517 U.S. 348116 S.Ct. 1373134 L.Ed.2d 498
COOPERv.OKLAHOMA  Certiorari to the Court of Criminal Appeals of Oklahoma.
No. 95-5207.
Supreme Court of the United States

Argued January 17, 1996
Decided April 16, 1996

Syllabus*
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. 5-22.
(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. 5-7.
(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. 7-14.
(c) Oklahoma's rule does not exihibit "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. 14-19.
(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. 19-21.
889 P. 2d 293, reversed and remanded.
Justice Stevens delivered the opinion of the Court.


1
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, Section(s)  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.


2
* 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.


3
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.


4
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.


5
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.


6
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 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:


7
"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.


8
....


9
"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.


10
"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.


11
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.


12
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, Section(s) 1175.4(B),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 application of the clear and convincing evidence standard does not  violate due process.  516 U. S. ___ (1995).

II

13
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, 171-172 (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:


14
"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 the  judgment).4


15
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


16
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


17
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 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.

III

18
"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.


19
We turn first to an examination of the relevant common-law 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).


20
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 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


21
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.10


22
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:


23
"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


24
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, 299 (1816); People v. Kleim, 1 N. Y. 13, 15 (1845); Harris,  78 Am. Dec., at 275; United States v. Chisolm, 149 F. 284, 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 "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


25
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 remaining 46 jurisdictions imposes such a heavy burden on the  defendant.17  Indeed, a number of States place no burden on the  defendant at all, but rather require the prosecutor to 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.  Section(s) 4241.


26
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

27
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, we explained that:


28
"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)."  441 U. S. 418, 423 (1979).


29
The "more stringent the burden of proof a party must bear, the  more that party bears the risk of an erroneous decision." See 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


30
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.  "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."  Medina v. California, 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.


31
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


32
"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.


33
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"20-the basic fairness of the  trial itself.


34
By comparison to the defendant's interest, the injury to the </B></I>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


35
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 293, 303 (1995).  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 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.


36
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,


37
"[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.


38
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 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.

39
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. 197, 201-202   (1977).  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.


40
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 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.


41
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, 573-574 (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 573-576.  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


42
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.25

VI

43
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.


44
It is so ordered.



*
 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience  of the reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.


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 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-a-half 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.


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.


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 rationally assist in his defense."  Okla. Stat., Tit.  22, Section(s) 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.


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 impanel 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, Section(s) 2.


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. 437, 447 (1992).  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.


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").   Compare 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, 5 Ohio Dec. 654 (1896), 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.


14
See also State v. Arnold, 12 Iowa 481, 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 (1884); United States v. Chisolm, 149 F. 284, 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. Section(s) 54-56d(b) (1995); Okla. Stat., Tit. 22, Section(s) 1175.4 (1991); 50 Pa. Cons. Stat. Section(s) 7403(a)  (Supp. 1995); and R. I. Gen. Laws Section(s) 40.1-5.3-3 (Supp. 1995).  The adoption of the clear and convincing evidence standard 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  20-21.


17
See Lackey v. State, 615 So. 2d 145, 151-152 (Ala. Crim.  App. 1992); McCarla v. State, 677 P. 2d 1268, 1272 (Alaska App. 1984); Cal. Penal Code Ann. Section(s) 1369(f) (West 1982); Colo. Rev. Stat.  Section(s) 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. Section(s) 704-404 and 704-411 (1993); Ill. Comp. Stat., ch. 725,  1057-1058 (Ind. 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 (1967); 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. Section(s) 2945.37 (1993); State v. Nance, 446 S. E.  2d 349, 351 (S. C. 1996); S. D. Codified Laws Section(s) 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. Section(s) 77-15-5(10) (1995); Va. Code Ann. Section(s)  19.2-169.1(E) (1995); Wash. Rev. Code Section(s) 10.77.090 (1994); W.  Va. Code Section(s) 27-6A-2(b) (1992); Wis. Stat. Section(s)  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 Section(s) 18-212 (1987); Kan. Stat. Ann.  Section(s) 22-3302 (1995); Ky. Rev. Stat. Ann. Section(s) 504.100   (Michie 1990); Me. Rev. Stat. Ann., Tit. 15, Section(s) 101-B (Supp.  1995); Mich. Comp. Laws Section(s) 330.2020 (1992); State v. Clark, 546 S. W. 2d 455, 468 (Mo. App. 1976); Mont. Code Ann. Section(s) 46-14-221   (1992 and Supp. 1995); Neb. Rev. Stat. Section(s) 29-1823 (1989); Nev.  Rev. Stat. Section(s) 178.415 (1992); N. C. Gen. Stat. Section(s)  15A-1002 (1988); Ore. Rev. Stat. Section(s) 161.360-161.370 (Supp.  1994); and Vt. Stat. Ann., Tit. 13, Section(s) 4817 (1974).


18
See, e.g., Haw. Rev. Stat. Section(s) 704-404 and 704-411 (1993); Ill. Comp. Stat., ch. 725, Para(s) 5/104-11(c) (1992); S. D.  Codified Laws Section(s) 23A-10A-6.1 (1988); Wis. Stat. Section(s)  971.14(4)(b) (Supp. 1994 and Supp. II 1995).


19
See also Addington, 441 U. S. 418 (1979) (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.  Cruzan, 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.  Id., at 515-516.


20
United States v. Cronic, 466 U. S. 648, 653 (1984).


21
Under Jackson, if the defendant regains competence or is  found to be malingering, the State may proceed to trial.


22
 Sir John Hawles, 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."  Hawles, Remarks on the Trial of Mr. Charles Bateman   (1685), 11 How. St. Tr. 474, 478 (1816).


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.


24
 For example, a mentally retarded defendant accused of a nonviolent crime may be found ncompetent to stand trial but not necessarily be subject to involuntary civil commitment.


25
 We 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.


