Academic journal article Journal of Criminal Law and Criminology

Rejecting the Clear and Convincing Evidence Standard for Proof of Incompetence

Academic journal article Journal of Criminal Law and Criminology

Rejecting the Clear and Convincing Evidence Standard for Proof of Incompetence

Article excerpt

Cooper v. Oklahoma, 116 S. Ct. 1373 (1996)


In Cooper v. Oklahoma,(1) the United States Supreme Court examined whether a state could require a defendant to prove his incompetence to stand trial by clear and convincing evidence.(2) Though the Court had already upheld one state statute that required a defendant to prove his incompetence by a "preponderance of the evidence,"(3) Cooper held that the heightened "clear and convincing evidence" standard was an impermissible violation of a defendant's fundamental right under the Due Process Clause not to be tried while incompetent because it greatly increased the potential for an erroneous decision.(4) The Court relied on a two-part argument, first looking at historical precedent and then examining whether Oklahoma's rule exhibited "fundamental fairness in practice."(5)

This Note argues that the Supreme Court was correct to strike down Oklahoma's heightened statutory requirement for proof of incompetence. By setting such a high standard, Oklahoma virtually guaranteed that its courts would convict many defendants who were more likely than not incompetent. This result would have been contrary to due process and had no rational justification.


Incompetency is a mental disability that impairs a defendant to the extent that he cannot grasp the nature of the charges against him nor assist counsel in his defense.(6) Because such an impairment could jeopardize a defendant's opportunity to receive a fair trial, the Supreme Court has long held that the trial and conviction of an incompetent competent defendant violates the Fourteenth Amendment Due Process Clause.(7)

There are several underlying rationales behind the Due Process Clause's prohibition of trying an incompetent defendant. First, it increases the accuracy and reliability of the trial since an incompetent defendant cannot, for example, adequately testify on his behalf.(8) The requirement also enhances fairness, since an incompetent defendant cannot make decisions regarding the course and nature of his defense.(9) In addition, it maintains the "dignity" of the trial, in that an incompetent defendant may behave in an offensive or inappropriate manner.(10) Finally, a competent defendant's comprehension of why he is being punished makes the punishment more just.(11)

The Court first laid out the modem two-part test for determining competency in Dusky v. United States(12) a defendant must have (1) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and (2) "a national as well as factual understanding of the proceedings against him."(13) Six years later, in Pate v. Robinson,(14) the Court gave a more formal definition of incompetency, emphasizing that state procedures must be sufficient to protect a defendant's fundamental constitutional right to a fair trial.(15)

Although Dusky established a two-part test for competence, the Court had not yet been entirely clear as to the evidentiary burden that defendants needed to meet to satisfy the test.(16) In the 1977 case of Patterson v. New York,(17) which dealt with raising an affirmative defense of extreme emotional disturbance, the Court discussed the evidentiary burden defendants must meet in order to prevail.(18) Justice White, writing for the majority, relied on Leland v. Oregon(19) and Rivera v. Delaware(20) for the proposition that the appropriate standard necessary to raise an affirmative defense of insanity was "a preponderance of evidence."(21) Because this case dealt with insanity, however, significant questions still existed as to the constitutionally required standard of proof for incompetence.

Two years later, the Court addressed the appropriate standards for competency in Addington v. Texas,(22) where the issue arose in the context of a civil proceeding for involuntary commitment to a mental hospital. …

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