 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
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.

SUPREME COURT OF THE UNITED STATES

          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 pursu-
ant 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 prepon-
derance 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.4-15.
(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 201-202.  Pp.4-7.
(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, contemporary practice demonstrates that there remains no
settled view on where the burden should lie.  Pp.8-10.
(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. 790"which 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 defend-
ant'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.10-11.
(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, distin-
guished.  Pp.11-14.
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 presump-
tion is a restatement of that burden.  P.14.
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.
Blackmun, J., filed a dissenting opinion, in which Stevens, J., joined.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
 
           SUPREME COURT OF THE UNITED STATES--------
                       No. 90-8370
                        --------
      TEOFILO MEDINA, Jr., PETITIONER v. CALIFORNIA
           on writ of certiorari to the supreme court of
                            california
                          [June 22, 1992]

       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
pawn shop 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 establish-
ments, 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 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. Pen. 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. Pen. 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 incom-
petence 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 six-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. Echean-
dia, 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, a psychologist, believed defendant was
schizophrenic, with impaired memory and hallucina-
tions, 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 prepon-
derance 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 impanelled 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 rein-
statement 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 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 place-
ment 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. ___ (1991),
and now affirm.
                                II
       Petitioner argues that our decision in Mathews v.
Eldridge, 424 U. S. 319 (1976), provides the proper analyti-
cal framework for determining whether California's alloca-
tion of 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 depriva-
tion 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 quotations 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 rule-making organ for the promul-
gation of state rules of criminal procedure.  Accord, Estelle
v. McGuire, 502 U. S. ___, ___ (1991); Marshall v. Lon-
berger, 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 admin-
istrative 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
th[e] test, but it does not even attempt to apply it).  The
holding in Ake can be understood as an expansion of earlier
due process cases holding that an indigent criminal defen-
dant 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 Math-
ews.  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. Califor-
nia, 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 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 quotations omitted).  Historical practice is
probative of whether a procedural rule can be characterized
as fundamental.  See ibid.; 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 acknowl-
edged 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 (1736).
       By contrast, there is no settled tradition on the proper
allocation of the burden of proof in a proceeding to deter-
mine 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 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 defen-
dant 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. 284, 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. 54-56d(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 (1986); Barber v.
State, 757 S. W. 2d 359, 362-363 (Tex. Crim. App. 1988) (en
banc), 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, 400-401, 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 competence to the
defendant violates due process, we turn to consider whether
the rule transgresses any recognized principle of  funda-
mental 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 incompe-
tence 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 responsi-
bility 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 (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. Robin-
son, 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 determina-
tions 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 incompe-
tent 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 consti-
tutional right by persuading the trier of fact that the defen-
dant 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 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. Pen. Code
Ann. 1369(a), 1370 (West 1982 and Supp. 1992); see
generally S. Brakel, J. Parry, & B. 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 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) (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 intro-
duce 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 govern-
ment 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 prevent-
ed from making decisions that are normally left to the
discretion of a competent defendant.  E.g., People v.
Samuel, 29 Cal. 3d 489, 495-496, 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 California 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. ___, ___
(1992) (slip op. 2) (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.



            SUPREME COURT OF THE UNITED STATES--------
                       No. 90-8370
                        --------
      TEOFILO MEDINA, Jr., PETITIONER v. CALIFORNIA
           on writ of certiorari to the supreme court of
                            california
                          [June 22, 1992]

       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 5-7.  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 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. ___,
___ (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 progres-
sive 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 10-14.  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).
       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 10, 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 inconclu-
sive examination will benefit the defense, not the prosecu-
tion.  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 potential-
ly 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 pre-
sumption of constitutionality that the historical toleration
of procedural variation creates.
   As the Court points out, ante, at 13-14, the other cases in
which we have placed the burden of proof on the govern-
ment 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 Govern-
ment 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 compe-
tence.



            SUPREME COURT OF THE UNITED STATES--------
                       No. 90-8370
                        --------
      TEOFILO MEDINA, Jr., PETITIONER v. CALIFORNIA
            on writ of certiorari to the supreme court
                           of california
                          [June 22, 1992]

       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 incompe-
tent.  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.

                                 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.  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 rudimen-
tary, 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. ___, ___
(1992) (slip op. 2) (Kennedy, J., concurring in the judg-
ment).  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 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.  (Emphasis added.)  Pate, 383 U. S., at 378.
 [T]he failure to observe procedures adequate to protect a
defendant's right not to be tried or convicted while incompe-
tent 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 from
trying and convicting 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, 362 U. S., at 403.  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 process 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 4-7.  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, an-
nouncing 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 7 (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 8.  This approach is
mistaken, because it severs two integrally related procedur-
al 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-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 govern-
ment'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  hard-
ship or oppression to the defendant in forming its alloca-
tion 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
constitutionality 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 farm land, 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 probabili-
ty of injustice to the accused.  Ibid.  Thus, the Court
concluded:  There can be no escape from hardship and
injustice, outweighing many times any procedural conve-
nience, 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 to  the operation of the challenged rule, and our
precedents.  Ante, at 8.  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 10.
       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 12.  It suggests as
well that defense counsel will have  the best-informed view
of the defendant's ability to assist in his defense.  Ibid.
Accordingly, 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 13.  While I am unable to agree with the Court's conclu-
sion, it is clear that the Court ends up engaging in a
balancing inquiry not meaningfully distinguishable from
that of the Mathews v. Eldridge test it earlier appears to
forswear.
       I am perplexed that the Court, while recognizing  the
careful balance that the Constitution strikes between
liberty and order, ante, at 5 (emphasis added), intimates
that the apparent  expertise of the States in criminal
procedure 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 7.  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 Colora-
do 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 13-14.  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.  Compare United States v. Alvarez-
Machain, ___ U.S. ___, ___ (1992) (slip op. 5-6) (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 non-
trial-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 inconclu-
sive unquestionably  undermine[s] the very foundation of
our system of justice"our citizens' confidence in it.
Georgia v. McCollum, ___ U.S. ___, ___ (1992) (slip op. 7).
        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 partici-
pate 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 12.
       The Court suggests that  defense counsel will often have
the best-informed view of the defendant's ability to partici-
pate 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 compe-
tency hearing.  Tr. Vol. 3, pp. 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 person-
nel.  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, recom-
mendations by mental health professionals exert tremen-
dous 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, 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-in-
formed, 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  best-
informed view of the defendant's competency, the lawyer's
view will likely have no outlet in, or effect on, the compe-
tency 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.  Tr. Vol. 1, pp. 1-5 (Witness List).
       Like many psychological inquiries, competency evalua-
tions 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 13 (quoting
Patterson, 432 U. S., at 208).  Yet surely the Due Process
Clause requires some conceivable steps be taken to elimi-
nate the risk of erroneous convictions.  I search in vain for
any guiding principle in the Court's analysis that deter-
mines 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
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 compe-
tency are not at all prohibitive.  The Court acknowledges
that several States already bear the burden, ante, at 9-10,
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 11.  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,
supra, the Court reversed on due process grounds the
conviction of a defendant subjected to the forcible adminis-
tration 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.  Slip
op. 9 (emphasis added).  See also id., at ___ (slip op. 3)
(Kennedy, J., concurring in the 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 14.  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.



