Fundamental Cases in Procedural Law
Adam J. McKee
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. 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.
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. …
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.” 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. The expert concluded that petitioner was 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.”
”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.”
Incidents that occurred during the trial, 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, 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.” We granted certiorari to review the Court of Criminal Appeals’ conclusion that application of the clear and convincing evidence standard does not violate due process.
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.” 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.”
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.
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. Our recent decision in Medina v. California (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. 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.” 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. 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.”
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. The State maintains, however, that the clear and convincing standard provides a reasonable accommodation 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.
“Historical practice is probative of whether a procedural rule can be characterized as fundamental.” 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. “If a man in his sound memory commits a capital offence … and if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defense?” The English cases which predate our Constitution provide no guidance, however, concerning the applicable standard of proof in competency determinations. Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith (1790) for example, the court instructed the jury to “diligently inquire … whether John Frith, the now prisoner at the bar … be of sound mind and understanding or not …. ” Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode (1837): “‘You shall diligently inquire, and true presentment make … whether John Goode … be insane or not …. ‘” Similarly, in King v. Pritchard (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 …. ”
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 preponderance standard represented a departure from earlier (pre-Constitution) practice.
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, the court in Queen v. Podolia (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.”
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, and employ the disjunctive language used by the English courts. By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that “the burden is upon the prisoner to show by a preponderance of the proof that he is insane.” Some 15 years later, the Tennessee Supreme Court described the competency determination as “controlled by the preponderance of the proof,” and the highest court of Pennsylvania held that competence is “decided by a preponderance of the evidence.” These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard.
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. None of the remaining 46 jurisdictions imposes such a heavy burden on the defendant. Indeed, a number of States place no burden on the defendant at all….
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.
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 (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.”
The “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” 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.”’
Far from “jealously guarding” 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.
“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.” 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.” After making the “profound” choice whether to plead guilty, the defendant who proceeds to trial
“will ordinarily have to decide whether to waive his ‘privilege against compulsory self-incrimination,’ 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’ by declining to cross-examine witnesses for the prosecution.”
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.”
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.”
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. 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. 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.”
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,
It 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.
A heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties. 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 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.
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. 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. After observing that the rule was consistent with common-law practice, we held that “the 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.”
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.” 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 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 (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 (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.” 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. 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.
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 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.
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.
Last Modified: 08/21/2019