464
Blackmun, J., dissenting
If anything, this distinction cuts against the Court's point of view. Deterrence of official misconduct during the investigatory stage of the criminal process has less to do with the fairness of the trial and an accurate determination of the defendant's guilt than does the defendant's ability to understand and participate in the trial itself. Accordingly, there is greater reason here to impose a trial-related cost upon the government—in the form of the burden of proof—to ensure the fairness and accuracy of the trial. Cf. United States v. Alvarez-Machain, 504 U. S. 655, 660 (1992) (official misconduct in the form of forcible kidnaping of defendant for trial does not violate defendant's due process rights at trial). Moreover, given the Court's consideration of nontrial-related interests, I wonder whether the Court owes any consideration to the public interest in the appearance of fairness in the criminal justice system. The trial of persons about whose competence the evidence is inconclusive unquestionably "undermine[s] the very foundation of our system of justice—our citizens' confidence in it." Georgia v. McCollum, ante, at 49.
"In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome." Speiser v. Randall, 357 U. S., at 525. To be sure, the requirement of a hearing (once there is a threshold doubt as to competency) and the provision for a psychiatric evaluation, see Ake v. Oklahoma, 470 U. S. 68, 81 (1985), do ensure at least some protection against the trial of incompetent persons. Yet in cases where the evidence is inconclusive, a defendant bearing the burden of proof of his own incompetency now will still be subjected to trial. In my view, this introduces a systematic and unacceptably high risk that persons will be tried and convicted who are unable to follow or participate in the proceedings determining their fate. I, therefore, cannot agree with the Court that "reasonable minds may differ as to the wisdom of placing the burden of proof" on likely incompetent defendants. Ante, at 450.
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