state criminal procedures amount to due process.
Ante, at 443-446. We obviously applied the balancing test of
Mathews v.
Eldridge, 424 U. S. 319 (1976), in
Ake v.
Oklahoma, 470 U. S. 68 (1985), a
case concerning criminal procedure, and I do not see that
Ake can be distinguished here without disavowing the
analysis on which it rests. The balancing of equities that
Mathews v.
Eldridge outlines remains a useful guide
in due process cases.
In
Mathews, however, we did not have to address the
question of how much weight to give historical practice; in the
context of modern administrative procedures, there was no
454
O'CONNOR, J., concurring in judgment
historical practice to consider. The same is true of the new
administrative regime established by the federal criminal
sentencing guidelines, and I have agreed that
Mathews may be
helpful in determining what process is due in that context. See
Burns v.
United States, 501 U. S. 129, 147-148
(1991) (SOUTER, J., dissenting). While I agree with the Court that
historical pedigree can give a procedural practice a presumption of
constitutionality, see
Patterson v.
New York,
432 U. S. 197,
211 (1977), the presumption must surely be rebuttable.
The concept of due process is, "perhaps, the least frozen
concept of our law-the least confined to history and the most
absorptive of powerful social standards of a progressive society.
But neither the unfolding content of 'due process' nor the
particularized safeguards of the Bill of Rights disregard
procedural ways that reflect a national historic policy."
Griffin v.
Illinois, 351 U. S. 12,20-21 (1956)
(Frankfurter, J., concurring in judgment). Against the historical
status quo, I read the Court's opinion to allow some weight to be
given countervailing considerations of fairness in operation,
considerations much like those we evaluated in
Mathews. See
ante, at 448-453. Any less charitable reading of the Court's
opinion would put it at odds with many of our criminal due process
cases, in which we have required States to institute procedures
that were neither required at common law nor explicitly commanded
by the text of the Constitution. See,
e. g., Griffin v.
Illinois, supra (due process right to trial transcript on
appeal);
Brady v.
Maryland, 373 U. S. 83 (1963) (due
process right to discovery of exculpatory evidence);
Sheppard v.
Maxwell, 384 U. S. 333 (1966) (due
process right to protection from prejudicial publicity and
courtroom disruptions);
Chambers v.
Mississippi,
410 U. S. 284
(1973) (due process right to introduce certain evidence);
Gagnon v.
Scarpelli, 411 U. S. 778 (1973) (due
process right to hearing and counsel before probation revoked);
Ake v.
Oklahoma, supra (due process right to
psychiatric examination when sanity is significantly in
question).
455
In determining whether the placement of the burden of proof is
fundamentally unfair, relevant considerations include: whether the
government has superior access to evidence; whether the defendant
is capable of aiding in the garnering and evaluation of evidence on
the matter to be proved; and whether placing the burden of proof on
the government is necessary to help enforce a further right, such
as the right to be presumed innocent, the right to be free from
self-incrimination, or the right to be tried while competent.
After balancing the equities in this case, I agree with the
Court that the burden of proof may constitutionally rest on the
defendant. As the dissent points out,
post, at 465, the
competency determination is based largely on the testimony of
psychiatrists. The main concern of the prosecution, of course, is
that a defendant will feign incompetence in order to avoid trial.
If the burden of proving competence rests on the government, a
defendant will have less incentive to cooperate in psychiatric
investigations, because an inconclusive examination will benefit
the defense, not the prosecution. A defendant may also be less
cooperative in making available friends or family who might have
information about the defendant's mental state. States may
therefore decide that a more complete picture of a defendant's
competence will be obtained if the defense has the incentive to
produce all the evidence in its possession. The potentially greater
overall access to information provided by placing the burden of
proof on the defense may outweigh the danger that, in close cases,
a marginally incompetent defendant is brought to trial. Unlike the
requirement of a hearing or a psychiatric examination, placing the
burden of proof on the government will not necessarily increase the
reliability of the proceedings. The equities here, then, do not
weigh so much in petitioner's favor as to rebut the presumption of
constitutionality that the historical toleration of procedural
variation creates.
456
As the Court points out,
ante, at 451-452, the other
cases in which we have placed the burden of proof on the government
are distinguishable. See
Colorado v.
Connelly,
479 U. S. 157,
168-169 (1986) (burden of proof on government to show waiver of
rights under
Miranda v.
Arizona, 384 U. S. 436 (1966));
Nix v.
Williams, 467 U. S. 431, 444-445,
n. 5 (1984) (burden on government to show inevitable discovery of
evidence obtained by unlawful means);
United States v.
Matlock, 415
U. S. 164, 177-178, n. 14 (1974) (burden on government to show
voluntariness of consent to search);
Lego v.
Twomey,
404 U. S. 477,
489 (1972) (burden on government to show voluntariness of
confession). In each of these cases, the government's burden of
proof accords with its investigatory responsibilities. Before
obtaining a confession, the government is required to ensure that
the confession is given voluntarily. Before searching a private
area without a warrant, the government is generally required to
ensure that the owner consents to the search. The government has no
parallel responsibility to gather evidence of a defendant's
competence.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins,
dissenting.
Teofilo Medina, Jr., may have been mentally incompetent when the
State of California convicted him and sentenced him to death. One
psychiatrist testified he was incompetent. Another psychiatrist and
a psychologist testified he was not. Several other experts
testified but did not express an opinion on competence. Instructed
to presume that petitioner Medina was competent, the jury returned
a finding of competence. For all we know, the jury was entirely
undecided. I do not believe a Constitution that forbids the trial
and conviction of an incompetent person tolerates the trial and
conviction of a person about whom the evidence of competency is so
equivocal and unclear. I dissent.
457
I
The right of a criminal defendant to be tried only if competent
is "fundamental to an adversary system of justice,"
Drope v.
Missouri, 420
U. S. 162, 172 (1975). The Due Process Clause forbids the trial
and conviction of persons incapable of defending themselves-persons
lacking the capacity to understand the nature and object of the
proceedings against them, to consult with counsel, and to assist in
preparing their defense.
Id., at 171.1 See also
Pate
v.
Robinson, 383 U. S. 375, 378
(1966).
The right to be tried while competent is the foundational right
for the effective exercise of a defendant's other rights in a
criminal trial. "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."
Riggins v.
Nevada,
504 U. S. 127,
139 (1992) (KENNEDY, J., concurring in judgment). In the words of
Professor Morris, one of the world's leading criminologists,
incompetent persons "are not really present at trial; they may not
be able properly to play the role of an accused person, to recall
relevant events, to produce evidence and witnesses, to testify
effectively on their own behalf, to help confront hostile
witnesses, and to project to the trier of facts a
1 "[I]t is not enough for the district judge to find that the
defendant is oriented to time and place and has some recollection
of events, but that the test must be whether he has sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding-and whether he has a rational as well as
factual understanding of the proceedings against him,"
Dusky
v.
United States, 362 U. S. 402 (1960)
(internal quotation marks and bracketing omitted); cf.
Riggins v.
Nevada, 504 U. S. 127, 140-141
(1992) (KENNEDY, J., concurring in judgment) (noting distinction
between "functional competence" and higher level "competence to
stand trial").
458
sense of their innocence." N. Morris, Madness and the Criminal
Law 37 (1982).
This Court's cases are clear that the right to be tried while
competent is so critical a prerequisite to the criminal process
that "state procedures
must be adequate to protect this
right."
Pate, 383 U. S., at 378 (emphasis added). "[T]he
failure to observe procedures adequate to protect a defendant's
right not to be tried or convicted while incompetent to stand trial
deprives him of his due process right to a fair trial."
Drope, 420 U. S., at 172. In other words, the Due Process
Clause does not simply forbid the State to try to convict a person
who is incompetent. It also demands adequate
anticipatory,
protective procedures to minimize the risk that an incompetent
person will be convicted. Justice Frankfurter recognized this in a
related context: "If the deeply rooted principle in our society
against killing an insane man is to be respected, at least the
minimum provision for assuring a fair application of that principle
is inherent in the principle itself."
Solesbee v.
Balkcom, 339 U.
S. 9, 23 (1950) (dissenting opinion). Anticipatory protective
procedures are necessary as well because "we have previously
emphasized the difficulty of retrospectively determining an
accused's competence to stand trial."
Pate, 383 U. S., at
387. See also
Drope, 420 U. S., at 183;
Dusky v.
United States, 362 U. S. 402, 403
(1960). See generally Miller & Germain, The Retrospective
Evaluation of Competency to Stand Trial, 11 Int'l J. Law and Psych.
113 (1988).
This Court expressly has recognized that one of the required
procedural protections is "further inquiry" or a hearing when there
is a sufficient doubt raised about a defendant's competency.
Drope, 420 U. S., at 180;
Pate, 383 U. S., at
385-386. In my view, then, the only question before the Court in
this case is whether-as with the right to a hearing-placing the
burden of proving competence on the State is necessary to protect
adequately the underlying due proc-
459
ess right. I part company with the Court today, because I
believe the answer to that question is in the affirmative.
II
As an initial matter, I believe the Court's approach to this
case effectively asks and answers the wrong doctrinal question.
Following the lead of the parties, the Court mistakenly frames its
inquiry in terms of whether to apply a standard it takes to be
derived from language in
Patterson v.
New York,
432 U. S. 197
(1977), or a standard based on the functional balancing approach of
Mathews v.
Eldridge, 424 U. S. 319 (1976).
Ante, at 442-446. The Court is not put to such a choice.
Under
Drope and
Pate, it need decide only whether a
procedure imposing the burden of proof upon the defendant is
"adequate" to protect the constitutional prohibition against trial
of incompetent persons.
The Court, however, chooses the
Patterson path,
announcing that there is no violation of due process unless placing
the burden of proof of incompetency upon the defendant " '''offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."'"
Ante, at 445 (quoting
Patterson, 432 U. S., at 202).
Separating the primary right (the right not to be tried while
incompetent) from the subsidiary right (the right not to bear the
burden of proof of incompetency), the Court acknowledges the
primary right to be fundamental in "our common-law heritage," but
determines the subsidiary right to be without a "settled tradition"
deserving of constitutional protection.
Ante, at 446. This
approach is mistaken, because it severs two integrally related
procedural rights that cannot be examined meaningfully in
isolation. The protections of the Due Process Clause, to borrow the
second Justice Harlan's words, are simply not "a series of isolated
points pricked" out in terms of their most specific level of
historic generality.
Poe v.
Ullman, 367 U. S. 497, 543 (1961)
(dissenting opinion). Had the Court taken the same historical-
460
categorical approach in
Pate and
Drope, it would
not have recognized that a defendant has a right to a competency
hearing, for in neither of those cases was there any showing that
the mere denial of a hearing where there is doubt about competency
offended any deeply rooted traditions of the American people.
In all events, I do not interpret the Court's reliance on
Patterson to undermine the basic balancing of the
government's interests against the individual's interest that is
germane to any due process inquiry. While unwilling to discount the
force of tradition and history, the Court in
Patterson did
not adopt an exclusively tradition-based approach to due process
analysis. Relying on
Morrison v.
California, 291 U. S. 82 (1934), the
Court in
Patterson looked to the "convenience" to the
government and "hardship or oppression" to the defendant in forming
its allocation of the burden of proof. 432 U. S., at 203, n. 9, and
210.
" 'The decisions are manifold that within limits of reason and
fairness the burden of proof may be lifted from the state in
criminal prosecutions and cast on a defendant. The limits are in
substance these, that the state shall have proved enough to make it
just for the defendant to be required to repel what has been proved
with excuse or explanation, or at least that upon a balancing of
convenience or of the opportunities for knowledge the shifting of
the burden will be found to be an aid to the accuser without
subjecting the accused to hardship or oppression. Cf. Wigmore,
Evidence, Vol. 5, §§ 2486, 2512, and cases cited.''' Id., at
203, n. 9 (quoting Morrison v. California, 291 U. S.,
at 88-89) (emphasis added).
See also
Speiser v.
Randall, 357 U. S. 513, 524 (1958)
(same).
In
Morrison v.
California, the historical
cornerstone of this Court's decisions in the area of due process
and allocation of the burden of proof, the Court considered the
consti-
461
tutionality of a California criminal statute forbidding aliens
not eligible for naturalization to farm. The statute provided that,
once the State proved the defendant used or occupied farmland, the
burden of proving citizenship or eligibility for naturalization
rested upon the defendant. See 291 U. S., at 84. At the time,
persons of Asian ancestry were generally not eligible for
naturalization. See
id., at 85-86. The Court observed that
in the "vast majority of cases," there would be no unfairness to
the distribution of the burden, because a defendant's Asian
ancestry could plainly be observed.
Id., at 94. But, where
the evidence is in equipoise-as when the defendant is of mixed
blood and his outward appearance does not readily reveal his Asian
ancestry-"the promotion of convenience from the point of view of
the prosecution will be outweighed by the probability of injustice
to the accused."
Ibid. Thus, the Court concluded: "There can
be no escape from hardship and injustice, outweighing many times
any procedural convenience, unless the burden of persuasion in
respect of racial origin is cast upon the People."
Id., at
96.
Consistent with
Morrison, I read the Court's opinion
today to acknowledge that
Patterson does not relieve the
Court from evaluating the underlying fairness of imposing the
burden of proof of incompetency upon the defendant. That is why the
Court not only looks to "the historical treatment of the burden of
proof in competency proceedings" but also looks to "the operation
of the challenged rule, and our precedents."
Ante, at 446.
That is why the Court eventually turns to determining "whether the
rule [placing upon the defendant the burden of proof of
incompetency] transgresses any recognized principle of 'fundamental
fairness' in operation."
Ante, at 448.
Carrying out this inquiry, the Court points out that the
defendant is already entitled to the assistance of counsel and to a
psychiatric evaluation.
Ante, at 450. It suggests as well
that defense counsel will have "the best-informed view" of the
defendant's ability to assist in his defense.
Ibid. Ac-
462
cordingly, the Court concludes: "[I]t is enough that the State
affords the criminal defendant on whose behalf a plea of
incompetence is asserted a reasonable opportunity to demonstrate
that he is not competent to stand trial."
Ante, at 451.
While I am unable to agree with the Court's conclusion, it is clear
that the Court ends up engaging in a balancing inquiry not
meaningfully distinguishable from that of the
Mathews
I am perplexed that the Court, while recognizing "the
careful
balance that the Constitution strikes between liberty and
order,"
ante, at 443 (emphasis added), intimates that the
apparent "expertise" of the States in criminal procedure
2 Recently, several Members of this Court have expressly
declined to limit
Mathews v.
Eldridge balancing to
the civil administrative context and determined that
Mathews
provides the appropriate framework for assessing the validity of
criminal rules of procedure. See
Burns v.
United
States, 501 U. S.
129, 148-156 (1991) (SOUTER, J., joined in relevant part by
WHITE and O'CONNOR, JJ., dissenting) (applying
Mathews to
federal criminal sentencing procedures, stating that
Mathews
does not apply only to civil "administrative" determinations but
"[t]he
Mathews analysis has thus been used as a general
approach for determining the procedures required by due process
whenever erroneous governmental action would infringe an
individual's protected interest"). The Court also acknowledges that
it has previously relied on
Mathews v.
Eldridge in at
least two cases concerning criminal procedure.
Ante, at 444
(citing
Ake v.
Oklahoma,
470 U. S. 68 (1985) (due
process requires appointment of psychiatrist where defendant's
sanity at the time of the offense is to be significant factor at
trial), and
United States v.
Raddatz, 447 U. S. 667 (1980) (due
process does not require federal district judges to make
de
novo determination with live testimony of issues presented in
motion to suppress)).
The Court claims that "it is not at all clear" that
Mathews was "essential to the results reached in"
Ake
and
Raddatz. Ante, at 444. I am not sure what the Court
means, because both cases unquestionably set forth the full
Mathews test and evaluated the interests. See
Ake,
470 U. S., at
77-83; Raddatz, 447 U. S., at 677-679. What
the Court should find clear, if anything, from these two cases is
that the
specific rights asserted there were historically
novel and could hardly be said to have constituted "principle[s] of
justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental."
463
and the "centuries of common-law tradition" of the "criminal
process" warrant less than careful balancing in favor of
"substantial deference to legislative judgments,"
ante, at
445446. Because the
Due Process Clause is not the
Some Process Clause, I remain convinced that it requires
careful balancing of the individual and governmental interests at
stake to determine what process is due.
III
I believe that requiring a possibly incompetent person to carry
the burden of proving that he is incompetent cannot be called
"adequate," within the meaning of the decisions in
Pate and
Drope, to protect a defendant's right to be tried only while
competent. In a variety of other contexts, the Court has allocated
the burden of proof to the prosecution as part of the protective
procedures designed to ensure the integrity of specific underlying
rights. In
Lego v.
Twomey, 404 U. S. 477 (1972), for
example, the Court determined that when the prosecution seeks to
use at trial a confession challenged as involuntary, "the
prosecution must prove at least by a preponderance of the evidence
that the confession was voluntary," because the defendant is
"entitled to a reliable and clear-cut determination that the
confession was in fact voluntarily rendered."
Id., at 489.
See also
Colorado v.
Connelly, 479 U. S. 157, 167-169
(1986) (burden on prosecution to show defendant waived
Miranda rights);
Nix v.
Williams, 467 U. S. 431, 444, and
n. 5 (1984) (burden on prosecution to show inevitable discovery of
evidence obtained by unlawful means);
United States v.
Matlock, 415
U. S. 164, 177-178, n. 14 (1974) (burden on prosecution to show
voluntariness of consent to search). Equally weighty concerns
warrant imposing the burden of proof upon the State here.
The Court suggests these cases are distinguishable because they
shift the burden of proof in order to deter lawless conduct by law
enforcement and prosecutorial authorities, while in this case
deterrence is irrelevant.
Ante, at 451-453.
464
If anything, this distinction cuts
against the Court's
point of view. Deterrence of official misconduct during the
investigatory stage of the criminal process has less to do with the
fairness of the trial and an accurate determination of the
defendant's guilt than does the defendant's ability to understand
and participate in the trial itself. Accordingly, there is greater
reason here to impose a trial-related cost upon the government-in
the form of the burden of proof-to ensure the fairness and accuracy
of the trial. Cf.
United States v.
Alvarez-Machain,
504 U. S. 655,
660 (1992) (official misconduct in the form of forcible kidnaping
of defendant for trial does not violate defendant's due process
rights at trial). Moreover, given the Court's consideration of
nontrial-related interests, I wonder whether the Court owes any
consideration to the public interest in the appearance of fairness
in the criminal justice system. The trial of persons about whose
competence the evidence is inconclusive unquestionably
"undermine[s] the very foundation of our system of justice-our
citizens' confidence in it."
Georgia v.
McCollum,
ante, at 49.
"In all kinds of litigation it is plain that where the burden of
proof lies may be decisive of the outcome."
Speiser v.
Randall, 357 U. S., at 525. To be sure, the requirement of a
hearing (once there is a threshold doubt as to competency) and the
provision for a psychiatric evaluation, see
Ake v.
Oklahoma, 470
U. S. 68, 81 (1985), do ensure at least some protection against
the trial of incompetent persons. Yet in cases where the evidence
is inconclusive, a defendant bearing the burden of proof of his own
incompetency now will still be subjected to trial. In my view, this
introduces a systematic and unacceptably high risk that persons
will be tried and convicted who are unable to follow or participate
in the proceedings determining their fate. I, therefore, cannot
agree with the Court that "reasonable minds may differ as to the
wisdom of placing the burden of proof" on likely incompetent
defendants.
Ante, at 450.
465
The Court suggests that "defense counsel will often have the
best-informed view of the defendant's ability to participate in his
defense."
Ibid. There are at least three good reasons,
however, to doubt the Court's confidence. First, while the
defendant is in custody, the State itself obviously has the most
direct, unfettered access to him and is in the best position to
observe his behavior. In the present case, Medina was held before
trial in the Orange County jail system for more than a year and a
half prior to his competency hearing. 3 Tr. 677-684. During the
months immediately preceding the competency hearing, he was placed
several times for extended periods in a padded cell for treatment
and observation by prison psychiatric personnel.
Id., at
226, 682-684. While Medina was in the padded cell, prison personnel
observed his behavior every 15 minutes.
Id., at 226.
Second, a competency determination is primarily a medical and
psychiatric determination. Competency determinations by and large
turn on the testimony of psychiatric experts, not lawyers.
"Although competency is a legal issue ultimately determined by the
courts, recommendations by mental health professionals exert
tremendous influence on judicial determinations, with rates of
agreement typically exceeding 90%." Nicholson & Johnson,
Prediction of Competency to Stand Trial: Contribution of
Demographics, Type of Offense, Clinical Characteristics, and
Psycholegal Ability, 14 Int'l J. Law and Psych. 287 (1991)
(citations omitted). See also S. Brakel, J. Parry, & B. Weiner,
The Mentally Disabled and the Law 703 (3d ed. 1985) (same). While
the testimony of psychiatric experts may be far from infallible,
see
Barefoot v.
Estelle, 463 U. S. 880, 916 (1983)
(BLACKMUN, J., dissenting), it is the experts and not the lawyers
who are credited as the "best informed," and most able to gauge a
defendant's ability to understand and participate in the legal
proceedings affecting him.
Third, even assuming that defense counsel has the "bestinformed
view" of the defendant's competency, the lawyer's
466
view will likely have no outlet in, or effect on, the competency
determination. Unlike the testimony of medical specialists or lay
witnesses, the testimony of defense counsel is far more likely to
be discounted by the factfinder as self-interested and biased.
Defense counsel may also be discouraged in the first place from
testifying for fear of abrogating an ethical responsibility or the
attorney-client privilege. See,
e. g., ABA Criminal
Justice Mental Health Standards § 7-4.8(b), Commentary
Introduction, p. 209, and Commentary, pp. 212-213 (1989). By way of
example from the case at hand, it should come as little surprise
that neither of Medina's two attorneys was among the dozens of
persons testifying during the six days of competency proceedings in
this case. 1 Tr. 1-5 (witness list).
Like many psychological inquiries, competency evaluations are
"in the present state of the mental sciences ... at best a
hazardous guess however conscientious."
Solesbee v.
Balkcom, 339 U. S., at 23 (Frankfurter, J., dissenting). See
also
Ake v.
Oklahoma, 470 U. S., at 81;
Addington v.
Texas, 441 U. S. 418, 430
(1979);
Drope, 420 U. S., at 176. This unavoidable
uncertainty expands the range of cases where the factfinder will
conclude the evidence is in equipoise. The Court, however,
dismisses this concern on grounds that "'[d]ue process does not
require that every conceivable step be taken, at whatever cost, to
eliminate the possibility of convicting an innocent person.'"
Ante, at 451 (quoting
Patterson, 432 U. S., at 208).
Yet surely the Due Process Clause requires
some conceivable
steps be taken to eliminate the risk of erroneous convictions. I
search in vain for any guiding principle in the Court's analysis
that determines when the risk of a wrongful conviction happens to
be acceptable and when it does not.
The allocation of the burden of proof reflects a societal
judgment about how the risk of error should be distributed between
litigants. Cf.
Santosky v.
Kramer, 455 U. S. 745, 755 (1982)
(standard of proof). This Court has said it well
467
before: "The individual should not be asked to share equally
with society the risk of error when the possible injury to the
individual is significantly greater than any possible harm to the
state."
Addington v.
Texas, 441 U. S., at 427. The
costs to the State of bearing the burden of proof of competency are
not at all prohibitive. The Court acknowledges that several States
already bear the burden,
ante, at 447448, and that the
allocation of the burden of proof will make a difference "only in a
narrow class of cases where the evidence is in equipoise,"
ante, at 449. In those few difficult cases, the State should
bear the burden of remitting the defendant for further
psychological observation to ensure that he is competent to defend
himself. See,
e. g., Cal. Penal Code Ann. §
1370(a)(1) (West Supp. 1992) (defendant found incompetent shall be
"delivered" to state hospital or treatment facility "which will
promote the defendant's speedy restoration to mental competence").
See also
Jackson v.
Indiana, 406 U. S. 715, 738 (1972)
(Due Process Clause allows State to hold incompetent defendant "for
reasonable period of time necessary to determine whether there is a
substantial probability" of return to competency). In the narrow
class of cases where the evidence is in equipoise, the State can
reasonably expect that it will speedily be able to return the
defendant for trial.
IV
Just this Term the Court reaffirmed that the Due Process Clause
prevents the States from taking measures that undermine the
defendant's right to be tried while fully aware and able to defend
himself. In
Riggins v.
Nevada, 504 U. S. 127 (1992), the
Court reversed on due process grounds the conviction of a defendant
subjected to the forcible administration of antipsychotic drugs
during his trial. Rejecting the dissent's insistence that actual
prejudice be shown, the Court found it to be
"clearly
possible" that the medications affected the defendant's
"ability to follow the proceedings, or the substance of his
communication with counsel."
Id., at 137 (em-
468
phasis added). See also
id., at 141 (KENNEDY, J.,
concurring in judgment) (prosecution must show
"no significant
risk that the medication will impair or alter in any material
way the defendant's capacity or willingness to react to the
testimony at trial or to assist his counsel") (emphasis added).
I consider it no less likely that petitioner Medina was tried
and sentenced to death while effectively unable to defend himself.
That is why I do not share the Court's remarkable confidence that
"[n]othing in today's decision is inconsistent with our
longstanding recognition that the criminal trial of an incompetent
defendant violates due process."
Ante, at 453. I do not
believe the constitutional prohibition against convicting
incompetent persons remains "fundamental" if the State is at
liberty to go forward with a trial when the evidence of competency
is inconclusive. Accordingly, I dissent.
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